applicable to the debtor's interference here, and ought therefore to disentitle him from suing the sheriff. And secondly, the bankrupt himself being disentitled, the 73rd and 74th sections of the Bankruptcy Act cannot have the effect of placing his assignee in a better position than himself in respect of suing the sheriff.

MARTIN, B.-I am of opinion that this rule should be discharged. There was no contract, nor anything like a contract, that the sheriff's officer should be Outram's agent. Outram's interference may have relieved the sheriff from any liability in respect of postponing the advertisement; but with regard to the not taking due care about the sale, there is no evidence to shew that the sheriff was relieved from performing his ordinary duty of making the most he could of the goods.

BRAMWELL, B.-I think, on examining the case, that the defendant fails upon the facts. I think that we cannot come to the conclusion that there was an agreement between Outram and the sheriff's officer superseding the authority of the writ. I think there was merely a sort of modification of the authority, such as a man may, and very frequently does, give, that is to say, Outram may have said, "I will not charge you with the consequences, if you postpone the sale for me." But the sale was after all under the writ, and with the same powers which the sheriff's officer had before the interference of the debtor.

CHANNELL, B.--I am also of opinion that this rule must be discharged. I agree that there is no evidence of a contract to discharge the sheriff. There may have been a modification of the officer's authority, which would relieve the sheriff as to acts or omissions under certain circumstances to which this modification clearly applied, but no further, and the sheriff is still liable for his negligence in conducting the sale.

Rule discharged.

Attorneys-A. D. Smith, agent for Southall & Nelson, Birmingham, for plaintiff; H. C. Barker, agent for John Smith, Birmingham, for defendant.

Debtor and Creditor-Deed of Inspectorship-Liability of Inspectors-Bankruptcy Act, 1861 (23 & 24 Vict. c. 134.) s. 192.

M, trading as C. J. M. & Co., ordered goods of the plaintiff, and before their delivery executed a deed of inspectorship. The inspectors under the deed afterwards requested the plaintiff by letter to send in the goods, signing their names "for C. J. M. & Co." Under the deed M. had power to carry on the business for six months, under the control of the defendants, who were to receive moneys, pay current expenses, including salaries, &c., but were not to share in the profits, and had no power to take the management of the business out of M.'s hands-Held, that the deed did not make the inspectors M.'s principals in the business, or liable as such for the debts incurred by M. & Co., and that there was no evidence of their liability to go to the jury.

Error upon a bill of exceptions to the ruling of Martin, B.

The action was brought for goods sold and delivered, by the plaintiff (who carried on business as an iron-founder, under the firm of Redpath & Leigh) against the inspectors of the estate of Charles James Mare, who carried on the business of a ship-builder, under the firm of C. J. Mare & Co.

At the trial, in London, at the Sittings after Hilary Term, 1866, it appeared that Mare executed a deed of inspectorship dated the 3rd of January, 1865, which was intended to operate under the Bankruptcy Act, 1861.

The goods in question were ordered on the 9th of December, 1864, by an order signed by a clerk "for C. J. Mare & Co.," which order was accepted by the plaintiff before the execution of the deed of inspectorship. The stoppage of payment took place before the goods were ready for delivery.

On the 1st of February, 1865, the plaintiff wrote to C. J. Mare & Co., stating

that the goods were ready, and awaiting further instructions as to delivery. On the 3rd of February, 1865, an order for delivery, as follows, was sent to the plaintiff, signed by the defendants : "Messrs. Redpath & Leigh,

"Please send three of Redpath's patent iron pumps, &c. (describing the goods previously ordered).

(Signed) "George Wigg,

"James L. O'Beirne,

sent

"for C. J. Mare & Co." Upon this order being given, the goods were on the 13th of February in to Mare's place of business, together with an invoice made out in the name of his inspectors. Whether this invoice came to their knowledge did not appear, but it was soon afterwards returned with a request, signed by a clerk "for C. J. Mare & Co.," that the firm should be made the debtors instead of the inspectors. The required alteration was accordingly made by one of the plaintiff's clerks, and the invoice returned,—but, as the plaintiff stated, without his knowledge.

The deed was made between Mare of the one part, Wigg and Green (for the latter of whom the defendant O'Beirne was afterwards substituted under a power), as inspectors, of the second part, and Mare's creditors of the third part. It provided for Mare being allowed to carry on his business under the inspection and subject to the direction and control of the inspectors for six months from the 1st of January, 1865, or for such longer period as they should think proper.

Mare covenanted to state an account for the assistance of the inspectors, to act under their direction, control and advice, not to dispose of the property without their consent, or to give any preference to any of his creditors; to keep proper books, and allow the inspectors to inspect them; not to enter into any new trade, or doubtful or uncertain contracts, or to become surety for any one, or do anything to obstruct the inspection or liquidation contemplated by the deed.

Then followed authority to the inspectors to sue for and get in any claims in Mare's name; and it was further provided that the inspectors might employ, or authorize him to employ, all necessary clerks, ser

vants and workmen to assist in carrying on the business, and to pay to them, or to Mare himself, such reasonable salaries, wages or remuneration as they should think fit. Then followed a provision for the application of the moneys coming under the inspector's control: first, to the payment of the expenses of the inspection deed; secondly, to the expenses of carrying out the powers and provisions of the deed; and thirdly, and not until after those expenses (which would include such debts as the plaintiff's) were discharged, the payment rateably of all debts due from Mare to the creditors. Then followed an express provision that the expenses in respect of the business should, in the first instance, be paid out of moneys produced by carrying on the business, and subject thereto, out of any other moneys coming under the control of the inspectors from time to time; with a provision that, as often as they had in their hands money amounting to 50l. under the inspection, it should be paid into the bank to the credit of the inspectors, and should be distributed as they should direct; and that they should pay dividends whenever they possessed a competent sum, after allowing for current expenses. There was the usual power retained in respect of creditors who should not have signed, or the amounts of whose debts had not been previously ascertained, and a power to sue, and to litigate and arrange any claim by or against the inspectors. There was also a power to pay out of moneys in hand the expenses of carrying out any contract already entered into by the debtor in the way of his business, or which he might, with the sanction of the inspectors, enter into during the inspectorship, and to determine such contract if they should think it not for the benefit of the estate. In case of a violation of these terms by the debtor, the inspectors were to be at liberty to declare the deed to be void. If at the end of the six months the creditors were not paid, there was a power to determine whether the debtor should be called on to submit to a winding-up, and to execute an assignment, or whether he should be allowed further time by letter of licence. The statutory majority were to be consulted in the case of any such extension of the time, and the statutory majority had also power to

discharge him by agreeing to accept any composition which they might think proper to accept upon their debts. There was power to appoint a new inspector in case of inability or refusal to act (under which power O'Beirne was appointed inspector instead of Green). Then followed the usual provision with regard to the receipt of the inspectors being a discharge. They were not to be answerable for each other's default or for loss to the estate, and they were to be reimbursed all costs and expenses actually incurred in the course of the inspectorship; and there was a declaration that the deed was intended to operate as a deed of inspectorship under the Bankruptcy Act, 1861.

It was contended for the defendants at the trial, that there was no evidence of their liability to go to the jury; but Martin, B. ruled that there was; and a verdict having been found for the plaintiff, a bill of exceptions was tendered.

J. C. Mathew, for the defendant O'Beirne, now argued that, if the defendants were liable, they could only be liable as the real principals in the transaction, Mare being their agent; and that the circumstances under which the order was given shewed no such state of things.

[WILLES, J. referred to Hart v. Alexander (1) and cases where a new partner has entered a firm after a contract has been made.]

The question in every such case is, for whom the business is carried on; and on the facts here, there can be no doubt that the liability is that of Mare & Co., and not of the defendants.-He cited Cox v. Hickman (2) and Bullen v. Sharp (3).

Garth, for the defendant Wigg, was not heard.

Joseph Brown (Barnard with him), for the plaintiff, contended that the letter of the 3rd of February was really a fresh order, in giving which the defendants acted as principals; they became responsible by signing it as they did. Why should they have so signed it, or have given a fresh order at all, except to quiet the plaintiff's apprehensions as to payment? They thus

induced the plaintiff to supply the goods, for the invoice shews that he gave them credit. If there were any doubt arising from their using this form of order, it should operate against them in favour of the persons who were thereby induced to deal with them.

Mathew, in reply. The only evidence. against the defendants is the order, and in that they say clearly that they are not principals, but that they are acting for C. J. Mare & Co.

Cur, adv. vult.

The judgment of the Court (4) was delivered on the 18th of June by

WILLES, J.-After stating the facts as given above, his Lordship said: The invoice, having been altered without the plaintiff's knowledge, may be considered out of the case, and the question for our decision is, whether the order of the 3rd of February, and the supply of the goods thereunder, furnish any evidence of liability on the part of the defendants.

Upon this it is first to be observed that there was no suggestion of fraud. The deed when put in appeared to be an ordinary transaction, the bona fides of which was not impeached; nor was the action founded upon any misrepresentation as to the authority from Mare to give the order in the name of "C. J. Mare & Co." The order upon the face of it purported to be given by the defendants for a named principal, on whose behalf (and not for themselves) they professed to act. Had the order been signed, like the original one, by a clerk of C. J. Mare & Co., no liability could have been imposed upon such clerk, except by shewing want of authority from the alleged principal. And the burthen of proving want of authority would have rested with the plaintiff. No such evidence was offered or suggested to exist in this case. plaintiff therefore cannot rely upon any ostensible liability of the defendants, but must shew that the capacity which they actually filled was that of Mare's real principals, so as to be in substance themselves C. J. Mare & Co. for the time.

The

This question whether the inspectors are to be considered as principal traders, (4) Willes, J., Byles, J., Blackburn, J., Keating, J., Montague Smith, J. and Lush, J.

and the debtor as only a servant or agent of theirs, is one of great and general importance (and so far as we are aware quite novel), the decision of which in the affirmative would seriously interfere with arrangements under inspectorship, inasmuch as it must needs deter responsible persons from undertaking the office of inspector. It would of course be possible to suppose a case in which the debtor becomes by arrangement a mere servant, acting only for the benefit of others, or in which the business is intended to be carried on at the expense of new creditors, who might be deceived into giving credit to the debtor, but really for the advantage of the old ones. Such a case, should it arise, would admit of an easy solution as one of fraud.

On the other hand, there may be a good business, with a temporary embarrassment, where the intention is to keep together the debtor's business in his name (which may be an important element of its success), and for his permanent benefit as well as for the temporary benefit of his creditors; and where with that view a letter of licence is granted, enabling him to carry on the business, and to retain it for himself after he has paid his creditors, who stipulate however that, until the debts are discharged, the business shall be carried on under the inspection and control of persons appointed by them, who shall receive the proceeds, pay the current expenses of the business, and distribute the surplus. In such a case, the object seems to be to maintain the debtor in the position he previously occupied, as the person principally interested in the business; and it seems no more reasonable to hold the inspectors liable, as being his masters, than it would be to say that a confidential clerk, to whose opinion his employer absolutely defers, or to whom he intrusts the entire control of the business, is as to third persons the principal.

The difference between such a case and the present is, that there the principal might resume the control at any time, whereas in the case before us Mare could only do so upon payment of the debts, or a composition agreed to by a majority of creditors, or by breaking his contract to submit to inspection; which he might do if he thought proper, at the risk of damages and loss of the benefit of his deed. But the

cases put by way of illustration clearly shew that the mere fact of inspecting and controlling another person's business does not involve responsibility for debts contracted therein by him or in his name; and as for the contract, it cannot, in favour of third parties, create such responsibility, unless it makes the inspectors the real principals.

In order to ascertain the precise position which the defendants occupied, it will be necessary to refer to the terms of the deed.

[His Lordship then stated the effect of the deed, as given above.]-This being the scope of the deed, it appears that the intention of the parties was, instead of pressing Mare for immediate payment or liquidation, to allow him to continue the business in such a manner if possible that, after paying his creditors, he should have the option of continuing the business for himself; that the business was to remain his, subject to his clearing off his debts; that the inspectors were to inspect, direct and control him, to receive the proceeds of the business, and, after paying current expenses (including such debts as the plaintiff's), and not before, to divide the surplus amongst his other creditors. They were not to have any share of the profits, and were only to receive their actual costs and expenses. The deed contains no power to the inspectors to take the management of the business to the exclusion of Mare, so that they could not dismiss him, as a master or principal might dismiss his servant or agent.

Under these circumstances, we think it cannot be maintained that the inspectors became Mare's masters or principals in the business, or liable as such for debts incurred by Mare & Co. Nor can the plaintiff justly complain of this result. The form of the order gave him notice that Mare & Co. were his customers, and to that firm and to the trust for payment of current expenses, he must be content to look.

The direction of the learned Judge that, under the above circumstances, there was evidence of liability on the part of the defendants was therefore erroneous, and a trial de novo must be awarded.

Venire de novo.

Attorneys-C. E. Strong, for plaintiff; Young, Jones, Roberts & Co., for defendants.

Practice-Venue- Privilege of the Attorney General for the Duchy of Cornwall.

An information being laid in Middlesex, by the Attorney General for the Duchy of Cornwall, for the recovery of dues claimed in respect of goods imported into a port alleged to be parcel of the Duchy, the defendant applied to the Court to change the venue to Devonshire, upon the ordinary affidavit that the cause of action arose and the witnesses resided there:-Held, first, that although the Attorney General for the Crown may not have a right in all cases to lay and retain the venue where he pleases, he has such right in the case of such an information, it being a suit in the nature of a transitory action; secondly, that in the case of such an information relating to matters affecting the Duchy of Cornwall, the Attorney General for the Prince of Wales would have the same right as the Attorney General for the Crown; but, thirdly, that as documents relating to the Duchy of Cornwall would have to be produced from their place of deposit in Middlesex, there was no such preponderance upon the balance of convenience in favour of a trial in Devonshire as to call on the Court to interfere, or to render it necessary to decide the question of prerogative.

Information, laid in Middlesex, by the Attorney General for H.R.H. Albert Edward, Prince of Wales and Duke of Cornwall, against Thomas Crossman, for certain customs and dues in respect of goods imported into the outport of Torquay, within the water of Dartmouth, parcel of the ancient possessions of the Duchy of Cornwall, in the county of Devon, and for breaking bulk from ships coming from foreign parts at Torquay.

Application was made to Channell, B., at chambers, for an order to change the venue to Devonshire, upon the ordinary affidavit that the cause of action arose in Devon, and that the defendant and all the witnesses as to facts resided at Torquay. The question to be tried was, whether or not the Prince of Wales was entitled to recover these dues in respect of Torquay

being within the charter by which the Duchy of Cornwall was granted. The matter having been referred to the Court,

F. M. White obtained a rule nisi, against which

Karslake and Garth shewed cause in the first instance.-This is not an action; and it is a question whether the practice for the Court respecting a change of venue in ordinary actions applies to the case of an information filed by the Attorney General for the Prince of Wales. The Attorney General for the Prince of Wales stands for some purposes in the same position as the Attorney General for the Crown--The Attorney General for the Prince of Wales v. St. Aubyn (1). The Attorney General for the Crown may lay and retain the venue anywhere - The Attorney General v. Smith (2).

[BRAMWELL, B.-But is there any authority for saying that the Court will not change the venue if they think it convenient?]

Inquiries have been made at the Crown Office, and no precedent has been found of the venue being changed.

[POLLOCK, C.B.-Does the Duchy of Cornwall go to the Prince's eldest son ?] No.

[POLLOCK, C.B.-Then the Crown is interested as immediate successor.]

That is so. If there is no Prince of Wales a suit may be revived by the Crown -The Attorney General v. the Mayor and Corporation of Plymouth (3). As a mere matter of convenience the venue should remain unchanged. The Crown might claim a trial at bar in this Court. It would be most inconvenient if the Attorney General for the Prince of Wales had to consult the Attorney General for the Crown before proceeding with the suit, or before opposing an application to change the venue. The practice of changing the venue is based upon the equity of the statute of 6 Rich. 2. c. 2. The Attorney General v. Churchill (4), 1 Tidd's Practice, 9th edit. 601; but the Crown is not named in

(1) Wightwick, 167. (2) 2 Price, 113. (3) Wightwick, 134.

(4) 8 Mee. & W. 171, 193; s. c. 10 Law J. Rep. (N.S.) Exch. 314.