The plaintiffs effected with the defendants a policy of in-average or claim arising from jettison or leakage, u surance upon their ship and her cargo of guano, "free from all average or claim arising from jettison or leakage, unless consequent upon stranding, sinking, or fire." The ship encountered heavy weather, and was obliged to put into a port of safety, where she was condemned and sold, together with so much of her cargo as had escaped sea damage:-Held, that notwithstanding the above words, the plaintiff's were entitled to recover in an action upon the policy.

Declaration upon a policy of insurance, dated the 4th December, 1857, effected by the plaintiffs with the defendants' company, for 25007., on the ship Dos Hermanos and her cargo of guano, "at and from Monte

gress of water; and the term "leakage" must be taken to have reference to such portion of the cargo as might be pumped up with water from the hold of the ship. The cargo might well suffer damage of this kind even during the most prosperous voyage, and it is with respect to such damage only that the defendants can chin immunity. The words of the policy should, therefore, be thus read, "free from all average, that is to say, from claims arising from jettison or leakage, unless consequent upon stranding, sinking, or fire." If the object of the defendants were to protect themselves altogether against average loss, they should have used proper language for the purpose, but here, on the contrary, in the paragraph following the one under azideration, reference is made to the adjustment of dins for loss or for particular average.

Brett, Q. C. (Cohen with him), for the defendants.Questions have arisen with respect to cargoes of guano, whether damage arising from ordinary leakage, and not from the perils of the sea, is or is not within the meaning of the term "average loss;" and it was to protect themselves against such liability, that the words under discussion were introduced by the defendants into the policy. They intended thereby to relieve themselves from the necessity of disputing a doubtful claim, and to limit their liability to a total loss only; and to effect this purpose the word "claim" was introduced into the policy, which term has an independent meaning, and is not synonymous with "average," as contended on the other side. It is to be taken that every seagoing ship is fit to encounter the ordinary perils of a voyage.

jettison or leakage, consequent upon stranding, sinking, or fire; and that the argument of Mr. James must, therefore, prevail.

aver

WIGHTMAN, J.-I am of the same opinion. The word "claim," as it appears to me, was introduced for the purpose of enlarging the preceding word " age." The words "arising from jettison or leakage" must, I think, be referred to the previous part of the sentence.

BLACKBURN, J.-I am of the same opinion. It is possible that the words "or claim" were introduced for the purpose of shewing that the word "average" was to be taken as used in its most extensive signification; but whatever may have been the object of its introduction, I think that no claim could be enforced against the underwriters which could not be included within the term "averge," and, therefore, that the words "or claim arising from jettison or leakage" are altogether redundant unless used to restrain the word "average." The consequence of this construction is, that the plaintiffs are entitled to recover unless the claim arose from jettison or leakage. And inasmuch as the claim does not appear to have arisen from either of these causes, the plaintiffs are entitled to recover. MELLOR, J., concurred.-Judgment for plaintiffs.

COURT OF COMMON PLEAS.
TRINITY TERM.

Blackbarn, J.-The term "leakage" is applicable to [Before ERLE, C. J., WILLIAMS, WILLES, and BYLES,

the wasting of molasses and such merchandise as is usually stowed in casks. Cockburn, C. J.—“ Jettiaon clearly applies to the cargo, and I think "leakage" also.]

JJ.]

STERN v. SEVASTOPOLO.-June 9.
Practice-Common-law Procedure Act, 1854, sect. 51-
Interrogatories in cases of slander.

Edward James, in reply.—"Leakage" does not apply to the ship; water frequently comes down the hatches of a vessel, and becomes what is known as "bilge water," and this finding its way to the guano, discomposes it, and it becomes necessary to throw it overboard. If inapplicable to the ship, "jettison" and This was an action of slander. The declaration "leakage" must necessarily apply to the cargo. stated, that the defendant had spoken and published of COCKBURN, C. J.-It is certainly doubtful what the and concerning the plaintiff, certain words, imputing parties meant by the language they have used. The to him criminal acts of a disgusting and revolting object of the underwriters, of course, was to prevent character. Keating, J., on the application of the the possibility of dispute with respect to this parti- plaintiff, granted an order to administer the following cular commodity, which is imported in large quan- interrogatories to the defendant, under sect. 51 of the tities, and which from its nature is subject to disin- Common-law Procedure Act, 1854:-First, did you tegration by the contact of sea water, but it would ever speak or publish the words laid in the declaration, eem that, instead of obviating the necessity of liti-or any and which of them, or any and what other gation, they have, in fact, led to it. There is no words conveying the same or similar imputations panctuation to assist us in construing the passage. against the plaintiff, and state fully and precisely what A couple of commas would have made the matter those words were? Secondly, when, where, and to clear, but left as we are in doubt where the commas whom, did you speak and publish the words laid in the ebould be placed, I think great force is due to the declaration, and the words referred to in the first inupament addressed to us, that the words, "or claim terrogatory, and each and every of them? The dearising from jettison or leakage" are superfluous, as fendant obtained a rule, calling upon the plaintiff to Being synonymous with the preceding word ave- shew cause why the order of Keating, J., should not ge" and if this be the true construction, for all be set aside. useful purposes they might have been omitted. I un inclined, therefore, to the opinion, though not without doubt, that the policy shonld be thus read, free from all average or claim (here insert a comma), arising from jettison or leakage, unless consequent p stranding, sinking, or fire." The effect of this reading will be to make the whole of that passage apply to the words "average or claim ;" and the introduction of the words "or claim" was in all probability intended to extend the meaning of the word average," in case any claim should arise in respect of those matters. I think, upon the whole, that the true Construction is, that the defendants only intended to Protect themselves in the event of loss arising from

Interrogatories will not be allowed to be administered to the defendant in an action of slander, unless it appears that there are peculiar circumstances in the case requiring them to be administered.

Tindal Atkinson shewed cause, and contended that the questions might be put, though the defendant might refuse to answer them, if they tended to criminate him. [He cited Bartlett v. Lewis (31 L. J., C. P., 230; 9 Jur., N. S., 202); Bayley v. Griffiths (31 L. J., Exch., 477); Zychlinsky v. Maltby (10 C. B., N. `S., 838); and Rew v. Hutchins (Id. 829).]

J. Brown, in support of the rule, contended that interrogatories of such a nature had never been allowed in a case of slander, and referred to Moor v. Roberts (3 C. B., N. S., 830) and Day's Common-law Procedure Acts, 226. [Willes, J., referred to Schackell v. Macaulay (2 Sim. & S. 79).]

ERLE, C. J.-I am of opinion that this rule should

the defendant a promissory note, payable in one month. On the 3rd August, 1862, the note became due, and the defendant wrote to the plaintiff, requesting him to pay the amount. The plaintiff then verbally agreed with the defendant that he should have further time, on payment of 10s. interest for one month. Ac

was, that 10s. a month should be paid for every further month; but according to the defendant, the agreement was for one month only. On the 19th September, 1862, the defendant wrote the following letter to the plaintiff :

"Sir,-Unless the amount of my claim, 61. 10s., is settled by you, I shall proceed to dispose of the pictures in my charge towards the liquidation of the same, and then proceed against you for whatever balance remains after they are sold.

"J. CUBLEY."

be made absolute. The action was one of slander, and wide imputations are alleged to have been made by the defendants against the plaintiff in the presence of several persons. In reference to these imputations, the plaintiff wishes to put certain interrogatories to the defendant. [His Lordship read them.] I am clearly of opinion that such interrogatories are un-cording to the plaintiff's version, the meaning of this exampled. It is true, that the power given to the common-law courts to administer interrogatories, and which resembles the power to grant an order for discovery in the courts of equity, is a most useful provision, and it has certainly promoted justice. But the Legislature has drawn our attention to this consideration, that the judges must see very satisfactorily that such a step will aid the furtherance of justice and the advancement of truth. Where the action has been in contract, and even ex delicto, it has been the practice to administer interrogatories, and a wide extension has been given to our jurisdiction, as appears from the cases of Bartlett v. Lewis and Zychlinsky v. Maltby. But in these cases there were definite facts to deal with. In each instance the Court said that the defendant may be interrogated, but that if he chooses he may decline answering, on the ground that the answer may tend to expose him to a criminal proceeding, But it would be a most pernicious practice to proceed to the extent sought for in this case. It is shewn in Mr. Day's Treatise, at p. 226, that the Courts have a discretion in such cases, and the order for administering interrogatories is not to be allowed where the interrogatories are merely of a fishing character. I think that the unprecedented nature of these interrogatories, and the indefinite nature of the inquiry, justify us in saying that the order ought not to be granted. I do not say, that never can interrogatories be administered in cases of slander, but there must be some grave and peculiar reasons shewn why they should be allowed, and no such ground has been shewn here. WILLIAMS, WILLES, and BYLES, JJ., concurred.Rule absolute.

HILARY TERM.

[Before ERLE, C. J., WILLIAMS, BYLES, and KEATING, JJ.]

PIGOT v. CUBLEY.-May 5, 1863, and Feb. 1, 1864. Pledge-Payment on a future day certain-Extension of time-Sale of pledge.

In demanding 67. 10s., the defendant claimed 11. more than was actually due. The letter did not reach the plaintiff till the November following, on his return to town from an absence in the country. The pictures were soon after disposed of, but without th knowledge of the plaintiff, who in January calle upon the defendant, and informed him he was read to pay the demand.

The learned judge left to the jury to say whethe the agreement as to further time was indefinite, as r presented by the plaintiff, or limited to one mont only, as stated by the defendant. The jury foun that the time was indefinite, and that the value of th pictures was 201. The learned judge, however, di rected a verdict for the defendant, with leave to the plaintiff to move to enter the verdict for him, if th Court should be of opinion that the defendant had n power of sale.

A rule was obtained accordingly.

D. D. Keane shewed cause, and referred to Potho nier v. Dowson (Holt's N. P. C. 383); Kemp v. Wa brook (1 Ves. sen. 278); Story's Eq. Jur., ss. 1031, 103 Martin v. Reid (11 C. B., N. S., 730); and Cogga demand, he referred to Stackman v. Parr (11 M. & V Bernard (1 Smith's L. C. 147). As to the excess 809) and Bromage v. Vaughan (9 Q. B. 608).

Watkin Williams, contra, referred to 2 Kent's Co 804, 10th ed., and Addison on Contracts, 435, and co tended, that the case in Holt's Nisi Prius Reports w the only authority supporting the plaintiff's view

the law.

cision of the case of Johnson v. Stear (reported ante
The Court reserved their judgment until the de
P. 99).
Cur, adr, cult
Feb. 1.-The judgment of the Court was now de
livered by

A. deposited two pictures with B., as security for a loan
of 5l. for one month. At the end of the month it was
agreed that A. should have further time for repayment
on his paying 10s. a month for interest. B., after one
month had expired, wrote to A., asking for more than
was due, and threatening to sell the pictures on non-
payment. The pictures were ultimately sold:-Held,
that although a power of sale might have been conferred
by the original agreement, the deposit having been made
for payment of the debt on a day certain, the new agree-by
ment, extending the time of payment indefinitely, de-
stroyed such a power.

The mere sending of a letter demanding an excessive
amount was not sufficient to rescind the new agreement.
Trover for pictures alleged to be wrongfully sold by
the defendant. The case was tried before Williams,
J., in Easter Term, 1863, when it appeared that the
plaintiff had applied to the defendant for a loan of
51., and that of this sum 47. was advanced to the plain-
tiff, 17. being retained for interest for one month. In
security, the plaintiff gave the defendant an order, in
writing, directed to the proprietors of a hall where the
plaintiff's pictures were being exhibited, requesting
them not to deliver the two pictures to any one except
to Mr. John Cubley, or his order; and he also gave

fendant in trover for the wrongful sale of two p ERLE, C. J.-In this case the plaintiff sued the d the plaintiff on the occasion of a loan of 5., ₺ tures. They had been placed in the defendant's ban which the plaintiff gave the defendant a promisso note at a month, 17. having been deducted for intere in advance. When the note became due, viz. on t tiff for the amount; but he requested further tin 3rd August, 1862, the defendant applied to the plai for payment, which the defendant allowed, on t terms of 10s. a month being paid for interest. A cording to the defendant's evidence, a single month time was given. But the plaintiff swore, and jury believed him, that the extension of time on the terms was indefinite. After the first month's e tended time had expired, viz. on the 19th Septembe the defendant wrote to the plaintiff to the effect, the unless the amount of his claim was paid, he shoul proceed to sell the pictures in liquidation of it. Bu

by mistake he claimed 17. too much by this letter, and it did not reach the plaintiff till he returned to London in November. At that time the pictures were unNo further communication took place between in and the defendant till after the defendant had s them. The plaintiff then tendered the defendant the debt, with the stipulated monthly interest, and demanded back the pictures. But the defendant decined to accept the money on the ground that he had already sold them. On these facts the question arose, whether such sale was unauthorised, inasmuch as the jury found that it was not expressly made a part of the original agreement that the defendant should have a power to sell, in default of due payment of the note. The judge at the trial thought that the defendant had nevertheless authority to sell, inasmuch as the depost was made as a security for the payment of the debt on a future day certain; and the verdict was accordingly entered for the defendant. We think that the judge was right as to this point, on the authority of the cases collected in the note to Coggs v. Bernard, in Smith's Leading Cases, and the recent decision of this Court in Johnson v. Stear. But it is unnecessary for the Court to determine this question, because leave was also given to move to enter a verdict for the plaintiff on another point, viz. that before the power to sell, supposing it to have been conferred, was exercised, the party had substituted a new agreement, under which the time for payment, and consequently the power of sale, was indefinitely extended; and on this latter pout our opinion is in favour of the plaintiff; for although it was certainly competent to either party, by taking proper steps, to terminate the new arrangement, yet we think the mere sending of the letter demanding an excessive amount had not that effect. The verdict must, therefore, be entered for the plainif for 204, the damages found by the jury.-Rule wheate.

had been made between the defendant and his wife, by which the defendant was to provide for the household expenses, and to order the things required, and the wife was to abstain from pledging her husband's credit, and when she required necessaries for herself or children, was to apply to her husband, who would either give her money or orders upon the tradesmen. Mrs. Rees had 651. a year settled to her separate use. By the arrangement, a sum of 50l. a year was to be supplied to her in addition to the above, for the benefit of herself and children.

There was no evidence to shew that this arrangement had been communicated to the plaintiffs. The defendant, on the other hand, was not aware that the goods now sued for had been supplied to his wife. And in November, 1861, Mrs. Rees had paid the balance of a bill for goods supplied to her previous to the supply of the goods in question.

The learned judge left the following questions to the jury:-1. Were the articles necessaries, i. e. suitable to the station in life of the defendant's wife and daughters? The jury answered in the affirmative. 2. Was the wife's authority to pledge her husband's credit revoked in 1851? Answer-it was. 3. Supposing that the 507. and 651. were both regularly paid, and subject to no deduction, then over and above that sum were these articles still necessaries, looking at the supplies the family had for the wife and daughters? The jury answered, that if the 1157. were applicable to the necessities of the wife and daughters, the amount was sufficient. 4. Supposing the 651. was not applicable to meet household expenses (being her, the wife's, separate estate), was the allowance of 501. per annum sufficient? Answer-501. a year was insufficient. 5. Was the 1157. regularly paid at and about this period, without any deduction for other necessary purposes, which, if not paid, would make it insufficient for the purposes of the clothing of the wife and daughters? Answer-there is not sufficient evi

Before ERLE, C. J., WILLIAMS, WILLES, and BYLES, dence of the sum being paid with sufficient regularity,

JJ.]

OLLY and Another v. REES.-June 6, 9, and 10, 1863. and Feb. 1, 1864.

Contract-Husband and wife-Separate allowance during cohabitation-Liability.

A. forbade his wife to pledge his credit with tradesmen, and told her that he would supply her with money for necessaries; but the money was not regularly paid, and ecessaries were not sufficiently supplied. Goods were, nevertheless, delivered by the plaintiffs to the wife, at her request, suitable to the estate and degree of A., but the plaintiffs had no notice of A.'s injunction to his wife, and A. was not aware that the goods had been supplied: -Held (Byles, J., dissentiente), that the wife had no kority to bind her husband for necessaries suitable to his estate and degree, against his will, and contrary to his order, although without notice of such order to the tradesman.

This was an action for goods supplied to the dendant's wife, and was tried before Byles, J., during The Spring Assizes, 1863.

At the trial it appeared that the plaintiffs were drap, and that the goods, the subject of the action, were upphed to the defendant's wife, for the use of herself and her two children, between July and September, 1861, and consisted of wearing apparel, amountng in value to 211. 88. The goods had been ordered by the wife, in part from a traveller of the plainsis, and partly by letter to the plaintiffs themselves. Previous to the time when the goods were thus ordered, and in consequence of the husband's dissatisfaction with his wife's expenditure, an arrangement

or without proper deduction. The verdict was thereupon directed to be entered for the plaintiffs, leave being reserved to the defendant to move to set it aside and to enter a verdict for him, on the ground that on the above findings such a verdict should have been recorded. A rule having been obtained accord

ingly,

M. Smith, Q. C., and Kingdon shewed cause.-The with her husband, is not to be rebutted by shewing an presumption of agency, which attaches to a wife living agreement to supply her with necessaries. It is stated in the notes to Manby v. Scott (2 Smith's L. C. 420), that "the cases on this subject are divisible into two classes-first, where the contract made by the wife was made while living with her husband; secondly, where the contract made by the wife was made while living away from her husband. The principle which governs cases ranging themselves under the former class is, that during cohabitation there is a presumption, arising from the very circumstance of the cohabitation, of the husband's assent to contracts made by the wife for necessaries suitable to his degree and estate. This was laid down by Lord Holt in Etherington v. Parrott (Salk. 118; Ld. Raym. 1006)." (See also Ruddock v. March, 1 H. & Norm. 601, and Johnston v. Sumner, 3 H. & Norm. 261). [Willes, J., referred to Biffen v. Bignell (7 H. & Norm. 877; 8 Jur., N. S., 647).] If the husband wishes to rebut the presumption of his wife's authority to contract, he must do so by giving notice to all the world; for till he does, she is his accredited agent to pledge his credit, so long as she lives with him, in respect of matters within her province, and usually under her control, even where an allowance has been made. (Holt v. Brien, 4 B. & Al. 252;

Ruddock v. March, ubi sup.) This is not the ordinary be his wife, has his authority to bind him by her case of agency, where, on the authority being revoked, tract for articles suitable to that station which he the presumption ceases; for so long as the husband and wife live together, the authority cannot be revoked, except by express communication of the revocation to the world. [They commented on Reid v. Teakle (13 C. B. 627; 17 Jur. 841) and Reneaux v. Teakle (8 Exch. 680; 17 Jur. 351); and referred also to Montague v. Benedict (2 Smith's L. C. 408).]

Karslake, Q. C., and Bullen, in support of the rule. -It is incorrect to say, that the liability of a husband can be avoided only by a separate allowance to the wife, and notice to the world. The liability is always a question of agency. If agency is to be implied from the mere cohabitation, it may still be rebutted. This is the effect of the cases cited; and in Manby v. Scott (2 Smith's L. C. 269) it is stated, that the presumption may be rebutted by proof that the husband gave his wife ready money to make purchases, &c. It is submitted, that here, the mere furnishing of necessaries by the husband to the wife was, in effect, a countermand of her authority. [They referred to Bainbridge v. Pickering (2 W. Bl. 1325); Montague v. Benedict (3 B. & Cr. 631); Atkins v. Pearce (2 C. B. 763); and Bentley v. Griffin (5 Taunt. 356).] Cur, adv. vult.

Feb. 1.—ERLE, C. J.-This was a rule for setting aside the verdict for the plaintiffs, and entering it for the defendant.

The action was for goods sold. Upon the trial the plaintiffs raised a presumption of the defendant's liability, by shewing that the goods were ordered by the defendant's wife, while living with him, for the use of herself and children. The defendant rebutted the presumption, by shewing that he had forbidden his wife to take any goods on his credit, and had told her if she wanted money to buy goods, she was to apply to him for it, and there was no evidence that she had so applied and been refused. The plaintiffs proved, in reply, that the goods were necessaries suitable to the estate and degree of the defendant; that the wife had 654. per annum to her separate use; and that the de fendant had promised to allow 501. per annum in addition, but had not paid it regularly, and had not supplied her with such necessaries, or with money sufficient for the purchase thereof. The plaintiffs also shewed that they had received no notice of the defendant's prohibition to his wife against taking up goods on his credit. These facts were, in effect, found by the jury, and the question is raised, whether the wife has authority to make a contract binding on the husband, for necessaries suitable to his estate and degree, against his will, and contrary to his order to her, although without notice of such order to the tradesman. The answer is in the negative. We consider that the wife cannot make a contract binding on her husband, unless he gives her authority as his agent so to do. We lay this down as the general rule, premising that the facts do not raise the question, what might have been the rights of the wife, either if she was living separate, without any default on her part towards her husband, or if she had been left destitute by him.

The whole law on this subject is well collected in the notes to Manby v. Scott (2 Smith's L. C. 385 et seq). It is there shewn that the general rule is as above stated, and that where a plaintiff seeks to charge a husband on a contract made by his wife, the question is, whether the wife had his authority, express or implied, to make the contract, and that if there be express authority, there is no room for doubt; and if the authority is to be implied, the presumption which may be advanced on one side may be rebutted on the other. And although, were it a presumption that a woman living with a man, and represented by him to

mits her to assume, still this presumption is always to be rebutted. So was the decision of the mak of the judges in Manby v. Scott; and to that effec the words of Lord Holt in Etherington v. Parrott Raym. 1006); and the doctrine has been sanction the cases which have followed. In supporting conclusion, our decision does not militate agains rule, that the husband, as well as every princip concluded from denying that the agent had such thority as he was held out by his principal to hav such a manner as to raise a belief in such auth acted on in making the contract sought to b forced. Such liability is not founded on any peculiar to the conjugal relation, but on a much ground.

The plaintiffs contend that the wife has the above described, and they rely on observations by judges both in Manby v. Scott and in some cases, but the answer in point of authority is, th adjudications have not supported the observatio which they rely. In Manby v. Scott three judge in the minority; and the observations referred later cases have not been the ground of any de The weight of authority seems to us to be again plaintiffs. Then if we resort to considerations of ciple, they tend to the same conclusion.

te

It is not our province here to inquire whethe advisable to give to the wife greater rights. taking the law to be, that the power of the w charge her husband is in the capacity of his age is a solecism in reasoning to say that she derin authority from her will, and at the same time to that the relation of wife creates the authority ag his will by a presumptio juris et de jure from riage. And if it be expedient that the wife s have greater rights, it is certainly inexpedient she should have to exercise them by a process to disunion at home and pecuniary distress from out. The husband sustains the liability for all he should, therefore, have power to regulate t penditure for which he is to be responsible by hi discretion, and according to his own means. the wife, taking up goods from a tradesman, can her husband's liability depend on the estimate jury of his estate and degree, the law would cally compel him to regulate expenses by a sta to be set up by that jury; the standard depe upon appearances, perhaps assumed for a temp purpose, with an intention of change.

Moreover, if the law was clear, that the has was protected from the debts incurred by the without his authority, not only in the ranks wealth abounds would speculation upon the in dence of a thoughtless wife be less frequent, be less profitable, but also in the ranks where the port is from the labour of the man, and wher house must be habitually left in the care of the during his absence at his work, more painful from debts which the husband never intended to tract would be checked. As I collect from the r of the learned judge, that the verdict is for necess suitable to the estate and degree of the husband. tained from the plaintiffs by the wife of the defenc without his authority and contrary to his order cording to our view, this verdict cannot be suppo It follows, that the rule for setting it aside and ex ing a nonsuit should be made absolute. My Brot Williams and Willes concur.

BYLES, J.-This was an action for goods sold by plaintiffs, who were drapers at Bath, to the defenda wife, during cohabitation, for the use of herself daughters, being infants, and delivered at the dere