has not, in general, authority to sign for the principal, although it may be sufficient in particular cases where the principal has assented." LITTLEDALE, J. Would you say the signature as a witness was enough, if it appeared that the clerk had merely been called in to attest, without having heard any thing as to the contract?] In this case, the clerk must have been cognisant of the contents. But, again, the letter of Messrs. Browne is also a recognition of the contract. It is suggested that the plaintiff shall "relinquish his purchase;" the fact of the purchase is therefore recognised, independently of the clerk's signature.

Thesiger, contrà. The facts in Coles v. Trecothick, 9 Ves. 234, were very different from those in the present case. The *master of the clerk there told *506] the principal that he was in the habit of allowing the clerk, who signed, to transact business for him, and the principal acquiesced in his so doing. As to the ratification here, which is admitted to be necessary, part payment is insufficient under 29 Car. 2, c. 3, s. 4; under s. 17, it is made sufficient by express words. Here, too, the money is received, not by the principal, but by the attorneys. If that were a sufficient recognition, there never could be any difficulty or question as to the effect of the clerk's signature, for the clerk always does pay over the deposit to the auctioneer. Then, as to the letter of Messrs. Browne, a party cannot, under the Statute of Frauds, pray in aid parol evidence to explain the terms of a written contract, although parol evidence may be given to show the fact of a particular person having authority. In Boydell v. Drummond, 11 East, 142, a signature of a name was held to be inapplicable to a distinct written instrument, not referred to in the paper on which the name was signed; and it was said that the two could not be connected by parol evidence. Now here, without parol evidence, the letter cannot be connected with the property; and it is impossible to construe this letter into a recognition of the clerk's authority as agent; it is the letter of an agent only. [LITTLEDALE, J. Here are agents of two sorts, one the attorney, the other the auctioneer's clerk; the plaintiff proposes to set up the authority of one agent by the act of the other.]

Sir F. Pollock, in reply. The argument, that the receipt of money by the auctioneer, is insufficient, is *fallacious: for, according to that doctrine, *507] a receipt of money by the banker of the principal would be insufficient. The payment to Messrs. Browne was a payment to the defendant; the case states that it was paid to them "as agents for the defendant." In Boydell v. Drummond, 11 East, 142, the signed paper referred to nothing; in the letter of Messrs. Browne, both parties are named; it speaks of "this property as freehold," and the "purchase" and the "charges" of the plaintiff's attorney are referred to. There is no objection, in a case like the present, to connecting two written documents by parol evidence.

Lord DENMAN, C. J. In order to see whether the plaintiff be entitled to recover the sum which he now claims, it is necessary to ascertain whether he can resort to any agreement conformable to the fourth section of the Statute of Frauds. The words of that section are:-"Unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." It is quite evident that, here, no such writing was signed by the party, or any person previously authorized by him. But it is said that the subsequent acts on the part of the principal, amount to a recognition, and ratify the agency. Certainly it appears from Maclean v. Dunn, 4 Bing. 722, that a subsequent recognition is enough. The question is, whether there be here such a recognition. No doubt I should require the most

decisive authority to shew that such a signature as we have here could

*508] be binding, except in the *character of witness. Lord Eldon says, in Coles v. Trecothick, 9 Ves. 251:-"Where a party, or principal, or person to be bound, signs as what he cannot be, a witness, he cannot be understood to sign otherwise than as principal." But I think that remark open to much

observation. A witness might be drawn into transactions which he did not contemplate, and of which he was ignorant. That would be a great step to take; no such decision has been actually made; and, if it had, I should pause, unless I found it sanctioned by the very highest authority, before I held that a party attesting was bound by the instrument. Suppose, however, that a party could be bound by a signature in the character of a witness, is there here any proof of authority? With respect to the letter, it is quite possible that the parties writing it were totally ignorant of the particulars of the contract. They might know that there was some contract; but, if that were held to bind as a recognition of all the particulars of the actual contract, it would be letting in all the abuses which the statute was passed to prevent. And this letter is no ratification, but an abandonment.

[*509

LITTLEDALE, J. I am of the same opinion. The Attorney-General asks how the deposit could be recoverable, if there were no contract? There is a great distinction between the deposit and the expenses; the deposit gets into the hands of the defendant, or his agents, and the party receiving it does not apply it to the purpose for which it was paid. That is money had and received to the use of the party paying; and the agent, when he disclaims the applica tion, acknowledges it to be so received, and is bound to return it. But, in order *to recover the expenses, the plaintiff must shew that the defendant had entered into a valid contract, undertaking to make out a title. It is proposed to prove the agency, in the first place, by the signature of the clerk to the auctioneer. He gives a receipt for the auctioneer; the case states that the clerk had authority to give receipts, and he must be so authorized in the natural course of things. There is a sufficient signature to the acknowledgment of August 29th, so far as the purchaser is concerned. And then it is contended that the clerk, by signing this, though only as a witness, supplies, if he can be shewn to be an agent, the signature required by the act. I do not find this laid down by Lord Eldon. He does indeed say, in Coles v. Trecothick, 9 Ves. 251, "Where a party, or principal, or person to be bound, signs as what he cannot be, a witness, he cannot be understood to sign otherwise than as principal." But see what the signature was in that case: "Witness Evan Phillips for Mr. Smith, agent for the seller." That assumes quite a different appearance from the signature in the present case, where Newman simply'signs as witness. Such a signature does not fall within Lord Eldon's rule. Then it is said that the letter of Messrs. Browne is a ratification. What does it ratify? It cannot ratify Newman's signature as agent for the principal, for he did not sign as such agent at all. The letter of Messrs. Browne, inasmuch as it refers to the abstract, although requiring parol evidence, might possibly be enough, if it ratified the contract; but it is not a ratification, it is an abandonment. This does not prove that what had been before done was a satisfaction of the requisites of the Statute of Frauds.

*WILLIAMS, J. I am of the same opinion. The question is, whether this was a signature by an agent duly authorized. The Attorney-Gene[*510 ral argues, that the signature by the clerk as witness would be sufficient, on the supposition that he was cognizant of the contents. It does not appear from any thing on the face of the document, that he had such knowledge; and to let in parol proof of such knowledge, would be just the mischief which the statute was meant to obviate. The receipt of the money comes to nothing; it is merely the ordinary course of receiving money at a sale. Then the only remaining question is, as to Messrs. Browne's letter, but I cannot infer from the letter, that up to that time, every preceding step required by the Statute of Frauds had been complied with? It appears to me a great strain to say that the sig nature by another person's clerk is a signature by an unauthorized agent of the defendant, and that when he signs, not as agent, but as witness. Unless there be something to shew that he is termed a witness merely by a mistake, it cannot be said that he signed as agent.

Rule as follows:

"It is ordered that a verdict be entered for the plaintiff on the count" [not counts] "for money had and received, and money paid; and for the defendant on all the other counts."

On the taxation of costs, the master allowed the plaintiff the costs of the cause, to the extent of the finding and judgment in his favour, but no costs of the special case; and he allowed the defendant his costs on the special *511] and other counts, together with his costs of settling and arguing the

special case.

In Easter term, 1835, Carrington obtained a rule calling upon the defendant to shew cause why the Master should not tax the plaintiff's costs of and occasioned by the application to the Court to increase the verdict, and of preparing, settling, and arguing the special case; or why the Master should not disallow the costs of the special case which he had allowed to the defendant. In Michaelmas term following (November 21st),

W. Clarkson, shewed cause. The defendant is entitled to the costs of the special case. The rules of Hil. 4 W. 4, 5 B. & Ad. i. iv. x., are not applicable, because the declaration bore date before Easter term, 1834; but the rule of Hil. 2 W. 4, I. 74, 3 B. & Ad. 385, is sufficient. It directs that no costs shall be allowed on taxation to a plaintiff, upon any counts or issues upon which he has not succeeded; and that the costs of all issues found for the defendant shall be deducted from the plaintiff's costs. Here the defendant succeeded on the special case; and that is really an issue found in his favour. [COLERIDGE, J. Must not you then shew that the costs of the special case arise from issue found for you?] The plaintiff argues that it appears from the statement of the the special case that he obtained, at the trial, a verdict on the count for money *512] had and received only; (c) and that, by the decision of *the Court on the special case, he has also a verdict on the count for money paid: so that the plaintiff has succeeded as to a part of the question raised upon the special case. But the whole of the sum by which the plaintiff attempted, on the special case, to increase his verdict, and which was all he sought in arguing it, has been disallowed by the Court on the special case, to which the defendant was compelled to become a party: and the count for money paid must be considered to be entered merely for what the plaintiff had already obtained on the trial. Substantially, therefore, the decision on the special case is wholly in favour of the defendant.

Sir F. Pollock, and Carrington, contrà. The rule referred to, of Hil. 4 W. 4, mentions only issues and not a special case. The regular course has always been, that, if the plaintiff succeeded on any part of the special case, he was entitled to the costs of the whole. Here the plaintiff has succeeded as to a part; for he has the verdict on the count for money paid, which, but for the special case, he would not have had. In Garland v. Jekyll, 2 Bing. 330, S. C. 9 B. Moore, 620, the special case raised two points; one was withdrawn on the argument, the other was decided for the defendant; yet, though it did not appear that the plaintiff must have succeeded on the point withdrawn, he was allowed all the costs of the special case. Here the plaintiff has actually succeeded as to

a part.

PATTESON, J.(b) This rule must be discharged. The Master looks at the *513] special case, and sees what *points are raised by it. No one can doubt

that it related entirely to the two sums of 307. 11s. 2d. and 67. 19s. 8d. The question stated for the opinion of the court was [his lordship here read the question at the end of the special case, antè, p. 504.] It comes, then, to

(a) In fact, the minute on the panel was "verdict for the plaintiff, damages 857. 16s. 8d., costs 408.; for the defendant on the special count." But the decision of the Court proceeded on the supposition that the verdict, at the trial, was for the plaintiff on the count for money had and received only.

(6) Lord Denman, C. J., was absent.

this was the plaintiff entitled to recover the two sums of 307. 11s. 2d. and 67. 19s. 6d., or either of them, and if so, how? The discussion as to the rest was therefore excluded. The plaintiff, however, says that he has succeeded as to a part of the special case, because, on the argument, a matter, which was not in dispute on the special case, was incidentally disposed of. But the correction made in that matter was one which might have been made by the Judge who tried the cause. The plaintiff failed as to all for which he came here.

WILLIAMS, J. I am of the same opinion. The plaintiff lost all that was really the subject of the special case.

COLERIDGE, J. It is contended that the rules do not mention a special case. That is true; but neither do they mention witnesses, nor many other subjects of costs. The question, therefore, is, do the expenses of the special case form a part of the expenses of the issue? If so the party is as much entitled to costs upon it as to cost of witnesses. Rule discharged without costs.

*The KING against The Inhabitants of WRANGLE. Saturday,

January 17.

[*514

Appellants against an order of removal called a witness to give parol evidence of a hiring. On cross-examination, he stated that, at the time of the hiring, he and the servant went to the chief constable's clerk, who, in their presence and by their direction, entered the terms of the hiring in writing, but that neither party signed the entry. He did not state whether or not the writing was read over to them:

Held, that this was not sufficient proof of the contract having been put into writing to exclude parol evidence of the terms.

On appeal against an order of justices for the removal of Anne, the wife of Jonas Page, from the parish of Skirbeck to the parish of Wrangle, both in the Parts of Holland in the county of Lincoln, the sessions confirmed the order, subject to the opinion of this Court upon a special case. It appeared by the case that, the respondents having proved a primâ facie settlement, the appel lants endeavoured to establish a subsequent settlement in a third parish by a hiring and service of the said Jonas Page, (who had absconded;) to prove which case Charles Collins was called, and stated that he had hired Page for a year, at Leake Statutes, in 1822. In reply, however, to a question put by the respon dents, he stated that the agreement for the hiring was in writing. This he afterwards explained by stating that he and Page went together to Mr. Plant, the chief constable's clerk, who, in their presence and by their direction, entered the terms of the hiring into writing, but which was not signed by either Collins or Page. The writing was not produced at the trial, and no reason was given for its nonproduction. The respondents submitted that oral evidence of the hiring could not be received; and the Court, being of that opinion, confirmed the order of removal. The question now submitted was, whether or not the evidence was admissible.

: *Waddington, in support of the order of sessions. The evidence [*515 was properly rejected. [Lord DENMAN, C. J. How did the fact of a third person having taken a note of the agreement preclude the proof of it by oral evidence?] He was an agent of one or both of the parties. [Lord DENMAN, C. J. It is not stated that he made the minute for their use.] It appears from the cases on this subject, many of which are collected in 2 Stark. on Ev. 755, note, (q) (2d ed.,) that memorandums of this kind have been held not to exclude parol evidence, and (which would always be an accompaying circumstance) not to require stamping, where the writing amounted to a mere collateral statement, and was unsigned; Ramsbottom v. Tunbridge, 2 M. & S. 434, (otherwise, if it were signed on behalf of one party, Ramsbottom v. Mortley, 2 M. & S. 445;) or where such unsigned writing imported nothing more

than a proposal, which had not been acted upon; Doe dem. Bingham v. Cartwright, 3 B. & Ald. 326; Hawkins v. Warre, 3 B. & C. 690; or where an order given by a purchaser was written down by the vendor's servant to assist his own recollection, Dalinson v. Stark, 4 Esp. 163. But those cases all differ from the present. The last would perhaps have been otherwise decided, and would have resembled the present, if the agent had made the minute by the purchaser's direction. [LITTLEDALE, J. The constable's clerk here does not appear to have acted as an agent between the parties.] They went to him, and, he, in their presence and by their direction, entered the terms of the hiring in writing. They clearly had that done in order that the writing might be the evidence of their contract. The want of signature is *no objection, as *516] the case is not within the Statute of Frauds. [Lord DENMAN, C. J. We do not even know that the clerk took down what the parties said. WILLIAMS, J. If they had both read the writing, or he had read it to them the case would have been different.]

N. R. Clarke, and Collett, contrà. This was a mere collateral writing, and the cases cited are authorities against the respondents. In Ramsbottom v. Mortley, 2 M. & S. 445, the memorandum was held to require stamping, expressly because it was signed in behalf of one party. In Doe dem. Bingham v. Cartwright, 3 B. & Ald. 326, parol evidence was held admissible, though the memorandum had been read over to the defendant, and the terms assented to by him. (They were then stopped by the Court.)

Lord DENMAN, C. J., after stating the facts of the case, said-it appears to me that the evidence was admissible, because there was no proof by any one knowing the fact that the writing in question was drawn up as the agreement between the parties or was in fact so: nor was it afterwards recognized by them as their agreement.

LITTLEDALE, J. I am of the same opinion, on the short ground which has been stated.

WILLIAMS, J., concurred.

THE COURT, on the application of Waddington, allowed the case to go back. to the sessions.

*517]

*The KING against The Inhabitants of WICKHAM. Saturday, Jan. 17.

On appeal against an order of removal, where the respondents produce a deed of feoffment for the purpose of showing a settlement by estate in the appellant parish, but the lands are described in the deed as situate elsewhere, the respondents (not being parties to such deed) may give parol evidence to shew that the lands really were within the appellant parish.

ON appeal against an order for the removal of Thomas Thorn and his wife from the parish of Wickham to the parish of Boarhunt, both in the county of Southampton, the sessions quashed the order, subject to the opinion of the Court on the following case:

The respondents, in order to shew a derivative settlement, proved a purchase of land by Thomas Thorn, the pauper's father, and a conveyance thereof to him by the feoffment and livery in 1815. By the deed of feoffment, which the respondents gave in evidence, it was witnessed that, in consideration, &c., Daniel Moore did give, grant alien, enfeoff, and confirm unto the said Thomas Thorn, (the father,) his heirs and assigns, all that piece or parcel of land, being part of the hereditaments and premises awarded, by certain commissioners to the said Daniel Moore (as in the deed was before mentioned) situate and being between Lady's Pond and Pound's Farm, in the West Walk of the Forest of Bere in the parish of Southwick in the said county of Southampton,