inflexible. It is departed from where the jury were misdirected,— Haine v. Davey, 4 Ad. & E. 892 (E. C. L. R. vol. 31), 6 N. & M. 356 (E. C. L. R. vol. 36): and so, it is subm. tted, it ought to be, where, as here, although the sum to be recovered by the action is small, the principle involved is one of great commercial importance.(a) *ERLE, C. J.-I am of opinion that this rule should be dis[*370 charged, on the grounds urged by Mr. Stephens. The cause was properly tried. The plaintiff chose to go on with the materials which he had, instead of withdrawing the record, as it seems he might have done, or submitting to a nonsuit. All that could have been recovered, if the plaintiff had succeeded, was 3l. 19s. 9d.; and in no event could he have a new trial without the payment of costs, which necessarily must be a great deal more. I think it is a wise rule of law. This rule must be discharged with costs. BYLES, J.(b)-I am of the same opinion. Haine v. Davey was a case of misdirection, to which the rule referred to does not apply. There has been no miscarriage on the part of the Judge here: a new trial, therefore, could only be granted, if granted at all, upon affidavit, which implies payment of costs. The rule that a new trial shall not be granted in the case of a verdict under 57., is a merciful one to the parties, seeing that it must necessarily cost more to grant it. KEATING, J., concurred. Rule discharged. (a) See Williams v. Evans, 2 M. & W. 220.† *ANDREWS and Others v. MARTIN. May 13. [*371 Where a defendant had been taken on a ca. sa. as he was leaving the Insolvent Debtors Court, his petition having been adjourned sine die, without protection,-the Court refused to discharge him without his undertaking to bring no action against the sheriff. And, held, that the fact of his having delayed his application for six months was no objection. ON the 24th of August, 1861, the defendant petitioned the Insolvent Debtors Court for relief, when he obtained an interim order of protection. On the day appointed for the hearing, viz. on the 20th of November, the defendant attended at the Insolvent Debtors Court, when he was examined, and his case adjourned sine die, without protection. As the defendant was leaving the Insolvent Court to proceed to his residence in Beaufort Buildings, Strand, and just as he reached the outside of the court, he was arrested by an officer of the sheriff of Middlesex, on a ca. sa. upon a judgment at the suit of the plaintiffs, and taken to the White Cross Street prison. The affidavits showed that the arrest had taken place under very aggravated circumstances. On the 5th of May, 1862, the defendant applied to Williams, J., at Chambers, to discharge him from custody on the ground of privilege. The learned Judge offered to make an order, provided the defendant would undertake to bring no action. The defendant declined to take the order upon those terms. Shaw, on a former day in this term, obtained a rule nisi to the same effect. He submitted that the defendant, being clearly privileged, was entitled to an unconditional discharge. He cited Chauvain v. Alexandre, 31 Law J., Q. B. 79, where the privilege was held to apply to one attending the Insolvent Debtors Court upon his own petition. Pearce, who appeared to show cause, was willing to consent to the defendant's discharge, upon the terms of his bringing no *372] action and he submitted that the defendant had waived his privilege by remaining in the court for half an hour after the Court had risen; and further that the application was too late, nearly six months having elapsed before the first summons was taken out. [KEATING, J., referred to Lightfoot v. Cameron, 2 W. Bl. 1113, where the party was held not to have lost his privilege by having gone with his attorney and witnesses, after the rising of the Court, to dine at a tavern in New Palace Yard. WILLES, J.-The delay is nothing.(a) He was in time so long as he might have sued out a writ of privilege.] Shaw, in support of his rule, submitted that he was entitled to have the rule made absolute without the imposition of any terms. ERLE, C. J.-You cannot sue the sheriff; and we do not interfere with any remedy which you may have against any one else. The rule must be absolute. The rule was drawn up as follows,-"It is ordered that the defendant be forthwith discharged, &c., on the ground that the said defendant was temporarily privileged at the time of his arrest,—the defendant by his counsel hereby undertaking not to bring any action or take any proceedings against the said sheriff for or on account of the said arrest." (a) See Webb v. Taylor, 1 D. & L. 676. *373] *STAGG v. ELLIOTT. May 8. Where a bill upon the face of it purports to be accepted "per procuration," that circumstance is a notice to whoever takes the bill that the acceptor has but a limited authority; and the holder cannot maintain an action against the principal if the authority has been exceeded. THIS was an action upon a bill of exchange drawn by one Edward Bradley upon the defendant, William Elliott, and accepted by the defendant "per pro." George Elliott, and endorsed by Bradley to the plaintiff. The defendant by his pleas denied the acceptance and endorsement, as alleged; whereupon issue was joined. The cause was tried before Erle, C. J., at the sittings in London after the last term. The plaintiff, it appeared, was a linen-draper carrying on business in the Newington Causeway, in the county of Surrey. The defendant was a straw-hat manufacturer at Luton and Dunstable, in the county of Bedford. The bill upon which the action was brought was in the following form: It was proved that George Elliott was the son of William Elliott, the defendant; and that, at the time the acceptance in question was given, he was managing the defendant's business at Luton. It was further proved that the defendant had frequently bought goods of Bradley for the use of the establishments both at Luton and at Dunstable; and that Bradley was in the habit of drawing for the moneys due to him upon the defendant, and that such drafts were frequently #accepted by George Elliott, the son, in the same manner as the bill now in question, and that such bills had been paid by the [*374 defendant and it was not disputed that George Elliott had authority to bind the defendant by accepting bills on account of the Luton business. A bill for the same amount, and drawn and accepted in the same form, became due on the 13th of November, 1860, and was paid: and nothing remained due from the defendant to Bradley at that time: on the contrary, the balance was the other way. On behalf of the defendant, it was contended,-first, that the acceptance was a forgery; and as to this there was a great deal of conflicting evidence,-secondly, that, if the acceptance was genuine, George Elliott had no authority to accept this particular bill, and that the form of the acceptance cast upon the person receiving it the duty of ascertaining the extent of George Elliott's authority to bind his father. The jury having retained a verdict for the plaintiff for the amount of the bill and interest, Shee, Serjt., on a former day in this term, on the authority of Alexander v. Mackenzie, 6 C. B. 766 (E. C. L. R. vol. 60), obtained a rule nisi for a new trial, on the ground that the onus of showing that the son was authorized to bind his father by the particular bill lay upon the plaintiff. He also moved upon the evidence; but on this the rule was refused. Ballantine, Serjt., and Henry James now showed cause.-The general right in George Elliott to accept bills by procuration was admitted. [WILLES, J.-Those bills which he was authorized to accept.] Assuming that this bill was not accepted by the son for business purposes, and that that fact was known to the original *taker, [*375 Bradley, still, as the present plaintiff took the bill bonâ fide, and in ignorance of any irregularity, his title to sue is perfect. It would be a most dangerous doctrine to introduce, to hold that inquiry must be made into the authority in every case where the acceptance is by procuration. It is true that this Court held, in Alexander v. Mackenzie, that the acceptance or endorsement of a bill of exchange expressed to be "per procuration," is a notice to the endorsee that the party so accepting or endorsing professes to act under an authority from some principal, and imposes upon the endorsee the duty of as certaining that the party so accepting or endorsing is acting within the scope of such authority. But that case underwent consideration in an elaborate judgment in the Exchequer, in a case of Smith v. M'Guire, 3 Hurlst. & N. 554,† where it is laid down, that, where a person permits another to act as his general agent, he is bound by a contract made by the agent, although the latter declares himself as acting "by procuration," and has received special instructions, which he exceeds. There, the defendant, who formerly carried on the business of a corn-merchant at Limerick, came to reside in London, and left his brother Martin to conduct his business in Limerick. The defendant's name remained over the door. For the space of three years, Martin purchased large quantities of oats, and chartered numerous ships on account of the defendant. On these occasions, the defendant usually sent him special instructions. In the year 1858, a ship in the port of Limerick being about to proceed to Quebec for a cargo of timber, Martin chartered her to carry, on her return from Quebec, a cargo of oats to London. He signed the charter-party "per procura. tion." In an action against the defendant for not loading a cargo pursuant to the charter-party,—it was held that it was *properly *376] left to the jury to say whether the defendant had allowed Mar tin to act as his general agent, and, if so, he was liable, although Martin might have exceeded his authority. Pollock, C. B., there says: "The expression 'per procuration' does not always necessarily mean that the act is done under procuration. All that it in reality means is this, 'I am an agent, not having any authority of my own." Alexander v. Mackenzie was chiefly founded on the case of Attwood v. Munnings, 7 B. & C. 278 (E. C. L. R. vol. 14), 1 M. & R. 66 (E. C. L. R. vol. 17), where the agent was the defendant's wife, and no doubt the authority was quite special. It was not the authority which a tradesman gives to his shopman to sell goods during his absence, and pos sibly carry on his trade while he is abroad: but it was a particular authority to perform certain acts for certain specified objects: and so the Court (particularly Holroyd, J.) expressed itself with reference to these circumstances." "In Attwood v. Munnings, Littledale, J., said: 'It is said that third persons are not bound to inquire into the making of a bill; but that is not so where the acceptance appears to be by procuration.' Therefore, if a person for the first time meets with a bill accepted 'per procuration,' and chooses to take it without making any inquiry, the loss will fall on him, if the acceptor had no authority. But the practical questions are,-what is the extent of inquiry which ought to be made? and what answers may be deemed satisfactory, so as to protect from loss, though it should turn out that the authority has been exceeded? It is true, that, if a bill is accepted by A. on behalf of B., and it is known that B. has accepted bills for A., many persons would take it for granted that there was neither forgery nor fraud in the matter, and that they might safely take it: but, if the law is complied with, and an inquiry made, to what extent is it to go? I think that the holder is not *bound to go to the acceptor and say, 'Have *377] you a power of attorney or other authority to accept this bill? When he has ascertained that the person who has accepted the bill as agent or by procu ration, as a clerk in the house and, in the course of his employment, has from day to day accepted bills of that sort, that is enough; and he need not ask for his power of attorney or authority, nor whether that particular bill is on account of the firm." In Alexander v. Mackenzie, Coltman, J., says: "If this banking Company had been in the habit of allowing their cashier or manager to endorse bills on their behalf, that would have imported a general authority, and the public would not have been bound to inquire into the circumstances or the precise extent of such liability." [ERLE, C. J.-Smith v. M'Guire is a very peculiar case. WILLES, J.-Where there is a general authority, the question cannot arise.] It is submitted that a general authority was proved here. [BYLES, J.-A general authority to accept bills for the principal.] The same question precisely is raised here that arose in Smith v. M'Guire. If inquiry had been made there, the authority would have been repudiated. It is difficult to discover any substantial distinction between that case and the present. In Prescott v. Flinn, 9 Bingh. 19 (E. C. L. R. vol. 23), 2 M. & Scott 18 (E. C. L. R. vol. 28), from the fact that the defendants' confidential clerk had been accustomed to draw checks for them; that, in one instance, at least, they had authorized him to endorse; and that, in two other instances, they had received money obtained by his endorsing in their name,-a jury was held warranted in inferring that the clerk had a general authority to endorse. [WILLES, J.-In Grant v. Norway, 10 C. B. 665 (E. Č. L. R. vol. 70),—where the question was whether the master of a ship signing a bill of lading for goods which have never been shipped, was to be considered as the agent of the owner in that behalf, so as *to make the latter responsible to one who has made advances [*378 upon the faith of bills of lading so signed,-Jervis, C. J., says: "If, from the usage of trade, and the general practice of shipmasters, it is generally known that the master derives no such authority from his position as master, the case may be considered as if the party taking the bill of lading had notice of an express limitation of the authority, and, in that case, undoubtedly, he could not claim to bind the owner by a bill of lading signed, when the goods therein mentioned were never shipped. It would resemble the case of goods or money taken up by the master under pretence that they were wanted for the ship, when in fact they were not; or a bill of exchange accepted or endorsed per procuration, when no such agency existed: Alexander v. Mackenzie. The words 'per procuration' give notice to all persons that the agent is acting under a special and limited authority; and therefore the party taking such a bill has to establish the existence of the authority: it is not enough to show that other bills similarly accepted or endorsed have been paid, although such evidence, if the acceptance were general, by an agent in the name of the principal, would be evidence of a general authority to accept in the name of the principal."] All the cases show, that, where the general authority is proved to exist either in terms or by repeated instances of its exercise, the principal is bound, whether on the face of the instrument the party appears to be acting by procuration or not. In Alexander v. Mackenzie, it was left to the jury to say whether Bleckley (the endorser) had a general authority to draw, accept, and endorse bills on account of the bank, and whether he endorsed the bill in question by authority of the bank: and the jury must have found both alterna |