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1831.

GLENESTER

V.

HUNTER.

the advantage of purchasing provisions by wholesale, in which the committee concurred-Why should they be interested in this matter, unless the funds, over which they had the control, were liable to the payments? The nature of the letter to the ground landlord seems to shew that the committee considered themselves as the persons who were to acquire the funds by which the concern was to be carried on. The examination of bills, and the signing of checks for payment, shew that the committee were not acting as if the concern was under the control of Mr. Sleigh only. In the case of drugs, it appears that a motion was made and seconded, that they be bought; and if the person who furnished them brought an action, there is no doubt that the committee who ordered must pay. The question is, whether you see any difference between articles ordered for the first time by the committee, and those things, which, being necessary for the ordinary support of the charity, had been at first furnished on the credit of Mr. Sleigh alone, and continued to be supplied without any alteration in the mode of ordering. If persons hold themselves out, they make themselves virtually liable, as much as if they actually made the contract; and the question is, whether these gentlemen, the defendant and others, did so act, as that they might be considered as the masters and employers of the servants by whom the goods were obtained. On the part of the defendant it was shewn, that, on some occasions, goods were paid for by Mr. Sleigh, which had been furnished by this very plaintiff; and the defendant says, that the plaintiff had no right, having begun on Sleigh's credit, to change: and undoubtedly he had not, if matters remained as they were. But, if Sleigh had left and parted with the concern, the plaintiff, if he went on supplying, might sue the new person, though at the time he did not know of the change. His Lordship, after further commenting upon the evidence, left the case to the Jury, who found a

Verdict for the plaintiff.

Wilde, Serjt., and R. V. Richards, for the plaintiff.

Spankie, Serjt., and J. H. Lloyd, for the defendant.

[Attornies-Shuter, and Beechey.]

Vide the case of Pink v. Scudamore, post, p. 71.

1831.

GLENESTER

v.

HUNTER.

DOE on the Demise of FINLAYSON v. BAYLEY.

June 17th.

EJECTMENT, to recover possession of a house in In ejectment

Park Road, Regent's Park.

against a weekly tenant, the no

tice proved was, to quit on Wed

nesday, the 4th of August. The witness who

A witness proved, that he understood from the defendant, that he took the house of Mr. Finlayson, at three guineas per week. A notice was left with the maid-servant, at the house, on the 28th of July, 1830, requiring the defendant to quit possession on Wednesday the 4th Wednesday was

of August.

Russell, Serjt., for the defendant, objected that the notice was not sufficient, as it did not appear that Wednesday was the expiration of the current week of the te

nancy.

To remove this objection a witness was called, who said that he negotiated the letting of the house, with a person named Bradfield, who had often acted as agent for the defendant; and that he gave Bradfield possession about nine o'clock, and the defendant came about ten. It was then proposed to read a letter written by Bradfield.

Russell, Serjt., asked his Lordship, whether he thought the evidence of agency was sufficient?

was called to prove that

the expiration of the current week of the te

nancy, said,

"that he guess

ed" the defend

ant came in

"about a Tues

day or a Wed

nesday, but had no recollection which:"-Held, insufficient.

68

1831.

DOE

d.

FINLAYSON

บ. BAYLEY.

BradTINDAL, C. J.-I think it is, the time is so near. field taking possession at nine, and the defendant coming at ten, there was no time for any intermediate letting.

The witness then said, that the house of which he spoke was not the house in question, but another, a few doors off, which the defendant occupied for eight months, and then removed to the house in question; he guessed that it was about a Tuesday or a Wednesday that he removed, but he had no recollection which. It appeared that Bradfield's letter related to the first house only.

Russell, Serjt.-This evidence does not supply the deficiency. According to the man's statement it is a guess whether it was Tuesday or Wednesday.

TINDAL, C. J.-It seems to me that there is nothing to leave to the Jury; but I will take any evidence which the plaintiff has to offer.

Wilde, Serjt., for the plaintiff, said that he did not think that the evidence could be carried any farther.

TINDAL, C. J.-Then the plaintiff must be called.

Nonsuit.

Wilde, Serjt., and Kelly, for the plaintiff.

Russell, Serjt., for the defendant.

[Attornies-Fielder, and Coe.]

See the case of Doe dem. Campbell v. Scott, 4 Moore & Payne, 20.

1831.

THWAITES V. SAINSBURY.

ASSUMPSIT for goods sold and delivered.

By a rule of Court, obtained by consent, it was ordered that the defendant should admit the plaintiff's case.

Manning having opened the pleadings

June 18th.

Practice.-The

plaintiff's counsel has a right to begin and state the facts, although by a rule of Court the defendant is

under obligation to admit the

Spankie, Serjt., for the defendant, claimed the right to plaintiff's case. begin.

Bompas, Serjt., for the plaintiff, resisted it.

TINDAL, C. J.-I am of opinion that the plaintiff's counsel has a right to begin and state the case. It is not like the case of an issue, proof of the affirmative of which lies on the defendant.

Bompas, Serjt., and Manning, for the plaintiff.
Spankie and Andrews, Serjts., for the defendant.

[Attornies-Bebb and G., and Hartley.]

As to the right to begin, see the cases of Rex v. Yeates, Vol. 1 of these Reports, p. 323; Cooper v. Wakley, Vol. 3, p. 474; Cotton v. James, Ib. p. 505; Curtis v. Wheel

er, Vol. 4, p. 196; Williams v.
Thomas, Ib. 234;
and Turberville
v. Patrick, Ib. 557; and the cases
respectively there referred to.

DAVIES and Others v. HALTON.

ASSUMPSIT for goods sold and delivered.

non assumpsit, tender, and set off.

[blocks in formation]

cloth from a clothier which he does not approve, is bound to pay for it, if, when sent back, it does not reach the seller, unless he shews that he has delivered it to the seller's order in writing.

1831.

DAVIES

ย.

HALTON.

The plaintiffs were clothiers in Gloucestershire, and the defendant a tailor in London.

There was a dispute between the defendant and the London agents of the plaintiffs as to two ends of cloth, which the defendant had delivered without any written order to a person, who, it was alleged, was in the employ of those agents, and who had pawned the cloth instead of carrying it to them. There was contradictory evidence as to the employment; but it was insisted on the part of the plaintiffs, that there was a custom in the trade never to return goods without a written order from the party who had sent them in. To prove this three witnesses were called; two of them said, that it was always the custom for a written order to be given; and the third stated, that it was the practice of the plaintiffs' agents, and of another house in the trade, but he did not know whether it was of any

more.

Storks, Serjt., for the defendant.-The custom is not proved. If it was the practice of the agent's house, there is no evidence that it was communicated to the defendant. It is the tradesman's duty, if there be a particular practice, to communicate it. There does not appear to have been any previous dealing between the parties from which it might be known. Then, if the practice is relied on as amounting to a general custom of the trade, it is absurd. Is it to be argued that goods are never to be returned without a written order? Trade cannot be carried on if such is to be the rule.

On the part of the defendant much evidence was given as to the agency of the person to whom the two ends of cloth were delivered; and a witness in the trade proved that, in cases where he knew the porter, he had delivered back goods without any written order.

The question in the cause was at last narrowed to the point as to the two ends-and

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