The British Press; or, Morning Literary Advertiser.
London, England, 1818-11-14 00:00:00

LAW INTELLIGENCE.

COURT OF CHANCERY, Kinsman',

FIUDAT, NOTANSUA 13.

V. LC&

Mr. HART requested that his Lordship wonlil al.
low Imo to mention this case. It was referred to
Master Cox to tuquire and report who ought to
bare the care and management of the infants; sod
the Mater reported, that they ought to he intrust.
rd to the protection of their grandmother, L•idy
CUIChIOOk, 81111 that r-pnrt was confirmed by his
Lordship's order of the 15th of August last, shortly
after which Lady Colebrook deported this life. An
application was then made to his Lordship to send
the report back to the Master, for him to again
consider who might to have the custody of the in-
fants. Mosier Cox at that time happened to be
out of town, and his Lordship sent it to Master
Courtesiay, bait he had not made any report.
What he (the Learned Counsel) had to ask of his
Lordship was, that he would now a id it to the for.
user Master, to iogoi►e and report who were the
proper p►rsons to have the custody of the infant,
and that his Lordship's Registrar might he directed
to draw up the order of the 15th of August.
The LORD CHANCRLLOR—" It can he of no
use to have the order of the lath of August drown
up now, for we are to suppose that Master Con
would not have reported as he did if Lady Cole-
brook was not olive."
Mr. HART—" Then let it be referred to Muter
Cos generally to inquire anti report who is or are
the proper person or persons". have the custody of
the infant•, and also to inquire and report whether
Mrs. Tootle, the mother of the infants, should be
allowed to see her daughters alone or otherwise."
The Lotto CHANCILLOR—" Let it be so."
Motion granted.

COURT OF RINCFS BENCH. Wellemserrett,
•
FRIDAY, Novelties 13.
t AMMO mid cO. O. coßitit sad co.
This was a case reserved for special argument.
The circumstances were these:—Messrs. Baring
intrusted to persons of the name of Coles, who
acted. it stems, both as ltrolstri and wereheutts. a
quantity of sugar, to sell on their account. On
the 27th of June, 1838. they sold the sugar to the
present Defendants, and delivered to the Plain-
tiffs what is technically termed • told note. 00
the same dry they delivered another note to Messrs.
Currie and Co. acknowledging the sale to them,
but not naming their principals. On the 3d of
July. the Plaintiffs received a delivery note, signed
by a person of the name of %Volker, for Baring
and Co. On the 11th of July. an invoice was de-
livered by Coles and Co. to the Plaintiff.. which
was headed. " Bought of Coles, brothers." They
got possession of the sugar—and, Coles becoming
embarrassed, application was made to the Davi•
dants to pay for the property. They refused, al-
leging, that they had not purchased from Cola
and Co. as broker, but as aterchaarr--and that
they had a get-offer certain bills of exchange. pay-
able by Cola and Co. in liquidation of *lnch they
had taken the sugar; not knowing that the Plain-
tiffs were the real owners. _ _

Mr. Sca%tare *bill day brguetl, that that
party, who had placed such confidence in soother,
as enah!ed him to impose on a third person, ought
to suffer. lit this case, he conceived Meters. Baring
had repoied an improper confidences in Coles uud
Co. end it wbuld be unjust that the party who hail
been deceived by means of that coofidence, should
be the loser. In support of this position (which
he laboured to apply to the facts), he cited several
seises—and quoted largely from the " Traetatms de
Prot-metes aiqtre Pfrozeorteeis" of Stoweha.
Mr. PULLEO was heard cooled. He denied that
his Learned Friend's position was a just one—and
argued, that. even if it were, it did not apply to
this case. Messes. Baring had not reposed an im.
proper confidence in Coles and Co.—but, on the
other hand, the Defendants certainly had. They
ought to brie looked into the state of Messre. Cole's
ntfatrs, as they were not ignorant of certain iadicia
that made such an inquiry necessary.
The CHIEF JUSTICE said, if the Defendants
could succeed in this case, the effect would be,
that the goods of one person might be applied to
discharge the debts of another. This was a torsi.
tion the Court would not lend itself to sustain, un-
less strong reasons, or strong authorities, were ad.
tensed in support of it. It appeared to his Lord-
ship that neither the one nor the other had been
laid clown on this occasion. The plea of the De-
fendants was, that where u loss must fall on one of
two innocent iiersons, it unght to devolve on him
who gave the confidence, by which that Jan was
occasioned. This principle was, however, by no
means one of universal application. Thor, if a
factor, intrusted 'with goods, pledged them, al.
though the iwrson receiving the goods. believed
them to belong to the person pledgmg, the real
owner might still recover them. If a master em-
ployed a servant to take a piece of plate to a silver-
smith, or a ;ferment to be mended, and the servant
sold it. not in market wort, but privately, the
master nosy recover against the buyer. And yet,
it was lw who gave the confidence, by intriosting
his servant. The principle, therefore, was not ge-
neral. Then came the question, had there been,
in this case, greater negligence un one side than on
the other? Or had there been any on the side of
the Delesidanta, or of the Plaintiff* alone? The
char.icter of Ales.n.. Coles were that of merchants
moil lookers. This fact was known to both parties.
Hut those who wished to deal with them as ?Her.
(hunts, and not as brokers, ought to have takes, care
to inform themselves how far they had • right to act
in that C4parily. A broker sod a factor, however
they might, for some purposes, be deemed the
were characters different in many respecht—not in
name ouly, hut in fact, as was very well known its the
mercantile world. The factor is • person to whom
';nods are lent fur sale, by some one residing abroad,
nyiving at a distance, who gives the agent leave to
seal in his own name. The initiation of the broker
is different. He is not lopsided with tile actual
Pc,szestano of the goods, and he has no right i" sell
in his own name. The person in buyesig e%pects
tin! broker to sell its the mine of the person by %limo
lie was employed. In all cases of factors, the pi.r-
son acting in that capacity
the goods sold, that no
was in absolute possession
f person could know

whether they belonged to him or nal—lint it was
itisown that he had the authority to tell in his own
name. This was the ordinary and usual course of
business. What was the ernifirtesice the Plaintiff.
renewed in Coles' and Co. ? It was no other thin
• every man must place in r broker, if lie em-
ployed one, lithe Defendants were successful, no
mail would hereafter employ a broker, because he
could lint know in what way he would discharge his
duty. lie Might. as Messrs. Coles did, in this isi-
• appriiie his employer that lie had ■old his
goods, without stating in what capacity. It was .aid,
that there were facts relating to other transactions,
known to the Plaintiffs which 'Mewed that a greater
confidence had been reposed in Messrs. Coles than
ought to have been placed in a broker. It was
stated, that, befure the time of selling the angers in
qiiertiois the Defendant' had dealt with Messrs.
Coles, in buying and selling. on their own account,
and that the Pleiiitifi's had authorised Messrs. Coles.
after the pale was completed, to receive the price of
the goods. Nnw the fact, as here stated, miry
amounted to this—that the Plaintiffs having em-
ployed Coles and Co. to sell those sugars. directed
them to receive the price of the goods sold, as bro-
kers. This merely went to sheer, that the Dea
fentlants were to pay to the agents of the Plaintiff,6
and not to persons acting as principals. This
particular trausaction added nothing to tie Defeo-
ca.e. Nuw, what ►night Messrs. Carrie have
done ? and what did they 't to do ? They knew
Colts and Co, were both brokers and merchants. II
they meant to deal with them in the chancier of
merchant, and meant to derive a benefit from their
transactions in that character, they ought to have in-
quired what authority they had to act as merchants,
in this transaction. They did no such thing. Coln
and Co. had given them the 'tame of the ship, the
Active, in which the goods were imported, which
afforded them ample medals of inquiry, if they chose
to make use of them—and, if the• did not, they
were guilty of an omission, which they ought not to
have left imattemled to. There was another cir-
cumstance in Olio case, wl►ich %hewed. that, at the
least, if the Defendants did not know. they were
deelnig with Coles and Co. as broker.. they cer-
tainly dill not choose to ask whether they were or
not. They had received a sale-uote from toles and
Co. but they had returned no document binding
themselves to fulfil the contract. Now lie did out
meals to may, that, every mercantile transaction. all
those who delivered a writing. binding on one party,
must demand a document equally binding on the
oilier.—He meant merely to state, that such was
the ordinary course of dealing in transactions of a
mercantile nature. If, at the time of making this
pnrchase. the Plaintiffs wished lA deal with
Messrs. Coley, as merchant', they ought to have
sacertained their right to set in that capacity.—
nn the other bad, they did nut then contemplate a
benefit to be derived from tratisseting business with
them, as Merchants, but that it war an afterthought
—it could give them no claim to have their situation
altered. His opinion of the great distinction be-
tween the situation of factor cod broker—and the
wide difference between the ease. cited at the bar
And the present—(.id►nittitlg the principle, that when
a loss must fall on one of two liniment persons. it
must devolve on him who had given confidetice)—
together with a view of the facts of the case itself—
led him to this conclusion, that the Defendants
must safer. _

NI,. Justice Bairt.EY concurred in this opiniOn.
This was an action brought by Messrs. Baring and
Co. to recover the price of their own goods—and
certainly they ought to be paid, unless the Defeo-
dints had paid the amount to some one else, properly
authorised, or that the demand could he properly
awl legally resisted. The Defendants. who were
the buyers, did nut purchase of the Plaintiffs, but
of Messrs. Coles aiid Co: on whom they had a con-
siderable demand. on Which account they con-
ceived they were entitled to resist the chains of the
real owners. The proprietor, it was said, was en-
tilled to receive the price of his property, unless,
by imprudent conduct of his own, he has enabled
some other person to appear as owner of the goods,
and by means of that appearance, to impose on a
third party, who sissy have hero guilty of want of
caution sod prudence, in not endeavouring to guard
against the &Celt. This would strictly apply to the
rule laid down by Mr. Scurlett, that where • loss
must fall on one of two innocent personi, it ought to
be visited on him who had given that contideoce,
which led to the fraud. The question wan, did Baring
and Co. give Nles.rs. Coles, the means of practising
a frond on the Defendants ?—did they practice a
fromd if.they did, was prudence Manifested
on the part of the Defendants to prevent that
fraud ? In his opinion, every one or these points must
he answered against Corrie and Co. The sold-note
delivered by Meters. Coles to Baring and Co. and
the no►e delivered to Collie and Co. were exactly
suited to their character of brokers—although ism
the latter they d►d lint name their principals. It
was the duty of the Plaintiffs to suspect that they
were selling in the character of brokers amid not of
tuerchauts ; because, had they been selling us
merchants. Coles •nd Co. would have expected,
on their part, a contract-note, binding the par.
chasers, which was not demanded. As it
stood. Coles and Co. were bound by the in.
strument delivered by them, but the pre-
sent Defendants were smut bound iii return. This
raised a strong presumption that Come and Co.
absolutely understood that Messrs. Colts were
only acting a. brokers. Messrs. Coles did not
say "These are our own goods," and the Defen-
dants did not think proper to ask the question.
With respect to the delivery note signed by
Walker fur Messrs. Baring, this situ►t have 'hewn
the Defendants, that, at one time or other Messrs.
Baring most have hail something to do with the
property—nod if they had a doubt on the subject,
they sh ook! have inquired. Mess... Baring had
put nothing whatever in the !mods of Coles and
C0....'1111 pryers. reo documents—that might ro-
uble them to impose oil the world. As to the
invoice, headed .1 bought of Coles, brothers,"
it certainly might have the effect of inducing
a belief that the purchsse was really from them.
But he apprehended it was not au tiowonnuon
soy for a broker to make out an invoice, when
acting as broker, provided he did not wish to
'lase the name of his principal discovered.
This, however, was after the sale ; and if Currie
and Co. chose to receive the invoice as a rea-
son for believing that Coles and Co. sold the goods
as their own, alter the previous trausactious iu the

ease, they did ii.i use due confirm nr prudence, tint
having inquired into those f inner procetiliogs,
Who, Arno,' hive led to elldp,t root iu their iii olio
The broker was hound in rote it, his hook a osionte
of each proceeding. which, if acting as a inerchastt.
lie need tint do. • If, therefore. Come Hod Co. hoed
asked to have that hook given to‘lieni, it wonlll at
once have proved whether Coles and Co. actlol as
brokers or :is merchants. This, however. not
done. As the facts appeared to him, Baring mid
Co. did not give Messrs. Coles the mems of im-
posing on the Defetidants—nritlor dal he believe
they were imposed on—but, if they aeie, it ryas in
contrquence of their Awn negligent-. .11 giving too
much credit to Coles and Co. When Coles blood
01 the equivoral situation of broker and merchant,
of the Defendants meant to boy the goods to cover
their debt, he thought, as men of common
honesty, they would inquired in what capacity
the sellers acted. It *until tie most disholiest
to purchase goods from Coles soil Co, As tSer-
chews. when. they were merely employed as
brokers. and then to throw the principal front them
to Messrs. Cotes, to seek for pigment. con-
ceived they bail not purchased. with • view to set
oft the bills of which they were holders togaiiist the
debt—mod, therefore, had no right subsequently to
resist the demand by that llfleatla. It appeared to
him that the law of the case went precisely with the
judgineut of the case—and that Baring and Co.
had • right to take into their pockets the price of
their own goods.
Mr. Justice noritoTis said, the 6efendants had no
right whatever to make such Is set-iitl. • With re-
spect to the doctrine laid down by Mr. Scarlet, it
was not generally applicable.
•a mitt
pledged the property of soother, intrusted to his
care, the owner might recover from the pledger.
IVhere goods were sold by a person, in whose care
they were left. except in markeiAnvert, the 'noise
wits liable. And, even when sold in mettket-overt,
the property did soot go out of the ()Wrier, if he pro-
secuted the fraudulent party. lit all awes of this
kind, the role was, rareut-emptur.
Verdict fur the Plaintiffs roar:tied.

COURT OF C9MINION PLEAS, Warnetstittit,
Novatatio. 13.

HART? e. OATES.
In this rase a rule had been previously applied
for and ri-4n.ed.
Mr. Serjeant VAUGHAN now renewed the 'Nib-
cation, stating, in support of it, that he had the
effidarit of a person to produce, who swore that a
Juryman hail communicated matter to him, after
the trial, sufficient to shew that the Jury had been
guilty of misconduct in finding their verdict.
The CHIEF JUSTICE replied, that it had been
lately decided in that Court, that no matter coming
from the Jury themselves, or a third person, if
ultimately derived from that source, and appearing
after the delive7 of the verdict, was of force to vet
aside the verdict.

The Court, therefore, continuid in its former
opinion.
Nothing else of any interest occurred the busi-
ness was disposed of, and the Court adjourned at
eleven o'clock.
COURT OF EXCHEQUF.R, Warman's',
Fasosv, Novnursa 13.