1851.-Beman v. Rufford. ham line, that then they might call them to account for so doing. That I think is the meaning of the resolution: it clearly cannot annul (for that was the argument) all that went before: if that were so, it would neutralize the whole, and make the agreement a nullity; and, therefore, it is impossible to put that construction upon it. For these reasons, which I have stated shortly, I think that the agreement is void, and that I ought to restrain the parties from carrying into execution that part of it at least, *571] which, if I do not restrain them, may cause *what we call, for want of a better expression, irreparable injury, that is, the expenditure of money which it will be impossible, perhaps, ever to get back again. That is the view I take of the case, and, having said that, it is not strictly necessary for me to say any more. My view is that it would have been competent to the company to have sanctioned a double or a single narrow-gauge line throughout, but that it is not competent for them to enter into this agreement; and so that I cannot permit that narrow-gauge line to be made in pursuance of this agreement, which is, in itself, altogether void. With regard to the other part of the argument, namely, that the Oxford, Worcester and Wolverhampton Company is bound to the Great Western Company, I confess I have not felt at all satisfied about that; and as I am of opinion, on the other ground, that I ought to restrain the defendants, it is not necessary for me to decide that matter; but I think that the answer that has been given is satisfactory. No doubt great powers have been given to the Great Western Company, with reference to the other company; but they are all defined. They are to have the right of taking a very large quantity (about 750,000l. worth) of shares. They are to have, whether they take the shares or not (as I read the act), six of their own body as directors of this body. They are empowered to take a lease of the railway; and it is to be constructed, in all respects, to the satisfaction of their engineer: and the gauge of it is to be such as to admit of its being worked continuously by them; and one or two other powers are given to them; but they are all defined: and I do not think that there 1851.-Beman v. Rufford. is anything in the act which prevents the Oxford, Worcester and Wolverhampton Company from doing anything that may be thought, by *the Great Western Company, pre- [*572] judicial to them, if it is not, necessarily, in contravention of the particular clauses relating to them. With regard to the agreements between those two companies, I do not think there is now any binding one. Perhaps, at one time, there was. I allude to the agreement of the 20th of September, 1844, which was entered into before the act passed; but after the company was formed, and when it was found that a vast deal more money than was originally supposed, was required to make the railway, that agreement was abandoned by common consent, as being an impossible agreement. Then they applied to the Great Western to guarantee to them a much larger amount of rent than they had originally stipulated for; and to grant them more beneficial terms for the lease of their railway in other respects. And the Great Western took the application into consideration, and passed certain resolutions which showed their willingness to comply with it to some extent at least; but the Oxford, Worcester and Wolverhampton Company do not appear to have done anything in consequence of those resolutions, beyond empowering their directors to enter into an agreement with the Great Western, subject to such conditions as might seem equitable. Under these circumstances, it does not seem to me that there is any binding agreement between the Great Western and the Oxford, Worcester and Wolverhampton Companies. The order which I shall make is that a case be stated for the opinion of a court of law as to the validity of the agreement between the Oxford, Worcester and Wolverhampton Company and the London and North-Western and Midland Counties Companies; and that, in the meantime, the Oxford, Worcester and Wolverhampton Company be restrained from doing any act for *or towards carrying into effect so much of [*573] that agreement as relates to the laying down of rails on the narrow gauge, on any part of the Oxford, Worcester and Wolverhampton Company's line, except that part of it which is pecified in the 44th section of their act. 1851.-Navulshaw v. Brownrigg. NAVULSHAW v. BROWNRIGG. Factor.-Principal and Agent. 1851: 11th and 16th June. The plaintiff, a merchant in India, consigned goods to A. of Liverpool, to sell on his account, and drew bills against the goods, which A. accepted. A. then placed the goods in the hands of B. his correspondent in London, with instructions to sell them or cause them to be sold, and drew a bill upon B. for 1,680, which B. accepted on the security of the goods, but with notice that the plaintiff had consigned the goods to A. for sale on his account. A. became insolvent, leaving the bills drawn by the plaintiff, unpaid. B. paid the bill for 1,6801., and then sold the goods for 1,3001 A bill filed by the plaintiff, against A. and B. for an account and payment, by B., of the proceeds of the goods, was dismissed with costs. A bill for an account by a principal against his agent, is not sustainable where the transaction to which it relates, is a single transaction, not tainted with fraud, and the plaintiff has a remedy at law. IN March, 1847, the plaintiff, a merchant in India, shipped two boxes of pearls and consigned them to the defendants, Brownrigg and Co. of Liverpool, for sale on his account. Shortly before the pearls arrived in England, Messrs. Brownrigg informed the defendants, Collet and Co., their London correspondents, that they expected to receive a parcel of pearls, from India, for sale; and Collet and Co. at their request, made some inquiries as to the state of the market for pearls, and communicated the result to them. The pearls arrived in May, 1847, and on the 26th of that month, Brownrigg and Co. sent them to Collet and Co., to get them valued. The amount of the valuation was 2,0501. After the valuation had been made, Brownrigg and Co. in[*574] structed Collet *and Co. to cause the pearls to be sold, and requested those gentlemen to accept a bill for 2,000l. on the security of them; which Collett and Co. did. Before that transaction took place, Brownrigg and Co. had accepted bills drawn by the plaintiff against the pearls, to the amount of 2,4667. : but Collet and Co. did not know that they had done so until several months afterwards; nor were those gentlemen informed, when they accepted the bill for 2,000l., that the pearls were the pearls which Brownrigg and Co. alluded to when they said they 1851.-Navulshaw v. Brownrigg. expected to receive a parcel of pearls from India, for sale. But, shortly before July, 1847, Brownrigg and Co. sent Collet and Co. the invoice which the plaintiff had sent with the pearls. It was signed by the plaintiff, and was headed as follows: "Invoice of a parcel containing two boxes of pearls, shipped per steamer 'Auckland,' Captain Hamilton, and consigned to Messrs. Brownrigg and Co. of Liverpool, for sale and returns on my account and risk." In July, 1847, Collet and Co. caused the pearls to be put up for sale by auction; but, with the exception of a small part, they were bought in. Those that were sold, produced 3201. On the 28th of August, 1847, the bill for 2,000l. fell due: and, it not being convenient to Brownrigg and Co. to supply the money required to pay it, Collet and Co., at their request, accepted their bill for 1,680., and Brownrigg and Co. got it discounted, and remitted the amount to Collet and Co., in order that therewith and with the 320, they might take up the bill for 2,000l. A similar transaction took place between the parties, on the bill for 1,6801. becoming due. On the 27th of November, 1847, Brownrigg and Co. stopped payment. Collet and Co.'s last acceptance fell due in January, 1848, and they paid the holder the amount of it. All the bills drawn by the plaintiff against the pearls, except one of small amount, were dishonored. On the 4th of March, 1848, Messrs. Forbes and Co., to *whom the plaintiff had [*575] sent a power of attorney to receive the pearls, applied to Brownrigg and Co. for them. Brownrigg and Co. replied (but not until the 7th) that the pearls were in the hands of Collet and Co., who had claims against them, Brownrigg and Co. On the 8th, Forbes and Co. inquired the date and amount of the advance: and, on the 9th, Brownrigg and Co. replied that the post which brought Forbes and Co.'s letter of the 8th, advised the sale of the residue of the pearls by Collet and Co., and that the net proceeds would not exceed 1,500l., which Collet and Co. would naturally hold to reduce the balance due to them from Brownrigg and Co., in account. The pearls were sold, by private contract, on the 8th of March, by a person employed by Collet and Co., and produced 1,300l.: and, on the 11th, those gentlemen wrote, in reply to a letter to them of the 10th, from the plaintiff's solicitors, that, baving accepted and paid bills on account of the pearls, the pro 1851.-Navulshaw v. Brownrigg. ceeds were credited accordingly. Under these circumstances the bill was filed, charging the defendants with fraud, and praying for an account and payment of the proceeds of the pearls. At the hearing of the cause, the 4 Geo. IV, c. 83, s. 3, and the 6 Geo. IV, c. 94, were referred to; but the act upon which the question in the cause depended, was 5 & 6 Vict. c. 39; the 1st section of which is as follows: "Whereas, by an act passed in the 6th year of the reign of his late Majesty King George the Fourth, intituled 'An Act to alter and amend an act for the better protection of the property of merchants and others who may hereafter enter into contracts or agreements in relation to goods, wares and merchandise intrusted to factors or agents,' validity is given, under certain circumstances, to contracts or agreements made with persons intrusted with and in possession of the [*576] documents of title *to goods and merchandise; and con signees making advances to persons who are intrusted with any goods and merchandise, are entitled, under certain circumstances, to a lien thereon; but, under the said act and the present state of the law, advances cannot safely be made, upon goods or documents, to persons known to have possession thereof as agents only: And whereas, by the said act, it is amongst other things further enacted that it shall be lawful to and for any person to contract with any agent intrusted with any goods or to whom the same may be consigned, for the purchase of any such goods and to receive the same of, and to pay for the same to such agent, and such contract and payment shall be binding upon and good against the owner of such goods, notwithstanding such person shall have notice that the person making such contract or on whose behalf such contract is made, is an agent: provided such contract or payment be made in the usual and ordinary course of business, and that such person shall not, when such contract is entered into or payment made, have notice that such agent is not authorized to sell the same or to receive the said purchase-money. And whereas, advances on the security of goods and merchandise have become an usual and ordinary course of business, and it is expedient and necessary that reasonable and safe facilities should be afforded thereto, and that the same protection and validity |