MORGAN et Ux. v. THOMAS.

Where a husband and wife lived separate, and an action was brought by the wife for a debt due to herself in the name of the husband and wife, without the husband's authority, the Court, on application, ordered proceedings to be stayed until an indemnity was given to the husband. On giving such indemnity, the wife is at liberty to go on in the husband's name.

In this case a rule had been obtained by Maule for staying the proceedings in the action, on the ground that it was brought in the name of the husband, without his authority. The action was on a bail-bond, by the plaintiffs as assignees. It appeared from the affidavits, that the wife had been living separate from her husband for several years; that the husband could neither read nor write, but had been induced by his wife, on a representation that she wished to raise money for him, to sign a paper with his mark, but that the paper was not read over to him, and that he was ignorant of the nature of it. The affidavits in opposition stated, that the paper contained instructions to the attorney to commence the action, and that the meaning and contents were explained to the husband before he signed it; that he was only joined for conformity, and had made no application to be indemnified for costs.

R. V. Richards showed cause. The original action, in which the bailpond was given, was on a promissory note, which had been given to the wife, and the husband's name was therefore used from necessity. No unfair advantage *has been taken, as it appears on the affidavits *389] that the husband authorized the action, by signing the warrant to prosecute, and he cannot now recall his authority. In Innell v. Newman, 4 B. & A. 419, where the husband released the action, the Court ordered the plea of release to be taken off the file.

Maule, contrà.-The husband cannot be taken to have given any authority to commence the action, as the paper was not read over to him, and he was ignorant of its contents.

BAYLEY, B.-The husband has a right to be indemnified from the costs of the action. The proceedings must, therefore, be stayed, until an indemnity is given to the husband, to the satisfaction of the Master; and, after that has been given, the wife, can go on with the action.

Rule absolute.

LARDNER v. DICK.

(S. C. 4 Tyrwh. 289.)

Where several issues are found for the plaintiff, and some for the defendant, the latter is entitled to the costs of the issues found for him; but he is not entitled to the costs of his witnesses, unless their testimony was confined to the issues found for him.

ACTION on the case for obstructing a water-course, by erecting floodgates across the stream. The declaration contained nineteen counts; ten counts alleging the possession to be in the plaintiff, and the other nine stating the possession to be in the plaintiff's tenants. The plaintiff recovered a verdict on the third, fourth, and thirteenth counts, and there was a verdict for the defendant on the others. The Master (Walker) allowed the plaintiff his general costs, deducting the costs of the issues found for the defendant; but he did not allow the defendant the *costs of those witnesses who were called both to disprove the issues found for the plaintiff, and to prove the issues found for the defendant.

[*390

Jervis now moved for a rule to review the Master's taxation, on an affidavit stating that all the defendant's witnesses, except one, were necessary to prove the issues found for the defendant; that the evidence of two of the witnesses did not materially apply to the issues found for the plaintiff, but principally to the other issues. He contended, that, by the rule 74, Hilary 2 Will. 4, whereby it is ordered that "no costs shall be allowed on taxation to a plaintiff upon any counts or issues on which he has not succeeded; and the costs of all issues found for the defendant shall be deducted from the plaintiff's costs;" the defendant was entitled to the general costs of the cause upon all the issues except those found for the plaintiff, including the expenses of witnesses.

BAYLEY, B.—The Master has allowed the plaintiff the general costs, deducting the costs to which the defendant was entitled in respect of the issues found for him. He has not allowed the defendant the costs of those witnesses, whose testimony was not confined solely to the issues found for him, but who were called to speak to other subjects arising on the issues found for the plaintiff. Before the new rule there would have been no ground for this motion. I think the Master has put a proper construction on the rule.

*391]

*WOODIN v. Burford.

(S. C. 4 Tyrwh. 264.)

Although a warranty given by a person intrusted to sell prima facie binds the principal, the warranty of a person intrusted merely to deliver the thing sold is not prima facie binding on the principal, but an express authority must be shown; and therefore, where a horse had been sold by A. to B., and A.'s servant, on delivering the horse to B., made certain statements, and signed a receipt for the price of the horse, containing a warranty :-Held, that in an action on the warranty, A. was not bound by the statements or receipt of the servant, as no express authority to give the warranty was shown.

ASSUMPSIT on the warranty of a horse. Plea—the general issue. At the trial, before GURNEY, B., at the Sittings after last Michaelmas term, the plaintiff read the examination of a witness which had been taken on interrogatories, from which it appeared that one Charles Brampton, the servant of the defendant, who was a horse-dealer, took the horse in question to the plaintiff's stables; that the plaintiff asked him what he knew about the horse; that he said the horse had come up from the country, and he knew very little about it himself; that it had a cough, but that the plaintiff could soon set that to rights; that the plaintiff said he did not mind if it was only a cough, as he knew how to deal with it. A receipt, containing a warranty, was then written out, and signed by Brampton. This receipt was produced in evidence to prove the warranty. The learned Baron was of opinion that Brampton was merely an agent for the purpose of delivering the horse and receiving the money; and it not being shown that he had any authority to give the warranty, nonsuited the plaintiff.

F. Pollock now moved to set aside the nonsuit, and for a new trial; and contended that it ought to have been left to the jury to determine whether Brampton had any authority to give the warranty; and that it was to be assumed that Brampton had communicated the fact of his having given the warranty to the defendant; and that the defendant had therefore recognised the warranty by acquiescing in it.

BAYLEY, B.-The question is, whether what was said by Brampton at the time he delivered the horse to the plaintiff, and whether the receipt signed by him, is evidence *to bind his master, the defendant.

*392] Now what is said by a servant is not evidence against the master

unless he has some authority given him to make the representation; and the question in this case is, whether there is reasonable ground for inferring such authority. It is quite clear, that, before the time when the horse was delivered to the plaintiff, and the receipt was given, there had been a bargain between the defendant and the plaintiff; and all that Brampton was directed to do, was to take the horse to the plaintiff and receive the money. It seems to me, that although a warranty given by a person intrusted to sell primâ facie binds the principal, yet the warranty of a person intrusted merely to deliver is not prima facie binding

on the principal, but an express authority must be shown. The plaintiff in this case did not show any such authority, and therefore did not make out any case for the jury.

VAUGHAN, B.-The simple question is, was there enough, on the mere production of the receipt, under the circumstances, to infer an authority? It is quite clear that there had been a previous bargain; and the servant of the defendant being sent merely to deliver the horse cannot be considered as his agent authorized to give a warranty.

BOLLAND, B.-No inference of authority in the agent can be deduced from his signing the receipt. If any such authority had been given to Brampton, he might have been called to prove it.

In an information under the excise laws, the Court will admit a defendant to defend in formâ pauperis on the common affidavit that he is not worth 57. over and above his wearing apparel. A pauper defendant having applied to the Court that he might be allowed a copy of the information gratis, the Court held that they could not grant a copy of the information, and that the defendant was only entitled to have the information read over to him by the officer, and that he might either plead instanter or at a future day.

THE defendant, having been served with a notice to appear to an information against him "for certain offences against the excise laws," obtained a rule on an affidavit that he was not worth, over and above his wearing apparel, the sum of 5l., to be admitted to defend in formâ pauperis, and also that he might be allowed a copy of the information gratis.

Tancred, for the Crown.-The Court has no power to allow the defendant to appear in formá pauperis. The statute 3 & 4 Will. 4, c. 53, s. 97, upon which this application is founded, and agreeably to which the defendant's affidavit was framed, does not apply to excise informations; and, in addition to the affidavit, the defendant ought to have produced a certificate of counsel that he had merits which was as essential as though he had applied to sue in forma pauperis. There is no precedent whatever for granting a copy of an information to a pauper defendant. The notice to appear is sufficient to enable the defendant to plead to the information.

BAYLEY, B.-The defendant has not had a copy of the information, and how could counsel say that he had a good defence on the merits? He could not know from a notice in such general terms as this is what the offence is. In the case of a plaintiff suing in forma pauperis, the opposite party is of necessity put to expense by his being suffered to proceed, and, therefore, the Court requires something more than the mere affidavit of poverty. As to allowing a copy of the information, the course of the Court of King's Bench was, for the officer to call the defendant up, to read over the whole of the charge to him, and to ask him whether he chose to plead then, or to take time. As *it *394] seems to me, all that the defendant is entitled to is to have the information read over to him, and then to say whether he will plead instanter, or that he wishes for time to plead at some future day. We can direct the clerk in Court on the part of the Crown to attend in Court to-morrow morning, for the purpose of reading over the information to the defendant; and to attend again at a future day, if necessary, to take his plea.

Accordingly, on the following morning, the defendant again appeared in Court, and the officer having read the information to him, he pleaded "Not guilty," which plea was then recorded.

BEST, Assignee of THOROWGOOD, an Insolvent, v. ARGLES.

(S. C. 4 Tyrwh. 256.)

A legacy of 1007. having been bequeathed to the wife of A., and A. being indebted to B. in 150%., A. sent B. the following document, signed by himself and wife :-"We hereby authorize the executors of the late to pay to you any legacy or moneys that he may have bequeathed to us or either of us, in part payment of the various sums you have so kindly lent us, and your receipt shall be to them a sufficient discharge for the same. There appears

to be about 1507. due to you." B. communicated to the executors that he had a claim on the legacy; but the executor said he would pay it to Mrs. A. After this communication had been made, A., in January, 1832, went to prison, and on the 29th of February petitioned for his discharge under the Insolvent Debtors' Act, and executed an assignment to the assignee; and on the 16th of May, 1832, he obtained his discharge accordingly. On the 3d of April, 1832, the executor paid Mrs. A. the amount of the legacy, which she immediately paid over to B., under the authority before mentioned :-Held, that the property in the legacy passed to A.'s assignee under the Insolvent Debtors' Act.

ASSUMPSIT for money had and received. The cause was tried at Guildhall, at the Sittings after Trinity Term, 1833, before GURNEY, B. It appeared that Thorowgood, on the 16th May, 1832, was discharged under the Insolvent Act; that his petition was filed, and the assignment made on the 29th of February, 1832; and that the plaintiff was appointed his assignee. It appeared, also, that a Captain Argles, who died in July, 1831, had by his will bequeathed a legacy of 1007. to the insolvent's wife. On the 3d of April, 1832, at a meeting at which were