The Sun.
London, England, 1818-11-14 00:00:00

(FROM Tit E SAME PAPER.)

FfIF.P.TIASONRY —This most ancient Order has
received a dreadful stab to its advancement in
Spain, by King Ferdinand being allowed to use
II the powers of the Inquisilion by the Pope.—
We could, wish his Holiness were more liberal
to a Society founded purely on principles of
friendship and brotherly love. • Bit are we not,
when we come to look at home, as untrue to the
advancement of the Order ourselves, when we have
a large sum in pocket to build a Freemason Hall,
not a stone of which has been hid, or the
money refunded—" Call you this backing your
friends i"

BoND HoLna have mitch pleasure in
finding, that the Trustees appointed by the Cor-
poration On this subject, are conducting the bind-
'less entrusted to their care with great fidelity.—
A proposition, we understand, was moved, but
overruled, to pay the Corporation Officers.—
Now really this refusal was hard, as to many de-
serving individuals ; but the general principle
must be admitted as only fair, as men should be
just before they Are generons ; and, therefore, as
the first object of appointing Trnstees was to watch
over the property of the Bond Holders, they were
perfectly con ect in giving it precedence before
an±,, other subject. Jr is most,gratifying, then,
o know, that after borrowing six or eight thou-
sand pounds, the interest on the Bonds will be
paid forthwith at six per cent., and five per cent.
paid afterwards until a redundancy of revenue
comes round to enable the Corporation to pay the
difference. 'ibis, we understand, is the fact 35'11
now stands, and of which no .man in his senses
can be found to disappiove. We hope, therefore,
to hear no more of law-suits, which can only foil
the good intention of those who are otherwise
inclined to act fairly to all parties for the common
good of all.

LAW INTELLIGENCE.

COURT OF CHANCERY, Nor. 13,

CoLEBROOKE V. LEE.

Mr. HART, at the sitting of the Court, said, he
bad to request that his Lordship would direct the
order he made on the 15th of August last, to
be drawn up by the Registrar. The case had
been referred to Master Cox, to inquire and re-
port who was a fit guardian for the children un-
der present circumstances, and that Gentleman
had reported that Lady Colebrooke was a pro-
pel and fit person for the task. Meantime, how-
ever, the Lady died, and his Lordship again or-
dered that it should he referred to Mr. Cox to
appoint some person else in her place, but un-
fortunately at the time this reference took place
Mr. Cox was in the country, and therefore it came
before Mr. Courteusy. The Court could there-
fore, he conceived, have no objection to have the,
order drawn up, as it seemed to have been
omitted by the Registrar, whose immense busi-
ness was a most satisfactory apology for, the
Oversight.
The Loan CHANCELLOR said, lie was at' a loss
to see the purport of thin motion, tor Mr. Cox
would never have made the appointment had
Lady Colebrooke been dead..
• Mr. Helier admitted that, but said she had died
previous to the discussion on the Repot t. In the
order he now wiOied for, he particularly felt that
it would he proper-to add to it, that the Master to
Eshom the cause now stood referred should in-.
quire and report how far it might be proper for
the mother so see her daughters alone, or in the
company of others.
The LORD CIiANCELLOR said, the Registrar
had as' well draw up the order with this addition
to it, as that might be the most satistac_tory for
ail parties.
Mr. WALKER (the Registrar) .said, it should
lie done with as little delay ors could possibly take
place.
The other cases were of no public interest, and
his Lordship' rose at twenty minutes after three.
lie evidently laboured under much pain through
the day from a severe' attack of the gout.—
Thongh fully ready to give a number of judg-
Ments, he was unable to do so from the pain he
was under.

counT OF KING'S BENCH, Nov. 13.

BARING AND OTHERS V. COWRIE AND OTHERS.

This was an action for goods sold am! delivered.
At the trial before Lord Ellenhorough, in the sit-
tings after Michaelmas Term, 1811, a verdict was
tntind for the plaintiff, subject to the opinion of
the Court, upon a special case. Li-,st Term that
case was argued, but the Court considering the
question to be of so much importance, ordered a
second argument, and now the further argument
was entered into.

The leading circumstances of the case were
these :—Messrs. Baring and Co., merchants, hay.
ing a considerable quantity of sugar to dispose of,
employed their brokers, Messrs. Coles, ,brothers,
/o sell the same. The latter united with their cha-
racter of brokers that of merchants, and in each
carried on a very extensive business. Amongst
other persons with whom they had mercantile
transactions were Messrs. Corrie and Co., the de-
fendants, to whom they were considerably indebted.
Flaying these sugars to dispose of, Messrs. Coles,
brothers, sold them to the defendants, apparently
in the character of merchants, but certainly with-
out professing to act as brokers, and without dis-
closing the names of their principals. The sale
baying been completed, however, they gave an
order to the defendants upon the West India
Dock Company for the delivery of the sugars, in
which order the names of Messrs. Baring and
Co. were inserted, importing that they were
the owners. The defendants took no steps to
ascertain whether Messrs. Coles, brothers, sold
in the character of brokers or of merchants, and
under tl►is order they received the sugars. After
this transaction, Messrs. Coles, brothers, became
bankrupts, and the plaintiffs discovering how the
sugars had been disposed of, brought. their action

against the defendants to recover the amount, in 1
consequence of their refusal to pay it. At
the trial the defendants resisted the action,
upon the ground that Messrs. Coles, bro-
thers, were indebted- to them for more than
the value of the sugars, contending that they
had a right to set off against the plaintiff's de-
mand the debt due to them from Messrs. Coles,
brothers, relying upon the case of George •v.
Claggett, 7T. R. 539, where it was held, that
if a factor who sells under a del credere commis-.
sion, sell goods as his own, and the buyer know
nothing of the principal, the htiFer tray set off
any demand he may have on the factor against
the demand for the, goodsnmade by the principal.
The Court held that the defence was not avail-
able, and the plaintiffs had a verdict, subject to
the opinion of this Court, ußon the question,
whether, under the circumstances above stated,
the plaintiffs were entitled to recover ?
The case was now very ably argued at consi-
derable length by Mr. Puller for the plaintiffs,
and Mr. Scarlett for the defendants ; and the case
resolved itself, by the admission on both sides,
into this principle—that, where the loss must tall
upon one of two innocent persons, it shall fall
upon him who is less innocent. A great deal of
learning was evinced on both sides, in distin-
guishing between the characters of a factor and a
broker, and all the cases bearing upon this ques-
tion were reviewed with considerable acuteness
and ability.
The plaintiffs' Counsel distinguished this case
from that of George v. Claggett, by the circum-
stance, that there the buyer knew nothing of the
principal, whereas here, the delivery order dis-
closed the names of the plaintiffs, as having some-
thing to do at least with the goods, whereby a
necessity was imposed upon the defendants to
make further inquiries into the subject. The
question, it was admitted, certainly was, whether
the negligence on the part at the defendants was
greater than the !aches on the part of the plain-
tiffs ? if the Court should be of opinion that the
defendants were less innocent in this respect than
the plaintiffs, the latter would be clearly entitled
to recover.

The COURT delivered their opinion seriatim.

The CHIEF JUSTICE said, that if the defendant
could succeed in this case, the necessary conse-
quence would be, that the goods of one merchant
might be applied to the discharge of the goods of
another, through the medium of a third person.
It did not appear that there was any strong rea-
son or authority applicable to- this case, which
could induce the Court to sanction this position.
Undoubtedly, the principle, that where the losi
must fall upon one of two innocent persons, it
should fall upon bins who was less innocent, was.
the test of this case, and very naturally applied•to
the circumstances stated. If the negligence of
the defendants was greater than that of the plain-
tiffs, the latter would be entitled to recover upon
this principle. It was a well-established rule of
law, applicable to this class of cases, that if a fac-
tor is entrusted by his principal with the posses-
sion 'of goods, and pledges them, although the
person who takes them be ignorant of the fact
that they are not the goods of the 'factor, the
principal may recover them, back. If a master
employs a setvant or any other person, to dis-
pose of a piece of plate, according to his own
occasions, and the servant should sell it on his
own account, the master might, 'recover baCk his
property. The question in, this case was, whe-
ther there had been greater negligence on the one
side than on the other. What wet e the circum-
stances of the case ? The fact was known to ..both
parties, that Messrs. Coles, brothers, were acting
in the double capacity of merchants and brokers,
but the point for consideration was, whether the
defendants, with the knowledge of this circum,
stance, were less cautious than the plaintiffs.
The distinction between a factor and
.a broker,
however they might for some purposes be the
Fame, was
.very great in many particulars. ,A
factor was generally a person to whom goods were
consigned for sale by a merchant residing abroad,
and by virtue of his authority, sold the goods in
his own name, without disclosing the• name of
the principal. The situation of the broker was
very different. The broker was not entrusted
with the actual possession of the goods, nor had
he a right to sell in his .own name. These were
the principal distinctions between the two charac:
ters. In this case the goods were entrusted to
Messrs. Coles, brothers, to dispose of in their
character of brokers, and they had no the actual
possession. It was true that they also appeared to
the world in the-character of merchants, but it
would be 'a very great restraint upon mercantile
transactions, if a broker, who was also a merchant,
could defeat the rights of the person who ens:-
ployod him in the character of broker, by involv-
ing himself in the inconsistent "reSponsibilities of
a merchant. It was urged in-this- cast,. as,a cir-
cumstance against the plaintiff's right to recover,
that they were in the habit of permitting Messrs.
Coles, brothers, to receive the proceeds of goods
entrusted to them for Sale; but this circumstance
did not at. all alter the case, when in fact it ap-
peared that Messrs, COles, brothers, were em-
ployed solely in the character of brokers. As this
was a question to .be
.determined solely by the
preponderance of innocence on one side or on the
other, it became necessary.to inquire what
,was
the duty of the defendants under the circum-
stances, in which (as they knew) Messrs. Cole's,
brothers, were placed. Knowing that those per-
sons were acting in the double characters. of
brokers and merchants, it was their duty to have
informed themselves, or at least to' have endea-
voured to inform themselves, in what character
Messrs. Coles, brothers, acted with respect to the
goods in question. This they had not done, Ill-
though they had competent means of so doing.—
They. had been informed of the name of the vessel
in which the sugars had arrived, and they knew
by the delivery order that Messrs. Baring and
Co. had at least something to do with the pro-
perty. They had, however,• not. availed them-
selves of these means of knowledge, which. they
ought to have used, before they could justify
themselves in defending this action of a set-off
against the broker. • His Lordship would not say.
that the defendants actually knew Messrs. Baring
and Co. to be the owners of the sugars, but cer-
tainly they had abstained from inquiring into a
fact, with reapuctito. which they had been Os-

sensed of competent means of inquiry. ‘,"- wst
ink;, therefore, that the set-off in this case see
merely an after-thought, the Court could nhaitir,
any reason for putting the defendants in a we. •
situation than the more innocent plaintiff'' diqo
Mr. Justice BAYLEY and Mr. Justice 11°%,iif
entirely concurred in the opinion of 'thahiffs.
Justice, and judgment was given for the 007