Reid in reply.-This is a question of contract under rule 40. I submit that it was never intended to give any member a priority after the society ceased to be a going concern.

RAWLINGS (app.) v. WILKINSON (resp.). Haldane (with him Sir Horace Davey, Q.C.) for the appellant, the liquidator of the Sunderland 36th Universal Building Society.-In this case the County Court judge has decided that a member who has given notice of withdrawal, and whose notice has expired before the date of the insolvency, is entitled to interest on the amount of his shares until he is repaid their value at the rate mentioned in his share certificate. It is submitted that "interest" is the wrong term to use, and these are really preference shares. The effect of the notice of withdrawal was to substitute, in place of the relationship of company and creditor, a new contractual relationship of creditor and debtor, under which there was no contract to pay interest:

Re Sheffield and South Yorkshire Permanent Benefit
Building Society, 59 L. T. Rep. N. S. 401; 22 Q.B.
Div. 470.

What the new status of the member is, is defined in

Walton v Edge, 52 L. T. Rep. N. S. 666; 10 App.
Cas. 33.

It has been decided in a case almost exactly similar to this that a withdrawing member is not entitled to interest:

Re Blackburn and District Building Society, W. N. 1886, p. 22.

Cozens-Hardy, Q.C. (with him H. T. Eve), for the respondent Wilkinson.-The respondent has not ceased to be a member of the society, and is therefore entitled by the terms of his share certificate to interest at the rate of 5 per cent. until he is paid off:

Walker v. General Mutual Building Society, 57
L. T. Rep. N. S. 574; 36 Ch. Div. 77.

In the case of a subscribing member it might be different, as appears from the decision in

Re Sheffield and South Yorkshire Permanent Benefit
Building Society, 59 L. T. Rep. N. S. 401; 24
Q. B. Div. 470.

It is provided by rule 40 that the amount of the interest is to be determined by the committee, so that apart from the contract itself the committee can fix the rate of interest. There is no evidence now before the court as to what the practice of the society has been upon this point.

Lord COLERIDGE, C.J.-The case must go back to the County Court judge to say what appeared to him to be the practice.

Jan. 13, 1890.-The report of the County Court Judge stated, that from the 1st Sept. 1886 to the 12th Mar. 1887, the directors were aware of and sanctioned the payment of interest to members whose notices of withdrawal had expired, but that no rate of interest was ever determined or fixed under rule 40, and that this applied to all the societies. Cur. adv. vult.

Jan. 31.-MATHEW, J. delivered the judgment of the court:-These were appeals from orders made by the County Court judge at Sunderland, and raised the question whether the appellants King and Cordner, and the respondent Oliver, were entitled to rank as creditors of the societies

[Q.B. DIV.

in the winding-up proceedings or whether they were still members. They contended that they had withdrawn from membership, in accordance with the rules of the societies, before the windingup order had been made, and had thus become creditors. The liquidator, on the other hand, contended that before the notices to withdraw from membership had been given, or had become effective, the insolvency of the societies had become notorious, and therefore that the notices were inoperative. The learned County Court judge gave judgment in favour of the liquidator in the cases of King and Cordner, and against the liquidator in the case of Oliver. The order to wind-up was made on the 2nd July 1887. In the first case the appellant King had given notice of withdrawal on the 21st Feb. 1887, and the respondent Cordner on the 6th May 1887. In the second case the respondent Oliver had given notice on the 8th Oct. 1886 of withdrawal at the end of six months. The contention on their part was that until the winding-up order had been actually made they were entitled to withdraw, and so to constitute themselves creditors of the societies. The liquidator insisted that the societies were known to be insolvent on the 14th Feb. 1887, and that the right which members would otherwise have had of quitting the societies was then at an end. It appeared from the evidence that ten benefit building societies constituted in the usual way had been established in Sunderland, and that the management of them all had fallen into the hands of a person named Wayland. They were formed on what is called the terminating principle, and consisted of two classes of members-depositors and borrowers, or "advanced members." Unfortunately for the members of the society under Wayland's control, there had been gross mismanagement, and after Wayland's death in Aug. 1886, it was discovered that a great part of the moneys of all the societies was not forthcoming. In the early part of 1887 a firm of accountants was employed to investigate the affairs of the different societies and reports were prepared which showed that each of them was insolvent. These reports, with balance-sheets, were submitted to and practically adopted by an aggregate meeting of members of the societies on the 14th Feb. 1887. In pursuance of resolutions passed at the meeting, an effort was made to reconstruct the societies, and delegates were appointed to meet and consider what should be done. A scheme of reconstruction by amalgamating all into one was put forward by the delegates, but was found to be impracticable, and resolutions were finally come to that each of the societies should be wound-up under the supervision of the court. In support of the contention that at the date of the order King, Cordner, and Oliver were no longer members, they relied upon the rule as to withdrawal, which was in the following terms: "That on and after the expiration of the first twelve months any member may withdraw the subscription money which he may have contributed, with such an amount of interest as may be determined by the committee, such member to give notice of his intention to withdraw (in writing to the secretary), and should more than one member give notice to withdraw at one time, the members so giving notice shall be paid in rotation, according to the priority of notice, provided always that

the said society shall not be required or obliged to make such payment as aforesaid, until they have sufficient funds in hand for that purpose, and also to meet the then existing legal liabilties of the society." We are of opinion that this rule was not intended to apply where the society was no longer able to carry on its business and where it had become notorious that the society could not meet its liabilities. It would be altogether unreasonable to suppose that it was intended, in the event of insolvency, to permit one set of members to escape from liability at the expense of the others. There would seem to be no adequate consideration or motive for such an arrangement. The rule seems to us not to contemplate any such contingency as a suspension of its business, and therefore only to provide for a withdrawal from the society while it was or was believed to be still solvent. There was sufficient evidence to show that before the times at which two of the notices were given and the third had become effective the members and all others who were interested knew that the societies were no longer in a condition to carry into effect the objects for which they had been formed, or to fulfil their undertakings with their members. That the societies could not go on is shown from the scheme of reconstruction laid before the members, which practically involves the liquidation of the affairs of each of the societies. In this state of things the right to withdraw, it seems to us, no longer exists. The case of Brownlie v. Russell (48 L. T. Rep. N. S. 881; 8 App. Cas. 235), referred to by counsel for the appellants, King and Cordner, is only material for the reasons given for the view that the right to withdraw does not survive a winding-up order. As appears from the judgment of the Lord Chancellor, a winding-up order takes away the right, because it necessarily puts a close to the whole concern, terminates at the date of the account of each shareholder, and cuts off all chance of profit which, if the thing had gone on, both classes of members might have had. But all these consequences were as clear and and as inevitable in the case of these societies when the report of the accountants was published in February 1887, as if a winding-up order had been actually made. The case of Walton v. Edge (52 L. T. Rep. N. S. 666; 10 App. Cas. 33) was relied upon by the learned counsel for the appellants as an authority for the proposition that members who gave effective notices before the date of the windingup order were entitled to priority in payment to those members who had not given notice. But the question in that case was as to the rights of members who gave notice not only before there was any winding-up order, but when there was no information that any winding-up was going to take place, and when nothing special was alleged to affect them with notice that the society was not to continue as a going concern. The view we take is in accordance with the valuable judgment of Lord Shand in the case of Carrick v. North British Building Society (in liquidation), 22 Scottish L. Rep. 833. It is not the order to windup, but the state of things which to the knowledge of all concerned renders liquidation inevitable that, in such a case as this, puts an end to the right to withdraw. An effort was made on behalf of the persons seeking to withdraw to make out that, after the condition of the societies

[Q.B. DIV.

had been ascertained and made public by the reports of the accountants, the societies were still kept going. Reliance was placed upon the fact that some payments were afterwards made and received by the societies' officers. But the fact that the business of the societies was not wholly sus pended is explained by the efforts which were being made to effect reconstruction, which turned out to be impracticable. We for these reasons hold that the appellants King, Cordner, and the respondent Oliver are not entitled to priority, and that they must rank in the winding-up with the other members of the society. We dismiss the appeals in the cases of King and Cordner, and reverse the judgment of the court below in the case of Oliver. In the third case, Rawlings v. Wilkinson, the liquidator appealed against the judgment of the learned judge, who held that members who had given effective notices of withdrawal before the insolvency was disclosed, but had not received the amounts due to them were entitled to interest until payment. It was not contended that at common law or under the statute of Will. 4 interest would be payable, but it was said that there was a course of dealing between the society and their withdrawing members which was evidence of a contract to pay interest. After a further investigation of the facts made at our request by the learned County Court judge, a full statement of the evidence bas been made to us by his Honour. We are of opinion that any claim for interest could only arise under the terms of rule 40, and that apart from that rule there is no evidence of any contract, express or implied, to pay interest to members who had given notice to withdraw. That payments were made without the knowledge in the first instance of the committee is explained from the irregular way in which the business of the societies was conducted by Wayland. That such payments were ratified up to a certain date, when they were ordered by the committee to be suspended, is no proof that a liability under any contract existed or was admitted to exist. Any inference of an implied contract is repelled by the express provision in rule 40 that the interest. if any, should be such a sum as the committee might determine, and it was found by the judge that no determination within the meaning of the rule had been come to by the committee. The appeal in this case must therefore be allowed.

Solicitors for the appellants in the first and second appeal, and for the respondents in the third appeal, Maples, Teesdale, and Co., for G. S. Lawson, and for Thomas Steel, Sunderland.

Solicitors for the respondents in the first appeal, and for the appellants in the third appeal, Clarke, Rawlins, and Co., for Moore, Longden, and Mann, Sunderland.

Solicitors for the respondents in the second appeal, Wright and Pilley, for James Storey, Sunderland.

Q.B. Div.]

Wednesday, Feb. 5.

(Before FRY, L.J. and MATHEW, J.)

REG. v. J. BRIDGE, Esq. (Metropolitan Police Magistrate). (a)

Metropolis Management Act 1855 (18 & 19 Vict. c. 120), 88. 125-129-Summary Jurisdiction Act 1879 (42 & 43 Vict. c. 49), s. 33-Refusal of magistrate to state a case-Question of lawRemoval of refuse-Ashes—“ Trade refuse.” It is provided by the Metropolis Local Management Act 1855 (18 & 19 Vict. c. 120) that the vestries shall appoint persons to remove all dirt, ashes, &c., within their parish; that if the owner of any premises shall require the scavenger to remove the refuse of any trade, such owner shall pay to the scavenger a reasonable sum for such removal; that the justices shall determine whether the matter is or is not the refuse of trade, and the decision of such justices shall be final.

The Summary Jurisdiction Act 1879 (42 & 43 Vict. c. 49), 8. 33, enacts that any person aggrieved who desires to question the order of a court of summary jurisdiction, on the ground that it is erroneous in point of law, may apply to the court to state a case, and, if the court decline to state the case, may apply to the High Court of Justice for an order requiring the case to be stated. The vestry of St. M. refused to remove, unless paid for doing so, the ashes and other refuse produced by furnaces at an hotel within the parish, such furnaces being used for supplying the electric light and other purposes.

The manager of the hotel applied to one of the metropolitan police magistrates, who decided that the ashes were not trade refuse, and that the vestry must remove them without extra payment. On behalf of the vestry an application was made to the magistrate to state a case for the opinion of the High Court, but he refused to do so upon the grounds (1) that his decision was final and conclusive, and (2) that no point of law arose in the

case.

Held, that the decision of the magistrate was not final and conclusive, and that the question whether the ashes were trade refuse or not depended upon the construction and interpretation to be put upon the words of a statute, and was therefore a question of law upon which the magistrate must state a case.

THIS was an order nisi calling upon John Bridge, Esq., one of the magistrates of the police-courts of the metropolis sitting at the Bow-street Policecourt, and Frederick Gordon, to show cause why the said magistrate should not state and sign a case for the opinion of this court.

It is provided by the Metropolis Local Management Act (18 & 19 Vict. c. 120) as follows:

Sect. 125. It shall be lawful for every vestry and district board and they are hereby required to appoint and employ a sufficient number of persons, or to contract with any company or persons, for the sweeping and cleansing of the several streets within their parish or district, and for collecting and removing all dirt, ashes, rubbish, &c., in or under houses and places within their parish or district.

Sect. 128. In case any scavenger be required by the owner or occupier of any house or land to remove the refuse of any trade, manufacture, or business, or of any building materials, such owner or occupier shall pay to (a) Reported by W. H. HORSFALL, Esq., Barrister-at-Law.

[Q.B. DIV.

the scavenger a reasonable sum for such removal, such sum, in case of dispute, to be settled by two justices.

Sect. 129. If any dispute or difference of opinion arise between the owner or occupier of any such house or land and the scavengers required to remove such refuse as to what shall be considered as refuse, it shall be lawful for any two justices, upon application made to them by either of the parties in difference, to determine whether the subject-matter of dispute is or is not refuse of trade, manufacture, or business, or of any building materials, and in every such case the decision of such justices shall be final and conclusive.

At the Hôtel Métropole, which is situate within the parish of St. Martin's-in-the-Fields, are three furnaces, which are used for supplying steam power for heating the hotel, pumping water, cooking, and working the engines for supplying the electric light. The vestry of St. Martin's refused to remove the ashes and clinkers from these furnaces, upon the ground that they were trade refuse, unless the proprietors of the hotel paid them, under the provisions of sect. 123 above set out, for so doing. The proprietors of the hotel refused to make any payment to the vestry, and upon the 27th April 1889 they took out a summons at the Bow-street Police Court to have the question decided whether the subject of dispute was or was not a refuse of trade or busi

ness.

The magistrate decided that the refuse was not a trade refuse within the meaning of the above section, and that the vestry was therefore liable to remove it without extra payment. An application was thereupon made to the magistrate to state a case for the opinion of this court, but he declined to do so upon the grounds (1) that by sect. 129, above set out, his decision in the matter was made final and conclusive, and (2) that no point of law arose in the case.

The Summary Jurisdiction Act 1879 (42 & 43 Vict. c. 49), s. 33, enacts that,

Any person aggrieved who desires to question a conviction, order, determination, or other proceeding of a court of summary jurisdiction, on the ground that it is erroneous in point of law, or is in excess of jurisdiction, may apply to the court to state a special case setting forth the facts of the case and the grounds on which the proceeding is questioned, and, if the court decline to state the case, may apply to the High Court of Justice for an order requiring the case to be stated.

Crump, Q.C. (with him J. E. Bankes and Courthope-Munro) now showed cause. No proper application has been made to the magistrate to state a case. By rule 17 of the Summary Jurisdiction Rules 1880 the application must be made in writing, whereas in this case it was made verbally directly after the magistrate had given his decision. [MATHEW, J. -The object of that rule was that the magistrate and parties interested should have proper notice of the application, and in this case it is admitted that it was made in open court when everyone was present. I think that the application was sufficient.] The decision of the magistrate is, by sect. 129 of the Metropolis Local Management Act 1854, made final and conclusive, and that provision is not overruled by the Summary Jurisdiction Act 1879. There was no question of law in dispute; the question whether this refuse was trade refuse was a question of fact for the magistrate. [FRY, L.J.-The question is, what construction is to be put upon the words" refuse of trade or business" in the Act; that seems to me to be a question of law.]

Glenn in support of the rule.-The magistrate has no option under the Summary Jurisdiction Act 1879, but must state a case on the application of a party aggrieved who desires to question his order on the ground that it is erroneous in point of law. The vestry here says that they are aggrieved by the construction the magistrate has put upon the words of a statute, which, I submit, is a point of law.

FRY, L.J.-The facts in this case are shortly these. Frederick Gordon, the manager of the Hôtel Métropole, which is situate within the parish of St. Martin's-in-the-Fields, laid an information before one of the magistrates at the Bowstreet Police Court, in which he complained that the vestry refused to remove the dust, rubbish, and refuse from the said Hôtel Métropole contrary to the statute 18 and 19 Vict. c. 120, s. 125. Upon the hearing of the summons which was issued upon that information the magistrate decided that the refuse in question was not the refuse of a trade or business as was contended on behalf of the vestry, and that the vestry must therefore remove it, and that the hotel manager was not liable to pay the vestry any extra amount for doing so. The magistrate was then asked, on behalf of the vestry, to state a case for the opinion of this court. This he declined to do, and upon these two grounds: "(1) that by sect. 129 of 18 and 19 Vict. c. 120 my decision in the matter is made final and conclusive, and (2) that no point of law arose in the case." I think that the learned magistrate was wrong, and that a case should be stated. There is no doubt that if sect. 129 of the Metropolis Local Management Act (18 & 19 Vict. c. 120) stood alone the decision of the magistrate would be final and conclusive. But by the Summary Jurisdiction Act 1879 (42 & 43 Vict. c. 49), which is a general enactment applicable to all proceedings in courts of summary jurisdiction, it is provided by sect. 33 that" any person aggrieved who desires to question a conviction, order, determination, or other proceeding of a court of summary jurisdiction on the ground that it is erroneous in point of law, or is in excess of jurisdiction, may apply to the court to state a special case." Now, the obvious meaning of the Legislature was of a very wide description, namely, that whenever a point of law arose in a court of summary jurisdiction and one of the parties was dissatisfied with the way in which it was decided, such party should be at liberty to come to this court for the purpose of obtaining the opinion of this court upon such point of law. The provision in the Act of 1855 is modified by the Act of 1879. The magistrate has decided that no point of law arises, but there I cannot agree with him. The case includes the point as to what construction and interpretation is to be placed upon certain words in an Act of Parliament. It might be a question of fact if there were no dispute as to the meaning of the words in the statute, and as to the origin of the ashes. But the real controversy between the parties is what is the meaning of this expression in the statute. The first question is, were they "ashes?" and the answer to that depends upon the meaning of that word. Then, supposing that they are "ashes," do they come within the exception, or is the vestry bound to remove them without extra payment. I think that it is clear that there is a point of law involved in this case, and

[Q.B. DIV.

that the magistrate must therefore state a case for the opinion of this court.

MATHEW, J.-I am of the same opinion. The question arising in this case is one as to the construction to be placed upon certain words in an Act of Parliament. It is necessary to find out what was the meaning of the Legislature, and that is a point of law upon which the magistrate must state a case. There may be excellert reasons for deciding the case either one way or the other way, but we must see whether the magistrate has decided the point of law correctly, and in order that we may do so he must state Order absolute. Solicitors for the applicant, Fladgate and Fladgate. Solicitors for the respondents, Ingram, Harrison, and Ingram.

a case.

Jan. 29, Feb. 3 and 12.

(Before DENMAN, J. and WILLS, J.) DAVIES AND Co. v. ANDRÉ AND Co. (a) Practice-Action against firm-Service of writ— Person at place of business-Conditional appearance-Issue whether person partner or notOrder IX., r. 6-Order XII., rr. 15, 16-Order XLII.. r. 10.

The plaintiffs sued the defendants for the balance of an account for goods sold and delivered. The writ was served upon R. at the place where the defendants' business was being carried on, but he was not informed in what capacity he was served. R. entered a conditional appearance denying he was a partner in the defendants' firm. The plaintiffs applied at chambers to strike out the appearance of R., alleging that he was only served as a representative of the defendants' firm. Field, J. made an order amending the appearance entered by R., by striking out the words "conditional" and "but who denies that he is a partner in the firm of André and Co." Held, that if the plaintiffs were willing to undertake not to issue execution against R. as being a member of the firm, the appearance of R. would be struck out, and the plaintiffs might sign judg ment against the defendant firm, otherwise the conditional appearance of R. must be restored, and an issue of the question of partnership directed.

THIS was an appeal from the decision of Field, J. at chambers, and the question arose under the following circumstances:

The plaintiffs upon the 30th Oct. 1889 issued a writ against the defendants to recover the sum of 271. 98. 10d., the balance of an account for goods sold and delivered to the defendants.

Upon the writ the defendants were described as of 8, Ribblesdale-place, Hornsey, but it appeared from the affidavits that the firm had carried on business in Piccadilly, and that after that shop was closed some business was transacted at Ribblesdale-place.

Upon the 1st Nov. 1889, the writ was served upon Ferdinand Rath at 8, Ribblesdale-place, and the clerk who served it subsequently indorsed upon it that he had served it upon the (a) Reported by W. H. HORSFALL, Esq., Barrister-at Law.

defendants by leaving it with a person in charge of the business.

Upon the 8th Nov. by leave of a master, a conditional appearance was entered for Rath, to which was added "but who denies that he is a partner in the defendant firm of André and Co." Upon the 16th Nov. a summons was taken out by Rath to set aside the service of the writ, upon the ground that he was not and

never

had been a partner in the firm of André and and Co., but upon that summons no order was made.

The plaintiffs then took out a summons to strike out the appearance of Rath, alleging that he was only served as a representative of André and Co. Upon this summons the master made no order, but upon appeal to Field, J., he, upon Dec. 4, ordered that the appearance entered by Rath in this action be amended by striking out the word "conditional" and the words " but who denies that he is a partner in the firm of André and Co." From that order the present appeal was brought by, the plaintiffs.

Upon the same day that this order was made by Field, J., Rath delivered the following defence:

The defendant denies that he ever carried on business as André and Co., and that he ever was a partner in André and Co., and that he ever bought the goods mentioned in the statement of claim or any of them, or that he ever had any of the transactions mentioned in the statement of claim.

Upon his defence Rath altered the title of the case to "Davies and Co. v. Ferdinand Rath sued as André and Co."

Lawson Walton for the plaintiffs.

T. Tyrrell for the defendants.

Feb. 12.-WILLS, J. delivered the judgment of the court. In this case W. H. Davies, trading as W. H. Davies and Co., sues a firm of the name of André and Co. for a balance of account in respect of goods supplied to that firm from October 1888 to March 1889. The writ is addressed to André and Co. of 8, Ribblesdale-place, Hornsey, and it bears an endorsement, dated the 2nd Nov. 1889, in the following terms: "This writ was served at 8, Ribblesdale-road, Hornsey, on the defendants by leaving the same with a person in charge of the business on Friday, Nov. 1, 1889(signed) F. Sydney Searle." The memorandum contains a contradiction in terms, and no doubt the writ was really served by leaving a copy at 8, Ribblesdale-place. On the 8th Nov., leave having been obtained from a master, an appear. ance was entered in these words: "Enter a con

ditional appearance for Ferdinand Rath, having been served as a partner, but who denies that he is a partner in the defendant firm of André and Co.-(signed) Vallance and Co., solicitors for the said Ferdinand Rath." A summons was heard by Field, J. on the 4th Dec. to strike out this appearance. No affidavits appear to have been used on this occasion, and the learned judge made the following order: "that the appearance entered by Ferdinand Rath be amended by striking out the word "conditional," and the words "but who denies that he is a partner in the firm of André and Co." On the same 4th Dec. Ferdinand Rath delivered a statement of defence, headed "Between W. H. Davies and Co. and Ferdinand Rath, sued as André and Co.," in which he denied that he ever carried on business

[Q.B. DIV.

as André and Co., or was a partner in that firm, or bought the goods or any of them, or had any of the transactions mentioned in the statement of claim indorsed on the writ. Notice of appeal was given on behalf of the plaintiffs, asking that the said order should be reversed or varied, and that the said appearance might be struck out. On the hearing of this appeal before us three affidavits were used. The first, sworn on the 21st Jan. 1890, is by Searle, a clerk to the plaintiffs' solicitors, and the person who served the writ. He says that he went to 8, Ribblesdaleplace, where he was informed that André and Co. carried on business, and which is the place mentioned in the writ, and that he saw a person who told him he was Mr. Rath, and "who appeared to me to be in charge of the business." He served Rath with a copy of the writ. Rath, he says, told him he was not a partner, and in reply, as Searle alleges, he told Rath that he had served him with the writ as being the representative of the firm of André and Co., and as having the control or management of the partnership business there. The next affidavit is one by Rath, sworn on the 30th Jan. He answers Searle's affidavit, and says that the information given to Searle that André and Co. carried on business at 8, Ribblesdale-place is wholly untrue. That house has for fifteen years been occupied by Rath and his family, and no business of any kind has ever been carried on there by anyone. He says that on being served he told the person making the service that he was not in any way connected with, nor a partner in, André and Co., and that the answer given was that he was the right person on whom to serve the writ. He adds that he immediately wrote a note on the copy writ to the effect that he was not in any way connected with the firm of André and Co., and sent it back to the plaintiff's solicitors, and afterwards entered the conditional appearance, being afraid that an execution would be levied on his property in his private house. He says that his brother-in-law Rudolph Andreicovits carried on business for several years as André and Co., in Piccadilly, and beyond the fact that Andreicovits is related to him, he knows nothing of the firm or its business. He swears that he is not, in fact, a partner in the firm, nor in any way connected therewith. To this affidavit the plaintiff has replied by an affidavit sworn on the same 30th Jan. He says: "I have received messages through my employés from the firm of André and Co., carrying on business at 8, Ribblesdale-place. My traveller has also frequently called at that address for payment, when, as I have been informed by him and believe, he has seen both Rath and his wife, who have at various times, as representing André and Co., made promises of payment of my account." He exhibits a letter from Rath, dated 8, Ribblesdale-place, 3rd April 1889, in which he says: "I send you the following goods for your inspection," a list being given; "I also inclose notes for goods I had, and which were not sold and goods on memo." The inclosures were memoranda, dated April 1889, on two printed billheads of André and Co., bearing the address 207A, Piccadilly; they are addressed to the plaintiffs; both have the word "bought" struck out from the printed line "Bought of André and Co.;" one has written in place of the erasure, "'goods returned;" the other has "goods memo.

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