Case. The declaration stated, that the defendants were the possessors and occupiers of a warehouse at Liverpool, for the reception of, custody, and transmission of goods and merchandise; and that it was the duty of the defendants to use and employ, within their warehouse and premises, good, proper, and sufficient tackle, implements, and materials, in and about the receiving and sending away the said goods and merchandise, and in and about the raising and lowering of the same, and also to use and employ due and proper skill and care in fastening and securing with the tackle, implements, and materials the said goods and merchandise, whilst the same were being so received, &c., and to use due and proper care and attention in rais

ing or lowering the same, so that they might be received, &c., without any damage or injury to any of the persons employed in the delivery and reception of the same. It then alleged, that the defendants' servants were guilty of negligence in lowering a barrel of flour from their warehouse, which fell upon the plaintiff, who was employed to assist in the lowering of the barrel, and broke his leg.

Pleas-First, not guilty; second, that the defendants were not employed in lowering the flour.

At the trial, before Coleridge, J., at the last Liverpool Assizes, it was proved that the defendants were merchants, who, in October 1836, had a quantity of flour in a bonded warehouse, and were desirous of shipping some barrels. They engaged a person of the name of Wharton, who was a master porter at that town, to remove the flour, which was in an upper floor of the warehouse, to the vessel. There are a number of persons who carry on the business of master porters, being employed in the removal of goods. Wharton also engaged some other persons to assist him. The tackle, belonging to the defendants, which was in their warehouse, was in good order and condition, but Wharton's men

applied it to a barrel of flour in an improper manner, so that the barrel fell in its descent, and injured the plaintiff. It was contended, for the defendants, that they were not responsible for the negligence of the master porter and his servants; but the learned Judge overruled the objection, giving the defendants leave to move to enter a nonsuit. The jury found a verdict for the plaintiff, damages 100l. And now

Alexander moved to enter a nonsuit, contending, that the defendants were not the masters of Wharton, so as to be responsible for his acts. Bush v. Steinman (1) is distinguishable, because all the contracting parties there were servants of the defendant. Here the defendants engaged Wharton to perform the work of removing the flour. He was therefore not the servant, but a kind of bailee of the defendants. The difficulty raised in Laugher v. Pointer (2), does not arise in this case. That a party is not necessarily answerable for the negligence of his agent, appears from Harris v. Baker (3). In Witte v. Hague (4), an action was brought against the engineers, who had erected an unsound steamengine, for an injury caused by an explosion, and they were held liable. Suppose goods be intrusted to a carrier, who packs them carelessly, and they fall and injure a person who may be passing by, it cannot be said that the owner of the goods would be responsible.

LORD DENMAN, C. J.-I have no doubt the jury would, if they had been asked the question, have said, that Wharton was the servant of the defendants.

LITTLEDALE, J.-It was the duty of the defendants to take care that their goods were properly raised and properly let down; and it is quite immaterial whether they employed their own workmen in doing it, or other persons. In a large town like Liverpool, there may be persons who make a business of the removal of goods; but

Trespass for taking the plaintiff's goods. Pleas-First, not guilty;-second, that the goods were not the plaintiff's goods.

At the trial, before Littledale, J., at the last Nottinghamshire Assizes, the plaintiff proved that he had purchased the goods in question under a bill of sale, from the sheriff of Nottinghamshire, upon an execution against the goods of one Joseph Brennan, at the suit of Francis Bradley. The defendant Minnett obtained a judgment in the Peveril Court, and sued out a fi. fa. thereon, which was executed by the other defendants, who are bailiffs and officers of that court, and the goods which had so been previously purchased by the plaintiff, were seized to satisfy that execution; and the defendants proposed to shew, that the bill of sale was fraudulent; and that, therefore, the property had not passed from Brennan. It was objected for the plaintiff, that such evidence was not admissible under these pleas; but the learned Judge, with some hesitation, admitted it, reserving leave to the plaintiff to move to enter a verdict for him, if the Court should be of opinion that the evidence was not admissible. The jury found a verdict for the defendants, saying, that the bill of sale was fraudulent.

On a former day,

J. Hildyard moved for a rule nisi, to enter the verdict according to the leave reserved, and cited Howell v. White (1), where Patteson, J., at Nisi Prius, ruled, that a sale intended to defraud a third party, could not be given in evidence under such a plea, as in this case.

[LORD DENMAN, C.J.-If the defendant undertakes to shew, that goods are not the property of the plaintiff, can he do so in any better manner than by proving that they are his own?]

Here, it is sought to impeach the plaintiff's title by proof of fraud; and according to the new rules, Hilary term, 4 Will. 4, fraud must be pleaded specially. Cur, adv. vult.

And now

LORD DENMAN, C.J. said, that the Court were of opinion, that the course pursued at the trial was correct, and that there would be no rule.

1838.

April 27.

Rule refused.

THE QUEEN V. THE MAYOR, AL-
DERMEN, AND BURGESSES OF
LIVERPOOL.

Municipal Corporation Act, 5 & 6 Will. 4. c. 76. s. 68.

The corporation of L. being the patrons of the church of St. John's, built under a local act, and of which there was a regular incumbent, had for many years appointed a lecturer, who assisted occasionally in the clerical duties there, and paid him a regular salary:-Held, that a clergyman who had been lecturer for more than seven years before the 5 & 6 Will. 4. c. 76, and had, during that time, received a stipend from the corporation, was entitled to have the same secured by bond, under section 68.

Under the powers of the 2 Geo. 3. c. Ixviii. and the 7 Geo. 3. c. vii. a church, called St. John's Church, was built within the parish of Liverpool, and the right of presentation thereto was vested in the corporation of Liverpool, who were empowered to nominate the minister thereto, who was to be paid a certain stipend out of the

(1) 1 M. & Rob. 400.

pew rents. They have accordingly, from the time when the church was completed, nominated a certain person to be the minister of this church. They have also, for many years, nominated another person to be a lecturer at the same church. In 1815, the Rev. Thomas Moss was nominated by the corporation to be the lecturer of the church, in the place of the Rev. Richard Loxham, who was appointed to be the minister, and was duly licensed by the bishop of the diocese as such lecturer. He was subsequently presented to the living of Walton-on-the-Hill, but has continued to perform the duties as such lecturer, partly in person and partly by his curate, down to the present time. His duties consist in the reading of prayers, preaching, and solemnizing the sacrament, with the incumbent, and occasionally he has performed the duties of weddings, baptisms, churchings, and funerals. The corporation paid him a stipend of 180l. a year. Since, however, the 1st of January 1835, when the Municipal Corporation Act came into operation in the borough of Liverpool, the council have discontinued the payment of the stipend to Mr. Moss. He accordingly called upon them to execute a bond under the 5 & 6 Will. 4. c. 76. s. 68, but they refused to do so, considering that Mr. Moss was not within that provision. In Hilary term, last year

Sir W. W. Follett obtained a rule nisi for a mandamus to the defendants, commanding them to execute the bond to Mr. Moss; against which

The Attorney General, Wightman, and Crompton, now shewed cause.-This application is made upon the 5 & 6 Will. 4. c. 76. s. 68, which enacts, that "all stipends and allowances, which, during seven years next before the 5th of June, in the year when that act passed, have been usually paid and granted to the minister, or late minister of any church or chapel, or to the master or usher of any school, or to the governor or master of any hospital, and all charitable allowances which have been usually paid to the inmates of any almshouses by such corporate body, shall be secured as soon as conveniently may be after the passing of that act, to every person entitled or accustomed to have and receive the same by bond or obligation, under

the common seal of the borough, out of whose funds the same shall be payable." Mr. Moss claims as the minister of St. John's Church; but he is not the minister, he is only lecturer. By that word must be intended the incumbent of the living, for such is its ecclesiastical meaning. It is true, that in one sense he is a minister, because he is in holy orders, but he is not the minister of this church. The duties of the church are in strictness performed by the incumbent or his curate, though Mr. Moss may have occasionally assisted them. He had no permanent interest in his lectureship; he held it during pleasure, and his stipend might have been stopped at any time. A lecturer has no office-The King v. the Bishop of London (1).

[PATTESON, J.-The mere fact of the payment being voluntary, makes no difference; the statute points to cases where there is no title.]

Sir W. W. Follett and Tomlinson, in support of the rule, were stopped.

LORD DENMAN, C.J.-We are not called upon to say, whether the present applicant is the minister of the church within the meaning of the local acts, but whether he is so within the Municipal Corporation Act. We have always given a liberal construction to those sections of the act; and it is apparent from this very section, that the claim is not to be confined to those only who have a legal right. We must not therefore construe it so strictly.

LITTLEDALE, J.-The word minister is here used in its most general signification.

PATTESON, J.-We must construe this word generally, and not with reference to this particular case. Now, suppose a person who performed the duties in a church or chapel had always been called a chaplain, could it be contended, that he was not entitled to receive the stipend? Any one put there by the corporation, and paid a salary for seven years, is entitled under the section.

COLERIDGE, J.-Though Mr. Moss is not the minister within the meaning of the local acts, he is within that of the Municipal Corporation Act. The clause is not con

(1) 3 Wils. 11; s. c. 2 Stra. 1191.

This was an action of covenant on an indenture, dated the 5th of April 1837, between the defendant of the first part, one A. H. of the second part, and the plaintiff of the third part, which recited an assignment to the plaintiff from one Wearman Lant, of a mortgage to him by the defendant and one S. E. K. Nicklin, of certain premises, for 400l., by virtue of an indenture, dated the 7th of November 1834, which sum the plaintiff had called in, but it not being convenient to pay it, he had requested the plaintiff to advance him the further sum of 1,000l., and had agreed to secure the repayment thereof, and also to further secure the said sum of 4007., by a mortgage on other premises, to which the plaintiff had assented. It was then witnessed, that in pursuance of such agreement, and in consideration of the said sum of 1,000l., and as a further security for the said sum of 4007., the defendant mortgaged the premises described in the deed. There were covenants for the repayment of the said sum of 1,000l. This deed contained five stamps, namely, 5., the ad valorem duty on the 1,000l., a stamp of 17. 15s., which had been intended as a deed stamp, upon the supposition that the instrument operated as a further se

curity for the 4007., and three stamps of 11. each, which three would have been sufficient, if the deed had only contained seventy-five folios.

On the trial, before Park, J. at the last Warwick Assizes, the words of the deed were counted at the instance of the defendant, and it was found to contain thirty words beyond the seventy-five folios. It It appeared that the original mortgage for 400l. was properly stamped with the ad valorem stamp, and the assignment with the proper transfer stamp. The learned Judge directed a verdict to be entered for the plaintiff; but gave the defendant leave to move to enter a nonsuit.

On a former day in this term— Whitehurst obtained a rule accordingly, against which

Humfrey now shewed cause.-The three 11. stamps are not sufficient, but if the 17. 15s. stamp, which was imposed upon the first skin, was unnecessary, it may be applied to make up the deficiency, and the objection will fail. On reference to the 55 Geo. 3. c. 184. sched. 'Mortgage,' it will be found that this additional stamp was not required. It contains this exemption, "any deed or other instrument, made as an additional or further security for any sum of money already secured by any deed or instrument, which shall have paid the ad valorem duty thereby charged, in case such additional or further security shall be made by the same person or persons who made the original security; but if any further sum of money shall be added to the principal money already secured, the said ad valorem duty shall be charged in respect of such further sum of money." Here, then, the deed in question, which operates as an additional security for the 400l., did not require any stamp in respect thereof; for although it was executed by one only of the parties to that mortgage, no difference can arise from that circumstance. By 3 Geo. 4. c. 117, the stamps imposed upon the transfer of any mortgage are repealed, and a new provision is made, regarding the ad valorem duty, where a sum is added to the principal already advanced, which is not the present case; and section 2, which relates to additional or further securities, is only applicable to bonds. He referred to Doe d. Bartley v.

Gray (1), and Doe d. Brame v. Maple (2).

Whitehurst, in support of the rule.-This deed would, under the general enactments of the act, have required an ad valorem duty upon the 400, as well as on the 1,000l., but for the exemptions contained. therein. The exemption referred to will, however, operate to save the deed from the ad valorem duty, but not from any other that may be requisite. There is this general heading, "Exemptions from the said ad valorem duty on mortgages, &c., but not from any other duty to which the same may be liable." This was a deed creating an additional security; and, therefore, requiring a deed stamp.

LORD DENMAN, C. J.-The three 11. stamps would be sufficient, if the 17. 15s. stamp on the first skin be not wanted; but it is wanted for the deed itself.

LITTLEDALE, J.-This falls within the 3rd section of the exemption, for it is a deed made as an additional and further security for the 400l., and so far it is exempt from the ad valorem duty. It is also a security for an additional sum of 1,000l.; and the ad valorem duty is charged in respect of that additional sum. It is, however, a deed properly stamped, as far as respects the ad valorem duty, but it wants an additional skin stamp. The exemption only protects from the additional ad valorem duty; it does not save it from the deed stamp, which is required in respect of the further security.

PATTESON, J.-I do not feel any doubt when the language of the statute is examined. It is headed, "Exemptions from the ad valorem duty on mortgages, &c., but not from any other duty to which the same may be liable." Now, suppose this deed had contained nothing more than a further security, it would have required a deed stamp. There is nothing to exempt it; because it also contains an additional sum. It is not shewn, that that ad valorem duty swallows up the deed, as in Doe v. Gray, it was shewn that it swallowed up the transfer duty. COLERIDGE, J. concurred.

Rule for entering a nonsuit absolute. (1) 3 Ad. & El. 89; s. c. 4 Law J. Rep. (N.s.) K.B. 197.

(2) 3 Bing. N.C. 832 ; s. c. 6 Law J. Rep. (N.s.) C.P. 271.