An COURT OF COMMON PLEAS. Reported by W. GRAHAM and M W. MCKELLAR, Esqrs., Barristers-at-Law. Thursday, June 21. Right of action. action will lie on a judge's order to refer made by consent, the consent being evidence of an agreement to perform the award. The VICE-CHANCELLOR said that the sole question was whether the bill should be amended in terms or | Award-Reference under a judge's order by consentdismissed. The plts. contended that there had been improper dealings with the estate comprised in the settlement, and that the trustees had been granting leases of unopened mines when there was no power to grant such leases, and that Brierley Rowland, the tenant for life, had received the proceeds of the mines thus improperly opened. For the purposes of the present decision he would assume that the plt. was entitled to succeed in his contention. The constitution of the suit would have been right if the estate of the testator had still been in the hands of his executors, but the executors said that they had advertised under the 22 & 23 Vict. c. 35, which provided that any executor issuing certain advertisements might proceed to distribute the assets of the testator, and should not be answerable to any person of whose claim they should not have had notice at the time of the distribution of such assets, but that nothing contained in the Act should prejudice the right of any creditor or claimant to follow the assets into the hands of any person who might have received the same. The truth of the statement by the executors that they had advertised in accordance with the provisions of the Act is not controverted, nor was it disputed that the executors had duly administered the whole of the assets, and that not a shilling remained in their hands. It was clear that, even if they had appropriated funds to meet legacies, those funds were no longer in their hands as executors, though they might be in their hands as individuals. The suit, however, sought to fix the defts. solely as executors, and the plts. had no claim whatever against them as executors. The court would never make a decree in the absence of parties against whom alone there was any proper claim. The bill was wholly wrong in its constitution, as it was an attempt to fix the executors with liability in their character of executors alone. In dismissing the bill he would do so without prejudice to any other bill which the plts. might file against the defts. in any other character. This was the first case in which the point had come before the court, and he was bound to assume that where executors, by adopting the course prescribed by Lord St. Leonards Act, have either actually paid legatees entitled in prosenti, or have appropriated sums to answer interests in futuro, they have secured for themselves the same protection they would have had by distributing the funds under a decree of the court, and the remedy given by the Act was against the persons to whom the fund had been paid, and not against the executors. The bill must be dismissed with costs. Declaration : That the plt. had commenced an action in this court against the deft, the declaration containing various counts in tres pass for alleged trespasses by the deft. upon land of the pit adjoining land of the deft, and also for a certain trespass alleged to have been committed by the deft by pulling down, removing, and destroying a certain fence which separated the land of the plt. from the land of the deft, and which fence belonged to the plt. and deft. as tenants in common. That, thereupon, by a judge's order, made in the said action with the consent of the plt. and deft it was ordered that the action and all matters in difference between the parties should be referred to the award of J. W.; and by the like consent the said judge did further order that the parties should in all things abide by, perform, fulfil and keep such award. That J. W., in pursuance of the order, took upon himself the reference; that by an indorsement on the order, under the hands of the plt. and deft., it was agreed between them that the arbitrator should have power to order what the parties or either of them should do to prevent a continuance or repetition of the injuries complained of; that the arbitrator duly made and published his award in writing respecting the matters referred to; and thereby with reference to the authority given to him by the indorsement on the order ander the hands of the plt. and deft. to order and determine what he should think fit to be done by either of the parties to prevent a continuance or repetition of the obstructions and injuries complained of in the declaration, and for the settlement of all matters in difference between the parties as aforesaid, the arbitrator amongst other things did order and direct that the deft. should fcrth with erect or cause to be erected a continuous wall of brick of a certain thickness to divide the premises of the deft, which adjoined the premises of the plt., from the premises of the plt., such wall to be built in a certain line, &e.; that the deft. built the wall, but not in the manner and line directed in the award. Demurrer and joinder. C. Crompton in support of the demurrer.-The plt. has no right of action on the award; there is nothing on the face of this declaration except the judge's order; it is true that the judge's order to refer was made by consent, but that does not make it equal to an agreement to perform the award, and no action can be brought upon it. No action will lie on a compulsory judge's order; and it is clear that the fact of the order having been made by consent will make no difference : Hookpayton v. Bussell, 10 Ex. 24; The Thames Iron Works v. The Patent Derrick Com- Holker, for the plt., was not called upon. ERLE, C. J.-I am of opinion our judgment should be for the plt. The declaration sets out an action Solicitors: N. G. and C. Milne; and Bower, Son, brought by the plt. against the deft., and in conseand Cotton. quence of that action, a judge's order made by consent to refer all matters in difference between the parties, and that it is ordered by the same consent that the parties should stand by and perform the award. So far, then, there is an agreement to refer, and that the parties would stand by the award. Then there is the judge's order to the same effect. So the matter would have stood if the reference had been only of matters in difference in the action; but the indorsement made by the parties afterwards gave power to the arbitrator to order what should be done to prevent a repetition of the injuries complained of. Now clearly the indorsement is good evidence of a contract that the arbitrator should have power to decide what should be done, and the construction of it is that the arbitrator should have power to order what shall be done, and we will abide by it, that is, to an agreement to perform the award. It was said that an attachment would be the more convenient course, but I think not. Mr. Crompton said, citing Hookpayton v. Bussell, that an action does not lie on a judge's order to refer by consent. That case does in terms support his argument; but looking at the facts more closely, it appears there was in that case a judge's order to pay money, and the agreement was, that in the absence of payment the plt. should avail himself of a remedy by fi. fa. or ca. sa.-i. e., providing that particular form of remedy. The judgment of Parke, B. in Wentworth v. Bullen was perfectly sound, though possibly the terms of his judgment are wider than the facts justify. BYLES, J.-I am of the same opinion. There are many authorities to show that every submission to arbitration implies an obligation to perform the award. M. SMITH, J.--I am of the same opinion. An action will lie on the agreement embodied in the judge's order. Here it appears that there was an agreement evidenced by a judge's order. to which the part of the agreement indorsed was superadded by the parties. There is then an agreement and a breach, and at common law an action will lie upon that. How is that right ousted? Mr. Crompton says that it was one of the terms of the agreement that the parties would not bring an action but submit to an attachment, but no such an implication can be inferred in this case. The authorities are strong to show that we are not deciding anything new, the highest being Wms. Saund. 62 a, note f, and in Wharton v. King, 1 Moo. & Rob., no doubt was entertained upon the point now raised. Judgment for the plt. BUDENBERG (app.) v. ROBERTS (resp.) Customs-Importer-Caused to be imported—22 § 23 Vict. c. 37, ss. 6, 8. 66 By 22 & 23 Vict. c. 37, s. 6, any person who shall cause to be imported goods of one denomination concealed in packages of goods of any other denomination," is hable to a penalty. Sect. 8 of the same Act says the word" importer" in all Acts relating to the Customs is to include any owner or person for the time being possessed of or beneficially interested in the goods imported: Held, that the word "importer" in sect. 8 is not to be applied to the words "caused to be imported" in sect. 6, but that these words mean a person who has ordered the goods or caused them to be imported. Case stated by the magistrate at Liverpool under 20 & 21 Vict. c. 43. The Customs Amendment Act (22 & 23 Viet. c. 37) 8. 6, enacts that If any person shall cause to be imported goods of one de nomination concealed in packages of goods of any other denomination, or shall directly or indirectly cause to be imported or entered any package of goods as of one denomi nation, but which shall afterwards be discovered, either before or after delivery thereof, to contain other goods subject to a higher rate or amount of duty than those of the denomination by which such package was entered, such package and all goods contained therein shall be forfeited, and every person shall forfeit and pay for every such offence a penalty of one hundred pounds, or treble the value of the goods contained in such package, at the option of the Commissioners of Customs. Sect. 8: For the removal of doubts as to the meaning and application of the word "importer," as used inthe Customs Acts, the word "importer" in any Act relating to the Customs is hereby [C. P. declared to apply to and include any owner or other person for the time being possessed of or beneficially interested in any goods imported into the United Kingdom, from the time of the importation thereof until they shall, on payment of the duties thereof or otherwise, be duly delivered or discharged from the custody or control of the Customs. CASE. On or about the 15th Dec. 1865, A. Ehrenberg shipped at Antwerp, on board the Neva steamer for Liverpool, eight casks which he represented as containing china clay. Ehrenberg consigned the casks so shipped to Messrs. Dunkerley and Steinmann, of Liverpool, the agents for the Neva, and took from the captain of the vessel a bill of lading in the ordinary form, undertaking to deliver the casks to Messrs. D. and S. or their order; and by a letter, dated Antwerp 15th Dec. 1865, he wrote Messrs. D. and S. with the bill of lading and stated that the casks were for account of Messrs. Schaffer and Budenburg, whose directions they would have to follow. In each of the casks of clay so shipped by Ehrenberg was concealed a keg of gunpowder of 100lbs. in weight, and in each of the other two casks of clay was also concealed a keg of gunpowder of 50lbs. in weight. On 17th Dec. Messrs. D. and S. received from Messrs. Schaffer and Budenberg a letter, of which the following is a copy: Manchester, Dec. 16, 1865, 96, George-street. Messrs. D. and S., Liverpool. Gentlemen,-We have been informed that Mr. Ehrenberg shall forward to your address, and for our disposal, by the steamer Neca, leaving Antwerp for Liverpool on Monday the 18th inst, eight barrels of china clay, viz. (particulars of weights follow). Please store the above, informing us of their safe arrival, and we shall instruct you how to forward the same to different places.-Yours, &c, SCHAFFER and BUDENBERG. On Sunday the 17th Dec. 1865, Ehrenberg, who was then in London, saw Budenberg, and informed him of the shipment to Messrs. D. and S. of the eight casks, and that the clay contained the kegs of gunpowder. There was no evidence that prior to the 17th Dec. Budenberg had any knowledge of the shipment of the clay, or of the fact of its containing the kegs of gunpowder. The Neva arrived in Liverpool on or about the 21st Dec. 1865, and forthwith discharged cargo. On the 19th Dec. 1865, Budenberg went to Liverpool, and there saw Messrs. D. and S., to whom the He then casks of clay had been consigned. informed them of the fact that there was gunpowder contained in the clay, and requested them to take steps to get the casks passed through the Customhouse. After this interview Messrs D. and S. took the usual steps to get the goods passed through the Custom-house, and their clerk requested the examining officer to pass them without examination, but on his refusal to do so, and after directing a subofficer to bore the casks, the clerk informed the customs officer that there was gunpowder contained in the clay. On receiving this information, the Custom-house authorities caused the clay and the powder contained in it to be seized, and it has ever since been retained by the Custom-house authorities, and they ultimately caused the information above set forth to be laid against Budenberg, his partner Schaffer residing abroad. It appears neither china, clay, nor gunpowder are subject to any duty on importation. The magistrate convicted the prisoner, thinking it proved that goods of one denomination concealed in goods of another denomination had been imported, and having regard to the meaning of the word "importer" as defined by the 8th section of the Customs Amendment Act 1859, that Budenberg was the importer thereof, and that the same definition must be applied to the terms "if any person shall cause to be imported" used in sect. 6 of the said Act; and stated this case for the opinion of the court, whether his decision was right in point of law? Holker for the app. Locke, Q. C. (T. Jones with him) for the resp. ERLE, C. J.-The conclusion of law at the end of the case has not my concurrence. If I understand the magistrate's decision rightly, he has stated as his opinion that the definition of importer is the same as one who has "caused to be imported." I think the word "importer," as used in sect. 8, may include many persons who would not come within the magistrate's decision, which is that the app. was an importer within sect 8. He is convicted under that section. I propose to send the case back to the magistrate, not to state the case over again, but to say whether he draws the inference that Budenberg caused the goods to be imported. There was abundant evidence from which he might draw this conclusion. If the app. had a mutual understanding with Ehrenberg before the goods were sent, then the conviction is good. M. SMITH, J.-The magistrate has asked us whether he was right in point of law in thinking the words "caused to be imported" in sect. 6 meant the same as the word "importer" in sect. 8. I think they are not to be interpreted by that clause, and that the magistrate was wrong. The words "caused to be imported" are to be read in the ordinary sense. I concur in thinking that the case should go back to the magistrate to say, without hearing fresh evidence, whether at the time of the conviction he was satisfied that the deft. in the ordinary sense of the word "caused to be imported." Case remitted. COURT OF EXCHEQUER. Reported by H. LEIGH and E. LUMLEY, Esqrs., Barristersat-Law. Wednesday, Nov. 14. LEWIS AND OTHERS v. MCKEE. Bill of lading-Indorsement of to third party_by_original consignee while goods are in transitu-Indorsement accepted and acted upon by shipowner-Transfer of liability for freight thereby-18 & 19 Vict. c. 111 -Action for freight-Pleading-Demurrer. In an action for freight by the shipowners against deft., the original consignee of goods under a bill of lading, a plea, which stated that before the ship arrived at the port of call, the deft. indorsed the said bill of lading to W. and K. in the following terms: "Deliver to W. and K., or order, looking to them for all freight, dead freight, and demurrage without recourse to us,' and that plts. accepted the said indorsement and delivered the goods in pursuance thereof to W. and K. as the persons entitled to the said goods, and not to the deft., was Held, on demurrer, to be a good plea and to constitute a defence to the action. If the consignee under a bill of lading, while the goods are yet in transitu, indorses the bill and gives notice thereof to the party entitled to the freight, and upon the indorsement he states in express terms that the owner of the freight, the party who may be ultimately entitled thereto, is to look to other persons for payment of it, and that indorsement is accepted and acted upon without objection or qualification on the part of the owner of the freight, that of itself, in point of law, constitutes a transfer of the liability, and a defence to any subsequent action. | Declaration.-First count: [Ex. That after 14th Aug. 1865, one Jas. Brown delivered to plts. certain goods, to wit, &c., to be by plts, carried and conveyed in a certain ship of plts., then in the port of L, from L. to C. or F., in the United Kingdom, for orders under a certain bill of lading, signed for the same by the master of the said ship, as agent for plts., and to be delivered as ordered (the act of God, &c., excepted) unto deft., or to his assigns, on his or their paying freight for the said goods as per charter-party, with primage and average accustomed; and that thereupon and by reason thereof, the property in the said goods passed to deft.; and that by the charter-party referred to in the first bill of lading, freight is made payable in cash at certain rates therein to have the freight, primage, and average paid by deft, accordspecifled, and that all conditions, &c., necessary to entitle plta. ing to the terms of the said bill of lading and charter-party, and to sue deft, for nonpayment thereof, yet deft, made default in payment; and although he paid plts, a portion of the said plts. the residue of the said freight, &c., amounting to 677, 13. 6d, whereby (allegation of loss to plts.) freight, primage, and average, yet he made default in paying Second count: That on 24th Nov. 1865, plts. being owners of a certain ship, &c., then at L. and bound for C. or F., in the United Kingdom, certain goods, to wit, &c., were shipped in good order, &c., by one J. B., as agent for S. and Co., in and upon the said ship, whereof J. E. was master, to be delivered in like good order, &c., at the aforesaid port as ordered (the act of God, &c., excepted), unto deft. or to his assigns, on his or their paying freight for the said goods in cash at the rate, &c., with primage and average accustomed. And that, in consideration that plts., at request of deft., would deliver to deft. as such assignee, and would suffer him to take the said goods without the said plts. being first paid the said freight, primage, and average, deft. promised plts. that he would, within a reasonable time after delivery to him of the said goods, pay to plts. freight for the carriage of the said goods after the rate aforesaid, with primage and average accustomed, less a certain sum, to wit, 264 10s. 3d., to be deducted therefrom on account of advances, assurances, and stamps. And plts. did deliver to deft. as such consignee, and did suffer him to take the said goods without the said plts. being first paid the said freight, &c. Averment of performance of all conditions, &c., necessary to entitle plts. to a performance of deft.'s promise, and to maintain this action for breach thereof; yet deft. made default in payment of the said freight, primage, and average, and although he paid plts. a portion thereof, yet he made default in paying plts. the residue of the said freight, &c., amounting to (to wit) 677. 10s. 3d. Third count: for money payable for freight, &c., for conveyance by plts., at deft.'s request, of goods in ships, and for care and attendance of plts. and their servants in and about the loading and unloading and delivery of the said goods, and on accounts stated. Plea 3, to the first count: That by the said charter-party it was provided that plts. should deliver the goods on being paid freight by the receivers of the cargo, and that before the said ship arrived at the port of call the deft. indorsed the said bill of lading to certain persons carrying on their business under the firm and style of "Messrs. Watney and Keane," and the said indorsement was in the words following, that is to say, "Deliver to Messrs. Watney and Keane, or order, looking to them for all freight, dead freight, and demurrage, without recourse to us." (Signed) "George B. McKee and Co.;" and plts. accepted the said in dorsement, and delivered the goods in pursuance thereof to the said Messrs. W. and K., as the persons entitled to the said goods, and not to deft. Demurrer and joinder in demurrer to the said plea. There were other pleas, and issue was taken and joined on all of them. Plts.' points:-1. That plea 3 does not expressly aver that the plts. exonerated deft. from his liability, or that there was a substituted liability of Messrs. Watney and Keane, and does not set forth facts operating as such exoneration or substitution of liability. 2. That the plea only answers part of the claim in the first count and contains no defence to that part of the claim which is for primage and average. Deft.'s points:-1. That the plea sets forth facts operating as an exoneration or substitution of the liability of Messrs. Watney and Keane for that of deft. 2. That the answer contained in the plea to each part of the claim in the first count which Ex.] LEWIS AND OTHERS v. MCKEE. [Ex. applies to freight, is a defence also to that part of indorsement. The position of the intermediate conthe action which is for primage and average. signee is the same as that of the indorsee in Smurth3. That the case is governed by the case of Smurth-waite v. Wilkins (ubi sup.). The plea is good as a waite v. Wilkins, 31 L. J. 214, C. P.; 5 L. T. Rep. denial of a condition precedent. N. S. 842; 7 Ib. 65. Karslake, Q. C. (with him C. P. Butt) for the plt. in support of the demurrer.-The first count is framed on sect. 1 of the Bills of Lading Act (18 & 19 Vict. c. 111), which followed the case of Thompson and another v. Dominy, 14 L. J., N. S., 320, Ex.; 14 M. & W.; in which it was held that a bill of lading was not negotiable like a bill of exchange. The declaration alleges that the property passed to the deft., and that allegation is admitted by the plea. The plea admits a right and true delivery of the cargo, and therefore prima facie shows a liability on deft. of which he cannot discharge himself without an express agreement between him and the plts., founded on good consideration. But the plea shows no such discharge, and carefully avoids saying that by the indorsement to Watney and Keane the property passed to any one at all. Deft. will rely on the case of Sinurthwaite v. Wilkins in the C. P., 5 L. T. Rep. N. S. 842; 7 Ib. 65; 31 L. J. 214, C. P., as governing the present case, but the plea there differs from the present plea. Admitting that the property passed to Watney and Keane, still the plea is no answer to the declaration. It shows no satisfaction and discharge after breach, but simply the indorsement and acceptance. This limited indorsement, with an allegation that the plts. were parties to it, and agreed to take the onus of it, does not, so far as plts. are concerned, amount to a discharge of the deft.: (Abbott on Shipping, edit. of 1847, p. 416.) If a bill of lading be indorsed to a third person, he paying freight for the same, the shipper has still a claim for freight on the original consignee. The allegation is, that deft. being liable for freight indorsed to Watney and Keane; but if plts. choose to deliver without agreeing to discharge deft., his original liability remains. Watney and Keane are mere receivers, mere agents of deft. The master cannot be involved by the holder of the bill in disputes between the latter and the consignee. The object of the Bills of Lading Act, 18 & 19 Vict.c. 111, was to give the shipowner the double liability of the person with whom he contracted and the person in whom the property vested. Wegner v. Smith, 15 C. B. 285; 24 L. J. 25, C. P., gives the proper form for raising the question of liability. The plea is objectionable as stating facts which may or may not be a defence, but which are not put on the record in the form of a defence. A discharge from all liability might easily have been pleaded. He cited also Shepard v. De Bernales, 13 East, 565; Penrose v. Wilkes (not reported), cited in Abbott on Domett v. Beckford, 5 B. & Ad. 521. Watkin Williams, for the deft. contra, in support of the plea.-[He asked leave to amend the plea by adding a clause averring express exoneration of deft.'s liability by the plts., and excepting primage and average accustomed. (a)] It may be there is some awkwardness in raising the point in the way proposed by the present plea; but nevertheless the plea does, though it be somewhat informally, raise the question of the liability of a transferee of a bill of lading. The deft.'s liability is founded solely on the Bills of Lading Act. There is a fallacy in saying that the plea admits the deft.'s liability without showing any discharge. The deft. may dispose of the bill of lading; he may, in fact, never become liable at all. The plts. accepted the substituted liability of the transferees for the imperfect liability of the consignee, and chose to give up the goods on the special (a) Leave to amend the plea accordingly was given. Karslake in reply. KELLY, C. B.-This case has been very ably and concisely argued by counsel on both sides, but I am of opinion that it presents no question of real doubt for the consideration of the court. The action is brought against the original consignee of certain goods consigned to a port in Great Britain, under a bill of lading, and there can be no doubt that upon the facts stated in the declaration the deft. was originally, not at any time absolutely, but contingently, liable to the plts. for the freight of those goods; I say only contingently, because, as pointed out by Mr. Williams, many circumstances may have arisen which would have precluded the plts. from making any claim whatever against him in respect of such freight. But such being the state of the case, after the original consignment of the goods and during the voyage, the deft., the then consignee, indorsed the bill of lading to certain persons trading under the names of Watney and Keane, and notice of that indorsement was given to the plts. The plea then alleges what took place between the parties in these terms; this was the indorsement: "Deliver to Messrs. Watney and Keane, or order, looking to them for all freight, dead freight, and demurrage, without recourse to us.-G. B. McKee and Co." This was signed by the deft., and then there is an allegation that the plts. accepted the said indorsement, and delivered the goods in pursuance of their order to the said Messrs. Watney and Keane, as the persons entitled to the said goods, and not the defts. Now, I quite agree that as a statement only of certain facts which would have raised a question for the consideration of a jury, and upon which the judge would have been bound to take the verdict of the jury, the plea would have been insufficient; the plea must not be argumentative, it must not rest upon a state of facts upon which the jury may infer an agreement which, being made, would constitute a defence to the action. It is necessary that the defence should be stated in positive terms. But I am of opinion that, if the consignee of the goods under the bill of lading, while the goods are yet in transitu, indorses the bill and gives notice of that indorsement to the owner of the ship, or the party, whoever he may be, entitled to the freight, and upon that indorsement he states in express terms that the owner of the freight, or the party who may be ultimately entitled to the freight, is to look to other persons for the payment of freight, and that indorsement is accepted and acted upon without objection and without any qualification on the part of the owner of the freight, that that of itself, in point of law, constitutes a transfer of the liability and a defence to any subsequent action. Under these circumstances, in my opinion, the plea contains a statement of facts which are themselves an answer to the action, and not merely evidence of that which would be an answer to the action if so found by a jury. I think, therefore, that the plea is good; that the demurrer to it cannot be sustained; and that the deft. is entitled to judgment. BRAMWELL, B.—I am of the same opinion, and I must say that I do not think any the worse of the plea because it states the actual facts rather than stating some conclusion of law which involves, first of all, proof of the existence of certain facts before a jury, and then the difficult question whether the conclusion of law has been correctly stated from them. It seems to me that these facts, as stated, FISSINGTON v. HUTCHINSON. Ex.] furnish an answer to the action upon the grounds put by the Lord Chief Baron, and I will merely add this, that what has taken place is to my mind equivalent to the deft. having said, "Deliver to these persons upon these terms, or do not deliver to them at all." If that were so, the owners of the freight should have said, "We will not deliver at all; we do not choose to take their responsibility to your exclusion-that is to say, the responsibility of Messrs. Watney and Co. to the exclusion of you the deft." Then he would have had a right of action against the deft., as owner of the goods, for not receiving them, which it would have been his duty to do. It appears to me that, unless that reasoning were well founded, it would be a very mischievous thing, indeed; because, in what way is an owner of goods who desires to trust them to the care of a wharfinger, making him personally responsible for the freight, to do it, unless he adopt some such indorsement as this. It is always in the power of the shipowner to say, "I will not deliver upon those terms;" and the owner of the goods can say, "I will bring an action against you for not delivering the goods, and not allowing the proper person to receive them, you will be liable to demurrage and other consequences." If he choose to take such a nominee for receiving the goods, he must take him upon the terms upon which he is nominated, and those are, in this case, no further responsibility to the deft. I think the deft. is entitled to our judgment. I CHANNELL, B.-I am also of opinion that the deft. is entitled to our judgment. The question is, not whether the plea might not have been pleaded differently, but whether the facts stated on the plea afford a sufficient answer to the plts.' claim for freight. It would not, perhaps, be sufficient that the facts should be such as would justify or admit of the opinion that the plts. had renounced their claim for freight against the deft.; the question is, whether the facts are such as to require that conclusion; and I am of opinion that they are. The plts. might have refused to act upon this order. do not say what would have been the state of things if they had done so; but if the plea shows that they delivered upon the faith of this special indorsement, I think the case is clear to show that they renounced their claim for freight against the deft. I do not repeat the terms of the indorsement, which my Lord Chief Baron has read from the pleadings; but the plea goes on to say, that the plts. accepted the said indorsement, and delivered the goods, in pursuance of their order, to the said Messrs. Watney and Keane, as the persons entitled to the said goods, and not the deft.; therefore the plea excludes, in point of language, any notion that there was a delivery to persons simply as agents of the deft. Reported by JOHN KINGHORN, and JOHN SHORTT, Esqrs, COURT OF EXCHEQUER. SITTINGS AT GUILDHALL. Tuesday, Dec. 18. (Before MARTIN, B., and a Common Jury.) FISSINGTON v. HUTCHINSON. Constructive assault-What circumstances constitute an indecent assault. An action cannot be maintained where the declaration alleges a case of felony; secus where the declaration alleges only a misdemeanor. The declaration alleged that the deft. had indecently assaulted the plt., and endeavoured to have connection with her against her will. Plea, not guilty. plt.'s case, who sued by her father as next friend. Parry, Serjt. (with him Butler Rigby) stated the Plt., aged about fifteen or sixteen, had been for some months a domestic servant in the house of deft.'s mother at Tufnell-park, Holloway. Deft., aged about twenty-one, lived there with his mother at the time when the alleged cause of action arose. On the 6th March 1866, deft. came into the kitchen, whilst his mother was absent from home, his question to plt. Plt. took up a knife to protect trousers being undone, and he put an indecent herself, and then escaped to her bedroom, the door of which she locked. Deft. followed and attempted to break open the door; calling on plt. to open it, and begging of her not to relate any of the events which had occurred to his mother. No attempt was made by deft. to repeat the offence; but he subsequently told plt.'s father that he would do so if she continued to live in the house. Plt. told her mother what had occurred the day after that on which the alleged assault had been committed; but plt.'s father was not made acquainted with the circumstance till the 16th April following. plt.'s father and mother. Lloyd, on behalf of the deft., submitted that no case had been made out against the deft., and that plt. should be nonsuited. of a gun at a man, whether it were loaded or not, Parry, Serjt. contended that, as the mere pointing or shaking a fist in a person's face, or even spitting on the floor in a threatening manner in the prethe gestures of the deft. in the present case being sence of any one, was a constructive assault; so sufficient to lead plt. to believe that he intended to commit a felonious assault on her, amounted to had been made out which his Lordship should suba constructive assault, and consequently that a case mit to the jury. MARTIN, B. was of opinion that there was no evidence to go to the jury, and that it was a case for his decision. He had never heard of such an offence must be a common one, as such proposals as action being brought before, although the alleged those said to have been made by the deft. must have been made on innumerable occasions. He should be sorry if a precedent were established for the bringing of such actions. The Lord Chief Baron had expressed an opinion that, as the declaration alleged on the face of it that a criminal offence had been committed, the action raised could not be maintained. That opinion, however, hardly coincided with his own, which was that, although an action was not' maintainable where a case of felony |