Wilkins, Serjt., for the defendants, objected, that that was precisely the question the jury had to decide.

WILDE, C. J., allowed the question to be put, on the ground, that, in some localities stenches and offensive sights *in a like degree might not affect the value of houses, and the witness, from his [*721 knowledge of the locality, might tell whether, in this instance, they did. To prove the occupation of the wharf by the defendants since September, 1847, a rate-collector was put into the box, who could only depose, however, to having received the rate up to April, 1847. As it was already shown that the wharf had been continuously used as a depôt for the street-scavengers, Byles, Serjt., contended, that the jury might couple the two facts, and be warranted in inferring that the Company still continued their occupation of the wharf.

Wilkins, Serjt., contrà.

WILDE, C. J., held, that the evidence was inadmissible. A letter was then put in, signed "The London Street Cleansing Company," and which contained an admission that the wharf in question was occupied by the Company. To show that Holland, one of the defendants, was bound by this admission, another letter was proposed to be put in, which was signed by procuration for him, and which recognised the term "The London Street Cleansing Company" as a description of himself.

Wilkins, Serjt., objected, that an admission in a letter signed merely by procuration did not bind the party for whom it was signed.

WILDE, C. J., thought it sufficient to go to the jury, if the letter was unaccompanied by any explanation on the part of the defendant HolVerdict for the plaintiff.

land.

Byles, Serjt., for the plaintiff.
Wilkins, Serjt., for the defendant.

[Attorneys-Minch & Smith, and Wilkins & Co.]

*SHEPHERD v. PHILIPS. June 22.

[*722

Where the defendant, a commercial traveller, was authorized by the plaintiff to deduct certain sums from the amount he might receive on his account, to be repaid out of the commission the defendant was to be paid by other employers:-Held, that the sums might be recovered under a count for money lent.

ASSUMPSIT.-Money had and received, and money lent. Plea, non assumpsit. The defendant in this action had been employed by the plaintiff as a commercial traveller, but was dismissed in consequence of a change by the latter in the mode of carrying on his business. He was then employed by some other commercial houses as a traveller on commission, and he subsequently agreed with the plaintiff, to collect his outstanding debts, on the following terms:-The defendant was to make no charge for collecting, but was to appropriate 17. per day out of the VOL. II.-59

sums he might receive on the plaintiff's account, for the purpose of defraying the expenses of his journey, and was to repay the amount out of the sums he should receive as commission from his other employers on his return. The defendant, it appeared, had stated, that he would be unable to defray the expenses of his journey without some such arrangement. He had not accounted for a sum of 124/., which was equal to 1. a day during his journey; and to recover this amount the present action was brought.

*723]

At the close of the plaintiff's case, Byles, Serjt., for the defendant, submitted that the plaintiff must be nonsuited, on the ground that the evidence did not support the declaration. The money was not money lent to be repaid on demand, but was lent on a special contract to be repaid out of a specified fund, namely, out of the funds to be received by the defendant from his other employers as commission. Hence, no action would lie on the common count for money lent; but the plaintiff ought to have alleged the special contract, and the breach thereof Neither would the count for money had and received aid the plaintiff's case, for the evidence showed that the *defendant was entitled to appropriate part of the money to his own use. WILDE, C. J.-It appears to me, that part of the moneys were received to the plaintiff's use, and a part, amounting to 17. a day during his journey, was money lent to the defendant to be repaid at request. The statement respecting the commission, I think, was merely an inducement to the plaintiff so to lend, and that the repayment was not to be dependent on his receiving money on commission. It was merely pointing out a fund or source out of which the defendant would be able to repay. opinion, therefore, the action on the common counts will lie. Leave was given to Byles, Serjt., to move upon the point. Wilkins, Serjt., for the plaintiff.

Byles, Serjt., for the defendant.

[Attorneys-Sheriff, and Potter & Co.]

In my

Sittings at Guildhall after Trinity Term.

BEFORE LORD CHIEF JUSTICE WILDE.

ADAMS v. PETERS. July 6.

1st. A London stockbroker is a competent witness as to the course of business of London bankers, 2d. Evidence of the course of business and custom of London bankers, is admissible, to explain the authority meant to be given to a London banker by a power of attorney to sell stock, sent through a country banker.

ASSUMPSIT for money had and received.—The plaintiff in this action had executed a power of attorney, authorizing Messrs. Masterman & Co., in which firm the defendant was a partner, to sell 62821. Consols. The power was transmitted to Masterman & Co. through Messrs. *Adams & Warren of Shrewsbury, the plaintiff's bankers, of whom Masterman & Co. were the London agents. They sold the stock [*724 accordingly, and placed the proceeds to the credit of Adams & Warren, their country correspondents, to whom they had subsequently paid, and from whom they received, large sums in the course of business. Ultimately, Adams & Warren failed, and this action was brought to recover the proceeds of the stock, as money had and received to the plaintiff's

use.

Martin, for the defendant, proposed to give evidence of the custom and course of business of London bankers with respect to their dealings with country correspondents, in order to show that there was no accountability between the London bankers and the customers of their country correspondents, but that all moneys received to the use of the latter were at once paid to, or placed to the credit of the country bankers, of whom alone they were the agents. This would explain the real meaning of the power of sale given to Masterman & Co.

Watson, for the plaintiff, objected to the admission of this evidence. Such a custom could not be inquired into, in order to control the effect of a written power of sale, nor could a custom be set up without pleading it.

WILDE, C. J., admitted the evidence.-It was not given to set up a custom, but to show what authority was really meant to be conferred by the instrument in question.

A witness, who stated he had been for many years a London stockbroker, but had never been a banker, or even employed in a banking house, was then asked by Martin, what the course of business was among the London bankers.

Watson objected, that he was not competent to give *evidence

on that point. He possessed no special means of knowledge on [*725

the subject of banking.

WILDE, C. J., overruled the objection.

Watson and Keane, for the plaintiff.

Martin and Bramwell, for the defendant.

[Attorneys-Dobie, and Hughes & Co.¦

KEANE, Executor of JAMES KEANE, v. JANES. Nov. 28.

In an action by the payee against the maker of a promissory note for 4857., in which the defendant had pleaded that he did not make the note, it was proposed, in addition to prouf of defendant's handwriting of the signature of the note, to put in an unstamped agreement between the same parties, of the same date as the note, in which it was recited, that the one had bought of the other the lease of a public-house for 4851., and had given a note for that sum as a security for the purchase-money, and by which it was agreed, that the vendor should hold the lease of the house till the purchase-money was paid :-Held, that, as the agreement was one that ought to have borne a stamp, it was not receivable in evidence, even for the purpose of proving the admission contained in the recital.

ASSUMPSIT by the plaintiff, as executor of the payee, against the defendant, as the maker of a promissory note for 4857., dated the 19th day of April, 1845, and payable on demand, with interest at 57. per cent. per annum. Plea, that the defendant did not make the note.

On the part of the plaintiff, a witness named Hall was called, who stated, that he saw the defendant sign the note.

To corroborate this evidence,

*C. Clark, for the plaintiff, proposed to put in an unstamped *726] agreement, executed by the plaintiff's testator and the defendant, and witnessed by the witness Hall. This agreement was as follows:

"Memorandum of agreement made and entered into this 9th day of April, 1845, between Edwin Janes, of Singleton-street, Hoxton, in the county of Middlesex, licensed victualler, of the one part, and James Keane, of St. John-street road, in the county of Middlesex, of the other part.

"Whereas the said Edwin Janes hath agreed to purchase from the said James Keane a certain messuage, public-house, and premises, situate in Singleton-street, Hoxton, in the parish of St. Leonard, Shoreditch, in the said county of Middlesex, at and for the price or sum of four hundred and eighty-five pounds; and the said premises have this day been duly assigned to the said Edwin Janes, his executors, administrators, and assigns, and a receipt for the said eansideration money hath been endorsed and signed upon the said assignment, but no part of the said cor sideration money hath been paid to the said James Keane; and therefore, the said Edgin Janes hath given to the said James Keane his promissory note for the said sum of four hundred and eighty-five pounds, payable with interest thereon at the rate of five pounds per cent. per annum, with an express understanding and arrangement, that he, the said James Keane, shall hold the lease and assignment of the said premises until the said sum of four hundred and eighty-five pounds and all interest as aforesaid hath been fully paid and satisfied, as and for a further and better security for payment of the said purchase money and interest. Now, therefore, it is agreed by and between the said parties hereto, that the said lease and assignment are left in the hands of and deposited with, the said James Keane, for the further and better securing to him, the said

James Keane, the said sum of four hundred and eighty-five pounds and interest as aforesaid; and that, when and so soon as the said Edwin Janes shall have fully paid and satisfied the said James Keane, his executors or administrators, the said sum of four hundred and eighty-five pounds, and all interest as aforesaid, then and thereupon he, the said James Keane, shall deliver up to the said Edwin Janes, his executors or administrators, the said lease and assignment safe, whole, and uncancelled. As witness the hands of the said parties the day and year first above written. (Signed) "EDWIN JANES. "JAMES KEANE."

"Witness, R. HALL, 15, Lincoln's-inn-fields."

[*727

Ball, for the defendant, objected, that this agreement could not be received in evidence, as it was not stamped, *and it related to a matter above 201. in value, and was connected with the present transaction.

C. Clark, for the plaintiff.—I do not propose to put it in as an agreement, but for a collateral purpose. It is not as the means of fixing a liability on the defendant, but as the means of showing, that, on a particular day, the defendant made an admission of the genuineness of the bill. It is the same as if evidence was offered of a verbal admission made by the defendant on that day. All the cases establish the distinction, that, where the object of the evidence is by the document itself to establish a liability, it cannot be admitted without a stamp; but where it is to afford evidence of a past transaction, it is admissible without a stamp. ERLE, J. (having looked at the agreement.)—I think it is so connected with the note which is sued on, as to make it inadmissible. The agreement was rejected.

For the defendant witnesses were called, who stated, that they believed that the signature to the note was not of the defendant's handwriting. Verdict for the plaintiff. (a)

C. Clark, for the plaintiff.

Ball, for the defendant.

[Attorneys-D. Keane, and Mills.]

(a) The cases in which an unstamped instrument is receivable in evidence for collateral purposes, which in other cases would not be receivable for want of a proper stamp, will be found referred to in Stark. on Evidence, Vol. 3, p. 1038.

*OSTERMAN v. BATEMAN. Nov. 29.

[*728

In an action against A. for malicious prosecution of B., by maliciously causing an indictment for a riot to be preferred against him, it was proved, on the part of the defendant, by Mr. C. P., the city solicitor, that he preferred the indictment by order of Mr. Ald. C.:-Held, that the defendant's counsel might ask Mr. C. P. whether the defendant had desired him not to prose.. cute on his behalf, but could not ask him generally, what the defendant had said to him on the subject of the prosecution.

MALICIOUS prosecution.-The declaration stated, that on the 9th of August, 1843, the defendant maliciously caused the plaintiff to be taken into custody, and taken before Mr. Alderman Humphery, on a charge of having been guilty of a riot in Angel Alley, Bishopsgate Street; and