It is a settled rule of law (o), that an agent shall not be allowed to dispute the title of his principal. One who agrees to be responsible as agent for the plaintiff in respect of a sale with the auctioneers, is liable, although the plaintiff appoint the auctioneer (p). It is also a general rule, that an agent shall not be allowed to take an undue advantage of his principal through the medium of such agency, by standing in a double capacity (q). AMENDMENT. See Tit. VARIANCE; and see Append. Vol. II. 47. APOTHECARIES. An apothecary, by the stat. 55 Geo. 3, c. 194, s. 21, must, in an action for business done, prove either that he practised (r) as an apothecary prior to or on the first day of August 1815, or that he has duly obtained his certificate (s) from the master, wardens, and society of Apothecaries, unless he be a surgeon or assistant-surgeon within the stat. 6 Geo. 4, c. 133 (t). A diploma from a Scotch university does not exempt in England (u). In an action to recover penalties under the same Act, sec. 20 (v), where the question was, The (o) And therefore, where an agent has received money on behalf of his principal, he cannot afterwards be allowed to say that he received it for some other person. Dizon v. Hammond, 2 B. & A. 310. defendant in that case having effected an insurance for both Flowerden and Davidson, and having received the amount of a loss, it was held that he was bound to pay it over to the partnership, and could not pay it to Flowerden alone. In Farrington v. Clarke, 2 Chitty's C.T. M. 429, an agent had taken out letters of administration in India for his principal, who had obtained administration of the intestate's effects; and it was held that the agent could not refuse to pay over the assets to his principal, on the ground that others had obtained administration. Ib. See also Roberts v. Ogilby, 9 Price, 269. Gosling v. Birnie, 7 Bingh. 339; 5 M. & P. 160. Hawes v. Watson, 2 B. & C. 541. Stonard v. Dunkin, 2 Camp. 334. But see Sarby v. Wynne, and Ogle v. Atkinson, Vol. II. TROVER BY VEndee. (p) Cholmondely v. Payne, 8 C. & P. 482. And the plaintiffs receiving part of the proceeds from the auctioneer does not discharge the agent. Ib. (q) A., being in this country, applied to B. to advise him as to dealing in foreign funds, and by his advice transferred foreign securities from one to another. It appearing that the funds purchased were B.'s own, and the transfers merely dealing with his own stock, it was held that the transaction could not be supported, the dealer standing in a situation of advantage which an agent is not permitted to be in dealing with his principal. Brookman v. Rothschild, 3 Sim. 153; and affirmed in Dom. Pr. 1 Dow. & C. 188. A party employed to purchase an estate, becoming the pur VOL. II. chaser himself, is held in equity to be a trustee for his employer. Lees v. Nuttall 1 Russ. & M. 53. Where the defendant, having been employed by the plaintiff as broker, undertook (as he was bound to do under 6 Ann. c. 16, s. 4) to charge him only the cost price of the goods purchased, having violated his duty in every instance, the plaintiff is entitled to recover damages for such overcharges paid by him. Proctor v. Brain, 2 M. & P. 284. (r) Wogan v. Somerville, 7 Taunt. 401. It was there held that the house-apothiecary of an infirmary, who officiates in making up medicines for the patients, is a person practising within the statute. (s) Sherwin v. Smith, 1 Bingh. 204. It was there held that a certificate from the Court of Examiners was conclusive to show that the party had served an apprenticeship. It is sufficient to prove the signature of one of the examiners of the Apothecaries' Company, which the certificate purports to bear, with evidence that it was issued by the Court of Examiners. Walmesley v. Abbott, 3 B. & C. 218. By the 6 Geo. 4, c. 133, s. 7, the seal of the Apothecaries' Company is evidence of the certificate and qualification; but the seal must be proved. Chadwick v. Bunning, 2 C. & P. 106; 1 Ry. & M. 306. (t) See the Appendix. (u) Apothecaries' Company v. Collins, 4 B. & Ad. 604. (v) Apothecaries' Co. v. Roby, 5 B. & A. 940. It was there held, that upon an information against the defendant to recover penalties for practising against the statute, it was necessary to show in defence that the defendant was in practice on the first day of August 1815, and that it was not sufficient to show that he was in practice on a previous day. D8+ whether the defendant had practised as an apothecary previous to the 1st of August 1815, it was held, that the incapacity, proved on the defendant, to make up the prescriptions of physicians before that time, was cogent evidence to prove the negative (v); since the 5th section of the act describes it to be the duty of an apothecary to make up prescriptions for physicians. It has been held, that an apothecary who charges for attendance is not entitled to charge for the medicines which he finds, and vice versa (w). In a later case, a surgeon and apothecary was allowed to recover reasonable charges for attendance, besides his charges for medicines (x). APPLICATION OF PAYMENT. See PAYMENT. APPORTIONMENT. THERE can be no extinguishment, suspension or apportionment of rent contrary to the contract and agreement of the parties, but where the lessor enters wrongfully (y). But if the lessor take a part, then there shall be an apportionment (z); and the apportionment may be made by a jury (a) So if the lessee be evicted of part, and continue to hold the remainder (b). APPROPRIATION. See PAYMENT. THE brokers of B. sell goods in their possession to C., taking in payment a bill accepted by D. and retain the goods on C.'s account, with instructions to sell, if at a profit. Before the bill becomes due, D. becomes bankrupt; the brokers, of their own accord, apply to C. for security, who authorises them to sell the goods, and apply the proceeds in payment of the bill. Before they are sold, C. also becomes bankrupt; C.'s assignees cannot maintain trover against the brokers, or against B., for the goods which, after the order from C. to the brokers to sell and apply the proceeds, remained in the hands of the latter subject to that charge, although the brokers, in requiring such security, acted without instructions from B., he having by his conduct subsequently ratified their acts, and the brokers being entitled to act for their employers' benefit (c). The (v) The Apothecaries' Company v. Warburton, 3 B. & A. 40. It is not sufficient to show that he professed to cure, and practised in local complaints only; to entitle himself to sue he must have compounded medicines, and practised the general duties of an apothecary. Thompson v. Lewis, 1 M. & M. 255. A practising in the service of another is not sufficient. Brown v. Robinson, 1 C. & P. 264. A. bound himself apprentice to an apothecary, who resided eight miles from H. apothecary then took a house at H., in which A. resided, and attended several patients there, the apothecary coming over occasionally, and being consulted by the defendant about the patients; held that this was a practising by A. as an apothecary within the meaning of 55 Geo. 3, c. 194, s. 20. The Master, &c. of the Company of Apothecaries v. Greenwood, 2 B. & Ad. 708. If a person compounds medicines, &c. he is liable to penalties, although he cannot make up a physician's prescription. Apothecaries' Company v. Allen, 4 B. & Ad. 625. (w) Towne v. Gresley, 3 C. & P. 581. (x) Handey v. Henson, 4 C. & P. 110. See further BILL OF EXCHANGE -SURGEON. (y) Hodgson v. Thornborough, 2 Lev. 143. If A. lease to B., reserving 201. rent, and B. underlet part to C. without rent, and C. assign to A., yet A. shall have the whole 207. without apportionment. (z) Per Popham, in Smith v. Malings, Cro. Jac. 160; Litt. s. 222; Co. Litt. 148 (a). So if the lessor grant or devise part of the reversion to another. Co. Litt. 148 (a). (a) On nil debet pleaded in debt for rent. 1 Vent. 276; Com. Dig. SUSPENSION [E.]; Cro. Eliz. 771; Cro. Jac. 160. (b) Smith v. Malings, Cro. Jac. 160. Smith v. Raleigh, 3 Camp. 513. Stokes v. Cooper, Ib. 514, n. Dalston v. Reeve, Ld. Ray, 77. Clun's Case, 10 Rep. 128. Burn v. Phelps, 1 Starkie's C. 94. Tomlinson v. Day, 3 B. & B. 680. But the lessee may at his election, on eviction from part, abandon the whole. (c) Bailey v. Culverwell, 8 B. & C. 449 (and see Appendix). Here the act of the agent, ratified by the principal, had the effect of an order given by the APPROPRIATION OF PAYMENT. See PAYMENT. APPURTENANT (d). See TRESPASS. ARBITRATOR. See AWARD. ARREST. Ir must be proved that the arrest was by authority of the bailiff; but it is not necessary to show that he was actually present, or in sight, or within any precise distance (e). See tit. SHERIFF.-TRESPASS. ARSON. To establish this offence it is essential to prove, first, the act of setting fire to and burning; secondly, the house, &c.; thirdly, of the owner specified in the indictment; fourthly, with a felonious intent (ƒ). First. The act of setting fire to and burning.-To constitute arson at common law, there must be an actual burning of the house, or of some part of it (g). And the statutable description "set fire to," does not enlarge the common law offence in this respect (h). It is necessary to prove that some part of the house was burnt. Upon an indictment under the statute 9 G. 1, c. 22, for burning an out-house called a paper-mill, proof that a large quantity of paper drying in a loft of the mill had been set on fire, no part of the mill itself having been set on fire, was held to be insufficient (i). But it is not necessary to show that the whole was consumed (j). The act may consist in the prisoner's burning his own house, if he do it with intent to burn the house of another, which is in consequence burnt, or even with a felonious intent to defraud an insurer (k). Act of set ting fire to. Secondly. The house, &c.-Arson, at common law, is an offence against House. the habitation, and therefore the house must be proved to be a dwellinghouse (1). The offence at common law extends to the burning not only of the dwelling-house, but also of all out-houses which are parcel of the dwel principal, and accepted by the brokers. See Carvalho v. Burn. As to the appropriation of a cargo in the hands of an agent as a security for advances by a third person, see Fisher v. Miller, 1 Bingh. 150. A. directs B., his debtor, to pay C. his creditor, B. assents, and pledges himself to pay C., A. cannot revoke the order. Hodgson v. Anderson, 3 B. & C. 842. Before payment A. becomes a bankrupt. His assignees cannot recover, for C. is entitled in equity to an assignment of debt. Crowfoot v. Gurney, 9 Bing. 372. (d) Land cannot be appurtenant to land. Buzzard v. Capel, 8 B. & C. 141. (e) Blatch v. Archer, Cowp. 65. As to arrest within a privileged jurisdiction, see Spinks v. Spinks, 7 Taunt. 311. If a sheriff arrest a defendant on one writ, he is arrested as to all writs then in the sheriff's office. Per Bayley, J., Short v. Vansittart, York, 1821. See tit. TRESPASS. (f) See the allegations, Criminal Pleadings, 417. (g) 3 Inst. 66; 1 Hale, P. C. 568; VOL. II. East's P. C. 1020; 1 Haw. c. 39, s. 4; (h) This was so held under the stat. (i) R. v. Taylor, Leach's C. C. L. 58. (k) R. v. Probert, East's P. C. 1030; (1) See Criminal Pleadings, note (h). And see the late stat. supra, note (h). E Ownership. ling-house, although not adjoining to it, or under the same roof (m). In what cases an out-house is to be considered as part of the dwelling-house will be more fully considered in treating of the evidence in case of burglary. The burning of a barn, containing corn and hay, was felony at common law (n). A common gaol was held to be a house, under the stat. 9 Geo. 1, c. 22 (o). An indictment under that statute for burning an out-house, was sustained by proof of burning an out-house, although it was part of a dwelling-house (p); for it is still an out-house, and the statute did not alter the nature of the crime, but only excluded the principal more clearly from clergy (q). Thirdly. Ownership and possession.-The house is described either as the house of a particular person specified in the indictment, or under the stat. 7 & 8 Geo. 4, c. 30, is described to be in the possession of the prisoner, or of some other person. If it be described generally as the house of another, then, since arson is an offence immediately against the possession, the house must be proved to be in the possession of that person, suo jure (r). Hence if the house be alleged to be the house of another, and it appear that the prisoner was in possession of the house under a lease for years, it is not felony (s). So an indictment against a prisoner for burning his own house was bad (†) before the stat. 43 Geo. 3, c. 58 (u); but it is no defence that the prisoner resided in the house by sufferance, as a pauper, by permission of the overseers, without any interest of his own; for the possession in such case is in the overseers, by the occupation of the pauper (x). Where a widow, who was entitled to dower out of a house in the possession of a tenant, which had been mortgaged, her son, being entitled to the equity of redemption, procured another to burn the house, it was held that she was guilty as an accessory before the fact, since the possession was in the tenant on behalf of her son; and her title to dower, supposing the tenant's interest to be out of the case, did not give her even a right of entry (y). And it seems, that even if the prisoner had been entitled to the inheritance, and the tenant had been in possession, she would have been guilty of felony (z). As the offence is against the possession, it is essential to prove that person to be in possession who is alleged in the indictment to be the owner (a). In Glandfield's Case (b), the premises (which were out-houses) were alleged to be the mother's. It appeared in evidence that they were the property of Blanche Silk, widow, the mother, but that one part was occupied jointly by the mother and son, and the rest by the son alone, and the variance was held to be fatal. On an (m) 1 Hale, P. C. 567, 570; Summ. 86; 3 Inst. 67. 69; 1 Haw. c. 39, s. 1, 2; 4 Bl. Comm. 221. (n) East's P. C. 1020; and so (semble) (0) R. v. Donnoran, Leach's C. C. L. 81. (s) R. v. Holmes, Cro. Car. 376. W. in question he should have been of a different opiuion. (t) R. v. Spalding, East's P. C. 1025; 4 Bl. Comm. 222-3. Poulter's Case, 11 Co. 29. R. v. Scofield, Cald. 397. East's P. C. 1028. (u) Now repealed, and the stat. 7 & 8 G. 4, c. 30, is substituted; vide supra, 49. (x) R. v. Gower, East's P. C. 1027. Qu. whether in such a case the pauper could have committed a burglary in the house? (y) R. v. Ann Course, Foster, 113. (z) Ibid. (a) R. v. Breeme. Leach's C. C. L. 261. R. v. Spalding, Ib. 258; 11 Co. 29. R. v. Holmes, Cro. Car. 376. Rickman's Case, East's P. C. 1034. (b) East's P. C. 1034. indictment against the prisoner for burning his own house, with intent to burn the house of A. B. in one count, and of C. D. in another count, it appeared that A. B., the owner of the latter house, had let it to C. D. for ninety-nine years, who had let it to E. F. for one year, who had let it to G. H. for three months, and the variance was held to be fatal (c). intent. Fourthly. With a felonious, intent, &c.--An indictment at common law Felonious alleges that the prisoner did the act feloniously, wilfully, and maliciously (d). And although the words maliciously and wilfully were no part of the description of the offence under the stat. 9 Geo. 1, c. 22 (e), yet, in order to oust the offender of his clergy under that statute, it was held that it must appear that the act was wilful and malicious (f). If A. set fire to his own house, with intent to defraud the insurer, and the house of B., his neighbour, be burnt in consequence, and it was likely that this circumstance would happen, A. is guilty of arson, since the common law connects the primary felonious intention with the immediate consequence (g). So if A., intending to burn the house of B., set fire to the house of C., and burn it, this, for the same reason, would be evidence of a felonious intent to burn the house of C. (h), although the house of B. escaped by some accident. So if A. procure B. to burn the house of C. and he does it, and the fire extends to the house of D. and burns it, A. is accessory to burning the house of D. (i). But if it appear that the house of the prosecutor was burnt by the negligence of the prisoner, however gross, or by accident, or even by his committing an unlawful act, which does not amount to a felony, the burning will not amount to arson. As, where an unqualified person, shooting at game, sets fire to the thatch of a house; or where a person, is committing a trespass, by shooting at the poultry of another (k), provided he did not mean to steal them. Where the intent is laid to defraud the insurer, the books of the insurance company are not evidence without notice to produce the policy (1). Where the prisoner's goods, in a particular house, had been insured, and a memorandum had been indorsed on the policy, stating that the insured goods had been removed to another house, and the policy had been properly stamped, (c) R. v. Pedley, Cald. 218; Leach's C. C. L. 277; 1 Hale's P. C. 268; East's P. C. 1026. (d) See Criminal Plead. 417. (e) Now repealed; the words of the stat. 7 & 8 G. 4, c. 30, are, unlawfully and maliciously, and with intent to injure or defraud any person. (f) 1 Hale's P. C. 567. 569; 3 Inst. 67. Minton's Case, East's P. C. 1021. Ib. 1033. Criminal Pl. 419, n (0). (g) R. v. Isaac, East's P. C. 1031. The prisoner was indicted for a misdemeanor in setting fire to his own house, whereby the neighbouring and contiguous dwelling-houses of other persons were endangered; and upon its appearing, from the statement by counsel, that the act was done with intent to defraud the insurers, and that the adjoining houses were actually burnt, Buller, J. was of opinion that the misdemeanor was merged in the felony, and directed an acquittal. Note, that at that time the burning a man's own house with intent to defraud an insurer was but a misdemeanor; there was there The fore no primary felonious intent. (h) 1 Hale, 569; 3 Inst. 67; 1 Haw. (i) Plowden, 475; East's P. C. 1019. (1) R. v. Doran, cor. Kenyon, C. J. |