Eng. Rep.]

be loaded or conveyed, or from any other cause whatsoever. That the company will not be responsible for the non-delivery of the stock within any certain or reasonable time. The company will grant free passes to persons having the care of live stock as an inducement to owners to send proper persons with and to take care of them." The plaintiff sent a drover with the cattle, and he sent his nephew to meet them at the Chesterfield station. They arrived there late in the evening, and the night was dark. At that station there was a wharf for landing cattle, but it was only large enough for one truck to come alongside at once. There was no pen to put cattle in, and no fence round the wharf, but it was open to the line. The heifers were in one truck and the cows in another. arriving at the station the drover gave up his ticket. The truck with the heifers was first brought to the wharf, and a porter and the plaintiffs nephew opened the doors of the truck and let them cut; the drover stationing himself at what was admitted to be the proper place for preventing their escape. The other truck was then brought up and unloaded, and while this was being done some of the heifers out of the first truck escaped up the line. They were only missed as the others were being driven out of the station-yard, when search was made for them, and they were found to have been killed by a train.

Од

Upon these facts it was contended that there was no evidence of any bailment on the terms alleged, the conditions being inconsistent with it; and secondly, that there was no evidence of any breach.

The learned judge left it to the jury to say, first whether there was a complete delivery; and secondly whether the delivery was in a safe and proper place.

The jury found for the plaintiff upon both points, with £67 damages; leave being reserved to the defendants to move to enter a verdict for themselves, if the Court should think that the condition exempted them from liability.

Field, Q. C., in Michaelmas Term obtained a rule nisi to enter a verdict for the defendants pursuant to the leave reserved; or for a new trial on the ground that there was no evidence of non-delivery, or of delivery at an unsafe place, and that the verdict was against the evidence.

Cave now showed cause.-As to the conditions, they can afford no protection to the defendants, for they are clearly unreasonable. It could not be disputed that the first part of the condition repudiating all responsibility would be unreasonable if it stood alone. Such a condition has often been held to be so; M'Manus v. The Lancashire and Yorkshire Railway Company, 7 W. R. 547, 4 H, and N. 327; Peek v. The North Staf fordshire Railway Company 11 W. R. 1023, 10 H. L. C. 473; Gregory v. The West Midland Railway Company, 12 W. R. 528, 2 H. & C. 944. The contention on the other side will be that the subsequent condition entitling drovers to free passes makes the first reasonable; and Pardington v. The South Wales Railway Company, 5 W. R. 8, 1 H. & N. 392 will be relied upon. But it is not in point. No doubt a company may reasonably decline liability of any particular kind, if they offer a reasonable alternative security

66

[Eng. Rep.

instead; Peak v. The North Staffordshire Railway Company, supra; Robinson v. The Great Western Railway Company, 14 W. R. 206, 35 L. J. C. P. 123. But the alternative they offer must itself be reasonable; Lloyd v. The Waterford and Limerick Railway Company, 15 Ir. C. L. R. 37. In Pardington v. The South Wales Railway Company, supra, the condition exempted the company in respect of damage on the loading or unloading, or from suffocation in transit." and free passes were to be given for drovers. The loss there was from accidental suffocation in the transit, one of the very matters which the drovers were sent to guard against. But here the exemption is in respect not only of loading and unloading and other things which the drovers might well be responsible for; but defect of carriages, negligence of the defendants' servants, defect of stations and so on, against which the presence of drovers can afford no security. There is no consideration for the exemption claimed. The presence of the drover is for the benefit of both parties, for it diminishes the risk of both. Therefore the owner sacrifices his time, and the company his carriage. As to the breaches, the question was one for the jury, and their verdict is fully supported by the evidence There was nothing here amounting to a delivery at all; and at all events, it is clear that the place was not a safe one. Roberts v. The Great Western Railway Company, 4 C. B. N. S. 506, may be cited on the other side, but it does not apply. There the plaintiff alleged an absolute obligation to fence the station-yard, and it was held that no such obligation existed. But it was admitted that the company was bound to provide a safe landing-place, per Williams, J., p. 523. And that is all we contend for here.

Field, Q. C. and A. Wills, in support of the rule. First, there was a complete delivery. The drover had given up his ticket, and he and the plaintiff's nephew had received the cattle on the wharf. And secondly, the place was a reasonably safe one. It was the place where the plaintiff intended them to be delivered; and he knew the station, and knew that it did not belong to the defendants. Nothing has been shown that the defendants ought to have done to make the place safer. And if it had been attempted to bind them to take any special precaution, Roberts v. The Great Western Railway Compa y (supra) would have been an answer.

But, at any rate, the defendants are protected by the condition. The condition is severable, and may be good in part, though bad in another part. This is so with bye-laws: Rex v Fishermen of Faversham, 8 T. R. 352. And so far as it relates to loading and unloading, this condition is perfectly reasonable. At any rate, it is made so by the subsequent clause with respect to drovers: Pardington v. The South Wales Railway Company (supra).

KELLY, C.B.-I am of opinion that our judgment must be for the plaintiff. Several points have been raised, and I shall first consider that relating to the conditions. The condition is as follows. [His Lordship read the conditions.] Now, it is admitted that the first clause of the condition taken by itself is unreasonable in part. so far as it relates to risks of carriages and defects of vehicles. But it is said first that it is severable,

Eng. Rep.]

and is good as to the remainder. I shall not undertake to say whether such a condition is partible or not. It is said, secondly, that the subsequent clause with respect to drovers cures any defect in the first and makes it binding. Now, the authorities no doubt show that a condition, which would otherwise be bad, may become good if a reasonable alternative be offered to the public. But to have this effect it must be left to the choice of the party to accept or decline that alternative And here it is not so. Therefore, if the oppurtunity of sending a drover could have removed the effect of the condition, it has not that result here, for no choice was offered.

But even suppose there were no such rule as this, this condition is admitted to be bad as to the greater part of it. In part it may be goo 1, namely as to loading and unloading. If the company leave the loading and unloading to the owner, and the owner chooses to undertake it, I do not see why a stipulation exempting the company from risks of loading and unloading may not be good. But Mr. Field must go the length of saying that this applies also to defects of the station; and the owner's undertaking the unloading cannot affect the company's liability to provide a safe and proper place for the purpose. Therefore upon no view can the conditions protect against risks from defect of stations.

Then as to the other points. It is said that the delivery was complete. Suppose it to be so, that still leaves the obligation to provide a safe exit. And whether the plaintiffs servant contributed to the loss or not, the only substantial question was whether the defendants had discharged their duty of giving a safe means of transit and exit. As to this there was evidence on both sides; the jury have found for the plaintiff, and there is no reason to disturb their verdict. The case of Roberts v. The Great Western Railway Company which has been cited, has no bearing upon this. The pleader there alleged an absolute duty to fence the station yard and it was held that no such duty existed. Upon all points the defendants have failed.

It

MARTIN, B.-I am of the same opinion will be convenient, in the first place, to consider the case without reference to the conditions. [His Lordship stated the facts] Now, I think it is a fallacy to call what took place a delivery at all. Cattle are not like goods which can be put into the hand. In this case they were merely turned loose upon the defendants' own premises. Then, at common law, what would be the consequence of a man being sent in charge? I think it would be very like the case which has arisen of a nurse and child. If any injury occurred through the negligence of the drover, the company would not be liable; if by the negligence of their own servant, they would.

Then, look at the condition. It is clearly unreasonable as it stands. But assuming it to be divisable, and to be rendered reasonable in part by the stipulation as to drovers, still it can only be rendered reasonable so far as it relates to accidents arising through default of the drovers; and therefore it leaves the common law liability exactly as it was before. Either at common law or under the condition thus construed, if a man is sent in charge, whether his fare be paid or not,

[Eng. Rep.

the company are not liable for injury arising from negligence in his department, but for other injuries they are.

CHANNELL, B.-I am of the same opinion. The defendants' counsel would have done much, if they could have shown that there had been such a delivery as to put an end to their liability at common law, for they would then have displaced my brother Martin's view. But I do not think there was any such delivery as to determine their liability and exclude all question of safe delivery, and delivery in a safe place. I think, therefore, the verdict was right.

Then, as to the conditions. The question arises on a traverse of the bailment; and if the conditions be reasonable, the declaration is not proved. It is admitted that the first condition is bad as it stands; but it is said that It is rendered reasonable in either of two ways. First, it is said that we may strike out a part of it-that which relates to risks of carriage, and look only at the remainder, and that the remainder is then good. If it were necessary to decide, I should strongly think that such a condition is not severable. If it applied to several subject-matters, it might be otherwise, but not as to one subject-matter. But even if risks of carriage could be struck out, the condition would still remain unreasonable. But it is further said that the third condition cures the first. Now it cannot be better for the company than if it bad come first. and been prefaced by "inasmuch as." Then reading it so, the whole remains clearly unreasonable if risks of carriage are included. Otherwise, loss from a collision, through the defendants' negligence, would be protected. And if risks of carriage be struck out, the defect is not cured, for there still remain defects of stations and places of unloading, against which the presence of drovers can afford no protection. And this is the actual cause of loss in the present case. On all points, therefore, I think the rule must be discharged.

PIGOTT, B., concurred. -Weekly Reporter.

Rule discharged.

ENGLISH LAW REPORTS.-An erroneous idea seems to have taken possession of the legal mind in this country that the New Law Reports necessarily superseded all others.

That this is not the fact is palpable to us, for we are in possession of the latest numbers of the Weekly Reporter, now in its fifteenth year, which contain full and accurate reports of cases in all the courts, up to March 15th. These reports are authoritative, and the Solicitors' Journal and Weekly Reporter is now the journal of both branches of the profession in Great Britain. It would, in our opinion, be found a most useful and interesting addition to the library of every member of the profession, as it would enable him to keep pace with the progress of those reforms in the code and practice, which have so greatly improved English jurisprudence of late years.

It is published by Edward Johnston Milliken, Esq., 89 Casey St., Lincoln's Inn C. W.-Philadelphia Legal Intelligencer.

DIGEST.

DIGEST OF ENGLISH LAW REPORTS.

FOR THE MONTHS OF JULY, AUGUST, SEPTEMBER, AND OCTOBER, 1866.

(Continued from page 112.)

ACCRUER.-See DEED. ADMINISTRATION.

1. A decree having been made in an administration suit brought by the residuary legatees, it appeared that proceedings ought to have been taken in equity against one who had had dealings with the testator. The executor was willing to conduct them, and no case of misconduct was established against him. An order, giving the plaintiffs liberty to take proceedings in the name of the executor, was discharged on appeal, and the executor directed to take them.-Harrison v. Richards, Law Rep. 1 Ch. 473.

2. After decree in an administration suit, the court is not bound to disallow claims barred by the statute of limitations, if the personal representative, and such of those beneficially interested as are parties to the suit, or have come in under the decree, do not set up the statute; but the personal representative waives the objection of the statute at his own risk as against absent parties beneficially interested.— Alston v. Trollope, Law Rep. 2 Eq. 205. See EXECUTOR; MARSHALLING OF ASSETS. AGENT.-See PRINCIPAL AND AGENT. AGREEMENT.-See CONTRACT. ANCIENT LIGHT.-See LIGHT. ANNUITY.-See WILL, 11.

APPEAL.

1. Where a party enrolled a decree as quickly as the practice of the court allows, his knowledge that the other party intended to appeal is not a ground for vacating the enrolment.Hill v. Curtis, Law Rep. 1 Ch. 425.

2. If evidence has been rejected on an inquiry in chambers adjourned into court, a party desiring to appeal should wait for the certificate, and then move to vary.-Rhodes v. Rhodes, Law Rep. 1 Ch. 483.

3. On the hearing of an appeal at quarter sessions against an order of justices for the payment of small tithes, &c., the respondent may adduce additional evidence.-The Queen v. Hall, Law Rep. 1 Q. B, 632.

4. A colonial court having revoked a leave to appeal, the privy council, under the special circumstances of the case, gave leave to appeal

on security being given for costs in England.— Webster v. Power, Law Rep. 1 P. C. 150.

5. Judgments in several actions in a colonial court, in the nature of petitions of right, were obtained against the crown; in some of the cases the amount recovered was under the appealable value. The privy council gave leave to appeal without the colonial attorney-general giving security for costs, and directed the appeals to be consolidated.—In re Attorney-General of Victoria, Law Rep. 1 P. C. 147. ARBITRATOR.-See AWARD. ASSAULT See CONVICTION, 1. ASSUMPSIT.

The plaintiff, under a bill of sale, seized goods on the defendant's premises, and with his knowledge, but without any request by him, allowed them to remain till rent was due. The landlord having distrained them, the plaintiff paid the rent and expenses. Held, that he could not recover the amount so paid as a compulsory payment for the benefit or at the implied request of the defendant.-England v. Marsden, Law Rep. 1 C. P. 529. ATTAINDER.-See DESCENT. ATTORNEY.-See SOLICITOR.

AWARD.

1. A judge's order, made by consent of the plaintiff and defendant in a suit, referred all matters in dispute to an arbitrator, and directed that the parties should perform the award; subsequently, an indorsement, signed by both parties, was made on the order, that the arbitrator might order what the parties should do to prevent a repitition of the injuries complained of. The arbitrator having ordered the defendant to do certain things, and he having neglected to do them, held, that the plaintiff might bring an action for non-performance of the award. -Lievesley v. Gilmore, Law Rep. 1 C. P. 570.

2. A motion to set aside an award cannot be made, even with the consent of both parties, later than one term after the award has been published.—In re North British Railway Co., Law Rep. 1 C. P. 401.

3. An award was made by commissioners acting under a statute, whereby they apportioned lands and a rent charge between the rectors of B. and the curates of U. Held, on bill by a curate of U., that, on the true construction of the statute, the commissioners had power to make the award, and semble, that, had they acted ultra vires, the court could not have rectified the award.-Bateman v. Boynton, Law Rep. 1 Ch. 359.

See CONTRACT, 3.

BAILMENT.-See CARRIER; DETENUE.

BANKRUPTCY.

The obligation to pay money under an order of a court of equity is merely an equitable debt, and so is not a good ground for a petition for adjudication in bankruptcy.-Ex parte Blencowe, Law Rep. 1 Ch. 393.

BARRATRY.-See COLLISION, 1.
BILL OF LADING.

A bill of lading represented more goods to have been shipped than really were. This arose from the mistake of the mate, which there was evidence to show was caused by the fraud of the person who put the goods on board. The latter was either agent of the shipper or of his vendor. Held, there was evidence for the jury, that the misrepresentation was caused " wholly by the fraud of the shipper or of the holder, or some person under whom the holder claimed," within the meaning of the Bills of Lading Act (18 & 19 Vict. c. 111), § 3. -Valieri v. Boyland, Law Rep. 1 C. P. 382.

See COLLISION, 1; FREIGHT.

BILLS AND NOTES.

1. An acceptor for honor of a bill of exchange is liable to one who has discounted it on the faith of his acceptance, if the name of the maker is forged, and the payee who is purported to have indorsed it is a fictitious person.-Phillips v. im Thurn, Law Rep. 1 C. P. 463.

2. A railway company incorporated in the usual way cannot accept a bill of exchange; and this defence may be taken on a plea denying the acceptance, though the acceptance was ordered by the directors, and is under the seal of the company.-Bateman v. Mid-Wales Railway Co., Law Rep. 1 C. P. 499.

BOND.

See FREIGHT.

The plaintiff agreed to purchase of S. the ship D. for a sum of money and the transfer to S. of the plaintiff's ship L. He also agreed to lend S. £6,000, on mortgage of the L., and S. agreed to repair her, so as to class her eight years A 1 at Lloyd's; and also to do anything remaining to be done to the D. within two weeks after that ship's arrival in London. The defendant, as security for S., gave his bond to the plaintiff, conditioned to be void if S. forthwith repaired the L., and if S., within the said two weeks, did all that remained to be done to the D. The plaintiff and S. afterwards, without the defendant's knowledge, made another agreement, altering the terms relating to the completion of the D. Held, that the conditions in the bond were distinct and separate, and that the defendant, though released by the alteration from

his liability in regard to the completion of the D., was not relessed from his liability in respect to the L.-Harrison v. Seymour, Law Rep. 1 C. P. 518.

CAPITAL.-See PARTNERSHIP, 2.

CARRIER.

1. A common carrier of goods is not, in the absence of a special contract, bound to carry within a given time, but only within a time which is reasonable, looking only to the circumstances of the case; and therefore the defendants, a railway company, are not liable for damage to goods arising from delay which was caused by an unavoidable obstruction, resulting solely from the negligence of another company, who, by agreement with the defendants, sanctioned by statute, had running powers over the defendants' line.-Taylor v. Great N. Railway Co., Law Rep. 1 C. P. 385.

2. An injunction was prayed by A. against a railway company, under 17 & 18 Vict. c. 31, § 3, to restrain them from unduly prejudicing A., by refusing to admit, after a certain hour, goods collected by A., and by receiving at a later hour goods collected by themselves and by B., to be forwarded the same night. It appeared that the hour was reasonable; that the company, in admitting their own goods, acted without intending to gain an advantage over other collecting carriers; and that they admitted B.'s goods in consequence of an injunction obtained by him. In two similar cases, injunctions had been granted to restrain railway companies from admitting their own goods at a later hour than those of others. Held (by Erle, C. J., and Montague Smith, J.), that the exercise of this jurisdiction, being subject to no review, and depending on the special facts of each case, cases previously decided under it are not binding as precedents of law are binding, and that the injunction prayed would interfere with traffic, and ought not to be granted. Held (by Willes and Keating, JJ.), that the above cases were binding precedents, and were also rightly decided; and that the injunction ought to be granted.-Palmer v. London and S. W. Railway Co., Law Rep. 1 C. P. 588.

See COLLISION; STOPPAGE IN TRANSITU.
CHARTER PARTY.-See FREIGHT.
COLLISION.

The provision in the 17 & 18 Vict. c. 104, § 299, that a loss, arising from the non-observance by a ship of the rules laid down in the act, shall be deemed to have been occasioned by the wilful default of the person in charge of the deck, does not render an unintentional breach of the rules barratry.

A collision arising from the negligence of the crew is not damage of the seas within the meaning of an exception in a bill of lading.

Therefore, if a ship-owner, by a bill of lading, undertook to deliver goods safely, "barratry of master or mariners, accidents or damage of the seas or navigation excepted," and the ship came into collision with another by starboarding her helm contrary to the rules of the above act, and sank and was lost, the ship-owner was liable for the loss of the goods.-Grill v. General IronScrew Collier Co., Law Rep. 1 C. P. 600.

See EVIDENCE, 1.

COMMISSION TO EXAMINE WITNESSES.

1. A commission was issued to examine witnesses by interrogatories and viva voce. An agent, appointed by the defendants to execute the commission, conducted the examination entirely viva voce, not putting the written interrogatories that had been prepared. Held at the trial, against the defendant's objection, that the deposition was admissible, there being no suggestion that any advantageous question had been omitted. — Grill v. General Iron Screw Collier Co., Law Rep. 1 C. P. 600.

2. A requisition, with interrogatories and cross-interrogatories annexed, issued to a French court to examine a witness. The judge of that court, having the interrogatories and cross-interrogatories before him, examined the witness by putting such questions as he deemed convenient; and no questions were put or suggested by the counsel and agents of the parties who were present. The court of divorce doubted whether the deposition was admissible, but declined to reject it.-Hitchins v. Hitchins, Law Rep. 1 P. & D. 153. COMMON CARRIER.-See CABRIER, COMPANY.-See CORPORATION.

CONFLICT OF LAWS.-See EXECUTOR, 3; WILL, 13. CONTRACT.

1. By a written agreement, A. agreed to purchase from B. certain lands, and all the mines of coal, &c., under the same, at a certain price; and B. agreed to purchase from A. all coal that he might from time to time require, at a fair market price. Held, that A. could not sue B. for not taking the coal, without averring a readiness to perform his part of the agree ment. Bankart v. Bowers, Law Rep. 1 C. P. 484.

2. A. contracted with B. to erect machinery on the latter's premises, the works being divided into different parts, but no time fixed for payment. All the parts were far advanced towards completion; some were so nearly finished that B. had used them, but no one

was entirely complete, though much of the necessary material was on the premises, when the premises, with the machinery and materials, were destroyed by an accidental fire. Held, that A. could not recover the whole contract price; but that, as the machinery was to be fixed to B.'s premises, so that the parts of it, when fixed, would become 'his property, and as the contract involved an implied promise on B.'s part to keep up the building, A. could recover the value of the work and materials actually done and provided under the contract. Appleby v. Meyers, Law Rep. 1 C. P. 615.

3. A railway company agreed with a contractor, that, if he should be guilty of any delay, they might take the execution of the works out of his hands, and might use all or any of his plant or materials; that, in addition to all other rights and remedies, they might apply any moneys to which the contractor would otherwise be entitled in satisfying all losses or expenses occasioned by the delay; and that all the plant and materials, at the time of the delay, in or about the site of the works, should thereupon become the absolute property of the company and be valued or sold, and the amount of such valuation or sale credited to the contractor, in reduction of the moneys (if any) recoverable from him; but that the company should not be bound to use the plant and materials. The company under this agreement having taken the execution from the contractor, he brought an action for breach of contract, which, with all matters in difference was referred to arbitration. Held, that the plant and materials did not become the property of the company, unless loss or expense had been occasioned; and they were restrained, by an interlocutory injunction from removing and selling the plant and materials pending the arbitration. -Garrett v. Salisbury and Dorset Junction Railway Co., Law Rep. 2 Eq. 358.

See ASSUMPSIT, 1-3; CORPORATION; COVENANT; FRAUDS, STATUTE OF; PRINCIPAL AND AGENT, 1; SALE; SPECIFIC PERFORMANCE; WAR