C. L. Cham.

The defendant urges that the plaintiff's appointment is by his commission expressly limited to the pleasure of the Crown

Once it is conceded that the statute provides for a tenure during good behaviour, or at least till the happening of certain specified events, I think there is no power lower than that of the Legislature that can limit the officer to a tenure during pleasure, even where the appointment is specially accepted on such a condition. This point is established by a number of cases, and is noticed in a recent judgment of our Court of Error and Appeal-Weir v. Mathieson (3 E. & A. Rep. 123); see also Regina v. Governors of Darlington School (6 Q. B. 682).

It is also argued that in the last Registry Act, as in the former, it is provided that every Registrar in office when the act took effect is thereby "continued therein, subject to the laws in force respecting public officers, and to the provisions and requirements of this act. " This, I think, cannot have the very serious effect of turning an office, which I think the Legislature meant to be held during good behaviour, into one during pleasure, which would certainly be its effects so far as the County of Bruce is concerned.

Nor can I think that the Interpretation Act helps the defendant. That could have been only designed to supply the omission of formal words giving the power of removal, not to introduce a new power of removal at discretion in cases in which the Legislature have provided for removal for specified causes and in a specified manner.

If a particular tenure be created of an office, and a person be appointed to that office with all its rights and privileges, I do not see that the insertion of the words "during our Royal pleasure, " can legally limit or narrow the statuable rights of the appointee, whatsoever those rights may be. The facts of the case before us may, perhaps, induce an opinion that it might be as well for the interests of the public that the office should be held on no higher tenure than that of a Sheriff, and most other appointments under the Crown. This at least might be thought, so long as the duties of a Returning Officer at a contested election might be cast upon the person holding the office of Registrar.

MORRISON, J. concurred.

Rule discharged

COMMON LAW CHAMBERS.

(Reported by HENRY O'BRIEN, Esq., Barrister-at-Law and Reporter in Practice Court and Chambers.)

CHICHESTER V. GORDON, LACOURSE AND
GALLON.

Setting off judgments-26 Vic., cap. 45, secs. 2, 3. Held, that under 28 Vio., cap. 45, secs, 2, 3, the absence of a formal assignment will not prevent a surety from enforcing a remedy which he would have if the assignment had been executed.

A judgment was recovered by B. U. C. v. A. Chichester, C Chichester, and Lacourse, also a judgment of A. Chichester v. Gordon, Lacourse, and Gallon. An application by Lacourse, who had paid the former to set it off against the latter was granted.

[Chambers, March, 23, 1867.]

In 1863 the defendant Lacourse, as attorney for Gordon, obtained judgment in the County

[C. L. Cham.

Court of Peterborough and Victoria, against the above plaintiff, Arthur Chichester. The plaintiff, subsequently after an examination of the defendant, obtained an order for his committal for unsatisfactory answers, unless he should give a note endorsed by his sister Charlotte Chichester for the amount of the judgment. This note was eventually given, after the order had been partially enforced, under duress, as it was said, of such order. The note was given to Lacourse, who endorsed it over to the Bank of Upper Canada, who, in 1865, recovered upon it a judgment in the County Court of Victoria, against Arthur Chichester, Charlotte Chichester, and Lacourse, for about $170 which was paid by La

course.

Arthur Chichester brought this action against the present defendants (Gallon being Deputy Sheriff at the time) for an illegal arrest under the conditional order, and recovered a verdict for $200. A certificate for full costs was refused.

A summons was thereupon obtained by Lacourse to shew cause why the judgment of the Bank of Upper Canada, or so much thereof as might be necessary, should not be set off against so much of the judgment in this cause as should remain after the said Lacourse should have satisfied the lien of the attorney of the plaintiff, upon the judgment herein for his costs, as between attorney and client, &c.

C. W. Patterson shewed cause, and contended that the judgment of the Bank could not under the circumstances be set off, and that in this case the fact was, that the plaintiff's interest in the judgment in this case had been assigned to one Platt, and he filed the plaintiff's affidavit and the examination of Platt in support of the statement.

C. S. Patterson, contra, referred to 26 Vic., cap. 45. secs, 2, 3; Ch. Arch. Pr., pp. 723, 724, (12 ed.): Edmonds v. S—B—, 3 F. & F. 962; Alliance Bank v. Holford, 16 C. B. N. S. 460.

Un

RICHARDS, C. J.-The application being made to the equitable jurisdiction of the Court, we must look at the real position of the parties, and dispose of their rights in relation to that. der the 26 Vic., cap. 45, secs. 2, 3, the defendant Lacourse would seem to be entitled to enforce the remedies against Chichester which the Bank bad. The mere absence of a formal assignment does not seem to be a good reason to interpose to prevent the surety from enforcing his remedy, which he would have if the assignment had taken place. The case of Edmonds v. S—B-, 3 F. & F. 962, seems to sustain this view.

The general doctrine is laid down in Chitty Archbold, at page 724, (12 ed.) The judgments to be set off must be between parties substantially the same, though it is not necessary that they should be exactly the same parties, as in the case of a set-off under the statute of set-off, provided the funds to be ultimately resorted to in both actions be substantially the same. In the judgment of the Bank of Upper Canada, Chichester is the party who is the maker of the note sued on in that action, and the one whose funds should pay that debt. He is the person who is the plaintiff in the action in which the application is made, and unless his interest in the claim has been assigned he is the person to receive the funds that will go to pay the demand in this action so that there is

C. L. Cham.]

in that respect an identical interest in the two suits.

The defendant, Lacourse, under the statute, is the person clearly entitled to receive the proceeds of the judgment in favor of the Bank of Upper Canada as his own funds. He is also liable as a defendant to pay out of his own funds the amount of the plaintiff's judgment in this cause, and I think the interest he has in the two guits is sufficient to warrant the application of the principle of set-off in relation to them. In the cases referred to in the same edition of Chitty's Archbold, at page 723-4, the case of Alliance Bank v. Holford, 16 C. B. N. S. 450 to which I have been referred,

also sustains the doctrine contended for by the

defendant Lacourse.

The plaintiff was nonsuited at the last fall assizes for York. In Michaelmas term following a rule nisi was obtained to set aside the nonsuit, which was made absolute in Hilary Term on payment of costs by the plaintiff. The costs were taxed but not paid. The plaintiff's attorney nevertheless gave notice of trial, whereupon a summors was taken out to set aside the notice and copy and service on the ground that the costs had not been paid.

Doyle shewed cause, citing 2 Lush Pr. 641; 2 Ch. Arch. 1544; Chase v. Goble, 3 M. & G. 635; Nichols v. Boyon, 10 East, 185.

Robert A. Harrison, contra, cited Skelsey 7. Manning, 8 U. C. L. J. 166; Gore District M. F. I. Co. v. Webster, 10 U. C. L. J. 190; Doe McMillan v. Brock, 1 U. C. Q. B. 482; Grantham v. Powell, 1 P. R. 256.

RICHARDS, C. J., made the summons absolute, the costs of the application to be costs in the cause for defendant.

Order accordingly.

[C. L. Cham.

in this cause, to allow certain items taxed to the plaintiff by the Deputy Clerk of the Crown.

It appeared upon the taxation before the latter officer, that he had allowed certain charges for services and disbursements, &c., but the docu ments or vouchers authorising their allowance were not filed with the Deputy clerk on the taxation.

The Master upon the revision before him refused to allow such items, upon the ground that no vouchers justifying the charges were filed. MORRISON, J.-I am of opinion, after consulting with the Master, that he properly reThe Deputy Clerk of the jected such items.

Crown ought not to allow any item for which there is not before him some authority or evidence to justify the allowance, and that upon the taxation he should require all proper vouchers or affidavits produced for that purpose (except such as briets for counsel) to be filed with the papers in the cause. It is obvious that if allowances are taxed, such as disbursements to witnesses, counsel, and for various services, without filing some authority or evidence to justify the charge, parties interested would in many cases be deprived of an opportunity of satisfying themselves of the propriety or correctness of the charges, and, as in the present case, compel them to resort to a revision to ascertain the authority, if any, upon which the Deputy Master acted; besides such a practice is open to many other irregularities that might be suggested.

As it is sworn on this application that it was through an oversight that the vouchers were not filed, and as it was stated that the practice in the outer counties has not hitherto been uniform, the order will go in this case to allow the items upon the necessary documents being produced and filed with the Master,-but in future Deputy Clerks of the Crown and the attornies must see that all necessary vouchers are filed in the first instance.

WILSON V. MOULDS.

Revision of taxation-Vouchers not filed on original taxation. Taxing officers should not allow any items for which there are not proper vouchers, and these vouchers (except briefs, &c.) should be filed. On revision of taxations by Deputy Clerks of the Crown, the Master is not to allow any items which are not verified by vouchers which have been so filed on the original taxation.

[Chambers, May 8, 1867.]

This was an application for an order directing the Master, on a revision of the taxation of costs

Oct.

66

Dec.

1867.

Jan.

Feb.

March April

The plaintiffs claim interest on $308 87, from the 16th day of May, A.D. 1867, until judgment.”

Final judgment for default of appearance was signed, whereupon defendant obtained a summons to show cause why the judgment should not be set aside, on the ground that the alleged special endorsement did not contain sufficient particulars of the plaintiffs' claim, and that the endorsement was not sufficient under the statute to entitle the plaintiffs to sign final judgment for want of an appearance, or upon the merits.

G. D. Boulton shewed cause.

D. McMichael contra, cited Mc Donald v. Burton et al. 2 U. C. L. J. N.S. 190; Hoodsall v. Baxter, 1 E. B. & E. 884; Fremont v. Ashley, 1 E. & B. 723.

JOHN WILSON, J., refused to set the judgment aside as irregular, but allowed defendant to come in and defend on the merits.

ENGLISH REPORTS.

REG. V. GREGORY.

Misdemeanour-Soliciting to commit a felony where no felony coumitted-Counselling and procuring-24 & 25 Vic. cap. 94, sec. 2.

To soiicit and incite a servant to steal his master's goods, where no other act is done except the soliciting and incitiag. is a misdemeanour.

The statute 24 & 25 Vic, cap. 94, sec. 2, by which it is enacted that whoever shall counsel or procure any other person to commit a felony shall be guilty of felony, applies only where a substantive felony is committed.

[C. C. R., May 11, 1867.—15 W. R. 831.]

Case reserved by J. L. Hannay, assistant barrister at the Quarter Sessions for the borough of Leeds.

James Gregory was tried and convicted before me at the Quarter Sessions for the borough of Leeds, held there on the 20th of April, 1867, upon an indictment, the materials parts of which

are as follows:

The jurors, &c., present that James Gregory, on the 9th day of February, in the year of our Lord 1867, falsely, wickedly, and unlawfully did solicit and incite one John White, a servant of one James Kirk, feloniously to steal, take, and carry away a large quantity to wit one bushel of barley of the goods, &c., of Kirk, against the peace, &c.

A second count in the same form allege the offence to have been committed on the 12th of February.

A third count alleged that the defendant wickedly and unlawfully did solicit and incite the said John White, and one Charles Evans and one Charles Knapton, they being servants of Kirk, feloniously to steal a large quantity of barley of the goods of the said Kirk against the peace, &c.

The indictment charging a misdemeanour, the jury were sworn accordingly.

There was evidence upon all the counts of the indictment in proof of the offence charged, but no one of the three servants named stole any barley in compliance with the defendant's solicitations or otherwise.

It was objected by counsel for the defendant that the offence proved (no felony having been committed by reason of the defendant's solicitation and incitement) came under the provision of the 24 & 25 Vic. cap. 94, sec. 2, which makes it

[Eng. Rep.

a felony to "counsel, procure or command any other person to commit any felony, whether the same be a felony at common law or by virtue of any act passed to be passed." And that although that section of the statute apparently contemplates that a felony must be committed oy reason of the counsel, procurement, or command, yet that the Court of King's Bench, in the case Rex v. Higgins, 2 East, 5, which was apparently the last case on the subject, held it not to be necessary that the felony should be committed by reason of the counsel or procurement, and that the solicitations to commit the offence was au act done towards the commission of the offence which made it at that time per se, the offence of misdemeanour, and now the statute of Vic. changed the quality of the offence and made it a felony. The offence therefore of incitement to commit a felony under the ruling of Rex v. Higgins, and under the second section of the 24 & 25 Vic., cap 94, was now no longer a misdemeanour but a felony, and complete as a felony upon proof of the incitement alone. The indictment therefore not charging the incitement and solicitations of the prisoner to have been done "feloniously" was bad: Reg. v. Grey, 1 L. & C. 365, 12 W.R. 350.

I left the case to the jury, directing them, in accordance with the decision in Rex v. Higgins, that the soliciting a servant to steal his master's goods is a misdemeanour, although it be not charged in the indictment that the servant stole the goods, or that any other act was done except the soliciting and inciting. I also directed them that in my opinion the 24 & 25 Vic. cap. 94, sec. 2, did not affect a case where there was no principal felon or principal felony; but at the urgent request of the defendant's counsel I reserved this case for the consideration of the

justices of either bench or Barons of the Exchequer.

The question upon which the opinion of the Court for the consideration of Crown Cases Reserved is respectfully requested is, whether since the passing of the 24 & 25 Vic. cap. 94, it is a misdemeanour to solicit and incite a servant to steal his master's goods, though no other act be done except the soliciting and inciting? I passed a sentence of six months' imprisonment upon the prisoner, and he is now in prison.

Campbell Foster for the prisoner.-The conviction is wrong. This indictment is framed upon Rex v. Higgins, supra; but 24 & 25 Vic. cap 94, sec. 2, has changed the character of the offence charged, and it is now a felony. That section provides that whosoever counsels, procures, or commands another to commit a felony, shall be guilty of felony. The effect of Rex v. Higgins is that it is a misdemeanour, though the act, to which the prisoner incites, be not done. It is now a felony to counsel, procure, &c., though there be no felony committed by the person so counselled, &c. The solicitation here charged is the same thing, and identical in meaning with counselling. The words of the second section are sufficient to include this indictment. [KELLY, C. B.-If no felony has been committed, how can there be a "principal felon ?"] BYLES, J., without this statute you would be out of Court on Rex v. Higgins, supra, and if the offence here charged is not within the statute cadit quætio

Eng. Rep.]

R. v. Cross, 1 Ld. Ray. 711: R. v. Button, 11 Q. B. 946.]

Waddy, contra, was not called on.

KELLY, C. B.-The prisoner is charged with a misdemeanour, and two questions are raised by Mr. Foster. 1. Whether the expressions soliciting and inciting are identical in meaning with counselling or procuring, so that, though a counselling or procuring is not laid in the indictment, an allegation of a soliciting and inciting is to be taken to be an allegation of a counselling or procuring; but it is not necessary to decide that, and it is sufficient to say that I think those expressions may have different meanings, and that I do not accede to the arguments of Mr. Foster. 2. As to the second point, looking at the provisions of this statute, I think that it is absolutely necessary, in order to support a conviction under the second section, that a substantive felony shall be committed by the person counselled. It is only necessary to look at the construction of the section, and at the ordinary rules of grammar, to see that. How can there be an accessory before the fact to the " "principal felony," or a " principal felon, if no felony has been committed? The offence charged therefore is a misdemeanour, and the prisoner was properly convicted.

Conviction affirmed.

READHEAD V. MIDLAND RAILWAY COMPANY. Railway-Carriers of passengers-Latent imperceptible flaw -Liability.

R., a passenger travelling on the M. Railway was injured by the breaking down and overturning of the carriage in which he was travelling. The accident arose from a fracture of one of the wheels of the carriage, the tire of which had split into three pieces owing to a latent flaw in the welding. The wheel was to all appearance sound and reasonably sufficient for the journey. Such a flaw may occur without any fault on the part of the manufacturer, and there were no means of detecting it beforehand. Held, by Mellor and Lush, JJ., that the railway company were not responsible for the accident, having used due care and diligence.

By Blackburn, J., that the railway company were responsible for the accident, because the obligation of the carrier to the passenger was equivalent to a warranty of the reasonable sufficiency of the vehicle supplied.

[15 W. R. 831.]

The facts of the case and the arguments of the counsel appear sufficiently from the judg

ments.

Aspinwall, Q.C., and Kemplay, showed cause on behalf of the defendants to a rule obtained by Manisty, Q.C., and cited Bremner v. Williams, 1 C. & P. 416; Sharpe v. Grey, 9 Bing. 457; Grote v. Chester and Holyhead Railway Company, 2 Ex. 255; Benett v. Peninsula Steamboat Company, 6 C. B. 782.

Manisty, Q. C., and T. Jones, in support of rule, cited Brown v. Edgington, 2 M. & G. 279. May 15.--the learned judges read their judg

ments as follows:

LUSH, J.-This was an action for an injury caused by the breaking down and overturning of the carriage in which the plaintiff was travelling as a passanger on the defendant's railway. The accident arose from the fracture of one of the wheels of the carriage, the tire of which had split into three pieces, owing, as it was afterwards discovered, to a latent flaw in the welding;

[Eng. Rep.

and it was provel on the part of the defendants that, at the commencement of the journey, the wheel was to all appearance strong and sound; that such a flaw in the welding may occur without any fault on the part of the manufacturer, that there were no means of detecting it beforehand, and that, in fact, the carriage had been examined according to ordinary practice before the train had started on the journey, and had answered to all the usual tests of soundness. I directed the jury that if they believed this evidence the defendants were not responsible for the accident, and they accordingly found their verdict for the defendants. A rule was granted for a new trial on the ground that a carrier of passengers is bound at his peril to provide a roadworthy carriage, and is consequently liable if the carriage turns out to be defective, notwithstanding that the infirmity was of such a nature that it could neither be guarded against nor discovered.

The question thus nakedly raised is one of vast importance at the present day both to railway companies and passengers, and there being no case in our reports in which it has been argued and adjudicated, we took time to consider our judgment. Having done so and given to the subject the best consideration in my power, I adhere to the opinion that the law imposes no such liability on railway companies, though, as my brother Blackburn has come to a different conclusion, I express that opinion with some degree of diffidence.

It is not contended that the obligation of a carrier of passengers is co-extensive with that of a carrier of goods who, by the custom of the realm, is placed in the position of an insurer subject only to the exceptions of loss or damage by the "act of God, or the public enemies of the Crown." The reasons upon which that liability is based, and which are expressed by Chief Justice Holt in Coggs v. Bernard 2 Lord Raym. 918, and by Chief Justice Best in Riley v. Horne 5 Bing. 220, are inapplicable to a carrier of passengers. The latter has not the same control over persons which he has over goods; nor the same opportunities of abuse and misconduct, the apprehension of which gave rise to this rigorous rule of law; and, therefore, the law has never imposed upon him the responsibility of an insurer. The undertaking of a carrier of passengers," says Mr. Justice Story in his work on bailments, s. 601, is not an undertaking to carry safely, but only to exercise due care and dilgence in the performance of his duty."

But it is contended that, in this particular part of his duty-viz., the providing a suitable vehicle, his undertaking goes beyond the measure of due care and diligence and includes a warranty that the carriage which he provides is sound and free from defects which render it unfit for the service, though he has used every means in his power to make it sound; and, though he could not by any amount of care, skill, or vigilance, have ascertained that it was not so. The language of Story just quoted does not suggest any such qualification; and surely so important an element in the contract about which he is treating, would have been noticed by that learned writer if he had supposed it to exist. No such liability is, however, hinted at throughout the

Eng. Rep.]

work, nor, as I am aware of, in any other textbook.

The proposition is one which I cannot adopt without authority, because I can see no reason why a carrier should be held to warrant more than due care and diligence, can enable him to perform as repects the quality of his carriage, when it is admitted that he is under no such liability as respects the conduct or management of it, we were pressed with what were alleged to be the analogous cases of a ship-owner, who is held to warrant their fitness and sufficiency for that purpose.

As to ship-owners, I agree that there is abundant authority for the doctrine laid down; and, moreover, that there is no distinction in this respect between a carrier by water and a carrier by land. But it is to be observed, that wherever this particular liability of a ship-owner is mentioned it has reference to his obligation as the carrier of cargo. In that capacity he is an insurer of its safe delivery, subject only to the excepted perils. His warranty of seaworthiness in such a case springs out of, and necessarily results from, the absolute duty he has undertaken, and is not a warranty superadded to and exceeding the terms and measure of his contract to carry, as it would be if it were extended to a carrier of passengers. A carrier of goods by land may with equal propriety be said to warrant the road-worthiness of his carriages, because he warrants against every casualty by which the goods might be lost or damaged on the journey.

As regards the second case put, viz.; that of the manufacturer who supplies goods to order for a given use or purpose. I do not stop to consider whether the analogy is so complete as the argument assumes it to be, because it does not appear to me that the case mainly relied on, viz., Brown v. Edgington, 2 M. & G. 279, sanctions the doctrine which is sought to be deduced from it. Upon carefully examining the facts there, it will be found that no such question as that we have now to determine arose in the case. The insufficiency of the rope was attributable to causes which imply blame to the manufacturer, to a want of judgment, or a want of care or skill, both or all. The rope was not strong enough for the purpose for which it was known by the defendant to have been required, it having been made of too small a size or of faulty materials, or been badly put together; and whatever the cause of its failure was, it was one which might have been prevented, and it was assumed by the Court, as it was assumed in the case of Jones v. Bright, 5 Bing. 533, that the manufacturer might, and therefore ought to, have made it sufficient for the purpose. The main contest in the case was, whether the defendant was liable, seeing that he was not the manufacturer of the rope but had procured it of a rope maker. The question of liability for a hidden, undiscoverable, and unavoidable defect was not present to the mind of any of the judges who decided that case; I cannot, therefore, regard it as an authority to the extent necessary to sustain the plaintiff's argument, nor am I aware of any other case on that point which established such a position.

I do not feel it necessary to review in detail the cases which more directly bear upon the lia

[Eng. Rep.

They are

bility of a carrier of passengers. quoted by Story as the authorities for the rule which he lays down, and in my judgment they do not carry the liability further than he has stated it. In all of them, where it has become necessary to define that liability, the judges have carefully distinguished between a carrier of passengers and a carrier of goods, and have pointedly declared that the liability of the former stands on the ground of negligence alone. See Aston v. Heaven, 2 Esp. 533; Christie v. Griggs, 2 Camp. 79; Crofts v. Waterhouse, 3 Bing. 32.

Undoubtedly there are expressions used in some of those cases which, taken alone and without reference to the particular facts, favour the argument of the plaintiffs (see per Lord Ellenborough in Israel v. Clark, 4 Ex. 259; Best, C.J., in Bremner v. Williams, 1 C. & P. 416; and per Gaselee and Bosanquet, JJ., in Sharp v. Gray, 9 Bing. 457.) But reading such expressions as they should be read in connection with and as applicable to the facts of each case, it is to my mind evident that the learned judges who used them did not intend them to be understood in the sense now imputed to them. The decisions in those cases, in which such expressions are used, seem to me against the plaintiff rather than decisions in his favour. In Sharp v. Gray, the case most pressed in the argument by the plaintiff's counsel as also in the case of Christie v. Griggs, 2 Camp. 79, the axletree had, without any external cause to account for it, suddenly snapped. If there was such a warranty as is now insisted on, that warranty had clearly been broken, for the coach had turned out to be not road-worthy. There was nothing to go to the jury but the amount of damages therefore. Whereas in each case the question was left to the jury whether the defendant was liable as guilty of a want of due care or not. Sharp v. Grey, the jury found a verdict for the plaintiff, which the court refused to disturb; in Christie v. Griggs they found for the defendant, and no motion appears to have been made to set this verdict aside. Coming down to a more recent period, I find the same doctrine laid down by the Lord Chief Justice of this Court in Stokes v. Eastern Counties Railway Company, 2 F. & F. 691. That was a case exactly similar to the present. The wheel had broken from a latent flaw in the welding, and great injury had been done to several passengers. After a very lengthened trial, the jury found a verdict for the defendant; and although the plaintiff in that case, and many other persons, were deeply interested in questioning the ruling of the Lord Chief Justice, no attempt was made to set aside the verdict. As far, therefore, as the authorities in this country go, they are against the position taken by the plaintiff; and considering that many such accidents have occurred since the introduction of railways, the fact that this is the first time so extensive a liability has been insisted on, argues a general impression against it. But though the question has not before been presented for solemn adjudication in this country, it has been raised more than once in the courts of the United States, and in every case the judgment has been in favour of the carrier. In Ingalls v. Bills, 9 Metc., cited in the 7th edition of Story on Bailments, p. 565, the Court deliver