as to 1157., part of the money claimed for debt), that, except as aforesaid, neither the said Samuel Woodburn in his lifetime, nor the defendant, as administratrix as aforesaid, since his death, ever was indebted as alleged,-fourthly (to the residue of the declaration, except as aforesaid), that, before action, the said Samuel Woodburn, in his lifetime, and the defendant, as administratrix as aforesaid, since his death, satisfied and discharged the plaintiff's claim in respect of the matters therein pleaded to by payment,-fifthly (as to 1881., parcel, &c., and damages for the detention thereof), payment into court of 1157., and also the further sum of 1s. for the detention thereof.

The plaintiff joined issue on the first four pleas, and took out of court the 115. and 18., in satisfaction pro tanto.

Willes, in support of the demurrer.(a)—The count *discloses

[*402 a case of agency only, which was revoked by the death of the testator. The cause, therefore, could only be in respect of some transaction between the plaintiff and the defendant in her individual character. [JERVIS, C. J.-A confirmation of the authority by the administratrix, might set up the agency.] No action will lie against an executor or administrator in his representative character, for work done after the death of the testator or intestate, except where it was commenced before the death. [CROWDER, J.-The plaintiff's endeavours to sell the picture may have been attended with expense.] The plaintiff does not proceed for that. The authority of a factor, whether general or special, is revocable: Smart v. Sandars, 3 C. B. 380 (E. C. L. R. vol. 54); even though he is under advances; 5 C. B. 895 (E. C. L. R. vol. 57). In that case, Wilde, C. J., after referring to several cases,-and, amongst others, to Vynior's Case, 8 Co. Rep. 82 a, Walsh v. Whitcombe, 2 Esp. N. P. C. 565, Watson v. King, 4 Campb. 272, and Gaussen v. Morton, 10 B. & C. 731 (E. C. L. R. vol. 21),—says: "The result appears to be, that, where an agreement is entered into on a sufficient consideration, whereby an authority is given for the purpose of securing some benefit to the donee of the authority, such an authority is irrevocable. This is what is usually meant by an authority coupled with an interest, and which is *commonly said to be irrevocable." [WILLIAMS, J.-The doctrine of Smart v. Sandars was still further acted

(a) The points marked for argument on the part of the defendant, were,"1. That the first count of the declaration is bad:

[*403

"2. That the authority of the plaintiff from the intestate, must be considered to have ceased upon the death of the intestate; and therefore a subsequent sale of the picture by the plaintiff could not entitle the plaintiff to the reward of 100%.:

"3. That, if the confirmation of the sale by the defendant could operate as an adoption by her of the alleged contract,-of which it is not stated that she had any knowledge,-it would make her personally liable to the plaintiff, and not as administratrix :

"4. That the confirmation of the sale by the defendant could have no other effect than that of making the defendant personally liable to the plaintiff for a reasonable remuneration for the selling of the picture :

"5. That the picture, at the time of the alleged sale, was not the picture of the intestate, but of the defendant as administratrix."

lessen the consideration paid by B. for the guarantee; and the legal iniquity of the decision may, I think, be made clear, as follows:

"It will hardly be disputed, firstly, that the legislature is the judge of what shall constitute valuable consideration; and secondly, that a consideration which is expressly allowed to be good in a statute, should be admitted as such in the decisions of the courts. Now, the contract of insurance, be it gambling, or be it not, rests entirely upon the permission given by the law to consider a high chance of a small sum as good consideration for a low chance of a large sum. If I now pay 21. of premium for 100., in case I should die in a year, and if my executors can maintain an action for 1007., it must be because the law sanctions the notion that 21., nearly certain, may, with consent of parties, be considered as an actual equivalent for a distant chance of 1007., as much so as one weight of silver for another of bread, or food, clothing, and wages for personal service. It is true that the same law, fearing certain reputed immoral practices, to which the power of making a particular bargain offers temptations, may limit the circumstances under which it will permit such bargains to be made; but this is equally true in regard to the other sort of contracts mentioned: indeed, there is no sort of bargain which is not under regulation. The law, then, allows risks, and permits unequal chances to be compensated by giving odds; the courts declare, that, after the cast shall have been made, and one of the parties shall have stood his risk, which turns out in his favour, the other party shall receive an ex post facto release from the conditions of his bargain, because circumstances afterwards arise, which, had they existed at the time of making the bargain, would have made it illegal. The several principles on which the decision was founded, well carried out, as they say in parliament, would *397] require that the previous contracts of a man who becomes insane should be null and void; that the meat which a man buys for his dinner should be returnable to the butcher under the cost, if a friend should invite him in the mean time; and, in the case before us, supposing that C. should have outlived the term, and his debt were paid, as before, then B. might have brought his action against the office, for the return of the premiums; alleging that, as it turned out, the office would have been indemnified, and therefore, should be considered as having run no risk."

Since the decision in the principal case, the point has arisen before Vice-Chancellor Wood, in a case of Law v. The Indisputable Life-Policy Company, 1 Jurist, N. S., 178; and his Honour decided in accordance with the above judgment, entirely adopting the reasoning therein. See also the observations on Godsall v. Boldero, in Bunyon on Life Assurance, p. 23.

EDWARDS v. GRIFFITH. Nov. 15.

Quære, whether the affidavit (required by the 112th rule of Hilary Term, 1853), of service of the writ of ejectment under the 170th section of the Common Law Procedure Act, 15 & 16 Vict. c. 76, should show (as under the old practice) that the nature and object of the service were explained to the party served.

At all events, an irregularity in that respect is waived by a subsequent attornment.

THE 168th section of the Common Law Procedure Act, 15 & 16 Vict. c. 76, enacts, that, "instead of the present proceeding by ejectment, a writ shall be issued, directed to the persons in possession by name, and to all persons entitled to defend the possession of the property claimed, which property shall be described in the writ with reasonable certainty." The 169th section enacts, amongst other things, that "the writ shall state the names of all the persons in whom the title is alleged to be, and command the persons to whom it is directed, to appear, within sixteen days after service thereof, in the court from which it is issued, to defend the possession of the property sued for, or such part thereof as they may think fit, and it shall contain a notice, that, in default of appearance, they will be turned out of possession."

[*398

And the 170th section enacts that "the writ shall be served *in the same manner as an ejectment has heretofore been served, or in such manner as the court or a judge shall order, and, in case of vacant possession, by posting a copy thereof upon the door of the dwellinghouse, or other conspicuous part of the property."

Coxon, on a former day in this term, obtained a rule nisi to set aside the judgment and execution in this case, and for a writ of restitution, on the ground that the affidavit upon which the judgment was signed did not show that the nature and contents of the notice contained in the writ were read over or explained to the tenant in possession. The affidavit on which the motion was founded, stated, that, when the copy of the writ was delivered to the defendant, he was informed by the person who served it that it was to require him to go to an office in Caernarvon to give evidence as to a pedigree.

Welsby now showed cause, upon an affidavit stating that the defendant perfectly well knew the nature of the proceeding, and that after the service of the writ, he attorned to the plaintiff. He submitted that, the new proceeding being perfectly simple and plain, there was no longer the same necessity which formerly existed of explaining the nature and object of the service to the tenant: and that the 170th section of the statute, by merely providing that the service should be the same as heretofore, impliedly dispensed with the accompanying explanation. [JERVIS, C. J.-Certainly, the statute does not say that the affidavit of service shall be in the old form.]

Coxon, in support of his rule.-The 112th rule of Hilary Term, 1853, provides that "no judgment in ejectment for want of appearance or defence, whether limited or otherwise, shall be signed, without first filing an affidavit of the service of the writ according to the Common Law Procedure Act, 1852, and a copy [*399 thereof." This special provision would have been unnecessary if nothing more was required than the common affidavit of service.

JERVIS, C. J.-It is unnecessary for us to decide on the present occasion whether or not the affidavit should be as special as was required under the old form of proceeding. But, assuming that it ought to have been, and that the plaintiff has been guilty of an irregularity in that respect, it clearly is a mere irregularity, and I am of opinion that the defendant has waived it by admitting that he was duly served, and afterwards attorning to the plaintiff. I think the rule must be discharged.

WILLIAMS, J.(a)-I am of the same opinion. This is at the best a mere technical irregularity which the defendant has by his conduct waived.

CROWDER, J., concurred.

Rule discharged.

(a) Maule, J., was absent on account of indisposition.

*400]

*DOMINICO CAMPANARI v. MARY FRANCES WOODBURN, Administratrix of SAMUEL WOODBURN, Deceased. Nov. 13.

A. agreed with B., that he would endeavour to sell a picture belonging to B., and that, if he succeeded in selling the same, B. should pay him 1007. B. died before the picture was sold. In an action against the administratrix of B. upon the above agreement, the count alleged, that, in pursuance of the agreement, A. did, before and after the death of B., endeavour to sell, and after the death of B. he did, in consequence of such endeavours, succeed in selling the picture, "which sale was confirmed by the defendant as administratrix as aforesaid;" and that she refused to pay the 1007.:-Held, that the count disclosed no cause of action, inasmuch as the authority from B. to A., to sell the picture, was revoked by B.'s death, and the defendant's confirmation of the sale, in the absence of an allegation that she was aware of the existence of the contract between A. and B., was no adoption of the contract by her, so as to make her liable to pay the 1007.

THE declaration stated that it was agreed between the plaintiff and the said intestate, that the plaintiff should endeavour to sell a certain picture of the said intestate, and that, if the plaintiff succeeded in selling the same, the said intestate would pay him 100l.; that, in pursuance of the said agreement, he did before and after the death of the said intestate endeavour to sell, and after the death of the said intestate he did, in consequence of such endeavours, succeed in selling the said picture, which sale was confirmed by the defendant as administratrix as aforesaid; yet the defendant, as such administratrix, had made default in paying the said 1007., which was still due from her as administratrix, and unpaid.

There was a second count, for money payable by the said Samuel Woodburn in his lifetime to the plaintiff, for work and labour, journeys, services, business, and attendances done, performed, and bestowed, and materials provided by the plaintiff for the said Samuel Woodburn, at his request, and for money found to be due from the said Samuel Woodburn to the plaintiff on accounts stated between them in the lifetime of the said Samuel Woodburn, and for money payable by the defendant, as administratrix as aforesaid, to the plaintiff, for money found to be due from the defendant, as such administratrix as aforesaid, to the plaintiff, on accounts stated between them since the death of the

*401] said Samuel Woodburn: And the plaintiff claimed 4007. for

debt, and 201. for detention.

The defendant demurred to the first count,-the ground of demurrer marked in the margin being, "that there is no allegation in the said first count of any contract by the defendant to pay 1007. on the sale of the picture, and any such contract must have been with the defendant personally, and not as administratrix."

The defendant also pleaded,-first (to the first count), that it was not agreed in manner and form as in that count alleged,-secondly (to the first count), that the plaintiff did not succeed in selling nor sell the said picture as alleged,—thirdly (to the residue of the declaration except

as to 1157., part of the money claimed for debt), that, except as aforesaid, neither the said Samuel Woodburn in his lifetime, nor the defendant, as administratrix as aforesaid, since his death, ever was indebted as alleged,-fourthly (to the residue of the declaration, except as aforesaid), that, before action, the said Samuel Woodburn, in his lifetime, and the defendant, as administratrix as aforesaid, since his death, satisfied and discharged the plaintiff's claim in respect of the matters therein. pleaded to by payment,-fifthly (as to 1881., parcel, &c., and damages for the detention thereof), payment into court of 115l., and also the further sum of 18. for the detention thereof.

The plaintiff joined issue on the first four pleas, and took out of court the 115. and 18., in satisfaction pro tanto.

Willes, in support of the demurrer. (a)-The count *discloses

[*402 a case of agency only, which was revoked by the death of the testator. The cause, therefore, could only be in respect of some transaction between the plaintiff and the defendant in her individual character. [JERVIS, C. J.—A confirmation of the authority by the administratrix, might set up the agency.] No action will lie against an executor or administrator in his representative character, for work done after the death of the testator or intestate, except where it was commenced before the death. [CROWDER, J.-The plaintiff's endeavours to sell the picture may have been attended with expense.] The plaintiff does not proceed for that. The authority of a factor, whether general or special, is revocable: Smart v. Sandars, 3 C. B. 380 (E. C. L. R. vol. 54); even though he is under advances; 5 C. B. 895 (E. C. L. R. vol. 57). In that case, Wilde, C. J., after referring to several cases,-and, amongst others, to Vynior's Case, 8 Co. Rep. 82 a, Walsh v. Whitcombe, 2 Esp. N. P. C. 565, Watson v. King, 4 Campb. 272, and Gaussen v. Morton, 10 B. & C. 731 (E. C. L. R. vol. 21), says: "The result appears to be, that, where an agreement is entered into on a sufficient consideration, whereby an authority is given for the purpose of securing some benefit to the donee of the authority, such an authority is irrevocable. This is what is usually meant by an authority coupled with an interest, and which is commonly said to be irrevocable." [WILLIAMS, J. The doctrine of Smart v. Sandars was still further acted

(a) The points marked for argument on the part of the defendant, were,"1. That the first count of the declaration is bad:

[*403

"2. That the authority of the plaintiff from the intestate, must be considered to have ceased upon the death of the intestate; and therefore a subsequent sale of the picture by the plaintiff could not entitle the plaintiff to the reward of 100%.:

"3. That, if the confirmation of the sale by the defendant could operate as an adoption by her of the alleged contract, of which it is not stated that she had any knowledge,-it would make her personally liable to the plaintiff, and not as administratrix :

"4. That the confirmation of the sale by the defendant could have no other effect than that of making the defendant personally liable to the plaintiff for a reasonable remuneration for the selling of the picture:

5. That the picture, at the time of the alleged sale, was not the picture of the intestate, but of the defendant as administratrix."