lege of Physicians are saved, and this extends by implication to a physician having a diploma from a university in Scotland. A Scotch physician, since the union, has always been considered as entitled to the privileges of an English one, though there is no express provision to that effect. In Smith v. Taylor, (a) Sir James Mansfield, after referring to the statute 14 & 15 Hen. 8, c. 5, (which confirms the charter of the College of Physicians, and enacts, that no person shall practise physic without having been examined by the college and obtained testimonials from them, except he be a graduate of Oxford or Cambridge,) adds, "Since the union with Scotland, it has been considered, though I do not exactly know upon what ground, that a degree conferred by a Scotch university is of the same effect as a degree conferred by the universities of Oxford or Cambridge; though, in looking through the articles of union, (b) I find nothing upon the subject, except that the four Scotch universities shall subsist as before with the same rights. Had the matter been attended to at the union, some express provi*606] sions would have probably been made; but although no such *provision was made, it has been generally understood that, in consequence of the clause alluded to, a diploma granted by one of the Scotch universities gives the same right to practise physic as a degree at one of the English universities, and dispenses with the necessity of being examined by the College of Physicians, and obtaining letters testimonial from thence." [DENMAN, C. J. How can you get over the express words of the statute ?] It is certainly difficult; but if the statute were to be strictly construed, a person in the situation of the defendant (and there are many similarly circumstanced) must leave off acting as an apothecary in this country, until he has served an apprenticeship of five years, according to the fifteenth section of this act.

DENMAN, C. J. It is clear that all persons are affected by the twentieth section, except those who are specifically exempted. Even English physicians would be included within it, if there were were not a special exception in their favour in the twenty-ninth section. If there are many persons interested in this question, that very circumstance is a reason for not granting a rule to shew cause if we think the point perfectly clear.

LITTLEDALE, J. The act, which begins by reciting the charter of the Apothecaries' Company, proceeds, in sect. 14, to prohibit any person from practising as an apothecary except upon the conditions there imposed; and these are extended in general terms to all persons except those already in practice as apothecaries. The words would include all persons who have taken medical degrees, were it not for the twenty-ninth section, which saves the rights of "the *607] two universities of Oxford and *Cambridge," and of the other bodies there named. But the act, by expressly exempting the two English universities, does not exempt those of Scotland also. The statute applies to England and Wales only: Scotland is not in contemplation.

PARKE, J. The words of the act are too plain to be got over. Section 14 contains a general prohibition, to which certain exceptions are made by sect. 29, but that contains no exemption in favour of Scotland or Ireland: all the provisions on the subject apply to England and Wales. The duty of an apothecary,

nothing in this act contained shall extend or be construed to extend to lessen, prejudice, or defeat, or in any wise to interfere with any of the rights, authorities, privileges, and immunities heretofore vested in and exercised and enjoyed by either of the two Universities of Oxford or Cambridge, the Royal College of Physicians, the Royal College of Surgeons, or the said Society of Apothecaries, respectively, other than and except such as shall or may have been altered, varied, or amended in and by this act, or of any person or persons practising as an apothecary previously to the 1st day of August, 1815, but the said Universities, Royal Colleges, and the said society, and all such persons or person shall have, use, exercise, and enjoy all such rights, authorities, privileges, and immunities, save and except as aforesaid, in as full, ample and beneficial a manner, to all intents and purposes, as they might have done before the passing of this act, and in case the same had never been passed." (b) 5 Ann. c. 8.

(a) 1 New Rep. 203.

as defined by sect. 5, is, "to prepare with exactness, and to dispense, such medicines as may be directed for the sick by any physician lawfully licensed to practise physic by the president and commonalty of the Faculty of Physic in London or by either of the two universities of Oxford or Cambridge." A Scotch physician is certainly not enabled by the act to perform this duty.

Rule refused.

*DOE dem. WILKS and Others v. W. B. RAMSDEN, Clerk. [*608

April 16.

A rector, after the stat. 13 Eliz. c. 20, had been repealed, and before its revival by 57 G. 3, c. 99, demised his rectory to a trustee for ninety-nine years, to secure an annuity. After the passing of 57 G. 3, c. 99, by deed reciting the grant of the former annuity, and that A. had agreed to purchase of the grantor an annuity of 5741. a year for 4400%. and out of that sum to pay off the former annuity, and that that annuity and the term created to secure the same, should be assigned to a trustee for A's benefit, the rector granted the said annuity of 5747., chargeable on his rectory; and the trustee of the term created to secure the annuity of 1813, assigned it to a trustee for the benefit of A.: Held, that inasmuch as the term was created after passing of the 43 G. 3, c. 84, which repealed the 13 Eliz. c. 20, the assignment of it, though for the purpose of securing the payment of an annuity charged on the benefice after the passing of 57 G. 3, c. 99, was valid.

EJECTMENT to recover the rectory of Great Stambridge, in the county of Essex. At the trial before Lord Lyndhurst, C. B., at the Spring assizes for Essex, 1833, the following appeared to be the facts of the case:-On the 18th of February, 1813, the defendant, the rector of Great Stambridge, granted by indenture to Elizabeth Fisher, an annuity of 2601. per annum for her life, and by the same indenture demised to Robert Withy the rectory and glebe lands and tithes thereof, &c. habendum for ninety-nine years, upon trust for better securing the payment of the annuity. By another indenture, dated the 6th of September, 1816, the defendant granted to Thomas Henry Shepherd, during his life, an annuity of 937., which was also secured by a demise of the rectory to a trustee, for ninety-nine years. In 1820, and in 1823, he granted two other annuities, the first charged on his vicarage of Little Wakering and the second charged on the rectory of Great Stambridge and vicarage of Wakering; and demised those two benefices for terms of years to trustees, for the purpose of securing those annuities. By indenture of the 19th of January, 1825, reciting the grants of annuities above mentioned, and that the defendant had agreed *to pay off and re-purchase those annuities, and that Peter Moore, the [*609 chairman of the British Annuity Company, had on behalf of the company agreed with the defendant for the purchase of an annuity of 5741. for a term of ninety years, if the defendant should so long live, for the price of 44007., and that it had been agreed that Moore should out of that sum pay the several annuities before granted, and that the annuities, and the terms created to secure the same respectively, should be assigned to a trustee for the benefit of the company, the defendant granted an annuity of 5741., payable quarterly on certain specified days, and charged on his rectory and vicarage, to Moore; and there was a power of distress in case it should be in arrear for twenty-one days, and a power to enter and take the rents, tithes, and profits, if it should be in arrear for twenty-eight days. The indenture also contained an assignment of the four annuities by the annuitants; of the two terms created in 1813 and 1816, by R. Withy and J. H. Shepherd; and of the two other terms created in 1820 and 1823, by the trustees of those terms, respectively, to Wilks, as a trustee, for the benefit of the company. In 1826 the annuity be came in arrear, and a sequestration issued. It was contended for the defendant that the deed of 1825 created a new charge on the defendant's living, and the

off

assignment of the former terms to a trustee for the purpose of securing the payment of an annuity so created since the statute 57 G. 3, c. 99, was void. Lord Lyndhurst was of opinion, that the assignment to Wilks of the terms created in 1813 and 1816, vested the legal estate in him, and therefore that the lessor of the plaintiff was entitled to recover; *and he directed the jury to find a verdict for the plaintiff, but reserved liberty to the defendant to move to enter a nonsuit.

*610]

Comyn now moved accordingly. The assignment of the terms granted in 1814 and 1816, to Wilks, did not vest the legal estate in him, because the object of it was to secure, not the original annuities, but the annuity first granted by the deed of 1825. It operated, therefore, as a new charge on an ecclesiastical benefice, and consequently is void. The terms created to secure the annuities granted in 1813 and 1816, have been satisfied by the payment of those annuities. [PARKE, J. The two terms created in 1813 and 1816 for the purpose of securing the annuity and charged on the benefice, were valid in point of law, because the charge created by them was made after the passing of 43 G. 3, c. 84, and before the passing of 57 G. 3, c. 99. The assignment of those terms for the purpose of securing the annuity granted in 1825, operated pro tanto as a continuance of the original charge, and vested the legal estate in the lessor of the plaintiffs. This case is precisely the same as Doe v. Gully, 9 B. &. C. 344.] PER CURIAM. There must be no rule. Rule refused.

*611]

*BARON v. HUSBAND. April 16.

The solicitor to the assignees of a bankrupt, received from them a sum of money, to be applied in payment of the costs of the petitioning creditor up to the time of the choice of assignees. The solicitor offered to pay the money, on condition that the bill should undergo a subsequent taxation, but to that the petitioning creditor would not assent: Held, that the latter could not maintain money had and received thereupon against the solicitor, though after the above offer and refusal, he had authorised the solicitor to pay over part of the money in discharge of commissioners' fees.

ASSUMPSIT for money had and received, &c. Plea, general issue. At the trial before Park, J., at the last assizes for the county of Devon, it appeared that, in 1817, the plaintiff sued out a commission of bankrupt against one Birdwood. The plaintiff was both petitioning creditor and solicitor. His costs, previous to the choice of assignees, being 1947. 16s. 7d., the assignees paid him, at different times, 907. on account, leaving a balance due to him of 1047. 16s. 7d. After a lapse of fourteen years, the surviving assignees appointed the defendant their solicitor; and, on the 17th of June, 1831, an audit having been appointed, they were proceeding to pass their accounts, taking credit for the balance due to the plaintiff. The commissioners required an order to be given for the payment before they would complete the audit; whereupon the defendant received a cheque from the assignees for 1047. 16s. 7d., for the purpose of settling the plaintiff's account, and undertook to do so. He thereupon immediately saw the plaintiff, and offered to pay him the money, provided he would give a receipt with an agreement that the costs should be subject to further taxation. This the plaintiff refused to do. It appeared that some fees, due to one of the commissioners, were included in the 1047. 16s. 7d.; and that subsequently to the above interview, the defendant paid them to the commissioner, under the authority of an order from the plaintiff. There was no proof that the commissioners had ascertained the amount of costs, according to 5 G. 2, c. 30, s. 25, and 6 G. 4, c. 16, s. 14. *The learned Judge, being of opinion that this was necessary, nonsuited the plaintiff.

*612]

Coleridge, Serjt., now moved to set aside the nonsuit. The 5 G. 2, c. 30, (which was the bankrupt act in force in 1817,) by s. 25, requires the petitioning creditor to prosecute the commission at his own costs until assignees shall be chosen; and the commissioners, at the meeting appointed for the choice of assignees, are to ascertain such costs, and, by writing under their hands, to order the assignees to repay the petitioning creditor his costs out of the first money or effects that shall be collected by them under the commission. And even assuming that the omission to have the amount of costs ascertained by the commissioners according to the present act, might be an answer to an action brought by the solicitor against the petitioning creditor, it is not an answer to this action, which is brought by the plaintiff for money received for his use by the defendant. [PARKE, J. I doubt whether money had and received be maintainable here, because there is no privity between the plaintiff and defendant. The proof is, that the defendant offered to pay the plaintiff the amount of the check, on a condition which the latter refused to comply with. It does not appear that there was any previous agreement between them, that the defendant should receive the money from the assignees for the plaintiff's use. If I give a sum of money to my servant to pay a tradesman, the latter cannot maintain an action for money had and received against the servant.] Here it must be taken that the defendant received the money with the sanction of the commissioners; he received it expressly for the use of the plaintiff; the audit could not have proceeded, except on the footing of *the plaintiff's bill having been paid by the assignees, by the payment made to the defendant. The [*613 subsequent disposition of a part of this money, pursuant to the directions of the plaintiff, shews that the defendant was continuing to hold it as the plaintiff's money; and having received it for the plaintiff, and held it for him, it is not open to him now to repudiate the character of agent to the plaintiff, or to deny the privity between them. Cur. adv. vult. DENMAN, C. J. in the course of the term delivered the judgment of the Court.

In this case a motion was made by my brother Coleridge for a rule nisi to set aside a nonsuit in a cause tried before my brother Park, at Exeter. It was an action for money had and received, brought by the petitioning creditor against the solicitor to the assignees, who appeared to have received a check from them for the amount of the plaintiff's bill up to the choice of assignees, but who had declined to pay the plaintiff's demand. It may be taken that the defendant had received cash for the cheque. The nonsuit proceeded on the ground that the plaintiff had no right to sue for the amount, until his bill had been taxed under 6 G. 4, c. 16, s. 14; and it was contended that the learned Judge was wrong this respect, and that taxation of the bill was not requisite if the assignees chose to waive it. It is not necessary for us to pronounce any opinion upon this question; because admitting that the bill need not have been taxed, we are of opinion that this action will not lie, for want of privity between the plaintiff

and defendant.

in

for

The defendant received the money as the agent of *the assignees and [*614 not of the plaintiff; he held it subject to their control and directions, and would continue to be accountable to them, until he entered into some binding engagement with the plaintiff to hold it for his use. As soon as that engagement was entered into, and not until then, he would hold the money the plaintiff's use. This is the doctrine laid down in Williams v. Everett, 14 East, 582, Wharton v. Walker, 4 B. & C. 163; 6 Dow. & Ryl. 288; Scott v. Porcher, 3 Mer. 652; Wedlake v. Hurley, 1 Cro. & Jervis, 83, and has been acted upon in many other cases.

In this case there has been no such engagement. The defendant never promised to pay the plaintiff, except upon a condition to which he would not assent, namely, that his bill should undergo a subsequent taxation; and his part payment, by the direction of the plaintiff, of the commissioner's fees, cannot ope

rate except as part payment. For these reasons we are of opinion that the nonsuit was right, and, therefore, refuse a rule.

Rule refused.

WILSON v. BARKER and MITCHELL. April 17.

A person who knowingly receives from another a chattel which the latter has wrongfully seized, and afterwards, on demand, refuses to give it back to the owner, does not thereby become a joint trespasser, unless the chattel was seized for his use.

TRESPASS for assaulting the plaintiff, and taking a gun from him. At the trial before Alderson, J., at the last Spring assizes at York, the following facts were proved:-The plaintiff was shooting on Meltham Moors in the West Riding of Yorkshire, when the defendant, Mitchell, seized him and took away *615] his gun. The taking *was wrongful. Mitchell was the servant of a Mr. Peace, to whom the game on these moors was given by certain parties, entitled as holders of allotments under an inclosure act. The other defendant, Barker, was employed by Mr. Peace in protecting the game. Mitchell took the gun to Barker, who, on being subsequently asked for it by the plaintiff, refused to give it up. An endeavour was made, but without success, to shew that Barker admitted having authorized Mitchell to seize it. ALDERSON, J. was of opinion, that this evidence did not support an action of trespass against Barker, and that, to reach both parties, the form of action should have been trover. A verdict was therefore taken, under the learned Judge's direction, for Barker, and against Mitchell with 40s. damages.

Alexander now moved for a rule to show cause why a new trial should not be had, on the ground of misdirection. Assuming that Mitchell did not act as Barker's servant in seizing the gun, yet Barker ratified the act by his subsequent conduct, and thereby made himself liable as a trespasser. In Badkin v. Powell, Cowp. 478, Lord Mansfield says, that a pound-keeper is not liable in trespass for merely taking in cattle brought to the pound by other persons, who act at their own peril if the taking has been wrongful: but "if he goes one jot beyond his duty and assents to the trespass, that may be a different case." In Aaron v. Alexander, 3 Camp. 35, where a wrong person was apprehended under a warrant and carried to the watch-house, the watch-house keeper, who received *616] and detained him, was held liable in trespass, though he had no means of ascertaining the identity of the party. [LITTLEDALE, J. There the detention was a fresh trespass.] In Hull v. Pickersgill and Others, 1 B. & B. 282, the defendants (in trespass) were creditors who had seized the goods of an uncertificated bankrupt for debts incurred after the bankruptcy; but it apPeared that the assignees had afterwards surrendered to the defendants all their interest in these goods under the commission, and this was held to be a ratification of the seizure as made to the use of the assignees. [PARKE, J. Lord ke, in 4 Inst. 317, states, as a difference between the forest law and the comon law, that, by the former, whosoever receives within the forest any malector in hunting or killing the king's deer, knowing him to be such malefactor, flesh of the king's venison, knowing it to be the king's, is a principal trespasser; whereas by the common law, "he that receiveth a trespasser, and agreeth to a trespass after it be done is no trespasser, unless the trespass was done to his use, or for his benefit, and then his agreement subsequent amounteth to a commandment, for in that case omnis ratihabitio retrobahitur et mandato æquiparatur; but, by the law of the forest, such a receiver is a principal trespasser, though the trespass was not done to his use. Unless you could prove here that the seizure of the gun was to Barker's use, he cannot be made liable in trespass.]

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