Captain Antrim; that he was not then exercising his office of a magistrate; and that this case is to be considered in the same light as if the communication had been made to him in his private room. It is unnecessary, therefore, to decide in this case, whether the defendants would have been justified in publishing this matter in a newspaper, if it had contained a correct report of a proceeding which had taken place before a magistrate acting in a judicial capacity. But the question is, whether a person hearing slanderous matter uttered in private company, may cause that matter to be written, printed, and *37] published, provided that he, at the same time, state the name of the person from whom he heard it. Now, if the law as to the repetition of oral slander were to be propounded for the first time to day, the propriety of the rule laid down in Lord Northampton's case, might perhaps admit of some doubt. It is sufficient, however, to say that this case does not fall within that rule. If the slanderous matter published constitute a civil injury, either from the nature of the matter charged, or from the manner in which it is published, it is quite clear that the party injured must have an action against some person. If, therefore, the plaintiff in this action cannot have an action against the relator of the slander, he must have one against the person who subsequently printed and published it. Now, here it is evident, that in respect of part of the slanderous matter charged, no action would lie against the relator, because the words themselves were not actionable. As to the other part, it may be doubtful whether any action could be maintained. It being clear, however, that no action would lie against the original relator as to part, it follows as a necessary consequence, that as to that part it must lie against the party vho printed and published it, for otherwise the party injured will be wide any remedy.

Rulete.

38]

*DYER et al. v. PEARSON, PRICE, and CLAY.

A. employed B., his agent, to import goods from a foreign country. Upon the arrival of the goods, B., who resided in London, transmitted to A., who resided in the country, the invoice, but delivered the bill of lading to a warehouse keeper in order to get the goods entered and warehoused. In the warehouse keeper's books they were de scribed as the property of B. By the bill of lading the goods were to be delivered to the order of the shipper or his assigns, and it was endorsed by the shipper in blank. B. had no authority from A. to sell the goods, but after they had been standing in his name in the warehouse keeper's books nearly five months, B. sold them: Held, in an action of trover brought by A. against the purchasers, that upon these facts the jury ought to have been directed that A. was entitled to recover, inasmuch as B. had no authority to sell, or at least that it ought to have been submitted as a question of fact to the jury, whether A. had by his conduct enabled B. to hold himself out to the world, as having the property as well as the possession of the goods.

TROVER for ten bags of wool. Plea, not guilty. At the trial before Abbott, C. J., at the London sittings after last Michaelmas term, the following appeared to be the facts of the case: The plaintiffs resided at Wootton under Edge, Gloucestershire. The defendants, Pearson and Price, were warehouse keepers, and the defendant Clay was a woollen draper, and all the defendants resided in London. In November 1823, the plaintiffs directed one Smith, who also resided in London, to import for them from Germany, thirty bags of wool. Smith ordered the same from Van Smissen & Co., merchants in that country, who required, that before the bills of lading should be delivered to Smith, bills drawn by them for the amount of the wools should be accepted by a banker in London. In consequence of this the plaintiffs procured Es

[*39

daile & Co., bankers in London, to accept bills for the amount. The thirty bags of wool arrived in December 1823, accompanied with a letter of advice, covering the bill of lading and invoice. Smith transmitted the invoice to the plaintiffs. By the bill of lading, the wool was made deliverable to order or assigns, and it was indorsed by Van Smissen & Co. in blank. Smith delivered it to the defendants, Pearson and Price, to enable them to enter and warehouse the wool. Smith had no authority from the plaintiff's to sell the wools, but he procured the defendants, Pearson and Price, to advance the sums payable for the duties, and afterwards at their request, one Squires advanced a further sum of 2007. on the security of the wool. The wool was entered in the books of Pearson and Price as the property of Smith, and he transmitted twenty bags to the plaintiffs. In May 1823, Clay purchased the ten bags in question, of Smith, for 5791. At that time the bill of lading remained in the possession of Pearson and Price, and the sum due to them in respect of the duties and other charges amounted to 328/. 118. 4d., which, with the sum of 2001. due to Squires, amounted altogether to 5281. 11s. 4d.; and that sum Clay, by order of Smith, paid to Pearson and Price, and the remaining 517. he paid to Smith. In August, the plaintiff's claimed the ten bags of wool of Pearson and Price, and they, after notice of the plaintiff's claim, delivered the same to the defendant Clay. Before the commencement of the action, the plaintiffs tendered to Pearson and Price the amount of the charges due to them, and demanded the wool from all the defendants, which they refused to deliver. Upon these facts the Lord Chief Justice told the jury, that if a man takes upon himself to purchase from another under circumstances which ought to excite his suspicion, and to have induced him to distrust the authority of the person selling, such a purchaser could not hold the property if it afterwards turned out that the person from whom he bought had no authority to sell; and he left it to the jury to say, whether Clay had purchased under circumstances which would induce a reasonable, prudent, and cautious man to believe that Smith, of whom he purchased had *authority to sell. If they thought that he had purchased under such cir- [*40 cumstances, they were to find for the plaintiffs; if otherwise, for the defendants. A verdict having been found, the defendants in Hilary term last, the present Attorney General (then Solicitor General) obtained a rule nisi for a new trial. He contended that the true question which ought to have been submitted to the jury was, whether the purchaser was led by any negligence on the part of the plaintiffs to suppose that Smith was the real owner of the goods; for the general principle was, that an agent could not bind his principal beyond the scope of his authority, and for that reason, a factor having authority to sell, could not bind his principal by a pledge. Therefore, the true question in this case was, whether Smith had any authority, express or implied, to sell. It was clear that he had no express authority, and then the only question was, whether the plaintiff had left the property in the possession of Smith, under circumstances from which the law would imply that he had authority to sell. Thus in Pickering v. Busk, 15 East, 36, the law did imply such authority. There the purchaser of hemp, lying at wharfs in London, had, at the time of his purchase, the hemp transferred in the wharfinger's books in the name of the broker who effected the purchase for him, and whose ordinary business was to buy and sell hemp: and this was held to give the broker an implied authority to sell it. Here, there were no circumstances from which such an authority could be implied; the original invoice was in the hands of the plaintiffs. There was no evidence that Smith was in the habit of buying and selling wool, and all the circumstances were *consistent with the fact of his being a mere agent, having authority to [*41 receive and transmit the goods to the country. An authority to sell, was not to be implied from his possession of the bill of lading; that gave him no title, for, by it the goods were to be delivered unto the order of the

shipper or his assigns, and it was indorsed in blank by the shipper. Besides, it was necessary that the bill of lading should remain in his possession, for the purpose of enabling him to get possession of the goods, and to have them warehoused.

Scarlett, and F. Pollock, now showed cause. It may be conceded, as a general proposition, that a principal is bound by his agent only when he acts within the scope of his authority, but the case of Pickering v. Busk shows that such an authority may be implied from circumstances. Now here, there are circumstances from which such an implication arises; for the plaintiffs saffered Smith to import the goods in his own name, and to appear to the world as the owner, from the month of December until the month of May, for during that time they were entered in the books of Pearson and Price as the property of Smith, and the bill of lading remained in the possession of him or his agent; and although his name did not appear upon the face of it, yet, as the goods were to be delivered to the order of the shipper or his assigns; and as the indorsement was in blank, they were deliverable to Smith, who was the bearer. The plaintiffs, therefore, enabled Smith to appear to the world as the owner of the wool, and that being so, they were bound by the sale.

*The Attorney General, contra, was stopped by the court.

*42] ABBOTT, C. J. We all think there ought to be a new trial in this case. The question which I left to the consideration of the jury does not appear to me to have embraced the whole case. The general rule of the law of England is, that a man who has no authority to sell, cannot, by making a sale, transfer the property to another. There is one exception to that rule, viz. the case of sales in market overt. This was not a sale in market overt, and therefore, does not fall within the exception. Now this being the rule of law, I ought either to have told the jury, that even if there was an unsuspicious purchase by the defendants, yet as Smith had no authority to sell, they should find their verdict for the plaintiffs; or I should have left it to the jury to say, whether the plaintiffs had by their own conduct enabled Smith to hold himself forth to the world as having not the possession only, but the property; for if the real owner of goods suffer another to have possession of his property, and of those documents which are the indicia of property, then perhaps, a sale by such a person would bind the true owner. would be the most favorable way of putting the case for the defendant; and that question, if it arises upon the evidence, ought to have been submitted to the jury. It is unnecessary to consider what would be the effect of the evidence upon that question. The rule for a new trial must be made absolute. Rule absolute.

That

*43]

*BURWOOD v. FELTON.

The assignee of a bankrupt is not liable to the messenger under the commission for fees due to him before the choice of the assignee.

ASSUMPSIT for work and labor, money had and received, money paid, &c. Plea, general issue. At the trial before Abbott, C. J., at the sittings after last Michaelmas term, it appeared that the plaintiff was a messenger, under a commission of bankruptcy, issued against one Farquharson, and that the defendant was the sole assignee under that commission. The plaintiff claimed 1137., being 857. for fees due to the plaintiff as messenger, before the choice

of the assignee, and 281. for similar fees, which had accrued due subsequent to the appointment of the assignee. The latter sum the defendant paid into court. A letter by the defendant's attorney to the attorney of the plaintiff' was given in evidence, and it was contended, that it contained an express promise to pay the sum due to the plaintiffs, when sufficient funds should be collected. The court were ultimately of opinion that it did not amount to such a promise. As the question turned entirely on the terms of the letter, it is unnecessary to state the argument or decision upon it. But it was further objected, first, that the assignee of a bankrupt was not liable to the messenger for any costs incurred before the choice of assignees; because, by the 5 G. 2, c. 30, s. 25, the petitioning creditor is to pay all costs and expenses of suing forth and prosecuting a commission until the assignees are chosen; he is, therefore, personally bound to pay the messenger. The Lord Chief Justice reserved the point, and a verdict was taken for the plaintiff, with liberty to the defendant to move to enter a nonsuit. A rule nisi for that purpose having been obtained by Marryat, in last Hilary term.

[*44

Archbold, now showed cause, and contended, that as the assignee had money in his hands, applicable to the payment of the debt due, he was responsible in the present action. The petitioning creditor was liable, at all events, to pay the messenger; but if he were to abscond, surely the messenger might recover against the assignee who has in his hands the funds applicable to the payment of the debt. Here, too, the defendant, after his appointment as assignee, continued to employ the plaintiff, and, therefore, he is personally liable for the work done. Tarn v. Heys, 1 Starkie, 278.

ABBOTT, C. J. I am of opinion that the rule for a nonsuit ought to be made absolute. By the stat. 5 G. 2, c. 30, s. 25, it is enacted, "that the creditor who shall petition for and obtain any commission of bankrupt, shall be and is hereby obliged, at his own costs and expenses, to sue forth and prosecute the same, until an assignee shall be chosen of such bankrupt's effects," and then the commissioners are directed, at the meeting for the choice of the assignees, to ascertain the costs, and to order the assignees to pay the petitioning creditor such costs out of the bankrupt's estate. It is clear, therefore, that an assignee is not liable by law to the messenger, in respect of fees due to him antecedent to the choice of the assignee. But the petitioning creditor is personally liable for such fees, and the statute points out the mode in [*45 which his expenses are to be paid. That being so, we are of opinion that the defendant is not liable to pay to the messenger any fees due to him before the former was chosen assignee; and, therefore, the rule for entering a nonsuit must be made absolute.

Rule absolute.

GORGIER v. MIEVILLE, et al.

Where a foreign prince gave bonds, whereby he declared himself and his successors bound to every person who should for the time being be the holders of the bonds for the payment of the principal and interest in a certain manner: Held, that the property in those instruments passed by delivery as the property in bank notes, exchequer bills, or bills of exchange, payable to bearer; and that, consequently, an agent in whose hands such a bond was placed for a special purpose, might confer a good title by pledging it to a person who did not know that the party pledging was not the real owner.

TROVER for a Prussian bond. Plea, not guilty. At the trial before Abbott, C. J., at the London sittings, after last Michaelmas term, it appeared, that the bond in question had been deposited by the plaintiff in the hands of Messrs. Agassiz & Co., to hold for the benefit of the plaintiff, and receive the interest

upon it. Agassiz & Co. being in want of money, pledged the bond to the defendants. By the bond, the King of Prussia, declared himself and his successors bound to every person who should for the time being be the holder of the bond, for the payment of the principal and interest, in the manner there pointed out. It was further proved, that bonds of this description were sold in the market, and passed from hand to hand daily, like exchequer bills, at a variable price, according to the state of the market. Upon these facts the Lord, C. J., was clearly of opinion, that this bond might be pledged to any person who did not know that the person pledging it was not the real owner, and he directed the jury to find a verdict for the defendants, unless they thought that the defendants knew that Messrs. Agassiz & Co. were *46] not the owners of the bond at the time when they deposited it in their hands. The jury having found a verdict for the defendants, a rule nisi for a new trial was obtained in last Hilary term, and now

Scarlett, Marryat, Gurney, and F. Pollock, showed cause, and contended, that a bond of this description being payable to bearer, and the subject of sale like exchequer bills, the property in it passed by delivery, and, therefore, like bank notes or bills of exchange indorsed in blank, might be pledged by any person holding it in character of agent; and they cited Miller v. Race, 1 Burr. 452, Grant v. Vaughan, 3 Burr. 1516, Peacock v. Rhodes, Doug. 633, Collins v. Martin, 1 Bos. & Pul. 648, Wookey v. Pole, 4 Barn. & A. 1.

The Attorney General, and D. F. Jones, contra. This case falis rather within Glyn v. Baker, 13 East, 509, in which it was held, that the property in an India bond did not pass by delivery. The principal ground upon which bank notes, bills of exchange indorsed in blank, and exchequer bills have been held to pass by delivery, is, that such instruments constitute a part of the circulating medium of the country, which would be materially impeded if they could be followed. That reason does not apply to a security of a foreign state.

ABBOTT, C. J. I think that this rule must be discharged. This instrument, in its form, is an acknowledgment by the King of Prussia, that the sum *mentioned in the bond is due to every person who shall for the time *47] being be the holder of it; and the principal and interest is payable in a certain mode, and at certain periods mentioned in the bond. It is, therefore, in its nature precisely analogous to a bank note payable to bearer, or to a bill of exchange indorsed in blank. Being an instrument, therefore, of the same description, it must be subject to the same rule of law, that whoever is the holder of it, has power to give title to any person honestly acquiring it. It is distinguishable from the case of Glyn v. Baker, because there it did not appear that India bonds were negotiable, and no other person could have sucd on them but the obligee. Here, on the contrary, the bond is payable to the bearer, and it was proved at the trial that bonds of this description were negotiated like exchequer bills.

Rule discharged.

THE KING v. The BISHOP OF PETERBOROUGH.

A curate cannot have the benefit of a proceeding by monition for the recovery of a salary assigned by a bishop without the consent of the incumbent, the incumbent being resident on his benefice, and discharging the duties generally, but desirous of the assistance of a curate.

THIS was a rule calling upon the bishop of Peterborough, to show cause why a writ of prohibition should not issue, to prohibit him from proceeding to issue a sequestration upon a monition issued by him against Charles Wethe