the French Court came to an erroneous decision as to the HALBRONN identity of the defendants' mare. The risk of suffering damage 1902 v. INTERNATIONAL HORSE EXCHANGE, LIMITED. in circumstances like those of this case is incidental to the business of an auctioneer. There is no authority for holding a AGENCY AND principal liable to his agent when the representation, made by the former and acted on by the latter, is true in fact. If the defendants had failed to prove that their mare was the real Pentecost, it may be that on the principle laid down in Adamson v. Jarvis (1) they would have been liable to indemnify the plaintiff; but that decision has no application to the facts as found in this case. Vaughan Williams replied. Cur. adv. vult. Dec. 18. BRUCE J. read the following judgment:—It was contended by Mr. Vaughan Williams that the mere fact of the employment of the plaintiff as auctioneer by the defendants involved an obligation on the part of the defendants to indemnify the plaintiff against all claims arising out of the plaintiff's conduct as auctioneer in respect of acts done by him within the scope of his authority. I am not prepared to assent to that proposition, although the phrase, claim arising out of the plaintiff's conduct as auctioneer, is a very wide one, and the extent of the proposition depends greatly upon the meaning given to that phrase. If one employ an auctioneer to sell a picture by Constable which is in truth a genuine Constable, and the auctioneer sells it as a Constable, and afterwards the purchaser of the picture brings an action against the auctioneer for falsely selling the picture as a Constable, and succeeds in persuading a jury that the picture is not a Constable, and so recovers damages against the auctioneer, the damages so recovered are damages arising, not from the conduct of the auctioneer, but from a mistaken view of the facts taken by the jury; and if, as I have assumed, the picture were a genuine Constable, the claim for damages would not arise from the mere fact of the sale of the picture by the auctioneer, and the auctioneer would have no claim to recover, against the (1) 4 Bing. 66; 29 R. R. 503. 1902 0. INTER NATIONAL HORSE EXCHANGE, LIMITED. Bruce J. person who had entrusted him with the sale of the picture, the damages awarded against him by the verdict of the jury. HALBRONN So in the present case, the damages recovered in the French Court against the plaintiff in this action arose, not from any act done by the plaintiff in pursuance of his employment by AGENCY AND the defendants, but arose from a mistake as to the identity of the mare Pentecost, arising from the fact that some person in France had procured another mare to be entered in the Paris Stud Book as Pentecost. In my opinion the defendants are in no wise answerable for this mistake, and they cannot be rendered liable to pay to the present plaintiff the damages which the French Court awarded against him. [The learned judge then dealt with the question whether or not the defendants had entered into an agreement as alleged, and, having found as a fact that they had not done so, continued as follows:- -] I think that the undertaking which the defendants entered into with the plaintiff only extended to this—that the mare was the genuine Pentecost foaled in England in 1888, and for the first time imported into France in 1898. That undertaking was never broken, and in my opinion no ground exists for rendering the defendants liable in the present action. If the defendants had sent the mare to the plaintiff to be sold upon a false description, then the present case would have resembled the case of Adamson v. Jarvis (1), upon which Mr. Williams relied. But the facts in that case do not, I think, bear any resemblance to the present. So I think the case of Frixione v. Tagliaferro (2), which was much relied upon by Mr. Williams, has little or no bearing on the present case. That was the case of an action brought by an agent against his principals to recover the amount of damages sustained by him in a suit which he defended on their behalf. In that case the agent was authorized by his principals to sell wheat to arrive in June. His principals neglected to provide wheat for a June delivery, and consequently an action was brought against the agent for breach of contract, and judgment was given in the Tribunal of Commerce of Genoa against him. The agent sued (1) 4 Bing. 66; 29 R. R. 503. (2) 10 Moo. P. C. 175. VOL. I. 1903. 2 U 1902 C. INTER NATIONAL AGENCY AND Bruce J. in the Court at Malta his principals to recover from them the HALBRONN amount in which he had been condemned in the Court of Genoa. The Court at Malta decided that the principals were not liable to reimburse the agent; but on appeal to the Privy Council the decision of the Court of Malta was reversed, and the principals were held liable. In the judgment in this case there is a dictum of the Right Hon. Pemberton Leigh, upon which Mr. Williams placed great reliance; it is as follows (1) : "It is said that the sentence of the Court at Genoa was erroneous in law; but this is immaterial. . . . Be that sentence right or wrong, the appellant thereby sustained a heavy loss on behalf of the respondents, and they must bear the consequences." But this dictum must be read in connection with the facts proved in that case; it appeared there that the agent (the appellant) communicated at every step in the action brought against him at Genoa with the respondents and acted with their approval, that he treated the action as their action and that he defended it for them, and that the respondents approved of his conduct on their behalf; and upon this ground I can well understand why it mattered not whether the judgment of the Court of Genoa was right or wrong, because the principals in that case had authorized their agent to defend the proceedings in that Court, and so had rendered themselves liable for the consequences resulting from the judgment of the Court. In the present case the plaintiff has failed, in my opinion, in making out a good cause of action against the defendants, and I must give judgment for the defendants with costs. Judgment for the defendants. Solicitors for plaintiff: Flux, Thompson & Co. Solicitor for defendants: T. H. Hiscott. (1) 10 Moo. P. C. at p. 200. F. O. R. Ex parte FRANCIS AND OTHERS. Justices-Musical (Summary Proceedings) Copyright Act, 1902 (2 Edw. 7, c. 15), 8. 2-Seizure of Pirated Copies of Music-Order of Court of Summary Jurisdiction-Summons, Necessity for. Where pirated copies of music have been seized by a constable under s. 2 of the Musical (Summary Proceedings) Copyright Act, 1902, a Court of summary jurisdiction has no power to make an order under s. 2 forfeiting, destroying, or otherwise dealing with such copies, unless the person from whom they have been seized has, by means of a summons, been notified of the intention to apply for such order. CASE stated by a metropolitan police magistrate. On October 4, 1902, a complaint was preferred at the Marylebone Police Court on behalf of the appellants (a firm of music publishers) under s. 2 of the Musical (Summary Proceedings) Copyright Act, 1902 (1), that certain copies of music then produced before the Court had been seized in pursuance of that section, and the magistrate was asked, upon the production before him of proof that the copies were infringements of copyright, to make an order that they should be forfeited or destroyed or otherwise dealt with, as the magistrate might think fit. The facts alleged in the complaint were that on October 3, 1902, an authorized agent of the appellants requested a constable in writing to seize the copies of music in question, they being then offered for sale in and along the Kentish Town Road by a person who gave his name and address. The constable thereupon seized the music, but informed the person (1) The Musical (Summary Proceedings) Copyright Act, 1902, s. 2: "If any person shall hawk, carry about, sell or offer for sale any pirated copy of any musical work, every such pirated copy may be seized by any constable without warrant, on the request in writing of the apparent owner of the copyright in such work, or of his agent thereto authorized in writing, and at the risk of such owner. "On seizure of any such copies, they shall be conveyed by such constable before a Court of summary jurisdiction, and, on proof that they are infringements of copyright, shall be forfeited or destroyed or otherwise dealt with, as the Court may think fit." 1903 Jan. 12. 1903 FRANCIS, from whom it was seized of the time when and the place where further proceedings with reference to the seizure under the Act would be taken. The music was produced in the police court next morning, and, neither the person from whom it had been seized nor any one on his behalf being then present, the magistrate was asked on behalf of the appellants to proceed at once. to make the order provided for under s. 2 of the Act, it being contended that the Act gave him power to make such order ex parte. The magistrate decided that the Act constituted no departure from the ordinary procedure prescribed by law for Courts of summary jurisdiction, and he, therefore, declined to make any order in the matter until a summons had been served upon the person in whose possession the music had been found calling upon him to shew cause why the order prayed for should not be made. The decision of the magistrate was based upon the following grounds : (a) The Summary Jurisdiction Act, 1879, s. 51, sub-s. 3, enacts that "Where in pursuance of" any future Act "any act or thing other than the payment of a sum of money is required or authorized by an order of a Court of summary jurisdiction to be done, the Summary Jurisdiction Acts. shall apply accordingly." By s. 50 of the same Act the expression "Summary Jurisdiction Acts" includes the Summary Jurisdiction Act, 1848. Sect. 34 of the same Act provides that "Where a power is given by any future Act to a Court of summary jurisdiction of requiring any act or thing to be done. . . . other than the payment of money, and no mode is prescribed of enforcing such requisition, the Court may exercise such power by an order or orders." (b) The Summary Jurisdiction Act, 1848, s. 1, enacts that "in all cases where a complaint shall be made to any justice or justices of the peace upon which he or they have or shall have authority by law to make any order for the payment of money or otherwise. . . . it shall be lawful for such justice or |