1 LEUCKHART v. COOPER. Atcherley, Serjt., and W. H. Watson, contrà.-The situation of wharfingers Com. Pleas. and carriers differs from that of a warehouseman; because the former have a duty cast upon them to receive and carry goods. Therefore none of the cases which have been cited are applicable to the rights of warehouse-keepers. And in all the cases, where a right of lien has been given for a general balance, the question arose between the wharfinger and the owners of the goods. In Rushforth v. Hatfield (i), Lord Ellenborough, C. J., said that it was not for the convenience of the public that these liens should be extended further than they were already established by law. It is not alleged in the plea that Heilbron held himself out as being the owner of the goods; and therefore this is an attempt to establish the custom, although the warehouse-keeper may know that the goods belong to a third person. Nor had Heilbron any authority to make such a contract with the defendant. In George v. Clagett (j) the defendant supposed that the factor was the owner of the goods when he made the purchase. Wright v. Snell (k) is a direct authority to shew that a general lien is not sustainable by a carrier against the owner of the goods for a general balance due from the factor. In that case, Holroyd, J., observes, I am of opinion that the mere act of consigning goods to another, cannot give to a third person any right to retain the goods of the consignor until the payment of the debt of the consignee. It is clear that the mere possession of the factor does not give him a title to deal with the goods beyond the authority given to him he may sell, but he cannot pledge. Now, if he could not pledge these goods to the carrier, as a security for his debt by any subsequent agreement, how can he do it in this case, in consequence of any prior, express, or implied agreement? I am of opinion that he cannot, by any agreement, either express or implied from his course of dealing, subject the property of his consignor and employer to the payment of his own debts; nor can he authorize these defendants to retain the goods as a pledge and security for the money owing by him." : In Maanss v. Henderson (1), Lord Kenyon, C. J., said that if an agent disclose his principal at the time, it is clear that he cannot pledge the property of such principal to another with whom he is dealing for his own private debt. In another class of cases, it has been held that an usage for carriers to retain goods as a lien for a general balance, does not affect the consignor's right of stoppage in transitu. Oppenheim v. Russell (m). And such a custom, as is here claimed, would be in contravention of the Factors' Act, 6 G. 4, c. 94. Cur. adv. vult. TINDAL, C. J.-The jury having found a verdict in this case for the defendants, upon the issue raised upon the second plea, the plaintiff has moved for judgment non obstante veredicto. The question therefore is, whether the custom stated in that plea, is a custom that can be supported in law. The plea justified the retaining and holding of eleven bales of wool, parcel of the quantity claimed in the declaration, under an ancient custom, from time immemorial used in the trade of public warehouse-keepers in the city of London, for all such public warehouse-keepers to have and be entitled to a general lien upon goods from time to time housed or remaining in their warehouses, for and in all (*) 5 B. & Ald. 350. Com. Pleas. LEUCKHART T. COOPER. the name of the merchants or other persons by whom such public warehousekeepers are retained or employed, for all monies, or any balance thereof, due from such merchants or other persons to such public warehouse-keepers for or on account of advances or expenses which such public warehouse-keepers should have made or been put to, in, or about the paying of duties or of customs on goods consigned to them from abroad, or the payment of freight and other charges for the conveyance of such goods to the port of London, or the entering, landing, and warehousing such goods. So that the general lien claimed is not confined to goods the property of the person who employed or retained the warehouse-keeper, but extends to all goods which are put by him in his own name into the hands of the warehouse-keeper, whether his property or not. The custom set up in the plea, if supportable, would make the goods of a foreign merchant, which have been consigned to a London factor for sale, and by him put into the warehouse of the warehouse-keeper for safe custody, liable to a private debt of the factor, for expenses incurred in respect of other goods of third persons which had been in his hands at former times, for charges contracted upon such goods during any antecedent period of time, and that to an unlimited extent. It appears to us that such a custom is at once unreasonable and unjust, and therefore bad in law. It is a custom which is obviously prejudicial in a direct manner, and in a very high degree to foreign trade; for no foreign merchant would be content to consign his goods to this country for sale, if they could be made liable, whilst warehoused for the purpose of custody, to satisfy a debt already due from the factor to the warehousekeeper in respect of other goods. No authority whatever has been cited in support of this custom, and as far as any analogy can be drawn from decided cases, it is against its validity. sons. The case of Oppenheim v. Russell (n) establishes the principle, that, although a common carrier may have acquired, by usage or special agreement, a lien for a general balance of account between him and a consignee, this lien shall not affect the right of the consignor to stop in transitu: that is, in effect, that this right of general lien shall not operate upon or against the rights of third per And the doctrine laid down in Wright v. Snell (0) bears still more closely upon the point now under discussion, a general lien being held not sustainable by a carrier against the true owner of the goods, for the general balance due from the factor to whom the goods were consigned for sale. That case, in effect, decides the present; for no sound distinction can be taken in this respect between a public warehouse-keeper and a public carrier, except, indeed, that the latter stands in a position more favoured by the law, in respect to lien, than the former; the carrier being obliged by law to receive and carry the goods, whilst the warehouse-keeper's claim arises out of a voluntary contract. And the present case appears to us to differ from that of George v. Clagett (p), principally relied on by the defendants. In that case, the owner put his goods into the hands of his factor to sell as his own: the factor sold them as his own, and the defendant had no knowledge that the factor was not the real owner of the goods in such case, the set-off of the debt due from the factor to the purchaser, followed as a necessary consequence from the sale by him as of his own goods. : But, in this case, there was no sale by the factor: but the proposition contended for is, that the goods became, by the operation of the custom, pledged for the factor's debt, though the factor was not authorized by law so to pledge them directly. And although the factor may now, under some circumstances, pledge, the facts of the present case do not bring it within the operation of the statute, 6 G. 4, c. 94. It is unnecessary, as a further objection to the custom set up by this plea, to observe that it is pleaded so largely as to comprehend all goods put into the hands of a warehouse-keeper by a factor in his own name, whether or not the warehouse-keeper has knowledge or notice that they are not the property of the factor, but of the foreign merchants. But, without relying on this objection, we think the custom unreasonable, and therefore bad, upon the more general ground above stated; and therefore give our judgment for the plaintiff, non obstante veredicto. Judgment for the plaintiff. 155 (om. Pleas. LEUCKHART t. COOPER. RANSOM and another v. DUNDAS and another. TALFOURD, Serjt., obtained a rule nisi, in Michaelmas Term, calling upon the defendants to shew cause why the plaintiffs should not be at liberty to sign and enter up final judgment against the defendant for 46941. 15s. 7d., being the sum specified in the certificate of the Right Honorable James Abercrombie, the speaker of the House of Commons. The affidavits upon which the rule was obtained verified the speaker's certificate, which was to the following effect: "Whereas John Rickman, Esquire, clerk assistant of the House of Commons, and George Boone Roupell, Esquire, one of the masters of the High Court of ther the com mittee was appointed in the mode required by the statute; and if the appointment of the committee takes place under circumstances where the statute does not allow the appointment to be made, or in a manner contrary to or inconsistent with the essential requisites prescribed by the statute, there is no court at all, and the whole proceedings take place coram non judice. 2. Sec. 2 of the 9 Geo. 4, c. 22, directs that whenever a petition complaining of the undue election of a member of Parliament shall be presented, a day and hour shall be appointed for taking the same into consideration, and notice in writing shall be given by the speaker to all parties, and where the conduct of the returning officer is complained of, to the returning officer; and by sec. 36 it is enacted, that, in certain cases, the House shall determine whether the returning officer shall be allowed to strike in reducing the committee. A petition was presented against the return of the members, and it complained incidentally of misconduct and partiality in the returning officers :-Held, that the returning officers were not called upon, as original parties to the petition, to appear before the House; and that, even if they were held to be included within the petition, they had no power, under the statute, to interfere in striking the committee. 3. Where the returning officers appeared before the committee, but, in the report nothing was decided as to whether the charge against them was frivolous or vexatious, Held, that this omission did not avoid the whole report. 4. Sec. 5 of the statute directs that no proceedings shall be had upon any petition, unless the person or persons subscribing the same, or some one or more of them, shall personally enter into a recognizance, according to the form thereunto annexed, for the payment of all costs which shall become due to any witness summoned in behalf of the person or persons so subscribing such petition, or to any party who shall appear before the House, or any committee of the House, in opposition to such petition. A petition was presented, signed by three persons, one of whom entered into the recognizance, which was drawn in the form of the schedule, by which he undertook to pay all costs which should become due to any witness summoned on his behalf, or to any party who should appear before the House:-Held, that the recognizance was not open to any objection which affected it in substance or legal operation. 5. The certificate of the speaker is conclusive evidence as to the amount of the costs for which the verdict is to be entered up; and the Court has no power to try the propriety of the allowance, or the principle upon which it was conducted. RANSOM υ. DUNDAS. Com. Pleas. Chancery, who were duly authorized and directed by me, in pursuance of an act passed in the ninth year of the reign of his late Majesty King George the Fourth, intituled An Act to consolidate and amend the Laws relating to the trial of controverted Elections or Returns of Members to serve in Parliament,' to examine and tax the costs and expenses incurred by Robert Gill Ransom, Richard Crawley, and Henry Haken, the persons who signed a petition, complaining of an undue election and return for the borough of Ipswich, have reported to me the amount thereof. "I do hereby certify, that the costs and expenses allowed in the said report amount to the sum of 46941. 15s. 7d. And I do further certify, that Robert Adam Dundas and Fitz Roy Kelly, Esquires, whose opposition to the said petition was declared by the select committee appointed to try and determine the merits of the said petition, to be frivolous and vexatious, are liable to pay the same. Given under my hand the 27th day of October, 1835. "J. ABERCROMBIE, Speaker." (Signed) The affidavit of Mr. Gainsford, the plaintiffs' attorney, set forth, that, under a power of attorney from the plaintiffs, he had personally demanded the said sum of 46941. 15s. 7d. from the defendants, but that the sum had not been paid. The affidavit of David Thomas Harris stated, that writs of summons in an action of debt had been issued against the defendants; that they did not appear according to the exigency of the writs, and that appearances were thereupon entered in pursuance of the statute; and that, on the 20th of November, a declaration was filed against the defendants, of which they had received notice (a). In Easter Term, 1836, cause was shewed against this rule. (b) The following documents were referred to in the affidavits made on behalf of the defendants: On the 25th February, 1835, a petition was presented to the House of Commons by the plaintiffs, Robert Gill Ransom, Richard Crawley, and Henry Haken, The petition alleged that the plaintiffs were entitled to vote; and that Robert Adam (a) The declaration stated, that the defendants, on the 2nd day of November, 1835, were indebted to the plaintiffs under and by virtue of a certain act of Parliament made and passed in the sixth year of the reign of his late Majesty King George the Fourth, to consolidate and amend the the laws relating to the trial of controverted elections or returns of members to serve in Parliament, in the sum of 46941. 15s. 7d., for the costs and expenses incurred by the plaintiffs in prosecuting a certain petition of the said plaintiffs complaining of an undue election and return of the said defendants as burgesses to serve in Parliament for the borough of Ipswich, and which said sum was to be paid by the defendants to the plaintiffs on request; whereby, and by reason of the nonpayment thereof, and by virtue of the said act, an action hath accrued to the plaintiffs to demand and have of and from the defendants the said sum of 46941. 15s. 7d., to the plaintiffs damage of 10l., &c. And therefore, &c. (b) The rule nisi was as follows: "Upon reading a certificate under the hand of the Right Honourable James Abercrombie, the speaker of the House of Commons, dated the 27th day of October last; the affidavit of Francis Stratford, verifying the same; the affidavit of William Skeet, with a power of attorney thereto annexed, under the hands and seals of all the plaintiffs in this cause, and dated the 2nd day of November instant; the affidavit of Edward Barnevelt Elliot Gainsford, gentleman, and the affidavit of David Thomas Harris; and, upon hearing counsel for the plaintiffs, it is ordered, that the defendants, upon notice of this rule to be given to them or their attorney, shall shew cause to this court, on the fifth day of next Hilary Term, why the plaintiffs should not be at liberty to sign and enter up final judgment against the said defendants for the sum of 46941. 15s. 7d., the sum specified in the said certificate, pursuant to the statute 9 Geo. 4, c. 22, sec. 63. By the Court, &c. Dundas, Esq., and Fitz Roy Kelly, Esq., the defendants, and James Morrison, Esq., and Rigby Wason, Esq., were candidates to represent the borough of Ipswich at the then last election of members to serve in Parliament for that borough. That the bailiffs of the said borough are the returning officers, and that John Chevalier Cobbold and Henry Bristo were such bailiffs and returning officers at the said election. That divers persons were admitted to vote, and did vote, at the said election for the said defendants, who were not duly registered as electors to vote at the said election. That divers persons were admitted to vote, and did vote, at the said election for the said defendants or one of them, who had not, at the time they so voted, the same qualification for which their names had been originally inserted in the register of voters then in force for the said borough. That divers persons who were registered as electors for the said borough became disqualified to vote as electors at such election, subsequently to the period of the list of electors being revised and signed for the purpose of such registry, and previously to their so voting, by receiving alms or parish relief, or by not residing within the said borough, or within seven miles thereof or any part thereof, or by other legal or personal disqualifications and incapacities; and they and divers other persons who had no legal right to vote, were nevertheless admitted to vote, and did vote, at the said election for the said defendants, or one of them; that divers persons were admitted to vote, and did vote, at the said election for the said defendants, who were disabled or disqualified from or incapable of voting at the said election by reason of their having been, within twelve months previously to such election, concerned or employed in charging, collecting, levying, or managing duties of excise, customs, or other duties or revenues, or in some other office or employment. That divers persons were permitted to vote, and did vote, at the said election for the said defendants, who were, or had been, either during such election or within six calendar months previous to such election, or within fourteen days after it was completed, employed at such election as counsel, agent, attorney, poll-clerk, flagman, or in some other capacity for the purposes of such election, and had, either before, during, or after such election, accepted or taken from the said candidates, or some or one of them, or from some other person, for or in consideration of, or with reference to, such employment, a sum or sums of money, or a retaining fee, office, place, or employment, or a promise or security for a sum or sums of money, or a retaining fee, office, place, or employment. That divers persons were admitted to vote, and did vote, at the said election for the said defendants who had asked, received, and taken money, or other reward, by way of gift, loan, or other device, or had agreed or contracted for money, gift, office, employment, or other reward, to give their votes to the said defendants, or one of them, and to refuse or forbear to give their votes to the said James Morrison and Rigby Wason, or either of them; and divers persons were admitted to vote, and did vote, at the said election, who, by themselves, or persons employed by them, did, by gifts or rewards, or by promises, agreements, or securities for gifts or rewards, corrupt or procure, or attempt to corrupt or procure, persons to give their votes for the said defendants, or one of them, or to forbear to give their votes to the said James Morrison and Rigby Wason, or either of them. That all such persons who were so admitted to vote, and did vote, as aforesaid, and divers other persons who voted at the said Com. Pleas. RANSOM v. DUNDAS. |