C. P.] HINDE (app.) v. under the Act of Parliament before referred to, any further or greater power, right, or property in such pew or seat than he had previously by the common law; and, thirdly, that the claimant's interest in the pew could not be considered a free tenement within the meaning of the 8 Hen. 6, c. 7, because it was not a right to any profit of the land, but at most only the easement for the claimant and his family to sit in the pew during Divine service, with the statutory power of transferring the enjoyment of that easement for a valuable consideration, either for ever or for a term, to any other inhabitants of the parish. I was of opinion that the claimant had a freehold interest of inheritance in the nature of a base fee in the pew, and that he, in fact, derived about 40s. a year therefrom; but that the soil and freehold of the whole body of the church still remained in the rector, and, consequently, that neither the said pew nor the claimant's interest therein was his free land. I was also of opinion that the claimant's right and interest in the pew was not a free tenement within the meaning of the statute of 8 Hen. 6, c. 7, but only an easement (similar to a pew enjoyed by virtue of a faculty by an inhabitant in the body of any parish church), transferable indeed to other inhabitants of the chapelry, under the provisions of the Act, without any faculty being necessary. I therefore disallowed the claim, and erased the claimant's name from the list. The question involved being very nice, and the owners of pews having for some years past been allowed to stand upon the register, I thought it a fit case for the opinion of the Court of Common Pleas. If the court shall be of opinion that the said pew and the claimant's interest therein was neither such free land or free tenement as to entitle him to vote on the election of knights of the shire, then his name is to remain erased; but if the court shall be of opinion that the said pew and the claimant's interest was such free land or tenement as to entitle him to vote, then his name to be restored. It appearing to me that the validity of the following claims to be entitled to vote, and also of the rights of the following persons to remain on the register of persons entitled to vote in respect of property situate within the said township of Oldham, determined by me against such lastmentioned claims and rights at the said court held on the 27th Oct., depends and has been decided by me upon the same points of law, and the parties dissatisfied with my decision thereon having given notice of their intention to appeal therefrom, I declare that the appeals against such last-mentioned decisions ought to be consolidated with the appeal in the before-stated case of John Bamford; and the names of the claimants and persons on the said register of persons entitled to vote in such election hereinafter mentioned are to remain erased from the said lists respectively, or to be restored thereto, according as the name of the said John Bamford remains erased from the said lists of claimants or is restored thereto. Joshua Williams, Q. C. (of the Equity Bar) for the app.-The claim depends on the wording of the Act; if it had been the ordinary case of a prescriptive right to a pew, it would be a mere easement, but the authorities which may be cited on pews generally are beside the question. The effect of the Act is to vest the whole church in the trustees as a freehold of inheritance, and, if necessary, to incorporate the trustees so as to enable them to hold the property: The Conservators of the River Tone v. Ash, 10 B. & C. 349; Ex parte The Newport Marsh Trustees, 16 Sim. 346. But, whether they are a corporation or not, it is clear that they have power to sell the pews in the body of the church, and a form of conveyance is given in the statute, the effect of which is to vest the property in the grantee. Every grant is construed most strongly against the grantor, and no words could be stronger than those used in this conveyance. [WILLES, J.—Do you mean to say that it vests the whole property in the soil in the grantee, so that he may maintain trespass, and may sit there, sleep there, or keep his ass there?] I apprehend he might maintain trespass. There may be a freehold in a covered chamber: Co. Lit. 48 b.; Elliott on Registration, 31 and 32. An easement in gross cannot be granted to a man and his heirs and assigns for ever. [WILLES, J.No, you cannot do that, as it would not bind the assignee, but you might grant a fishery to a man and his heirs and assigns for ever.] That is a profit à prendre, but I submit you could not grant such an easement as this is said to be. The Act uses the words "fee simple" and "inheritance;" it must, therefore, be a tenement, which is the word used in the 8 Hen. 6, c. 7. An interest in a part of a building is sufficient if there be a beneficial occupation: (Roberts v. Percival, 18 C. B., N. S., 36.) The Act gives a power of re-entry, and how could the trustees re-enter and take possession of that which they had not parted with?' Mellish, Q. C. (Holker with him) for the resp.— The question is, whether, on the true construction of the statute, the pews themselves are vested in the trus tees and pass by their grant, or if it means anything during service. It is clear that at common law more than the right to sit in the pew and occupy it no one could have a right to a pew except as appur the manor built the church and reserved a part of tenant to a house. The theory is, that the lord of it for himself in which it seems he might have a freehold (Churton v. Frewen, 14 L. T. Rep. N. S. 105), which is the only case in which the freehold could be in any one but the rector. If the freehold in the pews is in these persons they are entitled to possession at all times, and to do what they like with them. The main object of the Act was merely to take down the old church and build a new one, and it could never have been intended to alter the general ecclesiastical law. In allotting church the statute says (sect. 30) that they pews to persons who had pews in the old are to hold them in as full and ample a manthat cannot mean that they are to have the freener as those in lieu of which they are allotted; hold, but only the right to sit there during service, and that would satisfy the words of the convey. ance. The definition of " hereditament "in Co. Lit. 19 b, seems to imply that there may be a hereditament which goes to the heir, and is not a tenement, and if there cannot at common law be an easement in gross which goes to the heir, that is a strong argument that it should be created by statute: Williams, in reply, cited Ackroyd v. Smith, 10 C. B. 164 ; ERLE, C. J.-I think that the decision of the revising barrister was right, and that the proprietor of pews in this church did not acquire a vote for the county by reason that the pew was worth 40s. per annum. To have a right to use the pew is all that is granted to the claimant and his heirs. The question is, whether the statute authorising the trustees to grant the pew to a man and his heirs intended to create a freehold tenement within the statute Hen. 6 and the statute Will. 4 relating to the franchise for voting for members of Parlia ment? I think it did not. The purpose of the statute is to raise funds which were required for pulling down and rebuilding the church of Oldham, and there are provisions made for these two purposes. A great many rights and interests are created by the statute which bear on ecclesiastical considerations, and which in a great measure depart from many of the principles of the common law. However, Parliament is omnipotent, and we are to construe the provisions made according to what we gather to have been the intention of the statute, and the purpose is to pull down the one church and rebuild the other. But I see that the section saves whatever the rights are to the trustees. The right of the rector, by sect. 24, is that the present rector and his successors shall continue to be the rectors of the said church to be rebuilt or erected in like manner as of the old one. Now it is perfectly clear that the freehold of the church was in the rector of Oldham, and the freehold of the new church continues in the rector for the time being by express enactment. Then there are sections vesting the materials of the old church and of the new church and the tower of the church in the trustees, which, to my mind, are to be construed with reference to the purpose of the Act. The tower of the church is to come down, and all the stone and bricks and materials are vested in the trustees. Then the pews are to be disposed of. Under the 7th section the trustees have granted a pew to the claimant and his heirs and assigns, and it has been elaborately argued by Mr. Williams that it must be a tenement worth 40s. I think the grant of a pew is to be taken with reference to the whole purpose of this Act, and that it meant to give the use of a part of the church, which was a known use at the time when this statute was passed, and to enable the person who was the proprietor of a pew to go to a certain part of the church and attend Divine worship; and it gave no other right than that. The 30th section is decisive to my mind that the statute intended "pew " in the sense that I speak of, because the claimant is the purchaser of a new right to the pew under the trustees after the church is rebuilt; but under sect. 30 the rights of the proprietors of pews in the old church are disposed of, and the proprietors of pews in the old church are to have pews allotted to them in the new church. By that section they take, as far as it will go, the same right in the pew that they had in the old time, only they have a longer interest, a disentailable interest in it; and I think the new pew, to be disposed of under sect. 31, would convey the same rights to the persons who bought them of the trustees as the proprietors of the old pews had they may go to the pews for the purposes of Divine worship, but they cannot grant the freehold, or any right to desecrate the church, and any party doing so is to be made liable to a penalty if a part of it is carried away. It could not be gravely contended that a man had a freehold in a pew, and would have a right to use it for secular and temporal purposes, and I am very clear that there was no such right. There is a very much longer interest created in the pew, and it may be that many persons would give a larger sum of money where there was an entire interest in a pew than for a portion of a pew from year to year, or a right to a pew that might be revoked at a short notice. That which is sold is the right to use the pew. It is that, or else it is nothing, but it is the right I have spoken of with a long-continued interest. It is idle to con tend that it is a fee simple, though it is to the heirs and assigns for ever, because every one of these interests are limited to the grantees so long as they shall be parishioners. If they go out of the parish the right descending to the heir is at an end; the right does not descend, and it is null and void; and so the assignment of the right to a non-parishioner becomes null and void. The churchwardens may dispose of it, and that takes away entirely the notion of creating a freehold of inheritance in a pew of the church. The church is a place of worship for the inhabitants and parishioners, and the intention of the statute is declared in the plainest terms by saying, "This permanent interest you the parishioners may have to you and your heirs occupying lands in this parish, and continuing to do so." That may be one thing, but it is not within the power of the trustees to grant these pews for the purpose of making votes for the county. They are simply for the parishioners to use for Divine worship, not giving them a tenement from which they might expect 40s. a-year within the meaning of the statute of Hen. 6. I am of opinion that the decision of the revising barrister is right. WILLES, J.-I am of the same opinion. I think it has been demonstrated that the effect of the Act of Parliament was not to create a new pew right, except in one particular, and in that particular not altogether a new pew right. The intention of the Act was merely to enable the trustees to do what might have been done under a faculty, and then the effect of annexing the enjoyment of the pew to the house is to leave it as it were appurtenant, and a matter to be sustained by an action at common law. The grant of a faculty, according to the authorities in the Ecclesiastical Courts, was not treated as a mere licence, because it was not revoked unless under circumstances of great inconvenience to the parishioners. I am quite satisfied by the section 30 of this statute, and by the argument upon it, that it was intended that the right of the person who had the newly erected pew should be the same as the right of those who had the old ones; that is, that no persons who are at present enjoying the new pews should have any interest in the land, or should have a greater enjoyment in them, taking them as they did for the same purpose, than those who enjoyed the pews, either by the assent of the churchwardens acting in the ordinary way, or under their prescriptive rights; and the language of the sections 31 and 32 appear to me to be sustained in their ordinary import by holding that the language gave a right to the trustees to grant, not the soil and freehold of the pew, but the right to go and hear Divine service when it is celebrated in the church, and not to use it for civil and political contests. The express language of the section and the conveyance is to my mind appropriate to the conveyance of a pew right, and not to the conveyance of a land right, and the alternative "pew or seat" clearly shows what was the intention, viz., to use it for the convenience of worship in the church. If the language had been large enough in the ordinary acceptation without reference to the subject-matter to carry the soil and freehold, supposing no reason were shown against the language being so applied, I should still be of opinion that it would not have the effect of vesting in any one other than the rector or the founder the freehold of the church; and if I were asked why I say so, I say so because there are a series of authorities in which language large enough to convey a right to land to canal and railway companies, and to trustees for the benefit of the public who require only the control of it, has been held to be satisfied without giving an interest in the soil and freehold to the grantee, but by giving a control only to the extent necessary for exercising the functions which it was intended to assist them in the discharge of. Every one knows the case that came from Yorkshire, and which went to the Ex. Ch., in which there were words even more express than those used in this statute: (Stracey v. Nelson, 13 M. & W. 535.) The land was within the powers of the commissioners of sewers, and it was enacted that it should be vested in them, C. P.] GLADMAN V. JOHNSON. [C. P. same words of inheritance are used there as are but the Court held that, having regard to the | the old church, seats in the new church; and the functions that were to be exercised, it never could be meant that the land was to be taken out of the persons to whom it ordinarily belonged, unless a necessity arose for taking it from them. These persons take no better interest than the mere enjoyment gives in an ordinary pew; and if I were to endeavour to state this case in a formula by putting down as shortly as I can the thing that exists, and which is said to come within the statute of Hen. 6 and the statute of Will. 4, I should say the revising barrister was right in holding that the statutory right to worship in a consecrated place in a chapelry in a county is capable of being held, and of descending, and being assigned to the inhabitants of the chapelry only, such statutory right being worth and producing 40s. a-year, but that does not create a right to share in the election of knights of the shire. BYLES, J.-I am of the same opinion. I am satisfied, after hearing Mr. Mellish, that the trustees had not the ownership of the soil. It originally was in the incumbent of the benefice, and notwithstanding that, the Act of Parliament being omnipotent, the trustees may have, by the Act of Parliament, a power to create an estate. But whatever they have done it is plain, I think, that the soil has not passed. I do not think that a tenement has passed. I have nothing to add upon that subject more than what has fallen from my Lord and my brother Willes. I can readily conceive that the effect is, that an easement has been annexed by Act of Parliament, through the intervention of a continuing body to a person and his family, operating as a licence to a man and his family to sit there. That being so, it would not be within the definition of a tenement; it is not an office, or a profit à prendre. But however that may be, it is perfectly clear it is not a descendible estate, and if it is not a descendible estate, then 40s. a-year is not enough; it must be 10l. a-year. Is it a descendible estate? It goes by the express words of the statute not to the heirs general, or to the heirs of the body, the only two descendible estates that can be created, but to heirs being inhabitants and residents; that seems a qualification more consistent with the interests in a lifeestate than that of a tenant in fee simple; and that being so, the utmost that can be made of this, if it can be made, is, that the voter has an interest for his life. KEATING, J.—I am of the same opinion. Of course, reading this Act for the first time, one would necessarily be struck with the extremely wide words used by the Legislature with reference to the grant of this pew to the voter; but on examining the Act, and looking to the various sections, I am perfectly satisfied that it was not the intention of the Legislature to create such a freehold interest, or any freehold interest, in the present voter as to give him a right to the franchise. The revising barrister was right in his construction, and I think that Mr. Williams has failed to show that the freehold was transferred from the rector, in whom it confessedly was before the church was built. Although I quite admit the competency of Parliament to enact that the trustees shall have power to create a freehold estate, or any other estate, still it seems to me that the section referred to does not show that they were intended by the Legislature to have such power. Indeed, as I read the 30th section, or the latter part of it, I cannot find it possible to reconcile it with the notion that the present voter has such an interest in the pew as would give him the right to vote, because that section provides that the trustees are to have the power to confer upon the holders of the seats in Attorneys for the app., N. C. and C. Milne. Friday, Jan. 11. Damages for bite of a dog-Scienter-Evidence for a jury. In an action for damage occasioned by the bite of a dog, a witness swore that notice of the savage nature of the dog had been given four years before to the deft.'s wife. She was accustomed to assist her husband in his business, and being called as a witness for the plt., swore she had never received any notice of the kind: Held, that this was sufficient evidence of the scienter to be submitted to a jury, and the judge ought not to have nonsuited the plt. upon it. sittings in last term, Smith, J. nonsuited the plt. At the trial of the case during the Middlesex the jury of the deft.'s knowledge that a dog in his on the ground that there was no evidence to go to possession, which was proved to have bitten the plt., had before been accustomed to bite mankind. Prentice, Q. C. on the 14th Nov. last obtained a rule nisi calling upon the plt. to show cause why this nonsuit should not be set aside, and instead thereof a verdict be entered for the plt. for the sum of 15., pursuant to leave reserved, on the ground that there was evidence in support of the scienter referred to in the declaration, and of the deft.'s liability in this action. Jones, Q. C. showed cause on behalf of the deft.The dog was fastened in a yard at the back of the deft.'s house, where the deft. carried on the business of a corndealer, and also that of a milkman. The deft'.s wife assisted in the latter. On Sunday, when the front door was fastened, the only way for customers to get milk was by passing through this yard to the back door. The plt. went through the yard for this purpose on Sunday the 15th July, and the dog bit him in the leg. The only question left for the court is whether the deft. knew previously of the dog's ferocious propensities. One of the plt.'s witnesses, a Miss Gibson, swore at the trial that she had four years ago informed the deft.'s wife of the fact that the same dog had in the same place bitten her nephew. The deft.'s wife was called by the plt. to confirm this story, but she swore that she had never seen Miss Gibson before, and had never heard that the dog had previously bitten any one. Upon this the plt. was nonsuited, and it was agreed between the parties that if the court should hold that this evidence ought to have been submitted to the jury, a verdict of 151. should be entered for the plt. I maintain that the inference that the deft. knew what Miss Gibson says she told his wife is absurd; and even if it be prima facie evidence, it is rebutted by another of the plt.'s witnesses, the deft.'s wife. She swore that she knew nothing of Miss Gibson, and as she never heard anything about the matter, she could not possibly have mentioned it to her husband. Such a service of a writ would not C. P.] CHAPMAN V. SHEPHERD. Whitehead and OTHERS v. Izod. be sufficient, and here there is not even a duty on | Prentice supported the rule.-Here the wife assisted in the deft.'s milk business; and it is sufficient in a civil action to leave notice of the savage nature of a dog at the deft.'s house, and it is of no consequence whether the wife communicated the matter or not to her husband. It has always been held that such notice need not be served personally. Stiles v. The Cardiff Navigation Company, 33 L. J. 310, Q. B., was an action of this kind against a corporation for the bite of a dog kept on their premises. It was proved that information concerning a previous bite had been given to one of the servants. Crompton, J. said: "I quite agree with what was said by my brother Blackburn in Penhallow v. The Mersey Docks, 30 L. J. 329, Ex.: If a corporation cannot know anything except by its servants, it would seem that the corporation must be liable for the knowledge of its servants, or not liable at all.' Upon this point there is no difference between a corporation and an individual; and I quite agree that the knowledge of a servant, representing his masters, and acting within the scope of their delegated authority, may be competent to affect his masters with that knowledge." Blackburn, J., said: “There is no difference between corporations and individuals in this matter, and notice to a person competent to receive the notice would be notice to the corporation." BOVILL, C. J.-I am not prepared to consent to Mr. Prentice's argument that a notice of this kind to a servant is in all cases sufficient; but here the wife assisted in the milk business, and when Miss Gibson went to the shop she complained to the first person who seemed to have authority. I think that, although the evidence was very slight indeed, it was just sufficient to be left for the jury. WILLES, J.-The previous bite is alleged to have been done four years before, and the evidence of the deft.'s knowledge of the dog's propensity is very trifling, but we have to judge whether it was sufficient to be laid before the jury; and I think the verdict must be entered for the plt. The complaint which Miss Gibson asserts she made to the deft.'s wife had the character of a message, and the wife would certainly, under the circumstances of her assisting in the husband's business, have authority to receive such messages. I think there is in law evidence to go to the jury. KEATING, J.-I am of the same opinion. The evidence is slight, and closely approaches the line where it should be stopped from the jury, but I think it is enough. M. SMITH, J.-The only defect in the evidence of the plt.'s case was as to the knowledge of the [C. P. deft. that the dog was accustomed to bite mankind. Attorney for plt., W. C. Hall. Saturday, Jan. 12. CHAPMAN v. Shepherd. WHITEHEAD AND OTHERS v. IzOD. Company-Winding-up- Contract for purchase of shares-Right of stockbroker to recover from his principal-Transfer of shares after petition to windup-The Companies Act 1862 (25 & 26 Vict. c. 39), s. 153. The defts. employed stockbrokers to purchase for them on the London Stock Exchange shares in a jointstock company for the next account day. After the purchase was made, and before the account day, a petition was presented to wind-up the company, on which an order to wind-up was made after the account day. The defts. having refused to accept the transfers or pay for the shares, the brokers, on receipt of the certificates and duly executed transfers, paid the purchase-money, as they were bound to do by the rules of the Stock Exchange. By the Companies Act 1862, s. 153, it is enacted that all transfers of shares made between the commencement of the winding-up and the order for winding-up shall, unless the court shall otherwise order, be void; and, by sect. 84, the winding-up is to be deemed to commence at the time of the presentation of the petition : Held, that the effect of the statute was not to render such transfers illegal or void, but to vest in the Court of Ch. a discretion to allow them or not; that it did not affect the rules of the Stock Exchange, and that the brokers, who had done all they were employed to do and had paid the money, were entitled to recover it back from their principals. The rules in these two cases were argued together. CHAPMAN'S CASE. The declaration in Chapman's case contained the common counts for money paid, work and business done, and accounts stated. Pleas-Never indebted, payment and set-off of money received, and on accounts stated, and issue thereon. At the trial before Byles, J., at the sittings in London after Trinity Term, it appeared that the plt. was a stockbroker at Nottingham, but not a member of the London Stock Exchange, and that he had been in the habit of purchasing shares for the deft. On the 14th April he received instructions from the deft. to purchase fifty shares in Overend, Gurney, and Co. (Limited), which by that evening's post he instructed his agents, Messrs. Cawthorne and Scott, who were members of the London Stock Exchange, to purchase. On the 15th April Messrs. Cawthorne and Scott purchased the shares on the Stock Exchange, and reported the purchase to the plt., who, on the 16th April, sent the deft. a bought note, of which the following is a copy: Nottingham, April 16, 1866. Bought for and on account of Mr. Josiah Shepherd, for the 26th April account, subject to the regulations of the London C. P.] Stock Exchange, fifty shares Overend, Gurney, and Co., at 144 £712 10 0 5 0 0 £717 10 O CHAPMAN v. SHEPHERD, WHITEHEAD AND OTHERS v. Izod. Commission, 2s. per share .................. WM. CHAPMAN, Broker. About the 24th April the deft. instructed the plt. to sell these shares at a half discount, or if that could not be done, to carry them over to the next account day. The shares could not be sold at that price, and Messrs. Cawthorne and Scott therefore carried them over in the usual way, viz., by selling the fifty shares on the 26th April, with a backwardation, and purchasing fifty more on the same day, and on the 27th April the plt. gave the deft. the following sold and bought notes: Nottingham, 26th April 1866. Sold for and on account of Mr. Josiah Shepherd, for 26th April account: £ 8. d 712 10 0 0 12 6 £713 2 6 WM. CHAPMAN, Broker. Nottingham, 26th April 1866. Bought for and on account of Mr. Josiah Shepherd, for 15th May account, subject to the regulations of the London Stock Exchange: Fifty Overend, Gurney, and Co. at 144. Fifty Overend, Gurney, and Co., at 144 ..... £712 10 0 WM. CHAPMAN, Broker. On the 5th May the deft. paid the plt. 47. 7s. 6d., being the difference between the commission of 2s. a share on the original purchase and the backwardation. On the 11th May a resolution was passed, and a petition was presented for winding-up Overend, Gurney, and Co. (Limited), and on the 22nd June an order was made to wind-up the company under the supervision of the court. On the 12th May the plt. called at the deft.'s house to receive instructions for the transfer of the shares. The deft. was at home, but refused to see him, and on the same day the plt. received from the deft. the following letter: Houndsgate, 12th May 1866. Dear Sir,-I am sorry to see from the Gazette of last evening that a petition has been presented to the Master of the Rolls to wind-up the concern of Overend, Gurney, and Co. This being the case, I beg to refer you to my solicitor, Mr. Samuel Parsons, for instructions.-Yours respectfully, Wm. Chapman, Esq. JOSIAH SHEPHERD. On the 14th May the plt.'s solicitors wrote as follows to the deft.: Thurland-street, Nottingham, 14th May 1866. Sir,-Mr. Chapman has handed us your letter to him of the 12th inst. with instructions to reply thereto. On Mr. Chapman's behalf we hereby formally require you to complete your contract on the 26th ult. for the purchase of the fifty shares in Overend, Gurney, and Co. (Limited), and in pursuance thereof to pay to him at his office in Friar-lane, Nottingham, during banking hours to-day, the um of 7121. 10s. In case of default we shall at once commence legal proceedings against you, and the consequence thereof will be very serious.-We are. &c., Mr. Josiah Shepherd. THORPE and THORPE. On the 15th May Messrs. Cawthorne and Scott, by the plt.'s instructions, passed the deft.'s name, and on receipt of the certificates for the shares and a transfer duly executed by the seller paid the price; and on the 23rd May the plt., having repaid Messrs. Cawthorne and Scott, commenced this action. The rules of the London Stock Exchange were taken as put in, and on these facts, which were admittel, a verdict was entered for the plt. for the amount claimed, leave being reserved to the deft. to move. Griffits, in Michaelmas Term, obtained a rule to enter the verdict for the deft., on the ground that there was no evidence to show any authority in the plt. to pay the money sued for after a petition for winding-up had been presented against Overend and Gurney, the money having been paid for shares in that company, sect. 153 of the Companies Act [C. P. 1862 rendering a transfer of shares after a petition for winding-up has been presented void, and on the ground that the deft. was entitled to the verdict under the statute referred to. He also moved on the ground that Messrs. Cawthorne and Scott, the London stockbrokers, were the parties to have sued, but the Court refused the rule on that ground. WHITEHEAD'S CASE. The following were the pleadings in Whitehead's case: Declaration. First count: That the plts. being stock and share brokers carrying on their business in the buying and selling as such brokers on the London Stock Exchange, of stocks and shares in public com panies and undertakings, and being bound by the rules and practice of the said Stock Exchange, the deft, knowing the premises, employed the plts, as and being such brokers as aforesaid, to purchase for the deft, according to the said rules and practice of the said Stock Exchange, twenty-five shares in a certain company or undertaking, called or known as Overend, Gurney, and Co. (Limited), at the price or sum of 4 per share discount from the sum paid in respect of each such share, and the plts, accepted such employment, and accordingly bought for the deft, from a broker on the said Loudon Stock Exchange, twenty-five shares in the said company undertaking called or known as Overend, Gurney, and Co. (Limited). at 4. sterling discount as aforesaid, and the pits. according to the said rules and practice of the said Stock Exchange, thereupon became and were liable to the selling broker from whom the plts, so purchased the said shares for the carrying out of the said contract of purchase, and for the payment for the said shares upon the settlement-day fixed and appointed in due course for the settlement of the said contract and other like contracts made for the sale or purchase of stock or shares as aforesaid, upon the said Stock Exchange, and all necessary things happened, all necessary times elapsed, and all conditions precedent were accomplished to enable the said selling broker to be paid by the pits., as the buying brokers, the price aforesaid of the said twenty-five shares in the said company or undertaking, and the plts, accordingly paid the price aforesaid for the said shares to the said selling brokers, to wit, the sum of 275, and likewise necessarily, and according to the said rules and practice, paid for the deft certain moneys, to wit, the sum of 14. 10s. for stamps and fees in respect of the said contract of purchase, and all things happened, all times elapsed, and all conditions precedent were accomplished necessary to entitle the pits. to be repaid by the deft, the said sums of 2751, and 1 10s. respectively, and nothing happened or was done to disentitle the plts. thereto, yet the deft. has not paid the said sums respectively or either of them, and the same are still due to the plts and are unpaid. Second count: For money paid and for work done, services rendered, commission earned, and money expended by the plts, as stock and share brokers for the deft, at his request, and about the purchase by the plts. for the deft., at his request, of certain shares, and for interest, and on accounts stated. Pleas: 1. To the first count, that the deft did not employ the pits to purchase the said shares, nor did the plts. accept such employment nor buy the said shares in manner and form as therein alleged. 2. To so much of the causes of action in the first count declared upon as relate to the said sum of 2754, that all necessary things did not happen, nor did all necessary times elapse, nor were all conditions precedent accomplished, to enable the said selling brokers to be paid by the pits, as the buying brokers the said price of the said shares. 3. To so much of the causes of action in the first count declared upon as relate to the said sum of 2754, and to so much of the claim of the plts under the common counts as relate to moneys paid by the pits. for the deft, at his request, that such a request was not a request expressly made by the deft., but was only such a request as is or would be implied in law from the fact of the deft. having employed the plts for the purpose in the first count mentioned, knowing the premises therein in that behalf mentioned, and that the said company or undertaking therein mentioned was and is a company cou stituted and incorporated under and bound by and subject to all the enactments and provisions contained in the Companies Act 1862; and that the said shares in the said company se alleged to have been bought by the plts. were so bought by the plts, and were sold by the selling broker upon the terms amongst others that the same were to be paid for by the pits as purchasing brokers at a then future day, fixed and ap pointed for that purpose as the settlement day; and that in and by certain rules and practice of the said Stock Exchange by which such purchase and sale of shares as in the first count mentioned were at the time of such purchase and sale governed and regulated, the selling broker was, on the said settlement day concurrently with the payment of the said price by the purchasing broker, bound to deliver to the said |