1866.

STINSON

บ.

BROWNING.

in addition to the penalties imposed in such cases, it imposes a penalty where "a blacksmith or other person, occupiers of a blacksmith's shop situate near any turnpike road, and having a window or windows fronting the said road, shall not by good and close shutters every evening after it becomes twilight, bar and prevent the light from such shop shining into or upon the said road." That clause appears to have been purposely left out in the Highway Act, the reason for inserting it in the Turnpike Act being no doubt that those roads are the great arteries of communication. These words are followed by a clause relating to the making of bonfires within eighty feet of the centre of the road, and that is the kind of fire contemplated in the 72nd section of the Highway Act.

No counsel appeared for the Respondent.

WILLES, J. I am of opinion that this conviction should be reversed. The precise point before us does not appear to have been brought to the attention of the magistrates. The question is, whether the clause imposing a penalty on lighting a fire within 50 feet of the centre of the highway is qualified by the subsequent words, " to the injury of such highway, or to the injury, interruption, or personal danger of any person travelling thereon;" and I think that it is. The offences enumerated in that part of the section are not offences per se, but only when committed under certain circumstances. It may be suggested that if the latter words. override the clause, then the Act is vain, because if a fire be made under the circumstances stated it might be a nuisance at common law, for which an indictment would lie, and so of the other provisions. But that part of the section must be read, not as creating the offences but as dealing with nuisances when committed in the manner there specified. This is the reasonable and grammatical construction of the clause in question. The first part of the

section deals with substantive offences, and as to these there is an absolute prohibition, but all that follows the words "if any person shall make or assist" is qualified by the words "to the injury of the highway, &c." The magistrates not having found that the fire in this case was of such a nature, the conviction must be reversed.

KEATING, J., concurred.

1866.

STINSON

บ.

BROWNING.

Conviction quashed.

CATTERALL V. HINDLE.

January 12.

The Plaintiff employed B. as del credere agent to sell his yarns, and he sold Agency. some occasionally to the Defendant, who paid cash on delivery. The Prepay to agent Defendant then at B.'s request advanced him 1,000l. for yarns to be on "general subsequently delivered; part of the yarns afterwards supplied under account" by the contract were K.'s "twist," and the remainder the Plaintiff's, to the amount of 2741., which B. failed to pay the Plaintiff. In an action brought to recover that sum from the Defendant, the jury found that the 1,000l. was paid "on a general account," and not specifically for K.'s "twist."

Held, that the advance to B. was not a payment as against the Plaintiff, and that he was entitled to recover.

THIS

THIS was an action brought to recover the sum of 2741. 7s. for goods sold and delivered. The pleas were never indebted and payment.

At the trial before Smith, J., at the Lancaster Summer Assizes the facts appeared to be that the Plaintiff, who trades under the name of "Paul Catterall, Son & Co.,' was a cotton spinner at Preston, and employed one Joshua Armitage, a commission agent at Blackburn, to sell yarns on his account upon a del credere commission as broker. The Defendant, a manufacturer at Blackburn, trading under the name of "Edward Briggs & Co.," dealt

debtor of both principal and agent.

1866.

CATTERALL

V.

HINDLE.

with Armitage in purchasing from him, as agent for the Plaintiff and others, yarns marked with the initials of the parties spinning them. Previous to the 14th of October, 1864, he had purchased from Armitage yarns of the Plaintiff, and paid for them in cash, and there was no evidence of any other mode of payment as between him and Armitage before that date. On that day the account between them being then balanced, Armitage applied to the Defendant for a loan of 1,000, which the Defendant refused, but agreed to advance that amount for the purchase at an agreed price of yarns to be subsequently delivered. The Defendant accordingly paid Armitage on that day 1,000l., and on the 19th and 21st of October deliveries of yarns of one Kershaw to the amount of 725l. 13s. were made by Armitage on account of the advance. On the 24th December and the 5th of January following he delivered yarns of the Plaintiff to the value of 5217. 14s. 6d., and on the 11th January a settlement took place by the Defendant paying to Armitage the excess beyond the 1,0007. in cash, and so balancing the account between them to that date. The Plaintiff, however, was not paid for those yarns by Armitage, who soon afterwards became bankrupt. taking the account the Defendant debited Armitage not only with the 1,000l., but also with interest for delay in the deliveries, as well as discount, short weights, &c. He put to his credit the yarns as delivered without specifying the makers, but he knew which were the yarns of the Plaintiff, and that Armitage sold them as agent. The jury found that the 1,000l. was advanced to Armitage upon a general account and not for Kershaw's yarns specifically, that being the only question the parties desired to be so left. The verdict was entered for the Defendant upon the plea of payment; leave being reserved to the Plaintiff to move to enter a verdict for him for the amount he claimed ; namely, 2741. 7s., or for such other sum the Court might

In

think fit, if the transaction between the Defendant and Armitage did not prove to be a payment to the Plaintiff. A rule was granted accordingly in Michaelmas Term 1865, and, in the same term,

Temple and Edwards showed cause.-The finding of the jury entitles the Defendant to retain his verdict, for the payment to Armitage on the general account was a payment binding on his principal. The Defendant knew nothing of the Plaintiff.except as the manufacturer of a particular kind of twist; his dealing was with Armitage, and payment to him as agent was good as against the principal, though made prematurely : Fish v. Kempton (a). That was the case of a factor, but Armitage was very nearly in that position at the time of the payment on the general account. Armitage might have delivered the whole of the goods on which the money was advanced. No specific time was named for the delivery of the goods, and the Plaintiff's and Kershaw's twists were delivered as they came to hand. "Payment on a general account" means an appropriation of the money in payment of the goods as they come in from time to time. The general verdict also implies that the payment was made in the ordinary course of business: Favenc v. Bennett (b). But if the money was not appropriated at the time, it was so in January, when it was appropriated, with consent of both Armitage and the Defendant, to the account of the Plaintiff and Defendant. The Plaintiff, therefore, has no right of action against the Defendant.

Kemplay in support of the rule.-The payment in this case, whether general or specific, was not such as could bind the Plaintiff. On the 14th October 1,000l. was paid to

1866.

CATTERALL

v.

HINDLE.

(a) 7 C. P. 687, 692, per Wilde, C. J.

(b) 11 Eust, 36.

v.

HINDLE.

1866. Armitage; and then followed two deliveries of Kershaw's CATTERALL yarns. Pausing here, can it be said that at that time there was a payment to the Plaintiff? If Catterall had then put an end to the contract, the Defendant could have sued Armitage for money had and received, but he could not have sued Catterall. Therefore, at that time the debt was not from Catterall. [Willes, J. Suppose the buyer was informed that the goods were to arrive on particular day, and that he gave the vendor's agent a cheque on that day, but before the actual arrival.] The giving of a cheque to an agent before the time for payment has arrived is no payment as against the principal. The case put is no doubt a strong one, and it may be that the payment would be held good if it were proved to be in the ordinary course of business and on account of the principal. Here it was not so, and it is clear from the fact of Armitage being charged interest that at the time the 1,000l. was paid nothing was due: Bartlett v. Pentland (a); Stewart v. Aberdein (b). A debtor cannot write off a debt due to him from the agent, with the agent's consent, and so make out a payment to the principal: Scott v. Irving (c); Todd v. Reid (d).

Then was the settlement in January binding on Catterall as a payment to him? It was not, because the balance is only arrived at by bringing in debts due from Armitage himself. The effect of the verdict is, that there was a general payment as between the Defendant and Armitage; but the 2741. 7s. now sued for is a debt from the Defendant to the Plaintiff. [Erle, C. J. Could not Catterall have been sued for a non-delivery ?] Yes, but not for the 1,000l. But even assuming that the 2741. 78. was paid in respect of the very yarn, still it was not a payment as against the principal,

(a) 10 B. & C. 760, 771-2, per Bayley, J.

(b) 4 M. & W. 211.

(d) 4 B. & Ald. 210.

(c) 1 B. & Ad. 605.