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RAY'S COUNTRY SOLICITOR'S PRACTICE IN
CHANCERY. The Fifth Edition. By D. G. BEGG, Esq.
E. Lumley, 126, High Holborn, and all Law Booksellers."

JOINT-STOCK COMPANIES ACT, 1856.
(With exclusive authority of the Registrar).

FREEHOLD LAND. WANTED, to RENT or PUR-
CHASE, from One to Ten Acres, in any of the following localities FORMS for REGISTRATION and INCORPORATION

-Islington, Highbury, Holloway, Dalston, Kingsland, Stoke Newington,
Camden-town, Kentish-town, St. Pancras. Haverstock-hill, Paddington,
Bayswater, or Kensington. Apply, with full particulars, to Mr. George
Clarkson, 48, Penton-street, Pentonville.

SERJEANTS'-INN.-Offices or Chambers.-A SET of
THREE capital ROOMS, suitable either for offices or professional
residences, to be LET at a moderate rent. Apply to the housekeeper,
on the premises, 4, Serjeants'-inn, Fleet-street, next the Temple.

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DAVIDSON'S PRECEDENTS in CONVEYANCING.
tion. Vol. 1, royal Svo. Price 17. 84. cloth.
TAYLOR'S (J. PITT) LAW of EVIDENCE. Second Edition. 2 vols.
roval 8vo. Price 27. 16s. cloth.
SMITH'S LEADING CASES.

Fourth Edition. By Mr. Justice

WILLES and H. S. KEATING, Esq. 2 vols. royal Svo. Price 21. 188.
cloth.

SMITH'S LAW of LANDLORD and TENANT. By F. P. MAUDE,
Esq. 8vo. Price 14s. cloth.

SHELFORD'S BANKRUPT LAW. Second Edition. 12mo. Price
1. cloth.

SHELFORD'S INSOLVENT LAW. 12mo. Price 12s. cloth.
FRANCIS'S COMMON-LAW PROCEDURE ACTS, 1852 and 1854.
12mo. Price 10s. 6d. cloth.

BAKER'S LAW of BURIALS. 12mo. Price 5s. cloth.
WILLS'S VESTRYMAN'S GUIDE. 12mo. Price is. 6d. boards.
PRIDEAUX'S LAW of JUDGMENTS. Fourth Edition.
Price 7s. 6d. cloth.

12mo.

RAWLINSON'S CORPORATION ACTS. Third Edition. By W.
N. WELSBY, Esq. 12mo. Price 17. Is. cloth.

W.Maxwell. 32, Bell-yard, Lincoln's-inn.

FISHER'S LAW OF MORTGAGE AND PRIORITY.
Just published. Svo., 25s. cloth,

of J. S. COMPANIES. Draft Articles of Association for Professional Use, &c.

Published by CHARLES and ALFRED DOUBBLE, Registration Agents, Law and Public Companies' Stationers, &c.-Offices, 14 and 15, Serjeants'-inn, Fleet-street, London.

Professional Inquiries answered. Lists of Forms and Books, post free, Common Seals, &c. supplied. on request. Statutory Registers, Account Books, Share Certificates,

CHANCERY FORMS.-Prepared and sold by

JAMES SULLIVAN, 22, CHANCERY LANE.
AFFIDAVIT.

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THE LAW of MORTGAGE as APPLIED to the RE- Cause List

DEMPTION. FORECLOSURE, and SALE in EQUITY of IN-
CUMBERED PROPERTY: with the Law of the Priority of Incum-
brancers. By WILLIAM RICHARD FISHER, of Lincoln's-inn, Esq.,
Barrister at Law.

London: Butterworths, 7, Fleet-street, her Majesty's Law Publishers.
WILLIAMS'S PRINCIPLES OF PLEADING.
Just published, Svo., 12s. cloth,

AN INTRODUCTION to the PRINCIPLES and PRAC

TICE of PLEADING in the SUPERIOR COURTS of LAW,
embracing an Outline of the whole Proceedings in an Action at Law,
and also on Motion at Judge's Chambers; together with the Rules of
Pleading, and Forms of all the Principal Proceedings. By WATKIN
WILLIAMS, Esq., of the Inner Temple, Barrister at Law.
London: Butterworths, 7, Fleet-street, her Majesty's Law Publishers.

STEPHEN'S BLACKSTONE.-FOURTH EDITION.
Preparing for immediate publication, in 4 vols. Svo.,

Distringas on Stock, Notice and
Affidavit

Executors' Account Sheets

Fi. Fa. for Payment of Money
Fi. Fa. for Payment of Costs
Habeas Corpus
Injunction and Copy
Lunacy Warrant
Ne Exeat Regno

Notice to attend Examiner
Ditto to Settle Minutes

Ditto of having Filed Answer
Ditto to Move for Decree

Ditto to Pay in Purchase Money
Ditto of Dividend payable.

PETITION AND ORDER.
To Amend Bill

NEW COMMENTARIES on the LAWS of ENGLAND. To Assign Guardian

Partly founded on Blackstone. By HENRY JOHN STEPHEN, Serjeant at Law. The Fourth Edition, prepared for the Press by the learned Author in conjunction with JAMES STEPHEN, Barrister at Law, of the Middle Temple, and Professor of English Law at King's College, in the University of London.

London: Butterworths, 7. Fleet-street, her Majesty's Law Publishers.
OMAN LAW and LEGAL EDUCATION.
By H. J.

R

S. MAIRE, LL.D., late Queen's Professor of Civil Law, Cambridge. See Cambridge Essays, 1856. Octavo, 7s. 6d.

MAR

London: John W. Parker & Son. West Strand.
Just out, price five shillings,

ARKHAM'S COMMON-LAW PROCEDURE ACTS; containing Abstracts of all the Decisions to the present day; Forms of the New Writs of Mandamus and Injunction, Interrogatories, Precedents, other Forms, copious Information, Table of Cases, the Regulæ Generales and Pleading Rules, Table of Fees, Costs, &c. By THOMAS HUGH MARKHAM, Esq., M. A., Barrister at Law, of the Inner Temple.

Wildy & Sons, Lincoln's-inn-archway. No. 101, VOL. II., NEW SERIES.

To be at Liberty to Attend
To Change Solicitor

To Confirm Report of Purchase
To Confirm General Report

To Confirm Report Absolute
Defendant to file Answer without
Oath

For Delivery of Bill and Papers,

and to Tax

To Discharge Lis Pendens

To Dismiss Bill

To Enter Nunc pro Tunc
As to Personal Estate

By Plaintiff to take Answer with-
out Oath

To Prove Documents
To Refer Exceptions

To Remove Distringas on Stock
To Sue in Formâ Pauperis

PETITION AND ORDER (continued).

To Set Down Cause for Further
Directions

To Set Down Demurrer

To Tax Bill and Stay Proceedings

To Tax Solicitor's own Bill

To Tax a Conveyancing Bill
To Tax and Prevent Proceedings.

Practice Cases, 18.

Receiver's Recognisance and Ac-
count Sheets

Register of Lis Pendens and Copy
Replication and Notice
Request to furnish Copies.

SUMMONS AND ORDER.

To Amend Bill or Claim, and Order
thereon

For Administration of an Estate
For Stop Order

To Bring in Accounts

By Chief Clerk for Examination at
Chambers

To Produce Documents on Oath
For Defendant to Produce Docu-
ments

For Plaintiff to Produce Documents
To Inspect

To Enlarge Time for closing Evi-
dence

To Enlarge Time to File Affidavits
To File Voluntary Answer
To File Interrogatories

For further Time to Answer

To Proceed with Accounts and
Inquiries

By Purchaser for Payment of Pur-
chase Money

For Maintenance

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SOLD BY J. SULLIVAN, 22, CHANCERY LANE.

GAZETTES.-FRIDAY, Dec. 5.

-Pet. f. Dec. 2.

BANKRUPTS.

street.-Pet. f. Dec. 3.

EPHRAIM FAIRHEAD, Cressing, near Braintree, Essex,
cattle dealer, Dec. 16 and Jan. 15 at 1, London: Off. Ass.
Johnson; Sol. Howard, 9, Quality-court, Chancery-lane.
JAMES SMITH, Egham Hythe, Egham, Surrey, cattle
dealer, Dec. 18 at 11, and Jan. 22 at 12, London: Off. Ass.
Bell; Sols. Messrs. Hilleary, London-street, Fenchurch-
HENRY GEORGE DEARLOVE, Palace-row, New-road,
timber merchant, Dec. 17 at 12, and Jan. 26 at 11, Lon-
don: Off. Ass. Nicholson; Sol. Abrahams, 23, Southamp-
ton-buildings, Chancery-lane.-Pet. f. Nov. 26.
DANIEL GREENAWAY PORTER, Brabant-court, Phil-
pot-lane, London, wine merchant, Dec. 12 at half-past
1, and Jan. 17 at 11, London: Off. Ass. Pennell; Sol.
Marshall, 3, Sion College-gardens, London-wall.-Pet. f.
Nov. 26.
JOHN BARFOOT, North Stoneham, Hampshire, cattle
salesman, Dec. 19 at 2, and Jan. 20 at 1, London: Off.
Ass. Edwards; Sols. Rawlins, Wimbourne, Dorsetshire;
Lovell & Co., 14, South-square, Gray's-inn.-Pet. f.
CHARLES BROWN, Oxford-street, milliner, Dec. 19 and
Jan. 20 at 1, London: Off. Ass. Lee; Sol. Shephard, 9,

Dec. 2.

Sise-lane.-Pet. f. Nov. 21.

Dec. 4.

ABRAHAM CORONEL, Minories, cigar manufacturer,
Dec. 19 at 12, and Jan. 20 at 2, London: Off. Ass.
Lee; Sol. Abrahams, 23, Southampton-buildings.-Pet. f.
WILLIAM OVERTON, Leamington Priors, Warwickshire,
builder, Dec. 17 and Jan. 14 at half-past 10, Birmingham:
Off. Ass. Bittleston; Sols. Poole & Son, Kenilworth;
Hodgson & Allen, Birmingham.-Pet. f. Nov. 29.
HENRY EVANS, Wednesbury, Staffordshire, grocer, Dec.
18 and Jan. 8 at 10, Birmingham: Off. Ass. Whitmore;
Sols. Sheldon, Wednesbury; Knight, Birmingham.-Pet.
THOMAS FIRMSTON, Shrewsbury, builder, Dec. 18 and
Jan. 8 at 10, Birmingham: Off. Ass. Whitmore; Sols.
Cooper & Broaghall, Shrewsbury; James, Birmingham.-

f. Dec. 4.

Pet. f. Dec. 4.

BENJAMIN LINFOOT,

Mansfield, Nottinghamshire,
builder, Dec. 30 and Jan. 6 at half-past 10, Nottingham:
Off. Ass. Harris; Sol. Deverill, Nottingham.-Pet. d.
Nov. 20.

JOHN VAYRO, Ripon, Yorkshire, linendraper, Dec. 22 and
Jan. 19 at 11, Leeds: Off. Ass. Hope; Sols. Blackburn,
Leeds; Jones, Sise-lane.-Pet. d. Nov. 24.

Shaftesbury-terrace, Pimlico; Regent-circus, Piccadilly; Holborn; Bridge-road, Westminster-bridge; and Stone's-end, Southwark, Dec. 19 at 11, London, aud. ac.-Louis Ensoll, Great Titchfield-street, draper, Dec. 17 at 12, London, aud. ac.-Wm. Friday, Rochester, Kent, miller, Dec. 18 at halfpast 11, London, aud. ac.-Edward F. Ellis, Hendon, Mid. dlesex, and Royal Exchange-buildings, London, stockbroker, Dec. 18 at half-past 11, London, aud. ac.-Victor Chaudron and Florent Babin, Leicester-square, dealers in perfumery, Dec. 18 at half-past 11, London, aud. ac.-William Wood, Aldersgate-street, commission agent, Dec. 18 at 12, London, aud. ac.- -Wm. Brinkley, Bruton-place, Berkeley-square, and Duke-street, Grosvenor-square, builder, Dec. 18 at 12, London, aud. ac.-D. Stevens, Montagu-place, Millwall, Poplar, cattle dealer, Dec. 18 at half-past 12, London, aud. ac.-J. Thompson, Bishop Stortford, Hertfordshire, draper, Dec. 18 at half-past 12, London, aud. ac.-Joshua F. Lace, Birkenhead, and Leonard Addison, Abbots Grange, Cheshire, printers, Dec. 16 at 11, Liverpool, aud. ac. joint and sep. ests.Donald M'Larty, John M'Kean, and Robert Lamont, Liverpool, merchants, Dec. 19 at 11, Liverpool, aud. ac. sep. est. of Robert Lamont.-Robert M'Lean, Liverpool, licensed victualler, Dec. 23 at 11, Liverpool, aud. ac.-Edwin Denby, Stow-on-the-Wold, Gloucestershire, chemist, Jan. 8 at 11, Bristol, aud. ac.-Godfrey G. Pike, Birmingham, grocer, Jan. 1 at half-past 11, Birmingham, aud. ac.; Jan. 9 at half-past 11, div.-Thomas Lay, Wolverhampton, Staffordshire, hop merchant, Jan. 1 at half-past 11, Birmingham, aud. ac.; Jan. 9 at half-past 11, div.-Henry A. Ward, Birmingham, grease manufacturer, Jan. 1 at half-past 11, Birmingham, aud. ac.; manufacturer, Dec. 18 at 11, Leeds, aud. ac.-J. Mackenzie Jan. 9 at half-past 11, div.-John Bapty, Leeds, woollen yarn and S. Cotton, Leeds, machine makers, Dec. 18 at 11, Leeds, aud. ac.-Henry Leadbeater, Huddersfield, woollen cloth merchant, Dec. 18 at 11, Leeds, aud. ac.-Thomas G. Ferguson, mission merchants, Dec. 16 at 12, Manchester, aud. ac. joint Henry Taylor, and George F. Mandley, Manchester, comest., and sep. est. of Thomas G. Ferguson; Jan. 7 at 12, div. joint est., and sep. est. of Thomas G. Ferguson.-R. Orrell, Ashton-under-Lyne, Lancashire, chemist, Jan. 15 at 12, Manchester, aud. ac.; Jan. 22 at 1, div.-Thos. Hindle, Richard Stuttard, and H. Walmsley, Accrington, Lancashire, power. loom cloth manufacturers, Jan. 15 at 1, Manchester, aud. ac.; Jan. 22 at 1, div.-Robert Ingham, Hamer Bottoms, near Rochdale, Lancashire, cotton manufacturer, Jan. 9 at 12, Manchester, aud. ac.; Jan. 16 at 12, div.-James Worenden, div.-Henry Jonas Smith and Benjamin Crane, Great St. Manchester, eating-house keeper, Jan. 24 at 12, Manchester, Helens, London, and St. George's Stores, near Sebastopol, Crimea, Russia, dealers and chapmen, Dec. 18 at half-past 12, London, aud. ac.

CERTIFICATES.

before the Day of Meeting.

JOHN BERRY, RICHARD BERRY, and THOMAS To be allowed, unless Cause be shewn to the contrary on or BERRY, Rochdale, Lancashire, machinists, Dec. 19 and Jan. 9 at 12, Manchester: Off. Ass. Hernaman; Sols. Higson & Robinson, Manchester.-Pet. f. Nov. 24. THOMAS BANKS, Chorley, Lancashire. ironmonger, Dec. 24 and Jan. 22 at 12, Manchester: Off. Ass. Hernaman; Sol. Swan, Lancaster.-Pet. f. Dec. 1. MILES LORD and GEORGE ROSTRON, Cage Mill, near Newchurch, Lancashire, woollen manufacturers, Dec. 24 and Jan. 12 at 12, Manchester: Off. Ass. Fraser; Sols. Cobbett & Wheeler, Manchester.-Pet. f. Nov. 28.

MEETINGS.

James Thomas, Ebbw Vale, Monmouthshire. grocer, Jan. 6 at 11, Bristol.-Robert Ingham, Hamer Bottoms, near Rochdale, cotton manufacturer, Jan. 17 at 12, Manchester.John Kinton, Coventry, builder, Dec. 29 at 10, Birmingham. -Thomas Foxley, Birmingham, grocer, Dec. 29 at half-past 10, Birmingham.-John Burgess, Kidderminster, Worcestershire, builder, Dec. 29 at 10, Birmingham.-John Johnson, Bourn, Lincolnshire, ironmonger, Dec. 30 at half-past 10, Nottingham.

To be granted, unless an Appeal be duly entered. David Thomas, Brierly Hill, Bedwellty, Monmouthshire, innkeeper.-James Michell, Crew's Hole, St. George, and Westbury-upon-Trym, Gloucestershire, lead smelter.-Edicin Denby, Stow-on-the-Wold, Gloucestershire, chemist.-Francis Williams, Almondsbury, Gloucestershire, baker.-Robert Elliott, Blyth, Northumberland, draper.-Francis L. Bayley,

Sir Evan Mackenzie, Bart., Robert Cameron, and James H. Boyle, St. Helen's-place, Bishopsgate-street, merchants, Dec. 30 at 1, London, pr. d. sep. est. of Sir Evan Mackenzie, Bart.-Louis Rochefort, Broad-street-buildings, importer of foreign goods, Dec. 16 at 12, London, lastex.-John L. Harvey, Chichester-place, King's-cross, draper, Dec. 17 at 12, London, last ex.-Randal Woollatt, Fenchurch-street, tea| Manchester, small-ware manufacturer. dealer, Dec. 16 at 12, London, aud. ac.-Wm. Rose, Kingsland-road, St. Leonard's, Shoreditch, baker, Dec. 23 at 11, London, aud. ac.-Henry Warne, Mill-street, Hanover-sq.; New Bond-street; and Maddox-street, carpenter, Dec. 23 at 12, London, aud. ac.- Wm. Semmons, Redruth, Cornwall, draper, Dec. 19 at 12, London, aud. ac.- James Symes,

PARTNERSHIP DISSOLVED.

Henry Atkinson Wildes and Edric Adolphus Julius, Maidstone. Kent, attornies-at-law and solicitors, (under the firm of Wildes & Julius).

SCOTCH SEQUESTRATIONS.

R. B. Niell & Alexander Stewart, Glasgow, oil distillers.

Edward B. Symes, and Reuben Raper, Strand, electro platers, Ann Peacock Bryan, Glasgow, agent.-John Dick, Sons, &

Dec. 19 at 11, London, aud. ac.-The Royal British Bank,
South Sea House, Threadneedle-st.; Strand; Goswell-road;

[For continuation of Gazette, see p. 521].

13

,

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THE JURIST.

LONDON, DECEMBER 13, 1856.

1151

1157

1158

COURT OF QUEEN'S BENCH.

By G. J. P. SMITH, Barrister at Law.

Copeland v. The North-eastern Railway Company.-(Railway company-Shares-Transfer upon trusts -Registering name of trustee-Companies Clauses Consolidation Act, 1845, ss. 14, 15, 18).................. 1162 Reynolds v. Bridge.-(Covenant - Penalty-Liquidated damages-Covenant not to practise as surgeon-Pecuniary stipulation)

46

......

1164

COURT OF COMMON PLEAS. By W. PATERSON and W. MILLS, Barristers at Law. Minor v. The London and North-western Railway Company.-(Railway company —“ Carrying on business"-County court--Concurrent jurisdiction of superior courts-9 & 10 Vict. c. 98, s. 128) 1168 EXCHEQUER CHAMBER.

By H. MACNAMARA and G. FRANCIS, Barristers at Law. French v. Phillips.—(Distress-Claiming more rent than actually due-Excessive distress)

COURT OF EXCHEQUER.

........

By W. M. BEST, Barrister at Law.

The Earl of Lucan v. Smith.-(Libel-Fair comment, &c.--Pleading several pleas) .

CROWN CASES RESERVED.

By G. FRANCIS, Barrister at Law.

Reg. v. Bayley.-(Embezzlement-Servant at joint station of railway companies)

....

PREROGATIVE COURT.

By A. WADDILOVE, D. C. L.

In the Goods of William Greata.-(Will-Appointment of executor beneath the signature of the lestator-Law of Wills Amendment Act, 15 & 16 Vict. c. 24).....

1169

1170

1171

1172

1161

Ernest v. Eustace.-(Administration with the will annexed-Judgment creditor)

1172

THE rule of law relating to the personal rights and liabilities of agents upon contracts entered into by them on behalf of principals residing in foreign countries receives such constant illustration in the mercantile world, that it is of the highest importance that the true principles governing these cases should be accurately as well as generally understood. This question, from being in itself extremely simple, has been much confused, from the circumstance of more than one writer of eminence having treated as a matter of legal consequence that which, although probably true in general as a matter of fact, is nevertheless always a question of fact, and not a proposition of law.

It is, no doubt, generally true in fact, that where an agent resident in this country enters into a contract on behalf of a principal resident in a foreign country, the agent becomes personally responsible upon the contract, and his principal not. From this circumstance the conclusion has been erroneously drawn, that when a contract is entered into under such circumstances, the law imposes a personal liability upon the agent, upon the ground of general convenience and public policy. Thus Mr. Justice Story, in his work on Agency, (sects. 268, 290), lays down the general rule of law to be, "that agents or factors acting for merchants resident in a foreign country (as, for example, France or Germany) are held personally liable upon all contracts

made by them for their employers, and this without any distinction, whether they describe themselves as agents or not: the legal presumption is, that the credit is given to the agent exclusively." Certain dicta also of several eminent judges were thought to confirm this view. Thus Eyre, C. J., in De Gaillon v. L'Aigle, (1 B. & P. 369), says, “I am not aware that I have ever concurred in any decision in which it has been held, that if a person, describing himself as agent for another residing abroad, enter into a contract here, he is not personally liable on the contract." And Lord Tenterden, in the well-known case of Thompson v. Davenport, (9 B. & Cr. 87; 2 Smith's L. C. 218), says, "Where a British merchant is buying for a foreigner," according to the universal understanding of merchants and of all persons in trade, the credit is considered to be given to the British buyer, and not to the foreigner." These dicta, however, when carefully examined, and particularly if taken in connexion with the contract, will be found neither to lead to, nor even give the least support to, the rule laid down by Mr. Justice Story and others.

The precise point was, however, fully discussed and finally decided in the recent case of Mahony v. Kekulé, (14 C. B. 390), which may now be considered as the leading case upon that branch of the law of principal and agent. In that case an agreement in writing was entered into "between Messrs. V. and T., France, and M. Mahony, London," and was signed "for Messrs. V. and T." by C. Kekulé. There was a failure to carry out the contract on the part of V. and T., and Mahony

sued Kekulé for the breach of contract. It was decided that the defendant was not liable, and it was clearly and unequivocally laid down that there is no rule of law such as that contended for by Mr. Justice Story; Jervis, C. J., and Maule, J., laying it down, that in all cases it is solely a question of intention as to who are the contracting parties, to be collected in the ordinary way from the terms of the contract.

An agent may undoubtedly contract so as to bind himself, either together with his principal or solely; and no doubt there may be many cases in which it is highly improbable that a merchant in this country, receiving an order from an English house on behalf of a foreign house, would give credit to the foreign house; still there is no rule of law preventing him from contracting in such a manner as to place the English agent of the foreign house in the same position as if he had acted on behalf of a principal resident in England; and the question of the liability or non-liability of the agent will be precisely the same where the principal resides in a foreign land as where he resides here, the principal difficulty in such cases being one of evidence,

and not one of law.

The first question must always be, who are the contracting parties? In the first place, it is a broad and fundamental principle of law, pervading every known system of jurisprudence, that when one having due authority enters into a contract in the name and for and on behalf of a known principal, the principal alone is the contracting party, and no liability attaches to the agent. (Owen v. Gooch, 2 Esp. 567). Where, however, the agent expressly engages in his own name, he may be made personally liable, notwithstanding he describes himself as agent. (Appleton v. Blinks, 5 East, 148; Downman v. Williams, 7 Q. B. 103). By acting in his own name, the agent merely adds his personal liability to that of the principal. (See Pothier, Traité des Oblig. 82).

he

1856.

of the parish, agreed to pay him; the work being done, A. sued B. and C., and it was held that they were liable, and must take their remedy over against the parish. The true solution of this class of cases is, that the agents have entered into the contract in their own names, and the credit has been given to them, and not to their principals. There is nothing, however, to prevent one contracting with irresponsible principals through their agents, so as not to bind the latter; and whether one has done so or not is a question of fact, and not a question of law.

The above decision in the case of Mahony v. Kekule has been confirmed in the still more recent case of Green v. Kopke, (18 C. B. 549; 2 Jur., N. S., part 1, p. 1049). In this case the words of the bought and sold notes by which the contract was entered into ran thus:

"Bought, through H. Kopke, of L. R., Gothenburg, &c. "J. GREEN." "Sold, on behalf of L. R., Gothenburg, to J. Green, &c "H. KOPKE, as agent."

of the dicta of Eyre, C. J., and Lord Tenterden, above For the plaintiffs it was contended, on the authority quoted, that the defendant, having entered into the contract on behalf of foreign principals, was in law personally liable upon the contract. The Court, however, without hesitation, decided otherwise, Jervis, C.J., quoting a passage from Kent's Commentaries, in which, dissenting from the view of Mr. Justice Story, the learned commentator lays it down, that there is no distinction known to the law on this point between an agent acting for a foreign and a domestic house, nor any presumption known to the law and commercial usages that the credit in such cases is given exclusively to the agent. "In all cases," says Jervis, C. J., "it is a question of intention who are the contracting parties." And Willes, J., observed, "that in all cases it is a question of fact, and not a conclusion of law." If the agent enters into the contract in his own name on behalf of disclosed principals, and the question becomes one to whom the credit was given, no doubt the fact of the principal being resident in a foreign land would be weighty evidence against the supposition that credit was given to him: it would not, however, be conclusive, as before observed.

The agent can never be made personally liable unless he is a party to the contract; although the converse is by no means true, that in all cases in which the agent was originally a party, and might have been held liable, he The question was also incidentally raised in the may at any subsequent time be held liable. For exrecent case of Cooke v. Wilson, (2 Jur., N. S., part 1, ample, where an agent enters into a contract in his Messrs. Wilson of one part, and S. J. Cooke, of Lonp. 1094), where a contract was entered into "by own name, either on behalf of a disclosed principal or don, on behalf of the Geelong and Melbourne Railone who becomes subsequently disclosed, and if as soon way Company, of the other, and it was declared as the principal is known credit is given to him, the that the rates of freight, &c. should be determined agent is discharged; and vice versâ, if the agent is by "the said parties to this agreement;" and Cooke credited after his principal is known, the contract is have been observed, that, in addition to the above sued Wilson & Co. upon this agreement. It should with the agent, and not the principal, (Thompson v. facts, some portion of the agreement was to have been Davenport, 9 B. & Cr. 78; 2 Smith's L. C. 221), and performed by Cooke himself. The Court decided, the principal cannot afterwards he held liable. When after an elaborate argument, that Cooke, the agent, parties enter into contracts on behalf of foreign or irre- might sue, and was liable to be sued, upon that consponsible principals, the contracts are, no doubt, gene-sion would be, that the defendants would be liable to tract. It was objected, that the effect of such a deci rally entered into in the name of the agent, and credit an action from both principal and agent. This, howusually given, as a fact, to him. But it is erroneous ever, is an objection of no weight, for there are many to suppose, as it is laid down in some of the books, that cases in which two persons may bring separate actions an agent of irresponsible principals becomes liable be- for the same cause; the carrier and the owner of goods cause he is the agent of irresponsible principals. See may each bring actions on a tort; the factor and the Paley on Agency, by Lloyd, 374, where it is stated that cided in the well-known case of Williams v. Millington, owner may each have actions on a contract, as was depersons, though contracting as agents only, are never-which was an action by an auctioneer against a purtheless generally liable where there is no responsible chaser for goods sold and delivered. principal to resort to; as where A. agreed with B. and It may, therefore, be safely laid down as a clear and C. to pave their streets in Putney, and they, on behalf firmly-established rule of law, that an agent, entering

13

into a contract for and on behalf of a foreign principal, is not by any rule of law made necessarily personally liable upon such contract. The questions will be-First, did the agent enter into the contract in his own name, so that he might have been treated as the contracting party? Secondly, if he did, and if the principal was disclosed, was the credit given to the principal or to the agent? And these are questions of fact.

It should be observed, that the decision of the leading cases of Thompson v. Davenport, Paterson v. Gandasequi, and Addison v. Gandasequi have been in no way shaken.

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No action has undergone so many and such radical changes as that of ejectment. Originally a mere personal action of trespass, it was by means of fictions promoted, as far as its result was concerned, to the rank of real actions, for the land itself was thus made recoverable, but it still kept its position of a personal remedy, for the purpose of being brought within the concurrent jurisdiction of the superior common-law courts. At length firmly established, and capable of holding its own, the time had arrived long before the year 1852 to strip it of forms and fictions which had outlived their origin and their use, but it was not until that period of great legal reform that they were abolished. It now stands the most simple, instead of the most cumbersome, among our legal remedies; it is the only action without a tittle of pleading; the writ, an appearance thereto, and a notice to defend only as to part of the property, when that is the case, constitute the boundaries of its present forms; while, if the defendant does not appear at the trial, the claimant is entitled to a verdict without producing any evidence whatever. At the same time the remedy has been enlarged, and is now more remedial than ever.

Old treatises upon ejectment had thus become in a great measure obsolete, and a new book was required upon the subject, both from its altered form and its great importance. Mr. Cole, a gentleman of large experience, has favoured the Profession with a comprehensive work, embracing all the law and the practice relating to ejectment, and to other remedies for the recovery of real property. Thus he not only traces the action of ejectment from its preliminaries to its end, but also treats largely of mesne profits, actions for double value and double rents, proceedings in the county courts and before magistrates for recovering possession of land, and under the statutes against forcible entries and detainers. He has also compiled nearly 200 pages of forms, and these, with a full index, render the work, what it was intended to be, a practical treatise upon the whole law touching the recovery of real property.

Regarding the book somewhat more in detail, after a short chapter on the old action of ejectment, the Statutes of Limitations, as bearing upon the subject, are elaborately discussed; notice to quit, demand of possession, and entry follow in due course; the preliminary points to be considered before commencing the action occupy a chapter; the whole procedure in the action, "ab ovo usque ad mala," is set forth. The "third part" of the book is devoted to proceedings by and against particular persons, e. g. landlord and tenant, mortgagee and mortgagor, heir-at-law, devisee, executors and administrators, assignees of a bankrupt or insolvent, tenant by elegit, felons, aliens, guardians,

infants, benefit building societies, railway and other companies, rectors, church wardens and overseers, and copyholders. The "fourth part" includes trespass for mesne profits, and proceedings in county courts and before magistrates.

Among the interesting subjects which occur in the book is that of interrogatories in ejectment; and from this portion we make the following extract:

It is not yet clearly settled whether the defendant in ejectment may interrogate the plaintiff as to the nature of his title, and how and by what evidence he proposes or intends to establish it. In Flitcroft v. Fletcher (11 Exch. 543) the Court of Exchequer allowed interrogatories as to the plaintiff's pedigree, &c. (See the form, App., No. 214). But in a more upon that decision, and held that the defendant could recent case at chambers, Wightman, J., refused to act not interrogate the plaintiff as to his own pedigree or title, &c. (Morgan v. Nickol, Feb. 18, 1856, MS.) It would seem, however, that either party ought to be permitted to interrogate the other as to the nature and particulars of his pedigree or title, but not as to the evidence by which he intends to support it. (Selby v. Selby, 4 Bro. C. C. 11; The Attorney-General v. The Corporation of London, 2 Mac. & G. 247; Lord Cottenham, C., in Metcalf v. Hervey, 1 Ves. sen. 248; all cited in Flitcroft v. Fletcher, supra). Each party ought to be able to ascertain with precision what case he has to meet, but not to know on what evidence his opponent relies, for that might enable him in an unscrupulous manner to deprive his opponent of such evidence, or some material part of it."

Mr. Cole appears anxious to throw every possible light upon each part of the work he has taken in hand. Thus, while treating of proceedings at the trial, he lays down certain rules for cross-examination of witnesses, which, it must be admitted, have no more to do with the action of ejectment than any other action, and more properly belong to a treatise upon the law of evidence. However, they are few in number, and very good; so we extract them for the benefit of those who might not have thought of looking for them under the head Ejectment:"

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"On cross-examining a witness the following rules should be observed-viz.

"1. Consider well whether it would not be more prudent to comment on the defects and omissions of your adversary's case, rather than run the risk of a cross-examination and re-examination, which may supply or explain them.

2. Never attempt to prove by your adversary's witness what you are prepared to prove by your own, especially if you have only one witness to speak to the point.

"3. Never ask a question without having a good reason to assign for asking it.

"4. Never hazard a critical question without having good ground to believe that the answer must be in your favour.

"5. Proceed guardedly and by degrees; be perfect master of yourself; never appear surprised or dissatisfied; keep your countenance on the most trying occasions; remember there is always the chance of war.'

"6. Never appear to treat a witness roughly, rudely, or with injustice. If you attempt it, every hearer (including the jury) feels offended in the person of the witness; you make your work more difficult; the witness shuts himself up, and considers you as his enemy, and stands upon his defence.

"For want of a due observance of some or one of the above rules, it frequently happens that a crossexamination does more harm than good to the party on whose behalf it is had."

There is one especial fault we have to find with Mr. Cole, and that is the placing his authorities in the text,

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