WHEATON'S REPORTS. "Valuable reports, adorned with much of his own exact learning." --Story, Miscellaneous Writings, 155, 156.

WINCH'S REPORTS. "It is rather extraordinary that Lord Hobart has not recorded that case in his excellent volume of Reports. The cases in Winch are in general well reported; but in the preface to Bedloe and Dalison's Reports it seems as if those were not really the reports of Sir H. Winch; for it is there said, "The book called Winch's Reports, but improperly enough ascribed to that learned judge.' And, indeed, it appears that several of the cases in that book were decided after Sir H. Winch's death."-Lord Kenyon, C. J., in Troward v. Cailland, 6 T. R. 441.

When a Deputy Registrar or other officer whose duty it is to file papers, receives and files a paper duly presented to him for that purpose, he does a ministerial act and leaves the regularity of the proceeding on the part of the person presenting the paper to be objected to by any who may have an interest in objecting.

An application to the Referee impeaching the propriety of the filing is not an appeal or in the nature of an appeal from the Deputy Registrar or other officer so as to oust the jurisdiction of the Referee under 34 Vict. c. 10, § 2.

Semble after the expiry of the time limited by an order to amend the right of the plaintiff to amend under such order is strictly gone, but the defendant's right to object to amendments made after the period limited may be waived.

See Lyle v. Elwood, 54 L. T. (N. S.) p. 59.

MOFFATT V. PRENTICE.

Statutes-Con. Stat. Can. c. 79, § 4--Subpoena to another Province-Witnesses.

[SPRAGGE, C., on appeal from the REFEREE, 27th Jan., 1873.]

A plaintiff obtained ex parte an order under Con. Stat. Can. c. 79, § 4, for the issue of a subpoena to the Province of Quebec, requiring certain defendants to attend before the master. at Cornwall for examination upon their answers. An application made to discharge this order on the ground that § 4, applied only to witnesses, and not to parties to the suit, was dismissed, and it was held that, looking to the object of the Act and the propriety of its application to the examination of parties, the term witness in this section should be used in its widest sense, and should include parties to the cause as well as witnesses in the ordinary sense of the word.

BULL V. HARPER.

Compensation-Effect of Conveyance or vesting orderMisdescription in advertisement.

[The REFEREE, 28th January, 1873.]

A purchaser by taking a conveyance or vesting. order waives all objections to the title. He also

Chan. Cham.]

takes the responsibility of obtaining possession upon himself, and if evicted by a title to which his covenants do not extend he has no right to compensation on that account.

Misdescription in the advertisement, where it amounts to a material representation, is a ground for compensation even after conveyance.

Re LAUDER & MULOCK.

Solicitors-Deceased Solicitor a partner of two firmsLiability of surviving members of one firm to account to surviving members of another firm of which the deceased partner had also been a member. [STRONG, V. C., on appeal from the REFEREE, 3rd Feb., 1873].

The Referee has no power to exercise summary jurisdiction over Solicitors; such jurisdiction can only be exercised on an application to the Court.

Semble. When one member of a firm of Solicitors has died, the summary jurisdiction of the Court can no longer be exercised over the survivors, because such an application may necessitate a taking of the partnership accounts and the representatives of the deceased partner would then be necessary parties.

CAMPBELL V. ROYAL CANADIAN BANK.

Appeal bond-Regularity of.

[The REFEREE, 7th Feb., 1873.] A party opposing the allowance of a surety's bond for security for the costs of an appeal, may read affidavits in opposition to the surety affidavit of justification.

An appeal bond is properly entitled in the cause in the Court below.

HAYES V. SHIER.

Filing-Service of notice of filing-Gen. Ord. 43Irregularity.

[The REFEREE, 13th Feb., 1873]. A paper mailed to or delivered to a Deputy Registrar or like officer, elsewhere than at his office, to be filed cannot be treated as a filing; but if the Deputy Registrar or other officer has notwithstanding afterwards filed the paper in his office, previous irregularities in its delivery to him are generally speaking cured.

When a pleading is filed in a Deputy Registrar's office in a County in which the Solicitor for the opposite party does not reside, service of notice of filing must be effected according to Order 43. Service on the Toronto Agent is irregular.

Notice of filing not having been served on the same day that the pleading was filed is not

[Chan. Cham.

a ground for moving to take the pleading off the files. The proper course is to move to enlarge the time for taking the next step in the cause.

BUELL V. FISHER.

Immediate sale-Chambers.

[The REFEREE, 14th Feb., 1873.] An order for an immediate sale after the master has fixed a day for payment, and before it has arrived, will not be made in Chambers.

GRANT V. WINCHESTER.

Security for costs-Cross-examination on affidavitsUncertain abode.

[The REFEREE, 17th Feb., 1873] The rule in force in England (Dan. Pr. 810), that a party who has made an affidavit must submit to cross-examination upon it, if required upon notice to his Solicitor, before taking any further steps in the cause, being founded on an English order has no application in this Province.

On an application for security for costs, a certificate of the state of the cause is only necessary when the application is made before answer filed.

A plaintiff out of the jurisdiction with no certain place of abode, and having no property in this Province, though stating on affidavit that she was only temporarily absent and intended to return, was ordered to give security for costs there being no circumstances from which the Court could reasonably infer that the intention to return would certainly be carried out.

The order was subsequently discharged upon the plaintiff returning to the Province.

NOAD V. NOAD.

Changing venue-Cause of action-Balance of convenience.

[BLAKE, V. C., 14th March 1873].

The locality of the cause of action is not regarded in Chancery as a ground for changing the

venue.

When the venue has once been laid a very large preponderance of convenience must be shewn to change it, and in investigating this regard will be paid to the ability of witnesses to travel, and to the probability of a postponement of the hearing being the result of a change.

Between private individuals it is impossible to say that one class of witnesses will be more injured than another by absence from home. Between a private individual and a public officer this may be considered.

MCKAY V. HARPER.

Fee Fund-Costs of guardian ad litem when paid out of the Fee Fund.

[SPRAGGE, C., on appeal from REFEREE, 10th March, 1873).

A Solicitor upon the plaintiff's application having been appointed guardian ad litem to infant defendants, and being unable to obtain his costs from the plaintiff or from the infants' estate, it was ordered that they be paid out of the suitor's fee fund.

MCGILLIVRAY v. MCCONKEY.

Amendments.

[BLAKE, V. C., on appeal from the REFEREE, 31st March, 1873.]

If a plaintiff amends his bill by striking out portions so as to render the answer to them useless, an application may be made by the defendant answering for the costs thus unnecessarily incurred, and such an application should be made at the hearing.

After answer liberal addition to the bill by amendment, retaining the original allegations is proper even though rendering a new defence necessary, and the costs of such amendment are proper costs in the suit.

REDMAN V. BROWNSCOMBE.
Irregularity-Endorsement-Gen. Ord. 40.

[The REFEREE, April 2nd, 1873]. The endorsement of the name and place of business of the Solicitor conducting proceedings is by Gen. Ord. 40 required on the first writ sued out or proceeding filed in a suit or matter, but is not essential on the first papers served.

UNITED STATES REPORTS.

SUPREME COURT OF PENNSYLVANIA.

[U. S. Rep.

2. The defendants, a "mercantile agency "at Pittsburgh, gave their receipt for a claim "for collection" against a party in Memphis, and transmitted the same to their own attorney, who collected the money and failed to pay it over. Held, That they were liable for his neglect.

Error to the Court of Common Pleas of Allegheny county.

Opinion of the court by AGNEW, J. Delivered November 14, 1872.

There are but two questions in this cause which are required to be noticed. First, whether J. M. Bradstreet & Son authorized the receipt of June 2nd, 1865, by which they undertook to collect the claims mentioned in it, and second, the nature of their liability. It is undisputed that J. M. Bradstreet and Son had a branch office in Pittsburgh, of what they termed their "Improved Mercantile Agency," and that the persons employed in this office were their agents. They only deny that their business was a collecting agency; asserting that it was confined to giving to subscribers information of the mercantile standing of men in business in the different parts of the country. It is in testimony that the acceptances mentioned in the receipts were delivered, as the witness states, to J. M. Bradstreet and Son at the office of the agency, and the receipt given for them, is in the name of J. M. Bradstreet and Son, and was made out by a person in the office, acting in their business. This was in 1865. In 1867 the plaintiffs were called on by a person belonging to the office for a power of attorney to be sent to their agent or attorney in Memphis, Tennessee, to enable them to collect the moneys for the acceptances from John W. Wood, the attorney to whom the acceptances had been sent by them, and who having collected the money had failed to pay it over to the defendants. This power directed to J. B. Woodward, of Memphis, and dated August 30th, 1867, was handed to the person in charge of the Pittsburgh office, who gave for it a receipt of the same date in the name of the defendants, stating that the power was executed by the plaintiffs at the request of the defendants, and addressed to their agent J. B. Woodward. Woodward himself testifies that he was called on in Memphis by J. De Soto, the agent of J. M. Bradstreet and Son in that city, and at his request and in his company went to John W. Wood and demanded of him the money he had collected on the acceptances. He also testifies that his correspondence was with J. M. Bradstreet and Son, and not with the plaintiffs, and that he was engaged to attend to the business by J. De Soto the agent of the defendants at Mem

U. S. Rep.]

phis. There are some minor matters not necessary to be detailed. These facts were clearly suffieicnt to go to the jury upon the question whether the receipt was given by the defendants, and we see no error in the court below in refusing to take the case from the jury.

The next question is upon the nature of the liability arising upon the receipt. It is in the following words: "J. M. Bradstreet and Son, Improved Mercantile Agency. Pittsburgh, June 2, 1865. Received of Messrs. Everson, Preston & Co., four duplicate acceptances for collection, versus Watt C. Bradford, Memphis, Tennessee, amounting in all to $1,726.37." (signed) "J. M. Bradstreet and Son."

It is argued, notwithstanding the express receipt "for collection" that the defendants did not undertake for themselves to collect, but only to remit to a proper and responsible attorney, and made themselves liable only for diligence in correspondence, and giving the necessary information to the plaintiffs; or in briefer terms, that the attorney in Memphis was not their agent for the collection, but that of the plaintiffs only. The current of decision, however, is otherwise as to attorneys at law sending claims to correspondents for collection, and the reasons for applying the same rule to collection agencies are even stronger. They have their selected agents in every part of the country. From the nature of such ramified institutions we must conclude that the public impression will be that the agency invited customers on the very ground of its facilities for making distant collections. It must be presumed from its business connections at remote points, and its knowledge of the agents chosen, the agency intends to undertake the performance of the service which the individual customer is un

able to perform for himself. There is good reason therefore to hold that such an agency is liable for collections made by its own agents, when it undertakes the collection by the express terms of the receipt. If it does not so intend it has it in its power to limit responsibility by the terms of the receipt. An example of this limited liability is found in the case of Bullitt v. Baird, decided at Philadelphia in 1870; the only case in this State upon the subject of such agencies. There the receipt read "for collection according to our direction, and proceeds when received by us, to be paid over to King and Baird." Across the face of the receipt was printed these words "N. B. the owner of the within mentioned taking all the risks of the mail, of losses by failure of agents to remit, and also of losses by reason of insurrection or war."

[U. S. Rep.

The limitation of the liability of Bullitt and Fairthorn, by Mr. Bullitt, himself a good lawyer, is evidence of his belief that a greater liability would arise without the restriction.

Recurring to the analogy of attorneys at law the first point to be considered is the interpretation given by the courts to the terms of a receipt for collection." In our own State we have several decisions in point. In Riddle v. Hoffman's Ex'r., 3 Penn. Rep. 224, Riddle, an attorney in Franklin county, gave a receipt in these words "lodged in my hands a judgment bill granted by Henry H. Morwitz to Henry Hoffman for the sum of $1200, due with interest since the 15th of May, 1811, which is entered up in Bedford county, which I am to have recovered if it can be accomplished." Riddle sent this bill to his brother, a practicing lawyer in Bedford. The money was made by the sheriff. but by the neglect of the Bedford Riddle was not received from the sheriff, who became insolvent and the money was thus lost. Hoffman sued the Franklin county Riddle on his receipt and recovered. On a writ of error it was contended that the words of the receipt "which I am to have recovered if it can be accomplish. ed," imported only a limited undertaking to have it collected by another and not to collect it himself. But this court held that the receipt contained an express and positive undertaking for the collection of the money, if practicable, and not merely for the employment of another to that end; and that defendant was bound by every principle of moral and legal obligation to make good the collection of the judgment by the application of reasonable diligence, skill and attention.

The next case is Cox v. Livingston, 2 W. & S. 103. This was the receipt :-" Received of Mr. Thos. Cox, of Lancaster, Pa., for collection, a note drawn in his favor, by Mr. Dubb, calling for $497.65 payable three months after date." The note was left with an instruction to bring suit. The receipt was dated August 30, 1837, and Livingston died in January following without having brought suit. Dubb became insolvent. It was held that Livingston was liable for the collection, though only two terms intervened between the receipt and his death.

Krause v. Dorrance, 10 Barr 462, was assumpsit against two attorneys for money collected and not paid by another attorney to whom they sent the note for collection. The liability of the original attorneys for the collection was admitted, but the point was made and succeeded that a demand before suit was necessary. Rogers, J., says expressly they were liable for

U. S. Rep.]

the acts of the agent whom they employed, but being without fault themselves a demand was necessary before a resort to an action.

In Rhines v. Evans, 16th P. F. Smith, 192, the receipt was, "Received for collection of A. Rhines one note on Luckens & Beeson, of Rochester, dated October 30, 1857, for $365." The liability of Evans, the attorney, was conceded, and the question was on the statute of limitations, and it was held the action was barred by the lapse of seven years and five months from the date of the receipt.

These cases show the understanding of the Bench and Bar of this state upon a receipt of claims for collection. It imports an undertaking by the attorney himself to collect, and not merely that he receives it for transmission to another for collection, for whose negligence he is not to be responsible. He is therefore liable by the very terms of his receipt for the negligence of the distant attorney, who is his agent and he cannot shift responsibility from himself upon his client. There is no hardship in this, for it is in his power to limit his responsibility by the terms of his receipt when he knows he must employ another to make the collection. Bullitt v. Baird supra.

We find cases in other states holding the same doctrine. In Lewis & Wallace v. Peck & Clark 10 Alabama Rep. 142, both firms were attorneys. The defendants gave their receipt to the plaintiffs for certain notes for collection, and after collecting the money transmitted it to the payees in the notes instead of the attorneys who had employed them, the payees having however endorsed the notes. Held that Peck and Clark were liable to their immediate principals, the plaintiffs, there being no evidence that the payees had given them notice not to pay over to Lewis and Wallace the original attorneys. This is a direct recognition of the liability of the collecting attorney to the transmitting attorney. The case of Pollard v. Rowland 2 Blackburn (Ind.) Rep. p. 22 is more directly in point. Rowland received from Pollard claims for collection and sent them to Stephen an attorney in another county. Stephen obtained judgment and collected the money. Held that Rowland was accountable to Pollard for the acts of Stephen to the same extent that Stephen was, and could make no defence that Stephen could not; and that Rowland was liable to Pollard for the money. Cummins v. McLean et al 2 Pike (Ark) Rep. 402 was a case nearly similar to the Pennsylvania case of Krause v. Dorrance, supra. The attorney sent the claim to another attorney at a distance and was held liable, but

for the omission of the plaintiff to make a demand, he failed to recover. The court say the attorney is liable for the acts of the attorney he employs. In a Mississippi case two attorneys Wilkison and Willison received of plaintiff a claim for collection, and brought suit and obtained judgment. They dissolved partnership, Wilkison retiring from the practice; and Willison took another partner, Jennings, who received the money from the sheriff. In a suit against Wilkison as surviving partner of Willison, he was held liable for the receipt of the money by Jennings Wilkison v. Griswold 12 Smedes & Mor. Rep. 669.

:

In view of these reasons and authorities we hold that a collecting agency, such as the defendants have been found to be, receiving and remitting a claim to their own attorney, who collects the money and fails to pay it over, is liable for his neglect.

Judgment affirmed. -Pittsburgh Law Journal.

REVIEWS.

AMERICAN LAW REVIEW-JANUARY 1873. LITTLE, BROWN & Co., BOSTON, U. S.

This able Review discusses at length the Geneva Arbitration and its results. The writer thinks that his country will in the end, lose more than it has gained by the Rules of International Law laid down.

6

It had

"The due diligence' which we have gained will some time require of us a police system and methods of repression which will be tantamount to martial law. Nothing was ever done in the public history of the country so opposed to our plainest and best interests. The United States has been and must be a neutral nation. been, up to 1861, the acknowledged champion of neutral rights. Its wise, far-sighted, and equitable statesmanship had uniformly pursued the one consistent policy. It is simply amazing, it is nothing but madness, that the authorities of the present day should turn their backs upon all this bright history, and eagerly bind fetters upon the future activities of their country."

The other articles are, The Rights of Assignment and underlease-The need of a Criminal Code-&c. The digest of English Reports we again take advantage of. The Summary of Events is as usual very interesting, and the Reviews of Law Books complete, impartial and searching. We strongly advise those who can find five dollars to spare to subscribe for the American Law Review.