1831. THWAITES V. SAINSBURY. ASSUMPSIT for goods sold and delivered. June 18th. Practice.-The By a rule of Court, obtained by consent, it was ordered plaintiff's counthat the defendant should admit the plaintiff's case. Manning having opened the pleadings— sel 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. [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. DAVIES and Others v. HALTON. ASSUMPSIT for goods sold and delivered. non assumpsit, tender, and set off. June 21st. Pleas- Semble, that there is not any custom in the cloth trade, by which a tailor, who receives 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 v. 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 TINDAL, C. J., left it to the Jury to say, first, when they were delivered back; and secondly, whether they were delivered to a duly authorized agent. The Jury found for the defendant, thereby Wilde, Serjt., and Steer, for the plaintiffs. Storks, Serjt., and Thesiger, for the defendant. [Attornies-Thornbury, and Locke.] See as to customs of trade, &c., Wood v. Wood, Vol. 1 of these Reports, p. 59; Sawell v. Corp, Ib. 392; Hogarth v. Jackson, Vol. 2, p. 595; Handaysyde v. Wilson, Vol. 1831. DAVIES v. HALTON. PINK V. SCUDAMORE, HICKS, and SLEIGH. June 22nd. work at an in ASSUMPSIT for builder's work done at a projected If a builder do hospital, called "The Western Hospital." The defendant Hicks pleaded the general issue, and the other defendants suffered judgment by default. It appeared that Mr. Sleigh, one of the defendants, had projected the hospital as a charitable institution, at which the other defendants were to be physician and surgeon, and to deliver lectures. To shew a joint liability to the present demand, workmen were called, who proved that all the three defendants consulted together, and gave directions to the workmen as to various things for the accommodation of the patients; and that, by the permission of the provisional committee, the defendant Hicks had drawn checks for some medicines for the patients of the hospital, on the order of the physician and surgeon, they being announced to deliver lectures there, and being members of the provisional committee, such builder is not bound to look solely to the funds of the hospital for pay ment, but may sue the persons who gave the orders, unless he was distinctly informed that the dealing was to be on the terms of looking for payment to the funds of the hospital only. 1831. PINK v. SCUDAMORE. and also a check for 10%., the proceeds of which had been paid to the plaintiff. All the defendants were members of the provisional committee for managing the intended hospital. Spankie, Serjt., for the defendant Hicks.-If persons engage in a commercial speculation, it may be inferred that the parties who are to participate in the profits are to be liable for the expenses; but, in a work of charity, it is clear, that the parties, if medical men, devote their time, and if not so their subscriptions to the charity; but no one is deceived; the persons who deal with them knowing that they look for payment to the sums subscribed. The defendants, it is true, gave directions as to the accommodation of the patients; that was mere advice, but no order. This is not like the case of a person giving directions about the house he is himself to inhabit. If a seaman came on board a ship, and, seeing any thing that he did not approve of, were to say, pull down that bulk head, would that make him liable to the ship builder? In the building of this Court my learned brother and myself suggested many alterations, but no one ever thought of making us liable to pay for it. Could it be supposed that the plaintiff worked at the hospital on the credit of the physician and the surgeon. It is known that the committee of a charitable institution are constituted to take care of the funds subscribed, and not to be liable to the tradesmen. Committees of trading companies act for gain, but the committees of charitable institutions do not. That, therefore, excludes the inference that things are done on their credit: the inference that arises where the parties act for gain being excluded. TINDAL, C. J., (in summing up)—The question here is, whether there was any contract by all these three defendants. Where no one is present at the making of any contract, and there is no correspondence, a Jury must look at the facts, to see who the contractors are; and they must look at the acts of the parties while the work is going on. The plaintiff relies on the fact of the defendants giving orders; and he also says, that if there was any profit, the defendants were jointly to derive it, as they were to give lectures; and it is shewn that Mr. Hicks made a payment for part of the plaintiff's claim. On the part of Mr. Hicks it is contended, that the design originated with Mr. Sleigh; and that all that Mr. Hicks did was as a surgeon, to carry on the objects of the hospital. The defendants, no doubt, thought the funds of the hospital would be sufficient to exonerate them, but still the tradesmen are not bound by that, unless they were distinctly told that they were to deal on the terms of looking to the funds of the hospital only. Verdict for the plaintiff. Wilde and Jones, Serjts., and R. V. Richards, for the plaintiff. Spankie and Storks, Serjts., and Godson, for the defendant Hicks. [Attornies-Shuter, and Hill.] See the case of Glenester v. Hunter, ante, p. 62. 1831. PINK V. SCUDAMORE. COLLIER, M. D., v. SIMPSON. June 23rd. words imputed of medicines in improper doses, and the defendant justified:-Held, SLANDER. The declaration stated, that the plaintiff Slander.—The was a physician, and that the defendant spoke certain words, the prescribing imputing that the plaintiff had prescribed improper medicines for a child. Pleas-General issue, and several pleas of jusitfication, stating that the plaintiff prescribed corrosive sublimate in too large doses. Replication-de injurid. It appeared that the complaint under which the child were stated by laboured was water on the brain. that medical books, which the medical witnesses to be works of medical authority, could not be put in, to shew that such doses were sanctioned; but, that the medical witnesses might be asked their judgment, and the grounds of it, which might in some degree be founded on these books as a part of their general knowledge. |