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revocation in fact, for Loughnan & Co. are strangers to the transaction, and it is only from them that the defendant had any notice of a revocation. The assignment here was complete from the first, there were four parties consenting to it; the plaintiff who made it, the Commercial Bank who accepted it, Anderson and Rhind, who promised to pay when they had should have funds of the defendant, and the defendant, who is represented by the plaintiff himself to have authorized the transaction, against whom, therefore, the Bank might have maintained a special assumpsit if he had refused to pay. The case is not affected by the statute of frauds, for this was not a promise by the defendant to pay with his own money the debt of another, but to pay his own debt with his own money.

The judgment of the court was now delivered by

Cur. adv. vult.

BAYLEY, J. This is an action to recover the balance of an account, and the only question is, whether a payment by a debtor to a third person in pursuance of an order given by the creditor, was good so as to operate as a payment to the plaintiff. It appeared that in March 1816, the plaintiff and one Dickson were indebted to the Commercial Banking Company of Scotland, on a bill of exchange of which the plaintiff was the drawer, and Dick[*853 son, the acceptor. After the bill had become due, a proposal was made by the plaintiff to the company, that a debt due to him from the defendant, a brother of one of the directors of the company, to a larger amount, should be taken by the Banking Company, and that the debt due from the defendant to the plaintiff should be liquidated pro tanto. That proposal was not acceded to at that time, but it was renewed by the plaintiff in November 1816, and he then offered to make a regular assignment of the debt to the company. They were disposed to accede to this proposal, as appears by their letter of the 19th of November, 1816, and on the 23d of November, the plaintiff sent the banking company an order on Anderson and Rhind, who were agents for the defendant, directing them, as soon as they should have funds belonging to the defendant, to pay on account of the plaintiff to the Commercial Banking Company 2917. 198., or any part of the same, and the plaintiff says, "that he will credit the defendant for the amount, having received his order to that effect." Now that was a distinct authority from the plaintiff to Anderson and Rhind to apply the debt due to him from James Anderson, the defendant, in discharge of the 2917. 198. That order was communicated to Anderson and Rhind, the defendant's agents, and they ver bally promised the company to pay them according to the terms of the order, as soon as they should have funds in their hands belonging to the defendant, and that promise was never retracted. There was, therefore, an order by the plaintiff, that the money due to him from the defendant should be applied in discharge of 2917. 198., and there was an assent to that order by the agents of the defendant. There can be no doubt that a creditor has a right *to [854 insist on payment to himself, or to such person as he thinks fit. Whether he can retract an order once given, it is not necessary to decide, because I am of opinion, that a creditor is not at liberty to withdraw the authority, provided there is a pledge by the person to whom the authority is given that he will make the payment according to the authority. The question, therefore, arises, whether there was a legal obligation on the agents to pay this money to the Commercial Banking Company as soon as it came into their hands. There was a verbal promise by the agents of the defendant; but it may be said that that would not bind the defendant. It was insisted for the defendant, that the expression in the plaintiff's letter of the 23d of November, 1816, addressed to Anderson and Rhind, “I will credit Mr. J. Anderson, having received his order to that effect," was evidence of J. Anderson's assent to the order. For the plaintiff it was said, that it was no

more than a direction to pay if he should receive an order, but I think the fair import of that expression is, that he, the plaintiff, had before that time received an order from the defendant. Ample time had elapsed since the original proposal was made to have enabled him to procure such an order, and the grammatical construction imports that he had received such an order. If he had not received such an order, then it would only be a conditional security, and indeed, no security at all, until the defendant Anderson, assented to it. And if it had not then been understood by the Commercial Banking Company, that the order had been given, they would have required the assent of the defendant, and the proffered assignment. It appears to me, therefore, that the defendant had made himself liable to the company, *because *855] there was evidence of an express assent on his part to the assignment; but if that were not so, there would still be sufficient to imply the assent of the defendant to the arrangement. It appears from the correspondence, that the plaintiff authorized a Mr. Hill to collect the money and remit it to Alexander Loughnan & Co., and when that was received in June 1821, upon a communication between Mr. Hill, and the defendant, the latter undertook to pay the debt before the 1st of March, 1822, but there was a reserve or qualification applying to the transaction in question, and to the security. given by the plaintiff, and the assent of the defendant. There is a memorandum, that as it had been alleged that a payment of 3001. had been made on account of this debt by some person to the plaintiff on account of the defendant, it was declared, that should such payment be proved by the defendant to have been made to the plaintiff by some person on account of the defendant, on or before the 1st of March, 1822, then the said sum of 3007. should be deducted. There is nothing stated in the case to which that can apply but the transaction in question, and if it does apply to that, then the implication necessarily arises, that the defendant had assented that that part of the debt due from him to the plaintiff, should be applied in discharge of the debt due from the plaintiff to the banking company; and if he did so assent, then he was legally bound to pay it. In Tatlock v. Harris, Buller, J., lays it down, that if A. owes B. 100l. and B. owes C. 1007., and the three meet, and it is agreed between them that A. shall pay C. the 100l., B.'s debt is extinguished, and C. may recover the sum against A. So in this case upon payment by Anderson to the company, Hodgson's debt would be discharged pro tanto. We are of opinion, that a promise in writing, in *856] order to make it obligatory on Anderson so to apply the money, was not necessary, because this was not an agreement to pay money which a party by law was not obliged to pay, but there was a full and adequate consideration for the payment. The debt existed, and it was the debt of the defendant, and the only question was, to whom it was to be paid. There was also a consideration moving from the bank, viz. their forbearing to sue the plaintiff. We are, therefore, of opinion, that the defendant assented to the order; that when he assented to it, he was legally bound to pay money in pursuance of it, and that that payment was a discharge of the debt in question, notwithstanding the subsequent order in favor of Loughnan & Co. And as to them they are not injured, for there was a qualification in the agreement to pay them; that in the event of its being proved before March 1822, that part the money had been already applied to a different destination, there should be a deduction pro tanto. Before that time L. & Co. were informed of the obligation to pay the banking company. They were, therefore, promptly apprised of the real situation in which they stood. This was a good payment in point of law to the plaintiff, and binding upon him. I am therefore, of opinion, that the rule for a new trial must be made absolute. Rule absolute.

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*The KING v. SOPER and CAMFIELD.

By the friendly society act, statute 33 G. 3, c. 54, s. 15, it is enacted, that if any member of the society shall think himself aggrieved by any thing done by any such society, two justices may, on complaint upon oath of such member, summon the presidents or stewards of the society, and the justices are to hear and determine the matter of such complaint, and to make such orders therein as to them shall seem just: Held, that the jurisdiction of the magistrates was confined strictly to the subject matter of the complaint, and therefore, where it appeared that a party had complained to the justices that he had been deprived of relief to which he was entitled, and the justices awarded not only that the steward should give him such relief, but also that the party should be continued a member of the society, it was held that the latter part of the order was illegal, inasmuch as the expulsion of the party was no part of the complaint.

INDICTMENT stated, that before the making of the order thereinafter mentioned, a certain friendly society, called "The Society of Brotherly United Philanthropists," had long been established and existed at Greenwich, in the county of Kent, under and by virtue of the statute of the 33 G. 3, c. 54, the rules, orders, and regulations of which society had, long before the making of the said order, according to the directions of the 35 G. 3, c. 111, been duly exhibited, confirmed, deposited, and filed of record; and that one James Margetts, before the making of the order thereinafter mentioned, had been duly admitted a free member of the society, and that although he had not infringed any of the said rules, orders, and regulations, yet that he had been wrongfully, and contrary to the rules, orders, and regulations of the society, expelled the society, and deprived of certain relief and maintenance which he was entitled to from the stewards of the society for the time being; and that Margetts thinking himself and being aggrieved thereby, did on, &c., at, &c., make complaint thereof to two justices, against the defendants, Soper and Camfield, and before the justices took his corporal oath of the truth of the said complaint, and deposed to the truth of his said complaint, that Soper and Camfield, (they then being stewards of the society,) were duly *summoned to appear before the justices, and that being so sum[*858 moned, they did afterwards personally appear and answer, and show cause against the said complaint and matters required of them in the said summons, and that the justices thereupon, afterwards, to wit, on, &c., at, &c., hearing what was alleged and proved before them concerning the premises by both parties, made their order in writing, whereby they ordered that Margetts should be continued a member of the said society. The indictment then stated, that Soper and Camfield had notice of the order, and were requested to continue Margetts a member of the said society, but that they unlawfully and contemptuously refused so to do. Plea, not guilty. At the trial before Alexander, C. B., at the Summer assizes for the county of Kent, 1824, the only proof of the complaint made by Margetts to the magistrates was contained in the order which was produced in evidence by the prosecutor. That order recited that Margetts, a free member of the society, personally complained upon his oath before the justices, that he, Margetts, had, for the space of sixteen days, to wit, between, &c., been sick and infirm, and had been unable to follow his trade, and that Soper and Camfield, the stewards of the society, refused to pay him 17. 08. 6d., the arrears of allowance to which he was entitled as a sick member of the society, for the last nine days of that period, at the rate of 16s. per week, against the form of the statute; the order then recited, that the justices did issue a summons, requiring the stewards to appear before them on the day of the date of the order, to answer to the said complaint; and upon the appearance of the stewards before them, in pursuance of the summons, the justices had that day pro ceeded peremptorily to hear and determine in a summary way the matter of the said complaint, according to the true purport and mean- [*859

ing of the rules, orders, and regulations of the society, and according to the statute; and that upon such hearing they were satisfied that Margetts had not infringed any of the said rules, orders, and regulations, and that the sum of 168. was then due to him from the said society for the arrears of his allowance as a sick member thereof; and they, therefore, ordered Soper and Camfield, forthwith to pay to Margetts, the sum of 16s., and also the further sum of 118. for the costs which Margetts had been put unto by reason of the stewards refusing to pay him the said allowance; and they further ordered, that Margetts should be continued a member of the society. It was objected for the defendants, that that part of the order which directed that Margetts, should be continued a member of the society was illegal and void, because the justices had power only by the 33 G. 3, c. 54, to adjudicate upon the matter of the complaint before them, and it appeared by the recital in the order that the expulsion was no part of the matter of complaint. The Lord Chief Baron overruled the objection, and the defendants, Soper and Camfield, were found guilty. A rule nisi was obtained in last Michaelmas term, upon the objection taken at the trial, and also upon the ground that the allegations in the indictment were not supported by the evidence, inasmuch as the allegations in the indictment were that Margetts, had made complaint to the justices, first, that he had been expelled from the society; and, secondly, that he had been deprived of the relief which he was entitled to from the stewards of the society for the time being; and the proof was that he had only complained of his having been deprived of relief.

*860]

*Campbell, was now heard against the rule, and C. Law, in support of it.

BAYLEY, J. I am of opinion that the rule for a new trial ought to be made absolute. It is our duty to look at the indictment to see whether the charge contained in it was supported by the proof given at the trial; if it was not, then the defendants were entitled to an acquittal. The indictment states that Margetts, had been expelled the society, and had been deprived of certain relief to which he was entitled, and that, thinking himself, and being aggrieved thereby, he made complaint thereof, to two justices, and took his oath before them, and deposed to the truth of the said complaint. The indictment therefore, alleges a complaint to have been made involving two propositions, viz. first, that Margetts, had been expelled from the society; and, secondly, that he had been deprived of relief. The proof was, that the complaint made was confined to one of those propositions, viz. that Margetts had been deprived of relief; and the indictment does not charge any disobedience of the order of the justices in that respect. It then proceeds to state that the stewards were summoned, and that they personally appeared and answered to and showed cause against the complaint and matters required of them in the said summons, and that the justices afterwards made their order that Margetts, should be continued a member of the society. Now that allegation imports that the stewards were summoned to answer and did answer the complaint, consisting of two branches, mentioned in the former part of the indictment. It appears, however, by the proof contained in the recital of the order, that they were summoned to answer one ground of complaint only. I, *861] therefore, think that these allegations were not made out in proof, and that the defendants were entitled to an acquittal on that ground. The indictment then states that the justices proceeded to order that Margetts, should be continued a member of the society. A question therefore, arises whether the order was a valid order, because if it was not, the defendants were not bound to obey it, and consequently are not indictable for disobeying it. The statute 33 G. 3, c. 54, s. 15, enacts, that if any member of the society shall think himself aggrieved by any thing done by any such society or person acting under them, two justices, upon complaint upon oath of such person, may summon the presidents or stewards of the society, or any one of them, if the

complaint be made against the society collectively, and the justices are to hear and determine in a summary way the matter of such complaint, and to make such 'order therein, as to them shall seem just. The statute therefore, confines the jurisdiction of the magistrates to the subject matter of the complaint before them. They cannot, therefore, adjudicate upon any matter not comprehended in the complaint made on oath before them. Now, in this case the only matter of complaint before the justices was, that Margetts, had been deprived of the relief to which he was entitled. The justices have not only determined that matter of complaint, but they have further adjudicated that Murgetts, should be continued a member of the society, and that was not a matter brought before them upon oath. Upon the ground therefore, first, that the allegations in the indictment were not supported by the proof, and, secondly, that that part of the order which directs that Margetts should be continued a member of the society was illegal, I think that the defendants were entitled to an acquittal, and that the rule for a new trial must, therefore, be made absolute.

[862

HOLROYD, J. I also think that the rule for a new trial ought to be made absolute, because the allegations in the indictment were not supported by the evidence given at the trial, and the verdict was therefore, wrong, and the defendants were entitled to an acquittal. I also think that the justices had power only to adjudicate upon the subject matter of complaint brought before them. If the complaint had embraced the two propositions which the indictment supposes it to have embraced, the justices would have been guilty of no excess of jurisdiction; but here the expulsion of Margetts was no part of the complaint before the magistrates, and the defendants were not summoned to answer for having expelled him. I therefore, think, that the magistrates acted unlawfully when they ordered that Margetts, should be continued a member of the society, and that the defendants were not bound to obey that part of the order. Upon the ground, therefore, that the allegations in the indictment were not supported by proof, and that the defendants were not bound by law to obey the order made by the magistrates, I think, that there ought to have been an acquittal, and consequently, that the rule for a new trial ought to be made absolute.

LITTLEDALE, J., concurred.

Rule absolute.

*CHATFIELD, Clerk, v. RUSTON.

[*863

Where a private inclosure act (reciting that it was expedient that the tithes in the parish should be extinguished, and an adequate compensation should be made to the vicar,) enacted that the commissioners should, in a certain mode, ascertain what yearly sum the tithes were worth, and that there should be issuing and payable to the vicar out of the lands, such yearly sum, "free and clear of all rates, taxes, and deductions whatsoever:" Held. that the vicar was not rateable to the poor in respect of the yearly sum so ascertained and paid to him.

REPLEVIN. AVOwry by the defendant, as overseer of the poor of the parish of Chatteris, in the county of Cambridge, that he seized and took the plaintiff's goods and chattels by authority of the 43 Eliz. c. 2. Plea in bar, that

by an act of the 49 G. 3, entitled "An act for inclosing lands in the parish of Chatteris, in the isle of Ely, in the county of Cambridge," it was, amongst other things, recited, that it was convenient that all the tithes both great and small, arising and renewing as well out of, in or upon the said open fields, commonable lands, commons and low grounds, by the said act intended to be divided and allotted, as also out of, in or upon such of the homesteads, gardens, orchards, and inclosures within the said parish, as were liable to the

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