tives against the plaintiff. The distinction taken by Dr. Story (Story on Agency, § 126) *between the case of a general agent and *379] that of a special agent,-"the former being appointed to act in his principal's affairs generally, and the latter to act concerning some particular object," is this,-"in the former case, the principal will be bound by the acts of his agent within the scope of the general authority conferred on him, although he violates by those acts his private instructions and directions, which are given to him by the principal, limiting, qualifying, suspending, or prohibiting the exercise of such authority under particular circumstances. In the latter case, if the agent exceeds the special and limited authority conferred on him, the principal is not bound by his acts; but they become mere nullities, so far as he is concerned; unless, indeed, he has held him out as possessing a more enlarged authority."(a) In Smith's Mercantile Law, 5th edit. 134, it is said, that, when the authority of the agent "is to be inferred from the conduct of the principal, that conduct furnishes the only evidence of its extent as well as of its existence; and, in solving all questions on this subject, the general rule is, that the extent of the agent's authority is (as between his principal and third parties) to be measured by the extent of his usual employment; for, he who accredits another by employing him, must abide by the effects of that credit, and will be bound by contracts made with innocent third persons in the seeming course of that employment, and on the faith of that credit, whether the employer intended to authorize them or not: since, where one of two innocent persons must suffer by the fraud of a third, he who enabled the third person to commit the fraud should be the sufferer." [BYLES, J.-At p. 265, it is said, that, "where any of the

signatures through which the holder (of a bill of exchange) *380] claims are by procuration, the party paying must ascertain the sufficiency of the procuration at his peril."] It is said that a party receiving a bill accepted or endorsed "per procuration" is bound to inquire. How is the inquiry to be made? If by letter addressed to William Elliott at Luton, the answer would of course come from George Elliott, he being the person having the general management of the business there. Alexander v. Mackenzie must, it is submitted, be considered as overruled by Smith v. M'Guire. [ERLE, C. J.-I do not think the Court of Exchequer intended to overrule that case.]

Shee, Serjt., M. Smith, Q. C., and Gray, in support of the rule.There is a distinct judgment of this Court in Alexander v. Mackenzie in favour of the defendant, preceded by an equally distinct judgment of the Court of Queen's Bench in Attwood v. Munnings, both of which cases are utterly undistinguishable from the present. The case relied on for the plaintiff,-Smith v. M'Guire, clearly could not have been intended to overrule those two authorities; for, both Martin, B., and Watson, B., distinctly say that Alexander v. Mackenzie was well decided.

ERLE, C. J.-I am of opinion that my Brother Shee is entitled to have his rule made absolute. It seems to me that an acceptance in this form is one which the party discounting it takes at his own peril, as is stated in Smith's Mercantile Law, 5th edit. 264. The cases of Attwood v. Munnings and Alexander v. Mackenzie are distinct autho (a) And see to the same effect Paley Pr. & A., 3d edit. 198-202.

rities for this position. Grant v. Norway, 10 C. B. 665 (E. C. L. R. vol. 70), is strong to the same effect. Where the bill, upon the face of it, purports to be accepted "per procuration," that is a notice to all the world *that the person who accepted it has but a limited [*381 authority, and whoever takes it does so at his own peril. Here, it is perfectly clear that George Elliott, the agent, had no authority to bind his father, the principal, by his acceptance of any other than trade bills. I was wrong in not giving effect to the objection. There must, therefore, be a new trial.

WILLES, J.—I am of the same opinion. It is enough on the present occasion to say that the finding of the jury that the handwriting of the acceptance was the handwriting of George Elliott, was not enough to entitle the plaintiff to the verdict.

BYLES, J.-I am of the same opinion. The words "per procuration" are an express statement that the party accepting the bill has only a special and limited authority, and therefore a person who takes a bill so accepted is bound at his peril to inquire into the extent and nature of the agent's 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 a principal, would be evidence of a general authority to accept in the name of the principal. It was so decided by this Court in Alexander v. Mackenzie, 6 C. B. 766 (E. C. L. R. vol. 60), and also by Jervis, C. J., in Grant v. Norway, 10 C. B. 665 (E. C. L. R. vol. 70). It had before been decided by the Court of Queen's Bench in Attwood v. Munnings, 7 B. & C. 278 (E. C. L. R. vol. 14), 1 M. & R. 66 (E. C. L. R. vol. 17). So also is the law laid down in Bayley on Bills, 6th edit., p. 82, in Smith's Mercantile Law, 5th edit., p. 265, and in Story on Agency, § 92. And, though it is difficult to reconcile the rule with all that is said in Smith v. M'Guire, 3 Hurlst. & N. 554,† yet two of the learned Judges who took part in that decision expressly recognise Attwood v. Munnings. The result of the decisions *seems to be this, that the way in [*382 which this bill was accepted is the legitimate way of showing the fact that the acceptor has only a special and limited authority. Further, it is to be observed, that this rule depends upon the lawmerchant, which extends over Europe and America; and this is the way in which it is understood all over the world. I think, therefore, we are bound to adhere to the rule as laid down by the Court of King's Bench in Attwood v. Munnings and by this Court in Alexander v. Mackenzie.

KEATING, J.—I am of the same opinion. The point having been made at Nisi Prius and overruled, there must be a new trial. Our judgment must not be understood as at all interfering with the decision of the Court of Exchequer in Smith v. M'Guire, which does not necessarily conflict with the cases here. Rule absolute. Ballantine, Serjt., asked leave to appeal, the more especially as the Lord Chief Justice had at the trial intimated an opinion adverse to the objection.

ERLE, C. J.-Considering the way in which the objection was presented, that can hardly be called an expression of opinion.

BYLES, J.-There are no less than three decisions against the plaintiff.

WILLES, J.-Smith v. M'Guire stands entirely upon its own grounds. There was evidence enough there to establish the fact that Mr. Martin M'Guire was left in Limerick to conduct the business in the same way that the defendant himself had done. The mere form in which the charter-party was signed makes no difference. I think the jury were quite right in this case. Leave to appeal refused

CASES

ARGUED AND DETERMINED

IN

THE COURT OF COMMON PLEAS,

IN

Trinity Term,

IN THE

TWENTY-FIFTH YEAR OF THE REIGN OF VICTORIA. 1862.

The Judges who usually sat in banco in this Term, were,—

ERLE, C. J.,

WILLIAMS, J.,

WILLES, J., and
BYLES, J.

WHITE v. STEELE and Another. June 11.

The only legitimate way in which a parish can express its desire to do an act, is, by convening a vestry, and duly conducting the proceedings therein to their legal termination,-viz. by show of hands, or by a poll when a poll is duly demanded.

A meeting of vestry was held for the purpose of considering the propriety of purchasing an additional burial-ground for the parish of P. A resolution to that effect having been put and agreed to by the majority of those present, a poll was demanded, and refused. The resolution of the vestry was communicated to the Church Building Commissioners, who thereupon authorized the parish to purchase the land and to levy rates to defray expenses, under the 59 G. 3, c, 134, s. 25, and 3 G. 4, c 72, s. 26. Money was accordingly borrowed by the churchwardens, and a rate made. A parishioner declining to pay the rate, on the ground of invalidity, the churchwardens instituted against him a suit in the Consistory Court, in which suit the respondent tendered a responsive allegation, stating that at the vestry a poll had been duly demanded, and refused. The Judge of the Consistory Court having declined to admit this responsive allegation, the respondent appealed to the Court of Arches, by which Court the decision of the Court below was confirmed.

Upon an application to this Court for a writ of prohibition, on the ground that the Judge of the Consistory Court had improperly refused to receive the responsive allegation, the applicant was directed to declare in prohibition; and, he having so done,—Held, that there had been no legal expression of the desire of the parish, and consequently that the responsive allegation ought to have been admitted to proof in the Ecclesiastical Court.

An appeal from the Consistory Court to the Court of Arches is no bar to an application for a prohibition.

A. WILLS, on behalf of George White, in Trinity Term, 1861, obtained a rule calling upon Alexander Steele and William Lenton, the churchwardens of the parish of Plumstead, in the county of Kent, to show cause why a writ of prohibition should not

[*384

issue to the Judge of the Arches Court of Canterbury, to prohibit him from further entertaining, and the said churchwardens from further prosecuting the suit for subtraction of church-rate then pending before the said Court, in which the said churchwardens were the original promoters and the said George White was the original defendant, on the ground that the said Judge, in refusing to admit the responsive allegation of the defendant, put a wrong construction on the statute law, and especially on the statute 3 G. 4, c. 72, s. 26,-notice being. given to the Judge of the said Arches Court of Canterbury.

The circumstances disclosed by the affidavits were in substance as follows:-At a vestry meeting of the parish of Plumstead, held on the 9th of January, 1860, a resolution was passed that the churchwardens should purchase on behalf of the parish a piece of ground as an addition to the existing churchyard. A certain number of the vestry, who were desirous, instead of proceeding under the Church Building Acts, to proceed under the Burial Acts, whereby a cemetery might be obtained, partly consecrated and partly unconsecrated, for the general use of all the inhabitants, dissenters as well as members of the established church, demanded a poll, which the vicar (who presided) refused. The resolution of the vestry was communicated to the Church Building Commissioners, who thereupon authorized the parish to purchase the land and to levy rates to defray the expense. A sum of 1000l. was thereupon borrowed, and the land purchased, and the rate now in question was afterwards made for the repayment of such loan. The now plaintiff refusing to pay the rate, on the ground of invalidity, the churchwardens instituted against him a suit in the Consistory Court of London for subtraction of church-rate. The plaintiff claimed *to put in a responsive allegation in that suit, *385] to the effect that, a poll having been duly demanded and been refused, the parish had never legally expressed its desire to procure a burial-ground, under the statute 3 G. 4, c. 72, s. 26; (a) and, consequently, that the order of the Church Building Commissioners, and all proceedings based upon it, including the rate in question, were illegal. The Judge of the Consistory Court (Dr. Twiss) rejected the

(a) Which enacts "that it shall be lawful for the said Commissioners (the Ecclesiastical Commissioners) to authorize and empower any parish, chapelry, township, or extra-parochial place which shall be desirous of procuring a burial-ground, or adding to any existing church or chapel yard or cemetery, to procure and purchase any such land or ground as may in the opinion of the Commissioners be sufficient and properly situated for a church or chapel yard or burial-ground, or as an addition to any existing church or chapel yard or cemetery, and to make, raise, levy, and collect rates for purchase thereof, or for the repayment with interest of any money borrowed for the making such purchase, at such times and in such proportions as shall be agreed upon with the person or persons advancing any such money, and approved of by the said Commissioners; and the churchwardens or chapelwardens or persons authorized under the said recited Acts to make rates for any of the purposes of the said recited Acts [58 G. 3, c. 45, and 59 G. 3, c. 134] to make rates for any of the purposes of the said recited Acts, of any such parish, chapelry, township, or extra-parochial place, may and shall in every such case use and exercise all the powers and authorities in the said recited Acts, for the purpose of making and completing such purchases, and also the powers and authorities in the said recited Acts specified, as to making, raising, and levying any rates for any of the purposes of the said recited Acts; and when any such land or ground so purchased shall be situate out of the bounds of the parish or place for which the same is intended, the same shall after consecration become and be deemed part of such parish or place; anything, in any Act, law, or custom to the contrary notwithstanding."