Adjourned Sittings at Westminster after Trinity BEFORE LORD CHIEF JUSTICE TINDAL. 1832. BENNETT V. ROBINS. REPLEVIN. The defendant made cognizance, as the bailiff of a person named Broom, who was a receiver ap pointed by the Court of Chancery. June 20th. A receiver, ap pointed by the Court of Chancery, has a right to distrain for rent, without any special au Bompas, Serjt., for the defendant, objected that, with- thority from the out special authority from the Court of Chancery, a receiver had no right to distrain for rent. Wilde, Serjt.-There is a case in Atkins which decides that he may (a). TINDAL, C. J.-I think there is no foundation for this objection. I think that a receiver, appointed by the Court of Chancery, must be considered, in point of law, as having a right of distress; otherwise the right to receive would be a perfect mockery; for, when the Court was not (a) Pitt v. Snowden, 3 Atk. 750. In that case Lord Hardwicke said, that receivers have a power, where they see it necessary, to distrain for rent, and need not apply first to the Court of Chancery for a particular order for that purpose; and that he had often wondered at their doing it, as it gave the tenant an opportunity of conveying his goods off the premises in the mean time; for the Court ne ver makes an immediate order for Court for that purpose. 1832. BENNETT บ. ROBINS. sitting, and no order could be made, a tenant might remove his goods, and the rent could not be recovered. And, if this be so, then the allegation on this record is, that the rent was due to Broom, which is admitted, and he, being the receiver, and having the right to appoint a bailiff to distrain, has appointed the defendant Robins to recover the rent for him. I think, therefore, the plea is made out. Verdict for the defendant. Bompas, Serjt., and Tomlinson, for the plaintiff. Adjourned Sittings, in London, after Trinity BEFORE MR. JUSTICE GASELEE, (Who sat for the Lord Chief Justice.) June 30th. COLEPEPPER v. Good. If a carrier di- ACTION to recover damages for the loss of a chest, rects goods to be sent to a particular booking office, he is answerable for the negligence of the booking office keeper. In an action against the carrier, the person at the booking office who delivered the goods to the carrier, is a containing clothes, &c., and a hammock which was fastened outside. The plaintiff was second mate of the Sir Charles Forbes, East Indiaman, and on his arrival in London, his sea-chest was taken from the Custom-house to the White Hart public-house, Tower-street, and booked there. There was a direction on a card fastened securely to the chest with a piece of string. It was, "Mr. F. Colepepper, Bromley Hall Cottages, Bromley, near Bow." The plain competent witness to prove the state in which they were delivered. tiff's father, who proved these facts, stated that the chest never arrived. The person at the booking office was called to shew that he had delivered the chest to the carrier. Bompas, Serjt., for the defendant, objected that the witness was interested, and could not be examined without a release. The verdict would be evidence against him, if the loss was occasioned by his negligence and not that of the defendant. -- Wilde, Serjt. He is a witness of necessity. It is similar to the case of clerks receiving money for their employers, and sub-agents, who are always admitted without a release. He is the defendant's agent. GASELEE, J.-I think he is a good witness. The witness then proved the delivery of the chest to the defendant's man; and it was also proved that the defendant had said he was very sorry for the loss; that he was with his man in the cart at the time; and that he had delivered the chest at the Three Mackerel, in the Mileend Road. It appeared that at the booking-office parcels were received to go by various carriers, and they were all entered in one book. Bompas, Serjt., for the defendant, contended that the booking-office keeper, taking in goods for a variety of places, and keeping but one book for all, was not the servant of the carrier; and the carrier was not answerable for any negligence occurring at the booking office. But if he delivered the goods according to the direction, he did all that the law required of him. He called, on the part of the defendant, the man that was with the cart; who stated that he had been the ser 1832. COLEPEPPER v. GOOD. 1832. COLEPEPPER ย. GOOD. vant of the defendant for seven years, during which time the cart had been in the habit of calling daily at the booking office; that he took the chest up there, and put it on what is called the tail ladder of the cart; that he looked at the direction and read it. It was, " Mr. Chaplin, to be left at the Three Mackerel, Mile-end Road, till called for;" that he took it off and put it in his pocket, for fear it should be torn off, as the chest was on the outside of the cart; that he delivered the chest at the Three Mackerel to the landlord, with the direction, and had never seen or heard of it since. On his cross-examination, he admitted that he had been charged with stealing it, and had been tried for it, but was acquitted. The landlord of the Three Mackerel proved, that, before the arrival of the cart, two men came into the house and called for a pint of porter; one of them, pointing to the other, said, "My brother is just come from sea, and there is a chest and hammock left at the White Hart, in Tower-street, to be brought here, directed in the name of Chaplin." They gave the landlord half-a-crown to pay the carriage, and said they should be much obliged to him if he would take in the chest when it came, and they would call for it. He accordingly received it with the direction from the defendant's man. The direction he received, was "Mr. Chaplin, to be left at the Three Mackerel, Mile-end Road, till called for." The person from the booking office was called up, and, in answer to a question from the jury, swore distinctly that he told the carrier's man that there was a chest for Mr. Colepepper, at Bromley Hall Cottages. On the part of the defendant, the case of Dover v. Mills (a), was referred to as an authority to shew that the booking-office keeper was answerable for negligence occurring while the goods were in his custody; and there (a) Ante, p. 175. fore that he could not be considered as the agento r servant of the carrier. Wilde, Serjt., for the plaintiff.-There is no doubt that the booking-office keeper is, in law, the agent of the carrier; and where the carrier (as in this case) has been in the habit of using the same house for several years, it must be taken that in fact he was so. The public would be in a very bad situation if a contrary doctrine were maintained. The booking office is the warehouse of the carrier, as he appoints things to be taken in there. GASELEE, J. (in summing up), said-There are two questions, in my opinion, in this case for your consideration. The first question is, whether the booking office keeper was or was not the agent or servant of the defendant; for, if he was, then the defendant will be liable to answer for his negligence: but, if he was not, there might be some question as to whether he is or is not liable in point of law. But, whether he was the agent or not, there is another and most material question, viz. whether the direction was altered before the goods were delivered to the carrier's man, or not. On the first question, as to the agency, it is important to consider that neither party has produced any card of the carrier's. It is not possible to say, whether the plaintiff could easily produce the defendant's card or not; but it is clear that the defendant could easily have produced his own card: but it seems that the defendant's cart has been in the habit of calling for goods at the house in question. If a carrier has directed goods. to be sent to a particular place, I think that the party sending them has, in point of law, a remedy against him for any misconduct on the part of the booking office keepAnd it will be for you to say, whether in this case the course of conduct of the carrier, calling from day to day for seven years, does or does not satisfy your minds, that the booking-office keeper was his agent. er. If you 1832. COLEPEPPER V. GOOD. |