TRAVELLING BY RAIL. Hannan, J., in Siner v. Great Western, ante, said, "I think juries take an exaggerated view of the duties of railway companies. The companies have done so much for the comfort and convenience of travellers, that it is now made the subject of complaint if the highest degree of luxurious care is not attained in all their arrangements." These remarks appear exceedingly appropriate and reasonable when one considers that in McDonald et uc. v. Chicago, &c., 26 Iowa, 124, it was held, that the female plaintiff, who found the passenger room at the station unfit for occupation, by reason of her olfactory nerves and visual organs being offended by tobacco smoke and other impurities, and attempted to enter the cars which had not yet been drawn up to the platform that she might avoid these disagreeables, and was injured by the giving away of the steps of the platform, was entitled to recover. "It is the duty of railway passenger carriers to provide comfortable rooms for the accommodation of passengers while waiting at stations, and to enforce such regulations in regard to smoking therein, as to enable passengers to occupy them in reasonable comfort." The learned judge must have held views somewhat similar to those entertained by the royal leader of the anti-tobacconists, James I. But where in a crowd the plaintiff was driven against a portable weighing machine on the platform of the defendants' station, and catching his foot in it, fell and hurt himself, the foot of the machine projected some six inches above the level of the platform, and it was unfenced, but it had stood there some five years without accident to any person passing to or from the train; held, that there was no evidence of negligence to go to the jury, the machine being where it might have been seen, and the accident not being shewn to be one which could have been reasonably anticipated: Cornman v. Eastern Counties Ry., 4 H & N. 781. If an accident had happened from the platform being so constructed as to be insufficient to carry the weight of the persons who might come upon it in great numbers on a particular day, that no doubt would be evidence of negligence on the part of the company. Passengers have the same rights to safe ingress, egress and regress and proper station accommodation and platforms at intermediate places where the train may chance to stop for refreshments, as they have at the termini of the line: McDonald v. Chicago, &c., ante. But at stations where the train stops merely for the purposes of the railway, and people are not expected to get out or in, the rights of passengers, and the liability of the company are greatly curtailed: Frost v. G. T. R. 10 Allen 387. In Murchamp v. Lancaster & Preston Ry. Co., 8 M. & W. 421, the counsel for defendants, to establish the point that the company was not liable for goods lost beyond the limits of their line, as a reductio ad absurdum put the case of a passenger injured on a line of railway beyond that to which he was originally booked,but Rolfe, B., could not see it, and considered that if he took his place at Euston Square, and paid to be carried to York, he would, if injured, have his remedy against the party who contracted to carry him to York. And this dictum of the learned Baron's has been fully sustained by a host of decisions. The Great Western Ry. v. Blake, 7 H. & N. 987, (Ex. Ch.,) decides that where a railway company contracts to carry a passenger from one terminus to another, and on the journey the train has to pass over the line of another railway company, the company issuing the ticket incurs the same responsibility as that other company, over whose line the train runs and by whose default the accident happens, would incur if the contract to carry had been entered into by them. TRAVELLING BY RAIL. The company issuing the ticket is liable for the negligence of the servants of any other company over whose line the passenger has to pass to reach his journey's end; the contract with the passenger being the same whether the journey be entirely over the line of the first company, or partly over the line of another company, and whether the passage over the other line be under an agreement to share profits or simply under running powers, viz., not only that they will not be themselves guilty of any negligence, but that due care will be used in carrying the passengers from one end of the journey to the other, so far as is within the compass of railway management. Thomas v. Rhymney R. W. Co., L. R. 6 Q. B. 266 (Ex. Ch.,) and John v. Bacon, L. R. 5 C. P. 437. The train, on which was one Birkettwho had bought from the defendants a ticket to Carlisle-in going into a station had to pass over the line of another road, on which was a self-acting switch: in consequence of the points of the switch being turned the wrong way the train collided with some coal trucks, and B. came to an untimely end. The Court held that the judge had rightly left it to the jury to say whether there was negligence on the part of the defendants, and the jury having found that there was, that the defendants were liable to Birkett's personal representatives: Birkett v. Whitehaven Junction R. W. Co. 4 H. & N. 730. If a switch by which another road connects with that of the defendants-although it is provided by, and attended to by, the other road is so carelessly managed that an injury is sustained by a passenger upon the cars of the defendants, the defendants are responsible: McElroy v. Nassau & Lowell R. W. 4 Cush. Mass. 400, and see Nassau v. same defendants, 9 Foster 1. Yet in Sprague v. Smith, 9 Verm. 421, it was held that where a carrier of passengers rightfully runs his cars upon the line of another company, over which he has no control or power, he will not be liable for any injury caused, without any fault of his, through the negligence or misconduct of the servants of the other line: see also Parker v. Rensselaer & Saratoga R. W. 16 Barbour 315. Fortunately, though English and Canadian Courts are desirous of treating American decisions with great respect, still their authority here and in the father land mainly depends upon the reasons on which they are founded. In Wright v. Midland R. W., Weekly Notes, 1873, No. 8, the plaintiff was in defendants' train: over a portion of their line the North Western Company have running powers, and some of the cars of the latter company ran into the train carrying the plaintiff. The accident happened entirely through the negligence of the servants of the North Western Company. At the trial the judge ordered a verdict to be entered for the defendants with leave to the plaintiff to move in term the Court sustained the decision and held that the defendants were not liable. The covetous greed of a young bovine gave the Court of Queen's Bench the trouble of deciding the case of Buxton v. North Eastern R. W. Co., 3 Q. B. L. R. 549. A bullock tempted by better pasture on the other side of the line, forced his way through the hedge of the field in which he was enclosed, (though, by the way, the reporter does not show upon whose evidence the bullock's intentions were proved). The train in which one Buxton chanced to be collided with the animal while it was straying on the track, and Mr. B. being hurt by the shock sought to recover damages from the defendants. It appeared that he had been a passenger on the defendants' railway to be carried from Y. to T., and to reach T. it was necessary to travel over the line belonging to another company, and while journeying over the latter line the affair of the bullock took place. The Court held TRAVELLING BY RAIL-NOTES OF RECENT DECISIONS. was, that the contract having been made with the defendants they were the proper parties to be sued. A new trial however, granted because the judge had directed the jury that it was negligence in the defendants if the fences were insufficient; the Court considering that there was no statutory obligation on the company, towards their passengers, to keep up the fences. "If mischief arises from the act of a stranger in leaving a log of wood across the railway, or doing any other act which might endanger a railway train passing along the line of another company, an action cannot be maintained against the railway company, because in that case there would not be any direct or indirect breach of duty, or breach of contract, on their part; they would not be liable on their own line, or on any other company's line for that: " so the judgment in Thomas v. Rhimney, &c., ante, is limited to mischief arising to a passenger in a railway train from some negligence or other of that one of the companies which is the owner of the line over which the party complaining of the injury is travelling. See also, Latch v. Rimner R. W. Co., 27 L. J. (Ex.) 155. Mytton v. Midland R. Co., 4 H. & N. 615, decided that when a passenger had taken a ticket from a company to be car ried through over another company's line, the contract is an entire contract with the company giving the ticket, and no action for negligence will lie against the other company. The same principle has been adopted by the American Courts. Weeds v. Saratoga R. W., 19 Wends. 534, and see also Muschamp v. Lancaster, &c., at p. 430. In Great Western R. W. v. Blake, ante, Crompton, J., doubted whether the injured passenger had any remedy against the company from which he did not get his ticket, as there was no privity between them: but he considered that the one company would have a remedy against the other. And now having given some idea of the cloud of cases and authorities, dicta and decisions, wherewith the path of the railroad traveller is hedged in, this train of ideas-which perhaps has already run over too many lines-must be brought to a stand-still. It was the intention to notice some points decided anent travelling dogs, bulls and horses, but at present the reader must be content to draw his own deductions as to the law affecting these quadrupeds from what has been said with regard to bipedal donkeys, calves and puppies. CANADA REPORTS. ONTARIO. NOTES OF RECENT DECISIONS. COURT OF ERROR AND APPEAL. ROYAL CANADIAN BANK V. STEVENSON. Appeal struck out as not having been set down within time allowed-Right of respondent to costs. Where the Court refused to hear an appeal, and ordered it to be struck out because it had not been set down for argument within the time allowed by 34 Vic. ch. 11, sec. 40. Held, that the respondent, who had appeared to answer the appeal, was entitled to his coets, for the appellant should have applied earlier for an extension of the time, and that the Court had jurisdiction to grant costs, though the appeal had not been heard. Semble, that the respondent should have stated the lapse of time as one of his reasons against the appeal. [Mr. DALTON, 18th April, 1873.] Held, that service of a notice of trial counts from the time it comes into possession of the defendant or his attorney, after being put under the door of his office, not from the time it was so put under the door. CHAMBERS V. UNGER. Ejectment-Security for costs-C. S. U. C., ch. 27, Sec. 76. [Mr. DALTON, April 18th, 1873.] Held, on an application for security for costs under the above section, that the fact of the costs of the former unsuccessful actions having been paid, is not a ground for refusing to make an order. CARNEGIE V. RUTHERFORD. Service of papers-Wrong style of cause. [Mr. DALTON, April 27th, 1873.] A clerk, on the last day for notice of trial, while on his way to serve it, met the defendant's attorney's partner who, told him to go to the office and serve it there. When he arrived no one was in. He put it under the door and it was not received until next day. The christian name of the defendant was wrong, in the style of cause. Held, that the service was good, but that the style of cause being wrong the notice must be set aside. CHANCERY CHAMBERS. CATTANACH v. URQUHART. Disputing note, effect of-Statute of Limitations, how set up as a defence to a mortgage suitMistake of Solicitor-Chambers. [The REFEREE, and BLAKE, V. C., on appeal, January 22nd, 1873.] Under a note disputing the amount of the plaintiff's claim, filed in a mortgage suit, questions as to the correctness of the account alone can be raised. The Statute of Limitations cannot be set up under such a note, but must be pleaded. An application was made to vacate a præcipe decree taken into the Master's office, and to ́allow, instead of a disputing note, an answer to be filed, setting up the Statute of Limitations. The motion was held to be properly made in [C. L. Cham. Chambers, and was granted, it being shewn that the note was filed through the mistake of a solicitor, in supposing that the defence of the Statute was available under it. GARFORTH V. CAIRNS. Tender Costs-Discretion of the Referee-Tender after suit brought. [The REFEREE, May 10, 1878.] Held, 1 following Powney v. Blomberg, 8 Jur. 746, that a letter by the defendant's solicitor to the plaintiff's solicitor before suit, offering to pay the plaintiff's demand, was not a tender. 2 A tender of a claim after suit brought upon it, must include costs incurred up to the date of the tender. The claim for which a suit had been brought having been compromised, the question by whom the costs of the suit should be borne, was determined by the Referee in Chambers, on a summary application by consent of the parties. Upon appeal STRONG, V. C., refused to interfere with the discretion exercised by the Referee as to costs. TRUST AND LOAN COMPANY V. START. Delivery of Possession-General Orders 389 and 464. [The REFEREE, May 27, 1873.] After a sale under a decree, an order for delivery of possession will not, as a general rule, be made against a stranger to the suit, and quare, if there be any jurisdiction over strangers, except in a plain case such as of a person taking possession pendente lite without any pretence of paramount title. KINCAID V. KINCAID. Purchaser-Right to payment of incumbrances — Effect of taking a vesting order. [The REFEREE, and STRONG, V.C., on appeal, June 11-16, 1873.] Payment of incumbrances out of the purchase money in Court refused, the purchaser having accepted a vesting order. DUNN V. MCLEAN. A fidavit--Commissioner. [The REFERER, June 19, 1873. Į A, B and C were partners, doing business in Chancery. A, B and D were partners doing business at Common Law. An affidavit tendered by C. on an application in Chancery, was rejected, it having been sworn before D. DIGEST OF ENGLISH LAW REPORTS. ENGLISH REPORTS. DIGEST OF ENGLISH LAW REPORTS FOR NOVEMBER AND DECEMBER, 1872. From the American Law Review. ACCOUNT.-See HUSBAND AND WIFE. ACCUMULATION.-See WILL. ADEMPTION.-See LEGACY, 2. ADVANCE.-See LEGACY, 2; WILL. ADVERTISEMENT.-See COPYRIGHT. AGE. There is a presumption that a woman fortynine years and nine months of age, and twentysix years married, without having had children, is past child-bearing.-In re Millner's Estate, L. R. 14 Eq. 245. ALLOTMENT.-See COMPANY, 1. APPOINTMENT. A wife having real estate settled upon her with a power of appointment, appointed as collateral security for a mortgage debt of her 'husband. Held, that the wife's rights against her husband's estate were those of a simple contract creditor only. -Ferguson v. Gibson, L. R. 14 Eq. 379. See POWER, 2, 3; SETTLEMENT, 3, 4. ARBITRATION.-See BROKER. ASSIGNMENT.-See BANKRUPTCY, 1; Lease, 2. ATTORNEY.-See CARRIER, 1; PRIVILEGED COMMUNICATION. AVERAGE. Salt was insured free from average, unless general, or the ship be stranded, during a certain voyage. In consequence of bad weather during the voyage, the ship's anchors were lost and her masts cut away, and the ship towed on to a bank by salvors, where she sustained further damage. The salt, which was much damaged, was sold under a decree of the Admiralty Court, and the proeeeds were entirely consumed by expenses of sale. Held, that the seizure and sale by said court did not render the partial loss a total loss; but that there was a stranding within the policy.-De Mattos v. Saunders, L. R. 7 C. P. 570. BAILMENT.-See CARRIER. 1. At the request of T., M. paid the amount due on certain bills drawn by M. and accepted by T., and T. assigned to M. his interest in certain engines, &c. (which constituted his whole property), as security for the money due on the bills, and also for other moneys due from T. to M. Held, that the assignment was not an act of bankruptcy.-Ex parte Reed & Steel. In re Twedell, L. R. 14 Eq. 586. 2. By agreement under the English Bankruptcy Act, 1869, creditors were to receive a composition payable by instalments. Held, that on default in payment of an instalment, creditors could maintain an action at law for their whole debt.-In re Hatton, L. R. 7 Ch. 723. See SURETY. BEQUEST.-See CONTRIBUTORY; DEVISE; EXECUTORS AND ADMINISTRATORS, 2; LEGACY; POWER, 1; WILL. BILL IN EQUITY. A bill having been filed by an insurance company to cancel a policy on the ground of fraud, a motion was made to restrain an action brought upon the policy after the filing of the bill. Held, that the Court of Chancery had jurisdiction, but would not interfere, as the case might be more suitably tried by a jury.-Hoare v. Brembridge, L. R. 14 Eq. 522. BILL OF LADING.-See CHARTER-PARTY, SALVAGE, 3. BILLS AND NOTES.-See BANKRUPTCY, BOND.-See BOTTOMRY. BROKER. 2; 1; The defendant, as selling broker, made a contract for his principal in the following terms: "October 26, 1869. Sold by order and for account of P. [his principal] to my principals, S. & Son, to arrive, 500 tons black Smyrna raisins-1869 growth-fair average quality in opinion of selling brokerto be delivered here in London at 22s. per cwt.-D. pd.-Shipment November or December, 1869." Raisins arrived, which the defendant rejected as not of fair average quality, though it appeared they were of fair average quality for the year 1869. Held, that whether by the contract the raisins were only to be of fair average quality for the year 1869, or fair average quality generally, the broker was not liable for an error in judgment. -Pappa v. Rose, L, R. 7 C. P. (Ex Ch.) 525; s. c. L. R. 7 C. P. 32; 6 A. M. Law Rev. 475. |