Exch. of Pleas, 1834.

WOODIN v. BURFORD.

Plea-the

ASSUMPSIT on the warranty of a horse.
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 inter-
rogatories, 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
cough, as he knew how to deal with it.
taining a warranty, was then written out, and signed
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 shewn that he had any authority to give the war-
ranty, nonsuited the plaintiff.

if it was only

a

sold by 4. to B.,

A receipt, con

and

and A's servant, on delivering the horse to B.,

by

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

VOL. II.

DD

EX.

made certain

statements, and signed a receipt

for the price of the horse, conranty:-Held, on the warranty,

taining a war

that, in an action

A. was not bound by the statements or

receipt of the servant, as no

express authority to give the warranty was

shewn.

1834.

WOODIN

v.

BURFORD.

Exch. of Pleas, to bind his master, the defendant. 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. seems to me, that although a warranty given by a person entrusted to sell prima facie binds the principal, yet the warranty of a person entrusted merely to deliver is not prima facie binding on the principal, but an express authority must be shewn. The plaintiff in this case did not shew any such authority, and therefore did not make out any case for the jury.

It

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 consideed 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.

GURNEY, B., concurred.

Rule refused.

Revenue, 1834.

The ATTORNEY GENERAL v. GEORGE DUMMIE.

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 formá 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 formá 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

In

an informa

tion under the

excise laws, the Court will ad

mit a defendant

to defend in formá pauperis on

the common af

fidavit that he

is not worth 51,

over and above his wearing apparel.

fendant having A pauper deapplied 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 de

fendant was only entitled to

have the infor

mation read over to him by the officer, and that he might either plead instanter or at a future day.

Revenue, 1834.

ATT. GEN.

บ.

DUMMIE.

it 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 tomorrow 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.

Exch. of Pleas.

A legacy of 1007. having

to the wife of A., and A. be

ing indebted to

B. in 1501., A.

sent B. the following docu

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

ASSUMPSIT for money had and received. The cause

been bequeathed 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 100%. to the insolvent's wife. On the 3rd of April, 1832, at a meeting at which were pre

ment, signed by
himself and
wife:-"We

hereby author

ize the execu

tors of the late -to pay to

you any legacy or monies 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 150%. 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 3rd of April, 1832, the executor paid Mrs. 4. 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.

1834.

BEST

ย.

ARGLES.

sent the insolvent's wife, the defendant, and the executor Exch. of Pleas, of Captain Argles, the latter paid Mrs. Thorowgood 971., being the amount of the legacy minus the legacy duty, which she immediately paid over to the defendant under the authority hereafter mentioned. On the part of the defendant it was proved, that, before and on the 18th of July, 1831, the insolvent was indebted to the defendant in 150l. and upwards, and which still remained unpaid; and that the insolvent sent the following document, signed by himself and wife, to the defendant:

"We hereby authorize the executors of the late Captain Argles to pay to you any legacy or monies 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 There appears to be about 1507. due to you. 5, King Street,

same.

10 July, 1831.

"To Mr. Argles."

J. H. Thorowgood.

Cath. Thorowgood."

This document was inclosed in the following letter, which was given in evidence:

"Dear George,-Myself and Kate herewith send you an order to receive any legacy and monies there may be left to us by our dear departed uncle, in part payment to you for the sum due, although I fear it will not cover your demand against us; but you must take the will for the deed. "J. H. Thorowgood."

Before the insolvent went to prison in January, 1832, it was communicated to the executor of Captain Argles' will, by the defendant, that he had a claim on the legacy in question, but the executor said he would pay it to Mrs. Thorowgood, and he appointed all parties to attend, when it was paid. It was admitted, on the part of the plaintiff,