English Cases.-Queen's Bench. tain an intimation that payment of the bill has been refused by the acceptor, and therefore a letter merely containing a demand of payment has been held not to be a suf ficient notice. Hartley v. Case, 4 B. & C. 339. So also the following notice has been held insufficient: "This is to inform you that the bill I took of you, 15l. 2s. 6d., is not took up, and 4s. 6d. expense, and the money I must pay immedidiately; my son will be in London on Friday morning." Messenger v. Southey, 1 M. & G. 76. In Strange v. Price, 10 Adol. & E. 125, the notice was "Messrs. S. & Co. inform Mr. P. that Mr. B.'s acceptance, 871. 5s., is not paid. As indorser, Mr. P. is called upon to pay the money, which will be expected immediately and that was held insufficient. So a letter stating that "a bill of exchange" (describing it) "lies at my office, due and unpaid," is not a good notice of dishonor. Phillips v. Gould, 8 C. & P. 355. Besides, the notice having been sent on the day the bill was dishonored, was too early. POLLOCK, C. B.-The court think that, under the circumstances, there was a sufficient presentment to the bill. As to the notice of dishonor, we will take time to consider. Cur. adv. vult. made use of such expressions, repeats them, the repetition of such slander, in reply to questions put by B., does not render it a privileged communication; and in an action for slander of words so spoken, the plaintiff is not called upon to prove express malice. THIS was an action of slander for imput. ing to the plaintiff, who carried on the business of a butcher, the use of false weights and the sale of goods short of weight. The defendant pleaded not guilty, and a justification; but the latter plea was abandoned at the trial. The case was tried before Lord Denman, C. J., on the home circuit. It appeared the defendant had used certain slanderous expressions of the plaintiff, and when the fact became known, the plaintiff asked the defendant if he had used such expressions; and the defendant then, in the presence of several persons, repeated the expressions he had made use of on the former occasion. It was for the latter expressions that the action was brought. The counsel for the defendant contended that the latter expressions made use of by the defendant were privileged and confidential, because the words used were not spoken by the defendant voluntarily, but in answer to a question put to him by the plaintiff; and that to support a verdict for the plaintiff, express malice must be proved. The learned judge was of opinion that this was not a privileged communication, and the jury found a verdict for the plaintiff for 107. POLLOCK, C. B., on a subsequent day, said, we think there should be no rule, as M. Chambers moved for a rule for a new there was, in our opinion, distinct notice of the bill having been dishonored. The ex-trial, on the ground of misdirection. The pression, "I request your immediate attention to it," must be understood as implying that the defendant was called upon to pay the bill. The terms of the notice sufficiently comply with the rule of law. It was also objected that the notice was sent too early. But though it was sent on the day the bill became due, it was after business hours; and we therefore think that it was in proper time. Rule refused. COURT OF QUEEN'S BENCH. Before the Rt. Hon. THOMAS LORD DENMAN, C. J. and the rest of the Judges. GRIFFITH V. LEWIS.-Easter Term, 1845. SLANDER.-PRIVILEGED COMMUNICATION. Where A. originates slanderous expressions concerning B., and when asked by B. if he had jury ought to have been asked whether the defendant was actuated by malicious motives towards the plaintiff when he made use of the expressions complained of. Where a conversation takes place between A. and B., and A. asks be if he has used certain language, and B., in answer to those questions, repeats the observations which he had before made, that communication is privileged, and the only question for a jury must be, whether there was express malice.— The plaintiff would not be entitled to a verdict unless such malice was proved. Starkie on Slander, 301; Warr v. Jolly, 6 Car. & Pay. 497; Toogood v. Spyring, 1 Cr. M. & R. 181; Padmore v. Lawrence, 11 A. & E. 330. PATTESON J.-The distinction is perfectly plain, and is this: The man who originates a statement cannot shelter himself English Cases.-Queen's Bench. under the rule of a privileged communica- | in order that he might be admitted an attortion, when, upon inquiry made of him, he ney. The application was made on the afrepeats it; but he can do so if the state- fidavit of the applicant, who stated that he ment did not originate with him. This had had served under articles of clerkship for occurred in Smith v. Matthews, 1 Moo. & five years, and that all the proper notices Rob. 151, where a man who had made had been given to entitle him to be admit statements injurious to the credit of a trades-ted. That in the month of December 1844, man, was a person that had been employed he was, along with another person, tried by the creditors of that tradesman to exa- and found guilty of a conspiracy; that in mine into his affairs; and it was held, that reality he had not done anything to justify he could not shelter himself under the rule such a verdict, and that no sentence had of privileged communication, when in his ever been passed on him for the offence, alreport to them he repeated the false state-though the person with whom he had been ments which he had originally made. The indicted had received a severe sentence.case cited in the argument was one of an That as soon as the indictment was preferopposite sort; and there, as the slanderous red he disclosed all he knew of the circumreport had not originated with the defend-stances, in order that the transaction might ant, he was privileged when, on inquiry of be fully investigated; and that he deeply him, he, in a bona fide answer to that in-regretted the part he had taken in the transquiry, repeated that statement. It was, action. When these circumstances became then, perfectly clear that this evidence of known to the examiners, they refused to alslander on the business of the plaintiff below him to be examined, unless they were ing properly before the jury, the plaintiff authorized to do so by this court. was not bound to give any evidence of Mr. Robinson appeared for the incorpomalice in order to support a claim to dama-rated law society, to show cause in the first instance, but he did not deem it necessary to make any comment on the facts disclosed by the affidavit of the applicant which were before the court. ges. WILLIAMS J. and WIGHTMAN J., concur red. Lord DENMAN, C. J.-An inquiry of this sort is often made for the purpose of ascertaining whether the party had uttered the slander in a moment of heat, and had regretted it, and retracted it, or was determined to abide by it; and surely it is too much to say that slander thus deliberately and resolutely repeated is not in itself a cause of action. Rule refused on this point. Lord DENMAN, C. J.-After this person has been found guilty of a conspiracy, it is not possible that we can admit him to act as an officer of this court. We should not be dealing fairly with society if we granted this application and allowed the applicant to practise as an attorney. He has gained all he can expect in not being brought up to A rule was granted on another point in receive the sentence of the court, but I arrest of judgment. In re HOLT.-Trinity Term, 1845. ADMISSION OF AN ATTORNEY. The court refused an application for a person who had served his articles of clerkship to go before the examiners for the purpose of being examined, in order to be admitted an attorney, who think he cannot expect to be admitted. PATTESON, WILLIAMS and COLERIDGE, J. J., concurred. Application refused. [Practice Court.] Before Sir T. J. COLERIDGE, Kt. 1845. had been convicted of a conspiracy in the year WARREN V. SWINBORNE.-Easter Term, 1842, but who denies on oath that he is guilty of the offence, and who was never brought up for judgment, and expresses his deep regret in being mixed up with a transaction for which another person was severely punished. MR. Watson applied to the court in behalf of a person by the name of Holt, that he might be allowed to go before the exa AFFIDAVIT SWORN IN FOREIGN COUNTRY. Where an affidavit in a proceeding in this court is made in a foreign country, it must distinctly appear that the functionary before whom it is sworn is authorized by the law of the country to administer an oath. miners for the purpose of being examined, Bagley applied to make absolute a rule English Cases.-Queen's Bench. ney, attending a commission of lunacy for for entering up judgment on an old warrant | upon money so collected. In ex parte Boof attorney. The rule nisi had been served denham, 8 A. & Ell. 959, where an attorupon the defendant at New York, and the affidavit of service was sworn before the mayor of the city of New York. The signature of the mayor was verified by the following certificate of the English consul:"I, Anthony Barclay, her Majesty's consul, &c., do hereby certify that James Harper, whose signature is appended to the annexed COLERIDGE, J.-This was an application document, is Mayor of the city of New to compel an attorney to pay over a sum of York, and that to his official acts all credit money under these circumstances: The apis due. In testimony whereof, I have here- plicants, who were executors, had to pay unto set my seal, &c. Anthony Barclay." 2401. for legacy duty. The expression in There was also an affidavit of James Hers. the affidavit is, that they employed the party let, sub-librarian of the foreign office in to act for them as an attorney in managing London, verifying the signature of Mr. Barc- the estate of the testator, not specifying any lay. work which he had to do as an attorney, but contenting themselves with this general statement; and that they handed to him, as such attorney, the above sum. And the question is, whether this is so connected with his character as an attorney as to be the subject of summary jurisdiction. The words "as such attorney" in themselves amount to nothing, as it is a question of construction upon the facts and circumstances whether or not the employment really was in that character. Ex parte Aitkin and ex parte Bodenham were cited, cases which carry the jurisdiction to the full extent. Many judges think that ex parte Ait Bagley.-It is doubtful whether in this case the affidavit is sufficient, it does not state that the individual before whom it was sworn was authorized by the American laws to take affidavits. COLERIDGE, J.-That is necessary, you may probably obtain an affidavit to the ef. fect required by the American consul in London. Rule absolute. Ex Parte WEBB.-Eastern Term, 1845. ATTORNEY.—RULE TO COMPEL THE PAY-kin went too far; and though I am quite prepared to support that decision, I am not Gray moved for a rule calling upon an attorney to show cause why he should not refund a sum of 2501. The affidavits stated that the applicants who were executors had engaged and employed him as an attorney, for the purpose of managing and winding up the estate, and had placed the sum in question in his hands, as such attorney, for the purpose of paying legacy duty. It was subinitted that this was an employment, in consequence of the professional character of the attorney, and brought the case within the principle of ex parte Aitkin, 4 B. and A. 47, where an attorney who had been employed by A. to get in the effects due to him as an administrator was compelled to of dishonor. deliver an account and pay over a balance | W. 72. GUARANTEE. A party who guarantees the payment of a promissory note if it be not paid at maturity by the maker is not entitled to notice Watson v. Mascall, 13 M. & THE New-York Begal Observer. VOL. III.] NEW-YORK, SEPTEMBER, 1845. AGENCY. The right of a town agent to retain the money forwarded by a country attorney recently came under consideration in the Court of Queen's Bench, (Cobb v. Becke and another, 14 Law Journal, 108;) in an action brought by the client of a country attorney against the town agent, for money had and received under the following circumstances:-In a case of Cutbush v. Cobb, the defendant Cobb employed Mr. F. F. Dalby of Rochester, as his attorney, and proceedings were stayed in this action under a judge's order upon payment of debt and costs. Cobb paid Mr. Dalby 177. 18s. 4d., to be paid to Cutbush on account of the debt, and Mr. Dalby forwarded his own check for 207. to Messrs. Becke & Flower, his town agents, directing them to pay Cutbush's attorney the sum specified, and to have the costs taxed. Messrs. Becke & Flower wrote by return of post to Mr. Dalby acknowledging the receipt of his check, and stating that it should be applied as directed. Some delay took place in taxing the costs; no part of the money was paid to Cutbush's attorney, and ultimately Messrs. Becke & Flower credited Mr. Dalby with the amount in making up their agency account, and retained the 201. in satisfaction of a balance due to them by him. Upon this state of facts, the question arose whether Cobb could recover from Messrs. Becke & Flower, the sum forwarded to them by Mr. Dalby, to pay Cobb's debt? [MONTHLY PART. The general rule applicable to transactions of this nature that there is no privity between the agent in town and the client in the country, and that the former cannot maintain an action against the latter for his fees, or the latter against the former for negligence, was admitted in the argument and expressly recognised in the judgment of the court. The plaintiff's counsel contended that the defendant's liability arose from facts irrespective of the professional relation between the parties, for as the defendants knew the money to be Cobb's when they received it, and had pledged themselves to the specific appropriation of it, the privity of contract was sufficiently established. To strengthen and illustrate this view of the facts, several cases were cited* which when examined are authorities only to the extent, that if a debtor orders his agent to appropriate a fund in his hands to the discharge of a specific debt, and the agent pledges himself to the creditor so to appropriate the fund, the creditor may sue the agent. The case cited, approaching the nearest in fact to the case under discussion, was that of Moody and another, Assignees v. Spencer, 2 Dowl. & Ry. 6. In that case, the defendant, who was the town agent of Mr. Baldwin, a country agent, received a sum of money due to the bankrupt, of whom the plaintiffs were assignees, from a person named Wilson, who had been sued by Baldwin as the attorney for the bankrupt, and the court decided, that the defendant had no lien for the general balance due to him from Baldwin on the money coming into his hands in the cause. On behalf of At the trial, Lord Denman, C. J., seemed to have been of opinion that the action could not be maintained, but he left it to the jury to say, whether the defendants, when the defendants, it was argued that the knowthey received the money from Dalby, knew ledge the money was sent by Dalby belongit to be the money of Cobb? and reserved to the plaintiff, made no difference as reed leave for the defendants to move to enter spected the general principle applicable to a non-suit, if the court thought the plaintiff was not entitled to recover. The jury found the question left to them in the affirmative, and returned a verdict for the plaintiff, for 177. 188. 4d. The matter afterwards came before the court upon an application to set aside the verdict and enter a non-suit. this case, that an agent was exclusively liable to the party employing him. To elucidate this principle, the recent case of Heath and another v. Chilton, 12 Mees. & W. 632. In the Court of Exchequer was refer All the cases are collected in 1 Wms. Saunders, 2106, note a, 6th ed. Practical Points.-Licence by Patentee-Dedication to the Public. red to. In that case, the defendant received established as between the plaintiff and decertain rents, under a written authority from fendants, and that the action could not be two out of three executors and gave a re-sustained. The rule to enter a nonsuit was, ceipt in the name of the two, with a know- for this reason, made absolute. ledge that the rents belonged to the executors, and it was holden that three executors could not sue jointly for the money received unless it appeared that the two executors had entreated with the defendant for themselves and their co-executors also. It was also suggested, as a mode of testing the liability with which it was sought to fix the defendants, that if they had become bankrupts, Dalby's liability to Cobb would not have been discharged, as a payment to an agent would not have been a good payment as against Cobb. By the terms of letters patent granted for the invention of a patent furnace, all persons were commanded not to "make use, or put in practice the said invention, or any part of the same, nor in anywise counterfeit, imitate, or resemble the same, nor make, or cause to be made, any addition thereunto, or substitution from the same, whereby to pretend himself or themselves to be the inventor or inventors, deviser or devisors thereof, without the licence, consent, or agreement of the said J. C., (the patentee,) his executors, &c., in writing, under his or their hands and seals, first had and obtained," upon pain of a contempt of the royal command, and of being answera In the course of the argument, Patteson, J., put the point interrogatively-" If money were sent to a banker to pay A., could A. sue the banker?" And the plaintiff's counsel answering, that the banker might be sued if he undertook to pay; Patteson, J., observed, "it is a very wide proposition to lay down, where money is paid to bankers in the country, and their town agents re-ble to the plaintiff for damages. The paceive the money and promise to pay it, that it becomes money had and received by the bankers to the use of the party to whom it is directed to be paid." tentee, after he obtained the patent, granted the defendant a licence, which was in writing, but not under seal, to use the patent, and the defendants having received the licence, kept it, and used the invention; but, when called upon to pay the price agreed Lord Denman, C. J., in delivering the judgment of the court on a subsequent day, distinguished the case of Moody and anoth-upon, objected to pay for it, on the ground er v. Spencer, as the town agent there, had received the money in the course of the suit from the opposite party, for the client and not for the country attorney, and the court accordingly treated it as money received for the use of the client. So in the case under consideration, if Cobb had transmitted the money direct to the defendants, or desired Dalby to transmit it to them specifically, and they had received it as from Cobb, and not as from Dalby, they would undoubt edly have become Cobb's agents and accountable to him for the appropriation, but it appeared that Cobb paid the money to Dalby for the purpose of paying the debt and costs, without any specific directions through what channel it was to be transmitted. The money was therefore mixed with Dalby's general funds, and he sent the defendants his own check. On the short ground, therefore, that the facts showed the plaintiff employed Dalby, and Dalby, and not the plaintiff, employed the defendants; the court was of opinion that no privity was that it was void as not being under seal.— In an action of assumpsit for the price of such licence by the plaintiff to defendants to use such invention, it was held, first, that the defendants having obtained the licence they had bargained for, and kept, were bound to pay for it; and secondly, that the licence was not void as not being under seal. Chanter v. Dewhurst, 12 M. & W. 823. It has also been recently decided, that if the inventor of a machine send it to another in order to have its qualities tested, and the party to whom it is sent use it for some weeks in a public work room; that this is not giving the invention such publicity as to deprive the inventor of his right to obtain letters patent for it; also, that a machine does not cease to be the subject of a patent, merely because of the length of time during which the inventor may keep it by him, after it has been made a complete workable machine. Bentley v. Fleming, 1 C. & K. 587. |