On the part of the defendant, it was submitted that there was no evidence to go to the jury as against him.

The learned judge was of opinion that there was evidence for the jury, and he accordingly left the case to them, and they found for the plaintiff, damages 681.; and leave was reserved to the defendant to move to enter the verdict for him, if the court should be of opinion that there was no evidence which ought to have been submitted to the jury.

*413] Collier, Q. C., on a former day in this term, obtained *a rule nisi accordingly. He referred to Reed v. White, 5 Esp. N. P. C. 121, Griffiths v. Hicks, 15 Law Times 349, Myers v. Willis, 17 C. B. 77 (E. C. L. R. vol. 84), Brodie v. Howard, 17 C. B. 109, Hackwood v. Lyall, 17 C. B. 124, and Abbott on Shipping, 10th edit. 73.

Slade, Q. C., and Prideaux, now showed cause.-There was ample evidence to go to the jury that Whitwell, the ship's husband, had authority to bind the owners for necessaries supplied for the ship. Myers v. Willis, Brodie v. Howard, and Hackwood v. Lyall, have no bearing upon the present case. The register is not conclusive evidence of ownership; nor is ownership conclusive of the question of liability: the real question is, whether the debt has been contracted by one having authority to contract on the behalf of the owners.

Collier, Q. C., and W. R. Cole, were called upon to support the rule. -It is conceded that the defendant was neither the managing owner nor the person contracted with. The only ground upon which it is sought to make him liable, is, that the contract was made by one who was acting as his agent: but it is clear from the evidence that the plaintiff looked only to the managing owner or the brokers. Reed v. White, 1 Esp. N. P. C. 121, is very like this case. It was there held, that, if a person who supplies stores to a ship, of which there are several owners, takes in payment the bill of the ship's husband (a part owner) only, and settles with him alone, he discharges the other owners, particularly if the bill be renewed. In Rich v. Coe, Cowp. 636, it was held, that, though the master of a vessel be also lessee of it, by agreement with the owners, for a term of years, under covenants on their part, that he shall have the sole management of the ship, and employ her for his own *414] sole benefit, &c., and on his part that he *shall repair her at his own sole cost and charge, &c., the owners are still liable for necessaries furnished for the ship by order of the master, though without their knowledge, or without their being known to the persons who supplied them. Lord Mansfield, in giving judgment, there says: "Whoever supplies a ship with necessaries has a triple security,-1. The person of the master,-2. The specific ship,-3. The personal security of the owners, whether they know of the supply or not. ter is personally liable, as making the contract. The owners are liable in consequence of the master's act, because they choose him. They run the risk, and they say whom they will trust with the appointment and office of master. Suppose the owners in this case had delivered the value of the goods in question in specie to the master, with directions for him to pay it over to the creditors, and the master had embezzled the money, it would have been no concern of the creditors; for, they trust specifically to the ship, and generally to the owners. In this case, the defendants are the owners; and there happens to be a private agree

The mas

ment between them and the master, by which he is to have the sole conduct and management of the ship, and to keep her in repair, &c. But, how does that affect the creditors, who, it is expressly stated, were total strangers to the transaction? And that is an answer to the observation that the plaintiff must have known the real situation of the master in this case, from the general usage and custom of the country in that respect. To be sure, if it appeared that a tradesman had notice of such a contract, and, in consequence of it, gave credit to the captain individually as the responsible person, particular circumstances of that sort might afford a ground to say he meant to absolve the owners, and to look singly to the personal security of the master. But here it is stated that the plaintiff *had no notice whatever of the contract." [*415 Wherever credit is given to an agent, with knowledge that he is acting merely as agent, the party so dealing with the agent is precluded from afterwards having recourse to the principal: Paterson v. Gandasequi, 15 East 62: per Lord Tenterden, C. J., in Thomson v. Davenport, 9 B. & C. 78 (E. C. L. R. vol. 17), 4 M. & R. 110,-"If at the time of the sale the seller knows, not only that the person who is nominally dealing with him is not principal but agent, and also knows who the principal really is, and notwithstanding all that knowledge, chooses. to make the agent his debtor, dealing with him and him alone, then, according to the cases of Addison v. Gandassequi, 4 Taunt. 574, and Paterson v. Gandasequi, 15 East 62, the seller cannot afterwards, on the failure of the agent, turn round and charge the principal, having once made his election at the time when he had the power of choosing between the one and the other." That is precisely what the plaintiff has done here. He chose to give credit to the agent, taking bills upon. the brokers, and afterwards, on their failure, proving the debt against their estate. That was conclusive evidence of his election to treat with the brokers, to the prejudice of the owners, inasmuch as the earnings of the ship were thereby diverted from their legitimate application, viz., the purchase of supplies. If the plaintiff had intended to charge the owners, he ought not to have proved against the estate of Messrs. Perrin & Co.: Ex parte Field, in re Rogers, 3 Mont. D. & De Gex 95.

WILLIAMS, J.-I am of opinion that this rule should be discharged. There appears to have been evidence which put the point beyond all controversy, that the defendant received a share of the profits arising from the ship, and that he was fully aware that the person who gave the orders for the goods in question was the ship's *husband, and as [*416 such had the management of the ship. That clearly was evidence to be submitted to the jury. It is said there was conclusive evidence here that credit was given, not to the owners of the Eliza, but to Messrs. Perrin & Co. But I must confess I am utterly at a loss to see any evidence upon which the jury could with propriety have decided in favour of the defendant. But, even if there were any evidence, it was a question. for them; and I think they have come to a right conclusion.

WILLES, J.-I am entirely of the same opinion. The goods in question were ordered by the ship's husband, and were necessary for her use.. The defendant received his share of the profits earned by the ship: and there was abundant evidence to show that he authorized the ship's husband to do what was necessary to keep the ship in an efficient state. To entitle a person who has done repairs or furnished goods for a ship to VOL. IV.-17

sue the owners, it is not necessary that the credit should have been actually given to them. But here it is said that the ship's husband must be taken to be the only debtor, because bills on the brokers had been taken from him for the amount. The bills, however, were merely taken for the plaintiff's convenience, to put him in funds. The brokers failing to pay, the plaintiff clearly had a right to pursue his remedy against those who are legally liable, viz., the owners.

BYLES, J.-Since the case of Mitcheson v. Oliver, 5 Ellis & B. 419 (E. C. L. R. vol. 85), the law is restored to what it formerly was, viz., that the mere fact of a man being owner or part owner of a ship, or registered as owner, does not make him liable for work done or goods ordered for the ship: but, as Jervis, C. J., puts it in Brodie v. Howard, 17 C. B. 109, 117 (E. C. L. R. vol. 84), the question is, with whom was the contract? *Was the party giving the orders the agent of the *417] owners for that purpose? The mere fact of the goods being ordered by the captain or the ship's husband is no evidence to go to the jury. But here, not only was the defendant beneficially interested, but he knew that Whitwell the elder was acting as the ship's husband, and he received a share of profits. That clearly was evidence to go to the jury that the ship's husband had authority to contract on behalf of the owners.

CROWDER, J.-I am of the same opinion. I must confess I thought this an undefended cause. The goods were ordered from time to time by the ship's husband, and the account sent in to the ship's brokers, who divided the profits, of which the defendant, who was one of the part owners, received his share. It is said that the fact of the plaintiff having received bills from the brokers for part of the demand, was a conclusive election on his part to treat them as his debtors, and precluded him from afterwards having recourse to the owners. There is no foundation for that argument. The bills were taken for the plaintiff's convenience. The question for the jury was, whether the orders given by the ship's husband were given by the authority of the defendant. I think there was strong evidence to go to the jury that they Rule discharged.

were.

*418]

*EVERSFIELD v. JOHN NEWMAN and EDWARD NEWMAN. May 6.

It is not necessary that the grounds for issuing it should appear in a rule or order for a prohibition.

A. was found taking sand from premises in the occupation of B. (under a lease), and was given into custody by B. on a charge of stealing it. On appearing before a magistrate, A. denying that B. had any right to the land, the charge was dismissed as involving a question of title. A. afterwards sued B. in the county court for false imprisonment. A prohibition having issued under a judge's order,—the court set it aside, on the ground that no question of title could arise on the hearing.

On the 14th of December, 1857, a plaint was entered in the Shoreditch county court, at the suit of John Eversfield, against John Newman and Edward Newman, to recover damages for an alleged false imprisonment.

On the 13th of January, 1858, an order was made by Byles, J.,(a) for a writ of prohibition, to be directed to the judge of the county court, prohibiting the hearing of the said cause therein. This order was obtained upon an affidavit by Edward Newman, in which it was alleged, amongst other things, that, by an indenture of demise dated the 29th of August, 1854, made between Thomas Blumson of the one part and Edward Newman of the other part, Blumson demised to Edward Newman a piece of ground in Nova Scotia Gardens (describing it), to hold the same to Edward Newman, his executors, administrators, and assigns, for ninety-nine years from the 24th of June then last, at the yearly rent of 607. That deponent took the said lease for the purpose of using the said piece of ground as a place of deposit for road-dust collected by him in the course of his business as a dust-contractor, and also to enable him to sell the same to builders: That the deponent was informed by his son, the defendant John Newman, that the plaintiff was in the habit of entering upon the said piece of land and taking therefrom some of the road-dust: That the deponent caused the plaintiff to be warned, that, if he took the said road-dust from the said ground, he would be given into custody for stealing the same: That, the plaintiff persisting in taking the said road-dust from the said piece of ground, the defendant John Newman gave him into custody, and he was taken to the police-station: That the charge was heard before [*419

the magistrate at the Worship Street police court, when it was stated that the deponent had no right to the said piece of ground, and the magistrate dismissed the charge, on the ground that a question of title was involved in the matter, which had better be taken before a superior court: That the plaintiff had caused the said summons to be issued for the said imprisonment, and that the deponent was advised that a question as to his right and title to the said piece of ground would be probably raised, which the county court had no jurisdiction to try.

J. A. Foot, on a former day in this term, moved for a rule to show cause why the order of Byles, J., and the writ of prohibition issued in pursuance thereof, should not be set aside. The affidavit upon which the motion was founded, stated, that, on the 14th of December last, the plaintiff John Eversfield entered a plaint in the Shoreditch county court against John and Edward Newman for false imprisonment; that the hearing was appointed for the 18th of January, but, on the 13th, the defendant Edward Newman, upon an ex parte application to Byles, J., obtained an order for a writ of prohibition to issue, directed to the judge of the county court, prohibiting the hearing of the cause therein; that the circumstances which gave rise to the said plaint being entered were as follows,-On the 7th of October last, the plaintiff was employed by one Wilson to sift a quantity of sand, and, whilst so employed, he was given into custody by the defendant John Newman on a charge of stealing the sand, and, after remaining in custody a considerable time, he appeared before the magistrate at the police office, Worship Street, and was then ordered to be discharged; that the plaintiff did not claim title to the said land; that he was only a common labourer; [*420 and that he was advised and believed, that, if the action was allowed to proceed in the county court, no question of title to the said land, or any

(a) Pursuant to the 13 & 14 Vict. c. 61, s. 22.

part thereof, would arise, as the plaintiff merely sought to recover compensation for the false imprisonment as before mentioned.

The learned counsel referred to Bacon's Abridgment, Prohibition (K), pl. 16, where it is said, "In Mendyke v. Stint, 2 Mod. 271, these things were agreed by the court: 1. That, if any matter appears in the declaration which showeth that the cause of action did not arise infrà jurisdictionem, there a prohibition may be granted at any time: 2. If the subject-matter in the declaration be not proper for the judgment and determination of such court, there also a prohibition may be granted at any time: 3. If the defendant, who intended to plead to the jurisdiction, is prevented by any artifice, as by giving a short day, or by the attorney's refusing to plead it, &c., or if his plea be not accepted, or is overruled: in all these cases, a prohibition likewise will lie at any time." And also to In re Still v. Booth, 1 L. M. & P. 440, New County Court Cases 375, where Wightman, J., says, "Every writ of prohibition must show grounds on the face of it, when special grounds are stated on affidavit." He submitted that the application for the prohibition was premature, and that the order should have shown upon the face of it the ground for the prohibition.

CROWDER, J.-I am of opinion that it is not necessary that the order should state the grounds of the prohibition. It would be very inconvenient if it were so: it would be introducing a sort of special pleading, which would be productive of much mischief. Upon the other grounds, the rule, I think, may go, and also for a procedendo.

*421] *WILLES, J.-I entirely agree that the order need not have shown upon the face of it the grounds upon which it is issued. The reasons upon which the application is founded are never stated in a rule for a mandamus, or an order to arrest an absconding debtor under the 1 & 2 Vict. c. 110, or for an execution against a shareholder in a joint-stock bank under the 7 & 8 Vict. c. 110, s. 68; and yet, in all these cases, the special grounds must appear by affidavit. It would be introducing needless doubts and difficulties into the administration of the law to hold that the grounds for the prohibition must appear on the face of the order.

A rule having accordingly been granted to set aside the order and the writ of prohibition issued in pursuance thereof, and for a writ of procedendo to the judge of the county court commanding him to proceed with the plaint,

Beasley now showed cause.-He submitted, that, inasmuch as the affidavits disclosed a possibility of the title to the land coming in question, the jurisdiction of the county court was ousted.

Foot was not called upon.

CROWDER, J.-The rule must be made absolute. On no conceivable view of the matter could the title to the land come in question here. It appears that the plaintiff was in the habit of taking sand from off a piece of land in the occupation of the defendant Edward Newman, and that, being caught in the fact, he was given into custody upon a charge of stealing it. The charge was not of a trespass on the defendant's land, but of stealing his property. For this, the plaintiff has brought *422] an action for false imprisonment. I cannot see the remotest possibility of any question of title to the land being brought in question. The cause must be tried in the county court.