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1866.

STINSON

v.

BROWNING.

in addition to the penalties imposed in such cases, it imposes a penalty where "a blacksmith or other person, occupiers of a blacksmith's shop situate near any turnpike road, and having a window or windows fronting the said road, shall not by good and close shutters every evening after it becomes twilight, bar and prevent the light from such shop shining into or upon the said road." That clause appears to have been purposely left out in the Highway Act, the reason for inserting it in the Turnpike Act being no doubt that those roads are the great arteries of communication. These words are followed by a clause relating to the making of bonfires within eighty feet of the centre of the road, and that is the kind of fire contemplated in the 72nd section of the Highway Act.

No counsel appeared for the Respondent.

WILLES, J. I am of opinion that this conviction should. be reversed. The precise point before us does not appear to have been brought to the attention of the magistrates. The question is, whether the clause imposing a penalty on lighting a fire within 50 feet of the centre of the high way is qualified by the subsequent words, " to the injury of such highway, or to the injury, interruption, or personal danger of any person travelling thereon;" and I think that it is. The offences enumerated in that part of the section are not offences per se, but only when committed under certain circumstances. It may be suggested that if the latter words override the clause, then the Act is vain, because if a fire be made under the circumstances stated it might be a nuisance at common law, for which an indictment would lie, and so of the other provisions. But that part of the section must be read, not as creating the offences but as dealing with nuisances when committed in the manner there specified. This is the reasonable and grammatical construction of the clause in question. The first part of the

section deals with substantive offences, and as to these there is an absolute prohibition, but all that follows the words "if any person shall make or assist" is qualified by the words "to the injury of the highway, &c." The magistrates not having found that the fire in this case was of such a nature, the conviction must be reversed.

KEATING, J., concurred.

1866.

STINSON

บ.

BROWNING.

Conviction quashed.

CATTERALL V. Hindle.

The Plaintiff employed B. as del credere agent to sell his yarns, and he sold some occasionally to the Defendant, who paid cash on delivery. The Defendant then at B.'s request advanced him 1,000l. for yarns to be subsequently delivered; part of the yarns afterwards supplied under the contract were K.'s "twist," and the remainder the Plaintiff's, to the amount of 2741., which B. failed to pay the Plaintiff. In an action brought to recover that sum from the Defendant, the jury found that the 1,000l. was paid "on a general account," and not specifically for K.'s "twist."

Held, that the advance to B. was not a payment as against the Plaintiff, and that he was entitled to recover.

THIS was

THIS

an action brought to recover the sum of 2741. 7s. for goods sold and delivered. The pleas were never indebted and payment.

At the trial before Smith, J., at the Lancaster Summer Assizes the facts appeared to be that the Plaintiff, who trades under the name of "Paul Catterall, Son & Co.," was a cotton spinner at Preston, and employed one Joshua Armitage, a commission agent at Blackburn, to sell yarns on his account upon a del credere commission as broker. The Defendant, a manufacturer at Blackburn, trading under the name of "Edward Briggs & Co.," dealt

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1866.

CATTERALL

v.

HINDLE.

with Armitage in purchasing from him, as agent for the Plaintiff and others, yarns marked with the initials of the parties spinning them. Previous to the 14th of October, 1864, he had purchased from Armitage yarns of the Plaintiff, and paid for them in cash, and there was no evidence of any other mode of payment as between him and Armitage before that date. On that day the account between them being then balanced, Armitage applied to the Defendant for a loan of 1,000, which the Defendant refused, but agreed to advance that amount for the purchase at an agreed price of yarns to be subsequently delivered. The Defendant accordingly paid Armitage on that day 1,000l., and on the 19th and 21st of October deliveries of yarns of one Kershaw to the amount of 7251. 13s. were made by Armitage on account of the advance. On the 24th December and the 5th of January following he delivered yarns of the Plaintiff to the value of 5211. 14s. 6d., and on the 11th January a settlement took place by the Defendant paying to Armitage the excess beyond the 1,0007. in cash, and so balancing the account between them to that date. The Plaintiff, however, was not paid for those yarns by Armitage, who soon afterwards became bankrupt. In taking the account the Defendant debited Armitage not only with the 1,000l., but also with interest for delay in the deliveries, as well as discount, short weights, &c. He put to his credit the yarns as delivered without specifying the makers, but he knew which were the yarns of the Plaintiff, and that Armitage sold them as agent. The jury found that the 1,0007. was advanced to Armitage upon a general account and not for Kershaw's yarns specifically, that being the only question the parties desired to be so left. The verdict was entered for the Defendant upon the plea of payment; leave being reserved to the Plaintiff to move to enter a verdict for him for the amount he claimed; namely, 2741. 7s., or for such other sum the Court might

think fit, if the transaction between the Defendant and Armitage did not prove to be a payment to the Plaintiff. A rule was granted accordingly in Michaelmas Term 1865, and, in the same term,

Temple and Edwards showed cause.-The finding of the jury entitles the Defendant to retain his verdict, for the payment to Armitage on the general account was a payment binding on his principal. The Defendant knew nothing of the Plaintiff except as the manufacturer of a particular kind of twist; his dealing was with Armitage, and payment to him as agent was good as against the principal, though made prematurely: Fish v. Kempton (a). That was the case of a factor, but Armitage was very nearly in that position at the time of the payment on the general account. Armitage might have delivered the whole of the goods on which the money was advanced. No specific time was named for the delivery of the goods, and the Plaintiff's and Kershaw's twists were delivered as they came to hand. Payment on a general account" means an appropriation of the money in payment of the goods as they come in from time to time. The general verdict also implies that the payment was made in the ordinary course of business: Farenc v. Bennett (b). But if the money was not appropriated at the time, it was so in January, when it was appropriated, with consent of both Armitage and the Defendant, to the account of the Plaintiff and Defendant. The Plaintiff, therefore, has no right of action against the Defendant.

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Kemplay in support of the rule.-The payment in this case, whether general or specific, was not such as could bind the Plaintiff. On the 14th October 1,000l. was paid to

1866.

CATTERALL

v.

HINDLE.

(a) 7 C. P. 687, 692, per Wilde, C. J.

(b) 11 East, 36.

1866.

INDERMAUR

v.

DAMES.

customer, who, as one of the public, is invited for the pur-
poses of business carried on by the Defendant." This
This pro-
tection does not depend upon the fact of a contract being
entered into in the way of the shopkeeper's business during
the stay of the customer, but upon the fact that the cus-
tomer has come into the shop in pursuance of a tacit invita-
tion given by the shopkeeper with a view to business which
concerns him. And if a customer were, after buying goods,
to go back to the shop in order to complain of the quality,
or that the change was not right, he would be just as much
there upon business which concerned the shopkeeper, and
as much entitled to protection during this accessory visit,
though it might not be for the shopkeeper's benefit, as
during the principal visit, which was. And if instead of
going himself he were to send his servant, the servant
would be entitled to the same consideration as the master.

The class to which the customer belongs includes persons who go not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation express or implied.

And with respect to such a visitor at least we consider it settled law, that he using reasonable care on his part for his own safety is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger of which he knows or ought to know; and that where there is evidence of neglect, the question whether such reasonable care has been taken by notice, lighting, guiding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as matter of fact.

In the case of Wilkinson v. Fairrie (a), relied upon for the Defendant, the distinction was pointed out between ordinary accidents, such as falling down stairs, which

1 H. & C. 633.

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