C. P.] THE SOUTH OF IRELAND COLLIERY COMPANY (LIMITED) v. WADdle. not under seal. [BOVILL, C. J.-The company is incorporated by the articles of association, and suppose the articles of association were to say that certain acts shall be done by the manager, would not that bind the company?] There is nothing in the Act or in the articles of association to dispense with the necessity for a seal, and the articles cannot vary the common or statute law. The articles are simply an agreement between the members of the company; they could not dispense with the operation of the Statute of Frauds. They also cited [C. P. a bill for 100l. and for 100,000l. I think the law on these cases is firmly established by the late authorities. In the case of Henderson v. The Australian Royal Mail Company, though there was a difference of opinion as to the application of the rule, all the learned judges affirmed the existence of it in terms. Wightman, J. says "the general rule that a corporation aggregate cannot contract except by deed, admits of an exception in cases where the making of a certain description of contracts is necessary and incidental to the purposes for which the corporation was created." And further on he says: "In Finlay v. The Bristol and Exeter Railway Company, later times the decisions have sanctioned a much 7 Ex. 409; Smart v. West Ham Union, 10 Ex. 867; Lamprell v. The Billericay Union, 3 Ex. 283. BOVILL, C. J.-I am of opinion that the plaintiffs are entitled to our judgment, and that this rule should be discharged. The corporation in question was one established, according to the memorandum of association, to acquire certain collieries, machinery and plant and to open up, excavate, mine, work, and utilise the said collieries and to sell and dispose of the coal and other products thereof, and generally to do all acts and things expedient or incidental to these objects. Therefore, this was in the nature of a trading company, and the mode in which they carried on their business was defined by article 4 and article 77 of the articles of association. By article 4, the directors were to carry on the business subject to the control of the meetings of shareholders; and by article 77, the business was to be managed by the board, who were empowered to do all things which the company in meeting might do, subject to certain exceptions. The company, therefore, was in the nature of a trading company, carrying on the business of the colliery according to the memorandum of association, and managed by directors. The contract here was made by the directors, and the only objection which can now be relied on is that it was not under seal, and it was contended that for that reason there was no mutuality, and, therefore, that the plaintiffs were not entitled to sue upon it. It appears that the contract was not only made by the directors, as agents of the company, but further, it was partly performed by the directors on the part of the company, and they were ready to perform the other part, and the contract was adopted and acted upon by both parties. The objection is entirely technical. Originally, all contracts by corporations were required to be under seal, but from time to time exceptions to that rule have been introduced, first in matters of only trifiing importance and frequent occurence; but as new corporations were created, it became necessary to see if the principles of the earlier cases did not apply to them. At first there was considerable conflict in the decisions, and it is impossible to reconcile them all; but it seems to me that the exception is now firmly established. The exception with regard to trading corporations seems to apply to all cases where contracts are made for the objects and purposes for which the company was incorporated. A corporation cannot carry on business but by agents, managers, or directors; and if the contract be one relating to the objects or purposes for which the company was formed, and made in the ordinary course of business by the proper officers of the company, I think that it is good and binding, though not sealed. It seems to me that the present case comes within that exception. It is said that the exception only applies in frequent or trifling cases, but, as said by Erle, J. in Henderson V. The Australian Royal Mail Company, 5 E. & B. at p. 417, frequency cannot affect the question, as there must be a beginning; neither can the amount, as the principle is the same in the case for more extensive relaxation, rendered necessary in consequence of the general establishment of trading corporations." Then Erle, J. says: "I also am of opinion that there should be judgment for the plaintiff, on the ground that the contract was made for a purpose directly connected with the object of the incorporation." And in another part of his judgment he says: "I cannot think that the magnitude or insignificance of the contract is an element in deciding cases of this sort. No doubt, when the exception originated it was applied only to small matters, such as the appointment of servants, being all that municipal corporations required. But as soon as it became extended to trading corporations it was applied to drawing and accepting bills of any amount; and this shows that insignificance is not an element. Neither, I think, is frequency. The first time a company makes a contract of any kind, that contract must have been unprecedented. The question is, I think, whether the contract in its nature is directly connected with the purpose of the incorporation." Then Crompton, J., though he differed in the application of the rule, said, "I perfectly agree in the principles laid down by my brothers, and more especially I concur in that important principle suggested in Broughton v. The Manchester Waterworks Company, 3 B. & Ald. 1, that a modern incorporation incorporated for trading purposes may make binding contracts in furtherance of the purposes of their incorporation without using their seal." Lord Campbell was not present, but in the following year in the case of Reuter v. The Electric Telegraph Company, 6 E. & B., at p. 340, he says, that though not a party to the judgment he highly approved of it. We were pressed with the earlier cases in the Exchequer, but in the case of The Australian Royal Mail Company v. Marzetti, 11 Ex. 228, which was decided a few days after Henderson v. The Australian Royal Mail Company, a similar rule was adopted by the Court of Exchequer; and in that case the Chief Baron says, "It is unnecessary in this case to extend the principle of the common law, for it is now perfectly established by a series of authorities that a corporation may, with respect to those matters for which it is expressly created, deal without seal. This principle is founded on justice and convenience, and is in accordance with common sense." The case of The London Dock Company ▼. Sinnott is distinguishable on the ground that the contract there was not a contract of a mercantile character; and even if it were not distinguishable it is inconsistent with the other authorities. In all these cases the companies must carry on their business by means of agents; and where a company is doing business by means of agents, there is an implied authority to their agents to make contracts, and without that they could not do business. In such cases it may fairly be assumed that there is authority to enter into contracts in the ordinary course of the business of the company. In the present case, however, it does not seem necessary to go into the general principle, as the very constitution of this company gives express authority to the directors to enter into such a contract. [His Lord C. P.] BARNETT v. THE GREAT EASTERN RAILWAY COMPANY. ship read Articles 4 and 77 of the articles of asso- case. BYLES, J.-I am of the same opinion. It is impossible to reconcile all the cases, but this is a plain It is a case where the quasi corporate body is plaintiff, and the defendant is a real person, and the contract binds him if he has received consideration, and he has received 500l., and the company were ready and willing to go on paying him if he had not broken his contract. The defendant received 5007., and it seems to me that he is entitled to keep it, and if this objection is good when the defendant has received 5007, it would be good if he had received the whole price. The same view was taken twenty years ago in the Fishmongers' Company v. Robertson. It was doubted in the Copper Miners' Company v. Fox, but that case did not raise the question, as the company dealt in copper, and there was nothing to show that the contract was ancillary to the trade in copper. In the Australian Royal Mail Company v. Marzetti, 11 Ex. 235, Martin B. says: "The Fishmongers' Company v. Robertson is precisely in point, and, if it were not, good sense would lead us to the same conclusion. It cannot be supposed that when a corporation has done everything they were bound to do, and the other party has obtained the money, the latter is to be at liberty to break his contract." There is the authority of this court and of the Court of Exchequer for the principle laid down in The Fishmongers' Company v. Robertson; and when the case of The Copper Miners' Company v. Fox is looked at it appears that the observations there are entirely extra-judicial, and the contract there was not a mere formal act, but entirely out of the scope of the objects for which the company was incorporated. Here the objects of the company are to excavate and work mines, which [C. P. implies that they must have machinery; therefore on this ground, independent of the other more general grounds, the plaintiffs are entitled to this verdict. There M. SMITH, J.-I am of the same opinion. have always been exceptions to the general rule, even in the case of municipal and ecclesiastical corporations, and when trading corporations were established the exceptions were enlarged, and enlarged step by step, until now the exception is larger than the rule; and as I understand the modern decisions companies may contract without seal for purposes necessary to carry on the ordinary business for which they are incorporated, and it is only in exceptional cases, which, though within the scope of their business, are not of ordinary occurrence, that the seal is wanted. In Dunston v. The Imperial Gas Light Company, 3 B. & Ad. 125, which was decided at a time when trading corporations were becoming of importance, Lord Tenterden clearly puts the question; he does not decide it, but he puts it in such a way that he must have thought it reasonable. He says: "This is a corporation established for the purpose of carrying on trade and manufactures, and may, therefore differ from others as to its powers of contracting and its remedies upon contracts relating to the purposes for which the company is formed. On this point I give no opinion." Lord Tenterden was especially conversant with corporation law, and he says such a question had arisen, and he makes no objection to it though he does not decide it. In the case of Henderson v. The Australian Royal Mail Company, which has been so much referred to, all the judges gave judgment and adopted the rule as put in Dunston v. The Imperial Gas Company, and held it to be law, and Wightman, J., a very cautious judge, says, "The general result of the cases seems to me to be that whenever the contract is made with relation to the purposes of the incorporation, it may, if the corporation be a trading one, be enforced, though not under seal." The other judges lay down the same rule, and I quite agree with them. Applying it to this case, it is clear that a pumpingengine was necessary and proper for the purposes for which this company was incorporated, and this contract may, therefore, be enforced, though it was not under seal. This decision conflicts with The East London Waterworks Company v. Bailey, which was cited at the trial, but that case was in effect overruled by Henderson v. The Australian Royal Mail Company, and it seems to me that, though not in terms overruled, the effect of our decision is, that that case can no longer be taken to be law. Rule discharged. Attorney for the plaintiffs, W. B. Jones. Tuesday, May 12. BARNETT V. THE GREAT EASTERN RAILWAY Mandamns-C. L. P. A. 1854, sect. 68--Lands Clauses An award having been made of a sum of money to be The declaration alleged that the defendants were the promoters of a certain undertaking within the meaning of the Lands Clauses Consolidation Act 1845; that the plaintiff was possessed of certain interest in certain lands greater than as tenant for C. P.] HORSFALL V. THE SWAN BANK AND BRICK WORKS COMPANY (LIMITED.) [C. P. Wednesday, May 13. a year, or from year to year, which the plaintiff was able to sell and convey; that in pursuance of their Acts of Parliament the defendants gave notice HORSFALL V. THE SWAN BANK AND BRICK WORKS to the plaintiff that they required to purchase and take part of the said lands; and that they were willing to treat for the purchase and as to compensation to be made to him, and the plaintiff was entitled to compensation exceeding 50.; that the lands in question formed part of a house; and that the plaintiff required the defendants to take the whole of the house, and the defendants assented and agreed to take the whole of the lands; that a question of amount of compensation arose, which the plaintiff was desirous of having settled by arbitration, and that afterwards the question of amount was referred to an arbitrator, who awarded 98531. to plaintiff; that plaintiff was ready and willing to deduce a good title, and was always ready and willing and able to convey all his interest in the said lands, and to execute to them a proper conveyance; and that the defendants were dissatisfied with the title of the plaintiff, which he did deduce and verify; and that all things happened to make it the duty of defendants to deposit the said amount in the Court of Chancery to the credit of the parties interested in the said lands, and to enable plaintiff to enforce the duty, from the nonperformance of which he will sustain damage; and the plaintiff claimed a mandamus. To this declaration there was a demurrer. Pollock, Q.C. (with him McLeod) for the defendants. We do not dispute the authority of Fotherby V. Metropolitan Railway, 15 L. T. Rep. N. S. 243; L. Rep. 2 C. P. 188. There the remedy by mandamus was the natural one. But the act to be done here is not a single definite act: Lands Clauses Consolidation Act 1845, s. 75. Garth, Q. C. (with him Gorst) for the plaintiff. It is admitted that the title is good, but the defendants are dissatisfied without reason, and say that, therefore, they ought not to pay. BYLES, J.-This is not an action to recover money, but for a mandamus to deposit the money into the bank, under the Lands Clauses Consolidation Act 1845, s. 69. The declaration alleges everything necessary to complete the obligation to pay into the bank, and under the 68th section of the C. L. P. A. 1854 the plaintiff is entitled to his mandamus. KEATING, J.-I am of the same opinion. The plaintiff has made a good title. The defendants say they are dissatisfied with it, but that is not enough. M. SMITH, J.-On this record there is a duty on the company to pay the amount of the award into the bank, a duty remaining unfulfilled. It is not a duty on contract, or a debt, but a duty imposed by statute, and this is a case for a mandamus. Judgment for plaintiff. Attorneys for the plaintiff, Glynes and Son. Attorneys for the defendants, Baxter, Rose, and Norton. COMPANY (LIMITED.) Composition-deed-Sufficiency of assents-Provision as to contingent debts-B. A. 1861, sect. 192. The assents of creditors to a composition-deed must, when the deed is registered, be unconditional; but they will not be rendered invalid by their containing a condition which is fulfilled by the deed itself. provision that contingent debts shall be debts within the meaning of the deed does not invalidate the debtor's protection. This was an appeal from a County Court, and the question which was determined, arose in an action of replevin, and turned upon the validity of a deed registered under the 192nd section of the B. A. 1861, which had been assented to in writing by the requisite number of creditors. The assents contained a clause that the last instalment of the composition was to be secured. There was also a clause in the deed which provided that deferred, contingent, or other debts or claims, which would be proveable against the estate of the debtor under a bankruptcy, should be considered to be debts within the meaning of the deed. By the deed the last composition was secured. Jordan, for the plaintiff in the action, in support of the deed.-The assents are in strict conformity with the deed: (Rutty v. Benthall, 16 L. T. Rep. N. S. 287; L. Rep. 2 Č. P. 489.) Stopped by the court. Matthews, Q. C. contra.-The assents are conditional upon security being given for the last composition, and the creditors would have had a right As these to object to the security in the deed. were the only assents when the deed was registered, the provisions of the B. A. 1861 have not been complied with. There must be unconditional assents when the deed is registered: Ex parte Rawlings, 1 De Gex J. & S. 225; 32 L. J. the debts could not be ascertained, as unliquidated As to the clause above-mentioned, the amount of debts were let in, for sect. 197 assimilated the position of the debtor in the deed to that of a bankrupt : Hoggarth v. Taylor, 36 L. J, 61, Ex.; 15 L. T. Rep. N. S. 588. BYLES, J.-As to the assents not being sufficient, they may be given other than by the deed, and are in this case consistent with the deed. As to the security not being assented to, I take the meaning of the clause to be this: if it is a reasonable security I will be satisfied. I think there is strong mentioned in the deed would have been unreasonevidence to show that the objection to the security able and capricious. As to the other objection to the deed, I doubt whether it makes any difference; if it does it is an improvement on the deed. The questions must be answered in the sense that the deed is a protection to the debtor; and the County Court judge will give effect to our finding. KEATING. J.-I am of the same opinion. Mr. Matthews' argument was that the conditional assent, the condition being unfulfilled before registration, is not sufficient. Has the condition been fulfilled? The deed has provided security which was reasonably sufficient. The case of ex parte Rawlings does not apply. As to the other clause, it contemplates only liquidated debts. The debtor must, therefore, be protected. M. SMITH, J.-I am of the same opinion. The Ex.] MCKEAN AND OTHERS v. McIVER AND OTHERS. In an action for breach of contract by the defendants, carriers of goods for hire, to carry certain goods of the plaintiffs from L. to G. (certain perils, &c., only excepted), and deliver the same according to the directions of the plaintiffs to certain persons named by the plaintiffs to the defendants, the first count of the declaration charged that the defendants did not deliver the said goods, although not prevented from so doing by any of the excepted perils; and the second count alleged as a breach the delivery of the goods to persons not authorised to receive them. It was pleaded that the plaintiffs were merchants at M., and had before and at the time, &c., an agent, G. H., at G., for the sale of their goods, and the course of business between the plaintiffs and the said agent was that, upon notice to them by him of any sale by him on their account, the plaintiff's consigned the goods direct to the buyers thereof; that the goods in the declaration mentioned were goods of the plaintiffs, sales of which to the persons in the declaration mentioned the said agent had notified to the plaintiffs, who thereupon delivered the said goods to the defendants at Liverpool, to be carried by them by water to Glasgow, and there delivered to the persons to whom they were addressed, being the persons in the declaration mentioned; and the said goods were safely carried by defendants to and safely landed at Glasgow; and the defendants in the ordinary course of business, and using due care, &c., caused notices to be given addressed to the respective consignees (being the persons in the declaration mentioned) of the arrival of the said goods, and caused such notices to be delivered at the addresses of the said consignees, as the same were furnished by plaintiffs to the defendants, and afterwards the said notices, purporting to be indorsed and, as the defendants believed, being indorsed by the said consignees, were brought to the defendants with, and as an authority to demand the delivery of, the said goods. Averments, that according to the usual course of business goods so carried as aforesaid are deliverable at or from the quay near to or at which the same are unloaded, and the production of such notice, purporting to be so indorsed, is acted upon as authority in the person producing it to receive the goods to which the same relates; and that the defendants, acting with due and reasonable care, and upon the said course of business, and believing the persons producing the said notices were duly autho [Ex. rised to receive the said goods, delivered the same to the said persons at or near to the said quay as aforesaid, as for and on account of the said consignees; and that there were no such consignees as buyers of the said goods as represented by the plaintiffs' said agent, G. H., and the names of such supposed consignees and buyers, and the fact of the said sales were invented and contrived by the said agent in order fraudulently to obtain possession of the said goods; and the said agent received or caused to be received for him the said notices of the defendants, and indorsed or caused the same to be indorsed with the pretended names and authority of the said pretended consignees, and thereby obtained possession of the said goods. That defendants used due and reasonable care, &c., and the alleged nondelivery and misdelivery, and the said alleged damage, were caused by the wrong and default of the plaintiffs' said agent. Held (on demurrer), that the plea was bad, and furnished no answer to the action. By the common law carriers are bound to deliver and are responsible for the loss of goods, unless they are prevented from delivering by the act of God or the Queen's enemies, or by some act contributing to the loss on the part of the consignors, by neither of which things were the defendants here prevented. Before delivering the goods in question the defendants should have inquired whether or not there were such persons as C. and Co., the named consignees; and if there were no such persons, they should then have held the goods to the order of the plaintiffs, the consignors. This was an action by the plaintiffs, who are merchants carrying on business at Manchester, and having an agent at Glasgow for the sale of their goods there, against the defendants, who are carriers by water between Liverpool and Glasgow, and was brought for the nondelivery and misdelivery by the defendants, and consequent loss to the plaintiffs of certain goods intrusted by the plaintiffs to the defendants to be carried by the latter from Liverpool to Glasgow, and to be there delivered by them to certain consignees named to them by the plaintiffs. The first count of the declaration stated that in consideration that the plaintiffs would deliver to the defendants, as and being carriers for hire, certain goods, to be by the defendants shipped on board their ships, and carried from Liverpool to Glasgow, and there delivered according to the directions of the plaintiffs, to certain persons, by the plaintiffs named, for reward to the defendants in that behalf, the defendants promised the plaintiffs to carry the said goods from Liverpool to Glasgow aforesaid (certain perils and casualties only excepted), and there deliver the same according to the directions of the plaintiffs in that behalf to certain persons by the plaintiffs named to the defendants; and the defendants shipped the same on board their ships for the purpose, and on the terms aforesaid; and the plaintiffs directed the defendants to deliver the said goods to certain persons in Glasgow aforesaid, named by them to the defendants, that is to say, part of the said goods to Messrs. F. Cowie and Co., of Glasgow aforesaid, and the remainder thereof to Messrs. C. Tait and Co. of Glasgow aforesaid, and all conditions were fulfilled, and all things happened, and all times elapsed necessary to entitle the plaintiffs to have the said goods delivered by the defendants to the persons by the plaintiffs mentioned; and the defendants were not prevented delivering the same by any of the perils and casualties aforesaid, yet the defendants did not deliver the said goods to the said persons by the plaintiffs mentioned, whereby the plaintiffs lost the said goods. The second count charged that in consideration that the plaintiffs would deliver to the defendants, as and being carriers of goods for hire, certain goods Ex.] MCKEAN AND OTHERS v. McIVER AND others. I to be by the defendants shipped on board their ships, and carried from Liverpool to Glasgow, and there delivered, according to the directions of the plaintiffs, to certain persons by the plaintiffs named for reward to the defendants in that behalf, the defendants promised the plaintiffs to carry the said goods from Liverpool to Glasgow aforesaid (certain perils and casualties only excepted), and there deliver the same according to the directions of the plaintiffs in that behalf to certain persons by the plaintiffs named to the defendants; and the plaintiffs delivered the said goods to the defendants, and the defendants shipped the same on board their ships for the purpose and on the terms aforesaid; and the plaintiffs directed the defendants to deliver the said goods to certain persons in Glasgow aforesaid named by them to the defendants; that is to say, part of the goods to Messrs. F. Cowie and Co., of Glasgow aforesaid, and the remainder thereof to Messrs. Tait and Co., of Glasgow aforesaid; and the defendants were not prevented delivering the said goods by any of the perils or casualties aforesaid, yet the defendants so negligently and carelessly conducted themselves in and about the delivering the said goods at Glasgow aforesaid that they delivered the said goods to certain persons who were not authorised or entitled to receive the same, whereby the said goods were wholly lost to the plaintiffs. There was also a third count for conversion. Plea: That plaintiffs are merchants, carrying on their business amongst other places, at Manchester, and the defendants are carriers by water between Liverpool and Glasgow, and the plaintiffs had, before and at the time of the committing of the grievances complained of, an agent, to wit, George Heddle, of Glasgow, for the sale of their goods; and the course of business between the plaintiffs and the said agent was that, upon notice by such agent to the plaintiffs of the sale by such agent, on the plaintiffs' account, of their goods, the plaintiffs caused such goods to be sent and consigned direct to the buyers thereof. Averment: That the goods in the declaration mentioned were goods of the plaintiffs, sales of which respectively to the persons in the declaration respectively mentioned, their said agent had, according to the said course of business, notified to the plaintiffs, and thereupon the plaintiffs delivered the said goods to certain persons, to wit, to Messrs. Thompson, McKay and Co., to be carried from Manchester to Liverpool, and to be there shipped to Glasgow; and the said Messrs. Thompson McKay, and Co. accordingly carried, or caused to be carried, the said goods from Manchester to Liverpool, and there delivered the same to the defendants to be by them carried by water to Glasgow, and there delivered to the said persons to whom the same were addressed, being the persons in the declaration mentioned, in certain parts and proportions; and the said goods were duly and safely carried by the defendants to, and safely landed at, Glasgow, and thereupon the defendants, in the due and ordinary course of business, and using due and proper care and diligence, caused notices respectively to be given, addressed to the respective consignees thereof, being the persons in the declaration mentioned, of the arrival of the said goods, andcaused such notices to be so given and delivered at the addresses of the said respective consignees as the same were given and furnished by the plaintiffs to the said Thompson, McKay and Co., and by them to the defendants, and afterwards, the said respective notices purporting to be indorsed and, as the defendants believed, being indorsed by the said respective consignees, were brought to the defendants with and as an authority to demand the delivery of the said goods respectively. Averments that, according to the usual course of business, goods so carried as aforesaid are deliverable at or from the quay near to or at which the same are unloaded, and, according to the like course of business, the production of such notice purporting to be so indorsed as aforesaid is treated and acted upon as authority in the person producing such notice to receive the goods to which the same relates; and that the defendants acting with due and reasonable care in the premises, and upon the said course of business, and believing the persons respectively producing the said notices were duly authorised to receive the said goods, delivered the said goods to the said persons respectively at or near to the said quay as aforesaid, as and for and on account of the said consignees thereof respectively; and that there were no such consignees or buyers of the said goods as represented by the plaintiffs' said agent, Geo. Heddle, and the names of such supposed consignees and buyers, and the fact of the said sales were invented and contrived by the said agent in order wrongfully and fraudulently to obtain the possession of the said goods respectively, and the said [Ex. agent received, or caused to be received for him, the defendants' said notices respectively of the arrival of the said goods, and indorsed, or caused the said notices of arrival to be indorsed, with the pretended names and authority of the said pretended consignees respectively, and the said agent thereupon and thereby obtained the possession of the said goods from the defendants; and, further, that the nondelivery of goods in the first count mentioned, relates to the alleged nondelivery to the said named consignees under the circumstances herein before mentioned and not otherwise, and the misdelivery and the conversion in the said second and third counts respectively mentioned, relate to the said nondelivery and alleged misdelivery of the said goods and not otherwise, and the defendants lastly say that they used due and reasonable care, skill, and diligence in the premises, and that the alleged alleged damage to the plaintiffs, were caused and occasioned nondelivery and misdelivery of the said goods and the said by the wrong and default of the plaintiffs by the said agent, and not otherwise. Demurrer and joinder in demurrer to the said plea. The grounds of demurrer marked in the margin were that the allegations in the plea do not show that the defendants were justified in delivering the goods to a person not authorised to receive the same, and also that the defendants were insurers of the said goods, and bound to deliver the same to the persons to whom they were addressed, or else to keep them for the consignors. The plaintiffs' points. 1. That the alleged custom or usage of business is bad. 2. The plea does not allege a fulfilment of the contract by a delivery to Cowie and Co. and to C. Tait and Co. 3. The plea shows no sufficient justification for the breach of contract in the declaration mentioned. 4. That it appears from the plea that the defendants were guilty of negligence. 5. That the facts stated in the plea show a conversion of the plaintiffs' goods by the defendants. 6. The facts in the plea show that the plaintiffs are entitled to recover. The defendants' points. 1. The plea shows argumentatively that the goods were delivered to the person to whom they were under other assumed and fictitious names addressed. 2. The facts set forth in the plea negative any breach of duty by the defendants as carriers, or any conversion in respect of the said goods. 3. The plea shows that the matters complained of, and to which the said plea is pleaded, were occasioned by the fraud and default of the plaintiffs by their agent. 4. The defendants are entitled to the judgment of the court. Bryce (with whom was Holker, Q.C.) for the plaintiffs in support of the demurrer, having read the pleadings and stated the point was stopped by the Court, who called on C. Russell contra, for the defendants, to support his plea. The plea was clearly, upon the grounds taken in the points, a good answer to the plaintiff's action, and showed that the defendants had fulfilled their undertaking, and had by performance discharged themselves of the contract which they took upon themselves to perform. The plea in effect says, "We admit the receipt of the goods as directed to certain consignees, but there were no such consignees, none such to whom we could deliver except to Heddle, the agent of the plaintiffs." Heddle was himself under an alias "Cowie and Co." and "Tait and Co.," and so the defendants delivered to the persons to whom the goods were directed. What could they have done otherwise? [MARTIN, B.-They should have ascertained that the parties to whom they delivered were really "Cowie and Co." and "Tait and Co.," and if there were no such parties then they should have held the goods to the order of the consignors.] The plea says that the goods were delivered by the defendants as carriers, "in the due and ordinary course of business," and it expressly negatives any negligence on their part. [KELLY, C.B.-They undertook to deliver to certain persons at Glasgow, and they show by their plea that there were no such per |