On the part of the defendant, it was submitted, on the authority of the case of Leadbitter v. Farrow (a), that the defendant was not liable upon the bare acceptance; and that he was not liable upon the bill as a shareholder in the company, the plaintiff's own witness having proved that the acceptance was not authorised by the company. It was further contended, upon the authority of Vice v. Lady Anson (b), that there was no evidence to go to the jury to shew that a company had been formed. The learned judge, intimating some doubt as to whether there was not a variance, asked the plaintiff's counsel if he would amend; which the latter declined. His lordship then told the jury that the only question for them was, whether or not the defendant accepted the bill. The jury found he did, and accordingly returned a verdict for the plaintiff, damages 1017. 9s. Kingdon, now moved for a new trial, on the ground of misdirection, and that the verdict was against evidence. It having been conceded at the trial, that the defendant was not chargeable upon an acceptance “per procuration," it is equally clear that he could not be liable, upon the bill, as a shareholder in the supposed company, the plaintiff's own witness having stated that the acceptance was not authorised by the other members of the company. [Williams, J. Professing to act under an authority from his co-partners, which in fact he had not, is not the defendant personally responsible?] Not upon the bill, which is not made according to the custom of merchants, however he might, according to the doctrine laid down in Polhill v. Walter (c), have (a) 5 M. & Selw. 345. (b) 7 B. & C. 409., 1 M. & R. 113. (c) 3 B. & Ad. 114. 1850. OWEN rendered himself liable to a special action upon the case. Davis v. Clarke (a) somewhat resembles this case. There, John Hart drew a bill payable to himself or VAN USTER. order, addressed to John Hart: Clarke wrote across it Accepted, H. J. Clarke:" and it was held, that Clarke could not be sued as acceptor of a bill of exchange directed to him. Lord Denman there says: "There is no authority, either in the English law, or in the general law-merchant, for holding a party to be liable as acceptor, upon a bill addressed to another. () We must take it on this instrument, that the defendant is different from the party to whom it is addressed. Polhill v. Walter, and Jackson v. Hudson (c), are authorities shewing that the defendant here cannot be sued as acceptor. In Jackson v. Hudson, Lord Ellenborough treated an acceptance by a party not addressed, as contrary to the usage and customs of merchants.'' [Jervis, C. J. Here the defendant is addressed.] Not individually. This point is incidentally touched upon by Parke, B., in Ex parte Buckley, in re Clark.(d) There, Messrs. J. C., R. M., J. P., and T. S., carrying on business as bankers, a promissory note in the following form was signed by R. M.:-"I promise to pay the bearer, on demand 51., value received"-" For J. C., R. M., J. P., and T. S."-" R. M.:" and it was held, that the holder of this note had not a separate right of action against the party so signing, but that the firm were liable. Parke, J., in the course of the argument, observed-"He makes the promise as agent for the others, and for himself as principal. If he really had authority to subscribe the promise for all, they all are liable; but, if not, then he is personally liable, all events, for misrepresentation." In Wilson v. Bar (a) 6 Q. B. 16. (b) Except in the case of an acceptance suprà protest. 1 M. & R. 394. 398. (e) 2 Campb. 447. at 1850. OWEN v. throp (a), three persons carried on business as partners under the firm of J. B. & Son: two of the partners died, and the surviving partner employed the defendant, who had previously acted as clerk to the firm, to wind VAN USTER. up the affairs: in this character, the defendant attended the warehouse, and transacted business with different parties, on account of the firm. Under these circumstances, the defendant, using and signing the name of the firm, drew upon J. H., a debtor to the firm, a bill of exchange, which J. H. accepted: it was held, that the defendant was not liable as the drawer, in an action. upon the bill, his name not being affixed to it, without some proof that he had no authority to draw bills in the name of the firm, or that he had not acted bonâ fide: and a doubt was suggested, whether, if it had been proved that he had no such authority, he would have been liable in an action upon the bill. So, in Jenkins v. Hutchinson (b), which was an action of assumpsit on a contract alleged to have been made by the defendant, to charter a ship to the plaintiff, upon proof that the defendant made a memorandum of charter-party in the name of one Barnes, and purporting to be signed by the defendant as agent for Barnes; that the defendants had no authority to contract for Barnes, and knew that he had none; and that Barnes, refused to adopt the contract, it was held, that the defendant was not liable as principal. Lord Denman, in delivering the judgment of the court, there says (c): "In the absence of any direct authority, we think that a party who executes an instrument in the name of another, whose name he puts to the instrument, and adds his own name only as agent for that other, cannot be treated as a party to that instrument, and be sued upon it, unless it be shewn that he was the real principal." In Buller's - 1850. OWEN V. Nisi Prius (a), it is said, that, "in the case of two joint traders, the acceptance of one will bind the other: but, if ten merchants employ one factor, and he draw a bill VAN USTER. Upon them all, and one accept it, this shall only bind him, and not the rest." That dictum somewhat militates against the argument. [Maule, J. When the bill is offered for acceptance, it is an inchoate contract. If the bill is addressed to four, and one contracts, why should he not be liable? (b) Does not proof of his entering into the contract satisfy the issue?] If this defendant had simply been manager, he clearly would not have been liable. [Maule, J. Suppose the bill had been drawn upon the four nominatim, and each separately had accepted it, would not each have been liable? Would not the first have been liable the moment he put his name to the bill?] That is not exactly this case. In Beawes's Lex Mercatoria (c), it is said, that, "if a bill of exchange is drawn on two or more persons, in these terms, to Mr. A. B. and C. D., merchants, in London,' they ought both to accept the bill; for, the acceptance of only one is not complying with its tenor." In Molloy, de Jure Maritimo (d), it is said, that "a bill drawn on two jointly must have a joint acceptance, otherwise it must be protested; but, to two, or either of them, è contrà. Then, if the same be accepted by one, it is pursuant to the tenor of the bill, and ought not to be protested but in case of non-payment; and, in that case, the person acceptor is liable to an action; but, if it be on joint traders, an acceptance by one will conclude and 1850. Ow WEN bind the other." [Maule, J. The latter part of the passage in Molloy is against you. Indeed, several of the authorities which you have very properly cited, satisfy me that, in principle, your position is not VAN USTER. sustainable.] Then, there was no sufficient evidence that the defendant was a shareholder. All that the witness stated, was, that he and the defendant and three other persons had, in 1849, agreed to form a company for the purpose of working the mine in question. There was no proof that a company had actually been formed, or that the individuals who so proposed to associate themselves together, had any interest in the mine. In Vice v. Lady Anson (a), in an action for goods supplied for the purpose of working a mine, it appeared that the defendant had paid money for certain shares, and received a certificate that she was a proprietor of those shares ; and that she had acknowledged that she was a shareholder; but no assignment of any interest in the mine had been made to her, -it was held that the action could not be maintained. [Maule, J. That case proceeded upon the ground, not merely that Lady Anson had no interest in the mine, but that she was not in fact, though she had at one time thought she was, a shareholder; and that the plaintiff had not been induced by the supposition of her being a shareholder to trust the concern. Here, it appears, that four persons agreed to form a company, for the purpose of working a mine; and that a company was formed and the mine worked on that footing; and we find the defendant under his own hand acknowledging that he is acting as manager.] Suppose the four had agreed that certain formalities should be complied with before the company should be considered as formed, and those formalities had not (a) 7 B. & C. 409., 1 M. & R. 113. V. |