day, the 25th April. Notice was given to Weaver and Moore not to pay over the proceeds of the sale to the deft. Henry Claridge. The deft. Henry Claridge claimed to have been in possession under the bill of sale from Dec. 1859, and to have paid the Christmas rent. Weaver and Moore, after deducting 2917. 19s. 6d. for rent and expenses, paid over the balance to the deft. Henry Claridge on the 15th May. On proof of these facts it was agreed that the verdict should be entered for the plts. for 1873, with leave to the defts. to move to enter the verdict for them, the court to have power to draw inferences of fact from the evidence.

A rule nisi having been obtained accordingly, Pigott, Serjt. and H. James showed cause.-The bill of sale in question was an act of bankruptcy and void. It assigns all the bankrupt's stock, present and future, and there is no proviso for future advances, or for reconveyance or repayment. The grantee was to remain in as long as he pleased. The evidence showed that the bankrupt was insolvent at the date of the bill of sale, and the effect was to divest himself of all power to carry on his business, and to defeat and delay his creditors: (Hutton v. Crutwell, 1 E. & B. 15; Bittleston v. Cooke, 6 E. & B. 296.) It clearly was intended to defeat the creditor Stephens: (Stewart v. Moody, 1 C. M. & R. 777 [BLACKBURN, J. referred to Smith v. Cannan, 2 E. & B. 35]; Graham v. Furber, 14 C. B. 410; Bo'cherby v. Lancaster, 1 A. & E. 77; Baxter v. Pritchard 1 A. & E. 456; Hale v. Allnutt, 18 C. B. 505.)

[C. &

be made absolute, subject to its being altered n nonsuit as above stated, on the ground th although the transaction is a bill of sale, no to conveying all the bankrupt's property for 110 security of all the bankrupt's goods, it is imposta to say that, as a matter of law, the sum of DE may not have been of more advantage that goods to the bankrupt at the time, because, s that the advance was upon farming stock, we can say that the largeness of the margin was excess or that, under the circumstances, the bill of s would delay a creditor any more than a bill given under similar circumstances, would in a ne cantile case. Where a bill of sale is given f bygone debt, it cannot be said "to be give for the benefit of the party's creditors." there is a marked distinction between such a ser and that of an advance upon bill of sale to sus debts of the grantor. The case of Hutton v. C well is an express decision in favour of this s tinction. It is there said that a bill of sale file given to secure an advance on the faith of the st rity to enable a trader to carry on his business is an act of bankruptcy, although it would be an i bankruptcy if the consideration were either way partially an antecedent debt contracted without rity. In this case the 11007. was advanced to pai pressing creditors. I therefore think Hutton v. well is an express authority in favour of the dents. Th court cannot say that under such circumstances, the money was not above one-half the value of goods, that the bill of sale was therefore va nor do we think that we are justified in drawing inference that it was made for the purpose of the bankrupt's creditors. The rule will therefre absolute on the terms above stated.

Huddleston and Dowdeswell supported the rule for the defts. Weaver and Moore, and J. J. Powell and Macnamara appeared for the deft. Henry Claridge. The mere assignment of all a trader's personal estate and effects is not of itself an act of bankruptcy if there be reasonable ground for presuming that his creditors will not thereby be delayed: (Whitwell v. ThompMELLOR, J.-I am of the same open. I son, 1 Esp. 72.) A sale by a trader of his goods at money was advanced by the grantee to pay of prices considerably below their market value, is not creditors, and it must be taken as if it had be per se fraudulent within the meaning of sect. 67 of 12 present advance of money to the bankrupt. I & 13 Vict. c. 106: (Lee v. Hart, 11 Ex. 880.) In that this case falls within those of Hatton v. C the present case it was necessary to consider the pre-well, Bittleston v. Cooke, and Penneli v. Ba carious nature of the articles, farming stock, growing which decide that a bill of sale upon a bud crops, the vicissitudes of the season, the state of the advance so made under such circumstances is markets, besides the rent due, the pressure of the act of bankruptcy. Rule absolute according two creditors paid off, and other matters, all operating on the minds of the parties at the time the bill of sale was given. The object was to pay off the two creditors who were in possession and enable the bankrupt to carry on his business: (Pennell v. Reynolds, 5 L. T. Rep. N. S. 286, C. P.; Clark v. Wright, 30 L. J. 113, Ex.) It could not be expected that any one would advance the supposed full value of the goods; a margin for depreciation is always allowed. Then how can the court say that the margin was excessive in this case? (Smith Merc. Law 589, edit. 6.)

BLACKBURN, J.-When the rule nisi was obtained it was understood that the court, on the argument, was to have the power of drawing inferences of fact from the evidence given at the trial. Accordingly Mr. Serjt. Pigott, on showing cause against the rule, urged that there was evidence at the trial which showed that the giving of this bill of sale was really a fraud in fact, and that it was done with the intention of putting the bankrupt's property out of the reach of one particular creditor; and he said that he never intended to withdraw that circumstance from the jury at the trial. On the other hand, it was said that it was never intended that such an inference as that should be drawn by the court, and certainly we are not prepared to do so in this case. The rule asks the court to enter the verdict for the defts, but if the plts. will agree to abandon all intention of carrying the case to a court of error, we shall allow a nonsuit to be entered instead of directing a verdict for the defts. Now, we think that the rule should

COURT OF COMMON BENCH. Reported by DANIEL THOMAS EVANS and W. MATE 195

Barristers-at-Law.

Wednesday, April 16.
RICE v. SHEPHERD.
Husband and wife-Right of wife to pledge bustits
credit-Costs for proceedings in Dire Cou
Necessaries-Reasonable ground for instan

suit.

The costs of an attorney employed by a wif v
Divorce Court to prosecute a suit against her
band for a judicial separation may
against the husband if it appears that there
reasonable grounds for instituting such a sun
This was an action tried before Willes, J.,
dlesex, at the sittings after last Hilary Term, W.
verdict was found for the plt., leave being
to enter the verdict for the deft. if the court
be of opinion that the deft. was not in law lite.

The action was brought by the plt., a sheer recover the amount of his bill of costs in the retainer of the deft.'s wife, in instituting proceedings in the Divorce Court for a jui ration, which proceedings were eventually state

Denman, Q.C. now moved for a rule to e verdict for the deft. pursuant to leave reserve tending that the costs incurred were not i necessaries as the deft. was bound to par also that, according to the authority of A

STAGG v. ELLIOTT-HAYWARD AND COWLEY . DUFF.

ts, 28 L. J. 57, Prob. & Mat., the costs ought | clear that the agent had no authority to bind his prinhave been taxed de die in diem. cipal in accommodation bills; he had only such authority as to trade bills.

Contract with a fluctuating body. Volunteer rifle
corps-Liability of each member for uniforms sup-
plied under a contract with the corps-Evidence-
Scintilla of - Entries in plt.'s books. General Deft. had been a most active promoter in the far-
verdict where several questions left to jury-Mis-mation of the corps, to the funds of which he b

aid 377. into court, and denied his liability for any urther amount.

[Ex.

would find for plt. Secondly, it might be they would think that the contract was between the committee and There was a conflict of evidence at the trial between plt., and that the committee were to settle their own It. and deft. as to conversations and statements which account with deft., in which case plt. might have sued ook place and were made on certain occasions, when deft. alone or with all the rest of the committee; and It. attended at head-quarters and measured various if he chose to sue deft. alone, deft. might have pleaded embers of the corps for the uniforms in ques-in abatement the non-joinder of the others, but he had on. Plt. had sent in a tender for the supply with a not done so. If the jury thought it was a contract attern suit, the tender being headed, "Tender for the with the committee, of which plt. was one, they would apply of clothing, &c., to the Calstock Volunteer in that view find a verdict against deft. Thirdly, it ifle Corps." On some discussion arising as to the was possible the goods were supplied to the corps geneolour of the cuffs, deft., according to plt.'s testimony, rally, and in that case, as in the last, deft. would be id he would have scarlet cuffs, and on the plt. re- responsible with the corps, and not having pleaded the arking that the lord lieutenant would not allow it, non-joinder of the corps, the consequence would be eft., as plt. swore, said "he did not care for the lord that he would be liable in this action. Lastly, it eutenant; he (deft.) would have to pay, and he would might be there was a contract with the deft. to pay ave them of what colour he chose." This, however, for such as he distinctly engaged to pay for, and plt. eft. denied. Deft. told plt. to go on measuring consented to trust each individual member of the corps, he men, and asked within what time plt. would re- some of whom were labourers and some not of age. uire payment, to which plt. replied, "within three If they were of opinion it was a contract with deft. nonths," and plt. swore that he said to deft., "If you alone, or jointly with the committee, or with deft. quire six months' credit instead of three, you can jointly with the whole corps, they would find for plt. have it, but I can have nothing to do with particular On the other hand, if they thought each man was to ndividuals; if the men are to pay by instalments or pay for his own uniform, then they would find for not at all, that is your affair, not mine." There was deft. ome evidence that, on some of the men objecting to be measured, on the score of expense, the deft. said that he committee would be answerable for them It apDeared also that on one occasion one of the men vanted to pay plt. for his uniform, when plt. in deft.'s presence said to him, "I have nothing to do with you; You must pay it to the committee."

The bill as sent in was headed "Capt. Williams, Calstock Rifle Corps ;" and in the course of crossexamination of plt., deft.'s counsel called for plt.'s books. The day-book and ledger were produced and put in. In the day-book the entry was headed "Calstock Rifle Corps ;" in the ledger it was "Calstock Rifle Corps, Dr. To 28 suits for the supply of the following gentlemen, at 37. 12s.," setting forth the names of each individual supplied; and then in the ledger came a memorandum, which it seems was added afterwards, " Capt. Williams, Honeycombe."

The following, amongst other letters, was put in by plt., as tending with the other evidence to show that deft. had pledged his personal liability for the whole order.

"Millay, Plymouth, Jan. 18, 1861. "To E. Williams, Esq. "Sir,-Before I supplied any clothing to the corps, there was a distinct understanding that I was to deal with the committee, and I then positively refused to have anything to do with the individuals, as it would be a matter of impossibility for me to deal individually with the members of the corps. Under these circumstances, and having taken the opinion of several volunteer officers on the matter, I must apply to you, as captain of the corps, for settlement of the account, as there appears not to be the least doubt as to liability. I should not wish to do this were there any prospect of a speedy settlement in any other way. Although I must always decline, as before, to deal with any of the individuals who composed the late corps.-I am, &c.

"B. C. CROSS."

Deft. throughout denied his responsibility beyond the nine suits covered by the payment into court, or that he ever promised to be responsible, or ever authorised the committee or any person to pledge his credit, or that anything was at any time said about looking to the committee for payment.

In summing up, the learned judge laid four views of the case before the jury. In the first place, it was possible, from the evidence, they might think the goods were ordered by deft. for the corps, and that the understanding between plt. and deft. was, that deft.'s credit was alone pledged, and if that were so they

The jury found for plt. for the full amount of his claim (637. 16s), ad ing, that they thought it a very hard case," on which the learned judge, who has reported that he was not dissatisfied with the verdict, said it was "a hard case "whichever way the verdict was found, that deft.'s conduct had been most liberal, and that nevertheless it was hard for the tailor to lose.

Coleridge, Q. C., in Michaelmas Term, obtained a rule to show cause why the verdict should not be set aside, and a new trial had, on the ground that the learned judge had misdirected the jury as to the contract having been with the corps of Calstock Volunteers.

Jan. 18.-Karslake, Q. C., for plt., showed cause.The direction of the learned judge was right, and no misdirection, though it was, in truth, more in the nature of an observation or comment on the evidence put in by deft. There was evidence on all the points submitted to the jury, and the verdict was general. Can it be supposed that plt. should have preferred to take the liability of each member of the corps, rather than that of deft., of whose personal liability there was full evidence? [MARTIN, B.-Without doubt that is so. (His Lordship here read from plt.'s evidence what plt. said to deft., "If you like to take six months' credit, &c.)] Of deft.'s joint liability, together with others of the committee, there was also evidence, and it was submitted the direction of the learned judge as to that was correct, there being no plea in abatement. As to the third proposition of the learned judge, with which the quarrel on the other side was, it was contended that the entries in plt.'s books were evidence, however slight, that plt. gave credit to the corps, and was a legitimate argument for the learned judge to the jury, that if, according to the books, credit was given to the whole corps, they might, on that ground, find for plt. This evidence having been called for, and put in by deft., it was not competent for him now to say that credit was not so given, or to object to the reception of the books as evidence.

Coleridge, Q. C. and Pinder, contra, in support of the rule. The learned judge put four distinct views of the case before the jury. [CHANNELL, B.—The fourth view put by the learned judge was not acted on by the jury. That was so, of the remaining three views; the first was right; the second may have been right; but that was not open to objection now; and the third was wrong in point of law; the jury found a general verdict, and it was impossible therefore to say, with certainty, on which view they acted; but, if any one of the four views left to them were wrong, that would

be a ground for a new trial on misdirection, as the jury | for which he paid, and if, as was contended, the va may have acted on the wrong view. The observation no evidence for the jury of this particular extım, of the jury, that it was a hard case on deft., shows the rule would be made absolute. Had the jaig that the jury acted on the third view left to thein, for clined to leave the case to the jury on the evidenes on the other two there would be no hardship. In law these books, it was submitted that plt. could not there could be no such contract as that suggested here, complained. [POLLOCK, C.B.-Having been staparl with a fluctuating body such as this rifle corps were by deft. himself, I think plt. would have hal sa proved to be; nor was there any power in these fluc- ground of complaint.] Cur, adr, ruh tuating bodies to pledge one another's credit, in such a way as must necessarily be the case to maintain the learned judge's direction. If plt. meant to charge the whole corps he was bound to give evidence of an express authority on the part of the deft. or of the committee; none such was given, and there can be no implied authority in such a case. [MARTIN, B.-They are not a partnership.] Just so. The effect of the entry in plt.'s books was not to charge "the corps" generally as the contracting party, and the entry was no evidence of such a contract. It was no more than an index, an earmark as it were, to show for what particular men the suits were supplied. The bill sent in was headed Capt. Williams," showing to whom credit was originally given by plt., and it was contrary to principle that a plt. by his books, even if put in for another purpose by a deft., should be able to manufacture evidence for himself. [MARTIN, B.-That, as well as the effect of all the rest of the evidence, was for the jury; but, if such a contract be possible in law, it cannot be said there was no evidence of it. CHANNELL, B.-The fact of a corps being a fluctuating body may render such a contract improbable in point of fact, but not impossible in point of law. If there was any evidence there can be no misdirection. There would have been more ground for a rule as against evidence, but that was not moved.] There could be no such contract, for there could be no mutuality. If these suits had not been supplied, who would have sued for non-delivery? Members of a regimental mess were liable each for himself, but not each for the mess generally. So members of a club committee could not pledge each others' credit, nor were they liable for goods supplied on the order of the committee: (Fleming v. Hector, 2 M. & W. 172; Todd v. Emley, 7 M. & W. 427; 8 Ib. 505.) The present was an analogous case. [POLLOCK, C. B.--On the same principle, persons supplying necessaries to a hospital cannot come upon the individual governors.] The cases of Keate v. Temple, 1 Bos. & P. 158, and Prosser v. Allen, Gow. Rep. 117,were in point. [POLLOCK, C. B.Those cases are exceptional, and were so decided because there public funds were supplied, and the persons furnishing the goods were supposed to know it, and that the orders were given by the captain of the ship, or the colonel of the regiment as public officers.] But assuming there could be such a contract, there was no evidence of such an one here. Had there been other evidence of liability, the books would have been material to show whether plt. intended to supply the goods on the credit of the corps or of deft. It was not sufficient nowadays that there was a bare scintilla of evidence. A change in that respect had taken place of late years: (see the judgments of Pollock, C.B., and Cresswell, J., in Avery v. Bowden, in the Ex. Ch., 6 E. & B. 953; 26 L. J. 3, Q. B.; 28 L. T. Rep. 145.) So in Toomey v. London, Brighton and South Coast Railway Company, 3 C. B., N. S., 146; 27 L. J. 39, C. P.; 30 L. T. Rep. 135, C. P., Williams, J. said that a scintilla of evidence, or a mere surmise, would not justify the judge in leaving the case to the jury. [POLLOCK, C. B.-There must be enough evidence to enable the jury to do more than guess. MARTIN, B. referred to Gen. Stanwix case, Fearne's Posth. Works, and to Kirkman v. Siboni, 1 M. & W. 422; s. c. in error, 4 M. & W. 339.] It was a mere scintilla in the present case. It was improbable that deft, meant to be liable for more than the suits

Jan. 21.-POLLOCK, C.B.-This was an atten the plt., a tailor, to recover from the deft. Captur Williams, the captain of a rifle corps, the price of os tain regimentals furnished to certain members of 1 corps. The jury found a verdict for the pl., and Coleridge applied to the court for a new trial t ground of misdirection, not on the ground of verdict being against evidence. It appeared the corps had been established by the very liberal, ge and patriotic efforts of Capt. Williams, the det; subscribed very largely, and had taken verba measures to advance the corps, and to prote interests in every way, and had provided a band; and there is no doubt, as he admitted, t he had ordered regimentals for certain members of the corps, and his defence was that he had paid for regimentals of every person who had been supple his order, and that he had no personal respons with respect to regimentals supplied to aar person, and for which he was charged by the p. 1 also appeared that there was a committee who in managing the affairs of the corps, and the was a member of that committee. On one o the deft. was not there when some of the orders re given, but on another occasion he was present, was present when several orders were given. It gave evidence (and whether he proved his case t was a question for the jury, but his evidence was the deft. ordered all the regimentals but one set the deft., in the course of conversation, used expres which would leave no doubt, in point of fact, intended to pay for the regimentals, and pay f for he gave directions, according to the plt.'s " with respect to the cuffs applicable to every s regimentals. There was some doubt stated, I think plt. himself, whether that would fall within the mission of the lord lieutenant, and deft. said, as levá to pay for them, he would have them as he liked s quite clear, if that 1emark was made, that it appl every suit of regimentals that was furnished t whole corps. The deft. certainly denied that he the expressions, and no doubt the real question case may be stated, I think, not so much to whether the plt. was right, or the deft, was point of-truth for I think that is an offensive, unnecessarily offensive, mode of stating the as between any parties, where it is net precisely fact-but, whether deft, has made himself liable i of law; for it is perfectly possible that, withat least degree deviating from the truth, the de have used expressions which led the plt. to le that deft. was ordering on his own account, and plt. was justified in trusting him. There case doubt, in my opinion, that, though the deft gal mean to make himself personally liable, yet if be expressions which reasonably imported that he to pay for the suits, that he would be liable plt. was cross-examined, and in the course of lis examination his books were called for, and wer and they certainly contained an entry, the te which was to negative any notion that the de personally and individually liable, for the entry ** charge upon the whole corps, enumerating The entry was not Captain Williams," " Committee of the Corps," but "the corps It is very improbable that there would be contract of that sort, or any contract that cal and properly be described in that way. But sti