Defence of X. The defendant X. says that: 1. He does not admit the plaintiff's claim. 2. Notice was given and assets distributed under the statute 22 & 23 Vict. c. 35, s. 29. Particulars of the Notice. Advertisements in the Times of June 1 and 17, 1881. Action by Assignee of Legatee to have the Testator's Estate Administered by the Court. Statement of Claim. 1. A. B., of Newcastle-on-Tyne, who died on the 1st of November, 1883, by his will, dated the 31st of October, 1883, after making certain pecuniary legacies, bequeathed one-fifth share of the residue of his personal estate to X. Y., and appointed the defendants his executors. 2. The defendants proved the will of the said A. B. on the 1st of December, 1883. 3. On the 2nd of December, 1883, the said X. Y. by deed absolutely assigned his said one-fifth share in the residue of the said personal estate, and all other his interest in the said estate to the plaintiff. The plaintiff claims administration of the testator's personal estate. Defence. 1. The defendants are not the exccutors, nor is either of them the executor of A. B., deceased. 2. The defendants do not admit that X. Y. by deed or otherwise ever assigned any share or interest of him the said X. Y. in the estate or the personal estate of the said A. B. to the plaintiff. 3. If the said X. Y. ever assigned any share or interest in the estate or personal estate of the said A. B. to the plaintiff, the said X. Y. never was entitled by the last will of the said A. B. or otherwise to any interest in the estate or personal estate of the said A. B. The person named X. Y. in the will referred to in the statement of claim is not the same person as the person of that name who executed the deed in the statement of claim mentioned. 4. The will mentioned in the statement of claim was revoked by a later will dated the 1st of November, 1883, and by an order of the Probate Division of this Court dated the 15th of December, 1883, probate of the earlier will dated the 31st of October, 1883, was revoked. Action by Legatee and Devisee against the Executor of an Executor on the Footing of Wilful Default. 1. The plaintiff is the residuary legatee and devisee of John Jones, of No. 200, Cheapside, in the City of London, who died on the 10th of December, 1881, having made his will, dated the 9th of December, 1881, and appointed A. B. and C. D. his executors, and devised to them all the residue of his real and personal estate in trust for the plaintiff, and bequeathed a legacy of £100 to the plaintiff. 2. C. D. was dead at the date of the will; A. B. alone proved it. 3. A. B. was guilty of wilful default in not protecting and using to the best advantage certain property of the testator. 4. The wilful default on which the plaintiff relies was as follows: A. B. neglected to sue X. Y. for a debt of £100 due to the testator, and X. Y. became bankrupt in May, 1883, and no dividend has been paid on the said debt. A. B. let the house, No. 100, Linden Gardens, in the parish of, in the county of being part of the testator's property, to J. B., for twenty-one years, at the annual rent of £50, although the fair annual rent of the said house, as A. B. well knew, was £150. At the time of the testator's death John Smith had been in possession of the testator's house, No. 101, Linden Gardens, aforesaid, for eleven years, as the said A. B. knew. Yet A. B. allowed John Smith to remain in possession for more than a year after the testator's death, and failed to sue for the recovery of possession thereof, whereby John Smith acquired a prescriptive title to the house. 5. In June, 1883, A. B. died, having by his will, dated the 2nd of March, 1853, appointed the defendant his executor. The defendant proved his will on the 1st of July, 1883. The plaintiff claims: (1.) Account of the estate of John Jones on footing of wilful default. (2.) Administration of the testator's real and personal estate. (3.) If the defendant should not admit assets, administration, so far as may be necessary, of the real and personal estate of A. B. The defendant says that: Defence. 1. He denies that A. B. was guilty of wilful default. 2. Nothing could have been recovered from X. Y. by suing him. The house, No. 100, Linden Gardens, was not worth more than £50 a-year, and no higher rent could be obtained for it. John Smith acquired an absolute and indefeasible title by prescription before the death of John Jones. 3. The defendant does not admit that he has assets of A. B. sufficient to satisfy the plaintiff's claims (if established) in a due course of administration. Administrator. See the title Executor. Agents (a). Action against Agent for Selling on Credit against Instructions, and at Lower Price than directed. 1. The plaintiff has suffered damage by the defendant, as his agent, selling large quantities of coal upon credit when he was (a) Where no fixed time of service has been agreed upon, a principal Principal may at any time revoke the authority of his agent, unless indeed the and agent. agent has, as it is called, an authority coupled with an interest, as where a debtor hands to his creditor a power of attorney, authorizing him to sell certain lands of the debtor, and pay his debt out of the proceeds of the sale. Here it was held that the agent's authority could not be revoked. (Gaussen v. Morton, 10 B. & C. 731.) The agent must keep regular accounts and vouchers, and if he refuses to account after demand made, he is liable to an action (Topham v. Braddick, 1 Taunt. 571); and if goods have been intrusted to an agent to sell, and he renders no account of them, it will be presumed that they have been sold and the money received. (Hunter v. Welsh, 1 Stark. 224.) Agents must bring to the discharge of their duty towards their principals a reasonable and ordinary amount of skill and judgment. So that if a broker or commission agent is ordered to buy an article of first-rate quality and he buys an inferior one, he is guilty of such a breach of contract as renders him liable in damages to his principal. (Mainwaring v. Brandon, 2 Moore. 125.) Subject to this responsibility the powers of brokers and mercantile agents of that class are very considerable. They have, generally speaking, an implied authority to sell at such times, places, and prices as they think most to the advantage of their principal, and even to sell on credit, if on the particular market it is customary for agents to do so, but in order that they may bring an independent judgment to bear on each matter in which they act, no agent is allowed either to sell his own goods to his principal (Bentley v. Craven, 18 Beav. 75), nor can he himself become the purchaser of his principal's property unless in a very extreme case. (Trevelyan v. Charter, 9 Beav. 140.) An ordinary agent is not liable to his principal merely, because the person to whom he sold the goods became insolvent without paying for them, that is to say, where the agent has acted with ordinary discretion in giving him credit, and within his general authority; but it is otherwise with del credere agents. Every person accepting the commission of a del credere agent in consideration of a higher commission, makes himself responsible for the solvency of the persons to whom he sells, and in fact he becomes absolutely liable to the principal for the payment of the price of the goods he sells. (Mackenzie v. Scott, 6 Bro. P. C. 291). It must be noticed that although a del credere agent is thus in one sense a person liable for "the debt, default, or miscarriage" of another, yet it has been decided that the agreement between himself and his principal is an independent contract, by which the goods are sold to him, and therefore it is not necessary that it should be evidenced by writing, under the Statute of Frauds. (Couturier v. Hastie, 8 Exch. 40.) It is a well-established rule that an agent shall not, after accounting with his principal and receiving money in his capacity of agent, after wards say that he did not do so, and did not receive it for the benefit of his principal but for some other person, unless indeed there has been some mistake, and a void payment ab initio, so that the money was never really received for the principal. (Edgell v. Day, 35 L. J. C. P. 7; L. R. Del credere agents. Effect of accounting to principal. |