tiff? (2.) Was that contract affected by the notice? (3.) Was the notice itself affected by "willful misconduct" of the company's servants?

The answer to the first question is easy. The contract between the company and the plaintiff was to convey the plaintiff to Henley in a reasonable time; and the question of reasonable time is no longer left at large, but is fixed by the company's time-table, subject to accidents which reasonable care could not provide against. This contract arises on the purchase of a ticket, unless it be qualified by the notice; and thus comes the second question, to which the obvious answer is, that the notice is ultra vires so far as it professes to attach to the right of traveling on the company's own line the condition that the company will not be responsible for any shortcoming of their servants not amounting to willful misconduct. Thus far we have adopted the substance, and almost the exact words of the judgment given in the Reading County Court, and the answers to the first two questions are enough to decide the case. Upon the third question, whether there was willful misconduct of the company's servants," the judge of the County Court thought, "with some doubt," there was; and here we incline to differ from him. But if he were wrong, his error would not affect the soundness of his judgment on the main question. It was stated by the plaintiff, and not denied by the defendants, that "the delay at Reading was occasioned principally by the want of porters to put lug. gage into the train." It appears to us an abuse of language to say that this delay arose in consequence of the willful misconduct of the company's servants," which are the words of the notice. The porters at Reading are no more able than other people to do two things at one time. If there are not enough of porters to do the work of the station, the fault must lie with the managers of the company or with the company itself, but in neither case should we think the expression "willful misconduct " applicable. Upon this point we are not without authority, and it happens to be furnished by another case against the same company. In this case the plaintiff's goods were placed in a truck to be attached to a train passing the High Wycombe station late at night. The train brought some cattle to the station, and the defendants' servants, in order to prevent the cattle from being kept in their trucks till the next day, drove them into a yard, from which they strayed upon the railway, and upset the train, thereby injuring the plaintiff's goods. The plaintiff had undertaken to relieve the defendants from liability for damage unless it arose from "willful misconduct" of their servants. When this case came before the Court of Queen's Bench, Mr. Justice Blackburn said that there was admittedly no malice in what the servants did, and he agreed that there might be many cases of willful misconduct without malice, but he did not agree that culpable negligence was necessarily willful misconduct. The cattle were driven into a yard which communicated with the line. This was not the usual course of proceeding, but the object of doing so on this occasion was to deliver the cattle to their consignees that night. There might have been some neglect by the company's servants, but "I cannot see," said the learned judge, "how they can possibly be said to have been guilty of willful misconduct." There was nothing to show that what they willfully did — that is, drive the cattle into the yard - was likely to cause injury to the plaintiff's goods, or that they had knowledge of any danger to which they were ex

posing either the cattle or the train by what they did. Mr. Justice Quain remarked on the difficulty of defining the negligence which amounts to willful misconduct so as to justify a conviction for manslaughter. "Something of the same kind," he said, "is intended here; but without defining it exactly, it is sufficient that the facts here show no culpable negligence at all, and negligence must be culpable to constitute willful misconduct."

An appeal is, we believe, intended from the judgment of the Reading County Court, and the company may rely on the case we have quoted to establish that there was no "willful misconduct of their servants," causing the plaintiff to be delayed in his arrival at Twyford. But they will thus only show that the notice was not displaced by circumstances, supposing that notice to be otherwise applicable to the plaintiff, and this will be their point of difficulty. These notices, to be valid, must be reasonable. The company has no power to impose unreasonable conditions upon passengers, and the judge of the County Court has held this condition to be unreasonable, and he is supported by authority in so holding. In an action brought against the Great Eastern Railway Company for delay in starting a train, the defense was that the company by notice affixed to their time-tables declared that "they would not hold themselves responsible for delay, or any consequences arising therefrom." The plaintiff, a miller at Framlingham, held a season ticket, and was accustomed to travel to London by the defendants' railway to attend the Mark Lane Corn Market. He came one day to the station at the usual time; the carriages were ready, but the engine had not steam up, and could not go. Mr. Baron Martin, who tried the case, made short work with the notice limiting liability. "It is," he said, "mere nonsense for the defendants to say, as in effect they say, 'We will be guilty of any negligence we think fit, and will not be responsible.'"' It will be observed that in that case the notice was general that the company would not be responsible for delay, whereas in the present case the company announced that they will hot be responsible for delay, unless caused by the willful misconduct of their servants. It may be argued, therefore, that the ruling of Mr. Baron Martin in the former case is not an authority for the decision in the latter. There can, however, we think, be little doubt that the notice given by the Great Western Company is invalid. They say that they will only be responsible for willful misconduct, and, as there may be culpable negligence, which is not willful misconduct they say in effect that they will not be responsible for such culpable negligence, whereas it is clear that they must be liable.

But it is a different question whether, under the circumstances of this particular case, the defendants' claim to be discharged from their ordinary duty of keeping time would be reasonable, irrespective of any notice which they may have given. It will of course be conceded that a literal and absolute performance of the undertaking contained in their time-tables could not be exacted from them. Their duty is, as

stated by the judge of the Reading County Court, "to use all reasonable means to convey passengers to their destinations in the reasonable times which they have expressly fixed." The question, therefore, is, whether they used "all reasonable means" in the present case. It may be allowed that the case is not so strong against the company as that which came before Mr. Baron Martin. "Here," said he, "a train is advertised, the

plaintiff gets to the station, and finds the train there and the engine without steam up-the horse in the stable unharnessed." It was stated in that case that an hour and a half was needed to get steam up. In the present case the want of porters at the Reading station caused a delay of only nine minutes, which caused the plaintiff to miss the train at Twyford. There have been judges on the bench who have leaned strongly against extending the liability of railway companies and it is not impossible that such a judge might view this case differently from the judge of the County Court. If the case came before a jury, they might probably consider that unnecessary delay at Reading was combined with unnecessary punctuality at Twyford. If the train must wait at Reading because the porters were engaged, it might be thought that the train could wait at Twyford until the train from Reading had arrived. Assuming that the trains on the branch line to Henley are under the control of the defendants, they surely ought to have so managed as to protect the plaintiff from the consequences of delay caused, as was admitted, by the imperfection of their own arrangements at Reading. We think that the view which a jury would be likely to take of the case was fairly expressed by the judge of the County Court when he said: "It is clear that the absence of porters at the Reading station, which reasonable care might have prevented, occasioned the detention of the plaintiff at Twyford, and as he was able to procure a conveyance by which he got to Henley half an hour sooner than the railway company were prepared to convey him by the next train, I think that he was justified in hiring it, and that he is entitled to recover its cost against the defendants."

In another recent case a decision involving the same principle was given in the Burnley County Court against the Lancashire and Yorkshire Railway Company. In that case the judge held that, although the company do not guaratee the arrival and departure of the trains at the times stated, and do not hold themselves accountable for any injury which may arise from delay, and make such terms part of the contract with the passenger," yet they are bound to use all ordinary means within their power to perform their contract; and if they omit to use such means and show no sufficient reason for the omission, they fail to perform the duty which the law imposes upon them of using reasonable care and diligence in conveying the passenger to his destination according to their contract with him. The plaintiff in that case took a ticket at Burnley for Barnsley. The train by which he started ought to have reached Wakefield in time for a train starting from that place for Barnsley. But the train from Burnley to Wakefield was accidentally delayed, and the train started from Wakefield for Barnsley before the plaintiff arrived at Wakefield. It appeared, however, that the plaintiff and other passengers from Burnley arrived at Wakefield soon after the departure of the train for Barnsley, and if the station-master at Wakefield had known that they were coming he would have detained the train for them. An accident had occurred soon after leaving Burnley which rendered it impossible for the passengers from Burnley to reach Wakefield at the usual time. Afterward an arrangement was made for forwarding these passengers to Wakefield, and if, when this arrangement was made, the station-master at Wakefield had been informed of it, he would have detained the train starting for Barnsley until the Burnley passengers arrived at Wakefield.

The judge of the County Court held that the railway company were guilty of negligence in not sending this information by telegraph to Wakefield. As a train for Barnsley had left Wakefield before the plaintiff arrived there, he had to wait several hours for the next train, and thus he arrived at Barnsley too late to do his business, and had to go there on another day, and incurred expense which he now recovered against the railway company.

In one of the few reported cases of this kind that have been brought before judges of the superior courts, the plaintiff proved only that it was Whitsun Monday, and the train by which he traveled, being heavy, was late, and he missed an appointment. The late Mr. Justice Crompton held that, without some evidence of negligence the plaintiff could not recover against the company. Among the recent cases in which judges of County Courts have decided against railway companies, the best known is that of Mr. Forsyth, M. P. This was a stronger case of delay than that which has given occasion to these remaaks, as indeed the judge of the Reading County Court, who decided both cases, admitted.

It may not be amiss to observe the light which this dissension throws upon the utility or necessity of that accumulation of reports of cases which is often treated as a reproach to the English law. We have been trying to ascertain what view judges are likely to take of complaints against railway companies of delay in carrying passengers. There has been a growing disposition to entertain such complaints, and in order to measure this growth we collect as many cases of this class as we can readily find, and compare their features. In order to do this we have recourse to the various legal periodicals which report select cases from the county courts and rulings of judges of the Superior Courts sitting at nisi prius. All this, be it observed, lies beyond the regular reports of cases in the Superior Courts, of which the bulk is sufficiently alarming. The truth is that the liability of railway companies in these cases is being established and defined, and while this process is going on it is necessary to note every word that falls from the judges who are concerned in what is virtually law-making. It seems, therefore, that not only law reports, but also legal periodicals are inevitable, although cumbrous, parts of our legal system.Saturday Review.

RECENT ENGLISH DECISIONS.

DIRECTORS.

Personal liability.- A direction given by persons who are directors of a company to their bankers, when the company had a balance in the hands of the bankers, to honor checks drawn and signed in a particular manner, does not of itself impose on the directors any personal responsibility as to those checks. This direction is in no sense a misrepresentation, so as to make personally liable those who gave it to those who acted upon it.

Nor, though that direction should continue to be acted on by the bankers after the company's account has been overdrawu, will it entail on the directors who gave it any personal liability. Nor will it entail any such liability on those who, at a subsequent meeting of the board of directors, confirmed the minutes of the board meeting at which it was given, and who drew checks in accordance with it, though the account was overdrawn when the latter checks were issued and honored.

Bankers under advances to a railway company made a demand on the directors of the company to deliver to them as "security" for the advances "unissued shares" of the company, and "such preference shares and debentures as you may obtain authority to raise in next session of parliament." This demand was not construed to mean that the shares and debentures should be paid-up shares and debentures, and the directors by delivering unissued shares and debentures (on which money had not been paid), were not guilty of any misrepresentation, and did not render themselves liable to make good to the bankers those shares and debentures. Beattie v. Lord Ebury, Law Rep., 7 H. L. 102.

MARINE INSURANCE.

1. Policy on freight — prepayment of freight - partial loss. The plaintiff chartered his ship to A. for a. voyage from Greenock to Bombay with a cargo of coals, freight to be paid on right delivery of cargo at the rate of 42s. per ton of 20 cwt. on the quantity delivered; and it was provided that such freight should be paid, say one-half in cash on signing bills of lading, less four months interest at bank-rate, but at not less than 5 per cent per annum, 5 per cent for insurance, and two and one-half per cent on gross amount of freight in lieu of consignment commission at Bombay, and the remainder on right delivery of cargo, etc. A cargo of 2,178 tons of coal was loaded, and bills of lading signed, and 22861. was paid on account of freight. The plaintiff insured the freight under the charter party, and the charterer effected an insurance on the cargo, which was expressed to be on 2,178 tons of coal and increased value thereof by prepayment of freight, valued at 4,500l. The ship sailed, and was lost near Bombay; about half the cargo was lost, and the remainder was safely delivered to the consignees of the charterers free of freight. The plaintiff, the ship owner, sued his insurer as for a total loss of the unpaid half freight. The defendants paid into court the half of such unpaid freight. Held (by Cockburn, C. J., Mellor, J., and Amphlett, B.; dissenting, Cleasby and Pollock, BB.), reversing the decision of the court below, that the amount of freight prepaid must be distributed over the whole of the cargo; and, consequently, the charterer was bound to pay to the plaintiff half the amount of the freight remaining unpaid upon the delivery of the half cargo; that there was only a partial loss of freight, covered by the payment into court; and the defendants were, therefore, entitled to judgment. Allison v. The Bristol Marine Insurance Co., L. R., IX, C. P. (Ex. Ch.) 559.

2. Concealment: excessive valuation of goods. Upon effecting a policy of marine insurance, the assured is bound to disclose every thing which would affect the judgment of a rational underwriter governing himself by the principles and calculations on which underwriters in practice act. Where, therefore, in an action on a policy of marine insurance, it appeared that the plaintiffs had insured the goods at a value very greatly over their real value, without disclosing the over valuation to the underwriter; and it was proved in evidence that underwriters do, in practice, act on the principle that it is material to take into consideration whether the over valuation is so great as to make the risk speculative. Held, that this practice is rational; and that it was proper to leave to the jury, whether the valuation was so excessive, and whether it was material to the underwriter to know of such over valuation. Ionides v Pender, L. R., IX, Q. B. 531.

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3. "General average as per foreign statement:"" ranted free from average unless general:" voyage broken up before arrival at port of destination.- A policy of insurance on a cargo of wheat shipped from Varna to Marseilles contained the usual memorandum against average unless general, and the following term, "general average as per foreign statement." The ship, after starting from Varna, met with heavy weather, and was forced to carry a great press of canvas to avoid a lee shore. This caused her to strain very much, and having sprung a leak, and become otherwise disabled, she was brought into the port of Constantinople. Proceedings were taken in the Consular Court of Constantinople by the owner of the vessel, and a survey was made of the ship by direction of that court. It was found that a fifth part of the wheat had been damaged, and the surveyors recommended that the voyage should end at Constantinople, and the damaged part of the wheat should be sold, and the rest transhipped to Marseilles. An order of the court to that effect was accordingly made, and an adjustment of average in respect of ship and cargo was also made by order of the court at Constantinople. In such adjustment, the damage which the cargo of wheat had sustained was treated as general average, and in accordance with such average adjustment, a certain sum of money became payable by the underwriters upon the policy. In an action on the policy by the owners of the wheat, the defendants paid into court sufficient to cover the plaintiffs' claim on all the items of the average adjustment except the damage to the wheat, which, under the circumstances, by the law of England would not be a general average loss. Held, on a special case stated in the action, by which the court were to draw inferences of fact, that the Consular Court of Constantinople had jurisdiction to make the order which they made, and that the voyage was necessarily brought to an end at Constantinople, and that under these circumstances the defendants were bound by the average statement at Constantinople, and were liable to the plaintiffs in respect of the damage to the wheat. Harris v. Scaramanga, L. R., 7 C. P. 481; and Hendricks v. Australasian Insurance Co., ante, p. 460, followed. Mavro v. The Ocean Marine Insurance Co., L. R., IX, C. P. 595.

4. Description of voyage: overland transit: detention of goods in besieged town: restraint of princes: abandonment: total loss.—In a policy of insurance on goods the voyage was thus described: "At and from Japan and [or] Shanghai to Marseilles, and [or] Leghorn, and [or] London via Marseilles, and [or] Southampton, including all risks of craft to and from the steamers," etc. The risks insured against were, amongst others, of the seas, fire, and thieves, arrests, restraints, and detainments of all kings, princes, and people, etc. In the margin of the policy was the following memorandum: "It is hereby agreed that the silks insured by this policy shall be shipped by Peninsular and Oriental Company, Messageries Imperiales steamers, and [or] the steamers of the Mercantile Trading Company of Liverpool only." The goods insured were shipped from Shanghai for London by the Messageries Imperiales; the practice of that company was to send such goods overland through France by the Lyons railway from Marseilles to Paris, and thence by the Northern railway to Boulogne, and thence to London; and this course of business was well known among underwriters. The goods in question arrived in Paris on their way on the 13th of September, 1870. At this time the German armies were advancing on Paris, and had seized parts

of the Northern railway, so that the goods could not be forwarded to Boulogne, and by the 19th of September they completely surrounded and besieged Paris, preventing communication between it and all other places, by reason of which it was impossible to remove the goods from Paris. This state of things continued till after the 7th of October, on which day the assured gave notice of abandonment. Held, affirming the decision of the court below, that the policy covered the overland transit from Marseilles to Boulogne; and that there was a constructive total loss by restraint or detainment of princes, within the meaning of the policy. Rodoconachi v. Elliott, L. R., IX, C. P. (Ex. Ch.) 518.

PROPOSED AMENDMENT TO THE LAW OF ATTACHMENT.

A bill has been introduced into the New York legis. lature providing for the extension of the remedy by attachment to cases of fraud and malversation in office. The sections of the Code with the proposed amendments in italics are as follows:

"SEC. 227. In an action arising on contract for the recovery of money only, or in an action for the wrongful conversion of personal property against a corporation created by or under the laws of any other State government or country; or against a defendant who is not a resident of this State, or against a defendant who has absconded or concealed himself; or whenever any person or corporation is about to remove any of his or its property from this State, or has assigned, disposed, or secreted, or is about to assign, dispose, or secrete any of his or its property, with intent to defraud creditors, as heretofore mentioned, or in an action against any person for wrongfully obtaining, receiving, or converting any money, property, claim, or demand of or belonging to this State, or any city, county, town, village, or other political division thereof, or officially to any person or corporate agent of government, State, or local, in an action against any person who, while holding any public office or employment has wrongfully paid, disposed of or converted any money, property, claim or demand belonging to this State, or to any city, county, town, village, or other political division thereof, or officially to any personal or corporate agent of government, State or local, or aided, abetted or permitted any wrongful payment, disposition or conversion of any such money or property. The plaintiff, at the time of issuing the summons, or any time afterward, may have the property of such defendant, person, or corporation, attached in the manner hereinafter prescribed, as a security for the satisfaction of such judgment, as the plaintiff may recover; and for the purposes of this section, an action shall be deemed commenced when the summons is issued. Provided, however, that personal service of such summons shall be made on publication thereof, commenced within thirty days.

"SEC. 229. The warrant may be issued whenever it shall appear by affidavit that a cause of action exists against such defendant, specifying the amount of the claim, and the grounds thereof, and that the defendant is either a foreign corporation or not, a resident of the State, or has departed therefrom with intent to defraud his creditors or to avoid the service of a summons, or keeps himself concealed therein with like intent, or that such corporation or person has removed or is about to remove any of his or its property from this State with intent to defraud his or its cred

itors, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his or its property with like intent, whether such defendant be a resident of this State or not; or that the defendant has wrongfully obtained, received, or converted any money, property, claim, or demand of or belonging to this State, or any city, county, town, village, or other political division thereof, or officially to any personal or corporate agents of the government, State or local, or that the defendant, while holding a public office or employment, has wrongfully paid, disposed of, or converted any money, property, claim, or demand, belonging to this State, or to any city, county, town, village, or any political division thereof, or officially to any personal or corporate agent of government, State or local, or aided, abetted, or permitted any wrongful payment, disposition or conversion of any such money or property. It shall be the duty of the plaintiff procuring such warrant, ten days after the issuing thereof, to cause the affidavits on which the same was granted to be filed in the office of the clerk of the county in which the action is to be tried.

RECENT AMERICAN DECISIONS.

COMMON CARRIER.

Delivery at wharf: custom.-The defendants were owners of a line of steamboats running between New York and Hartford for the conveyance of freight and passengers and touching at M. and other places on the Connecticut River. Goods were shipped at New York by their line, consigned to the plaintiff at M., where the boat arrived at 3 o'clock in the morning. The plaintiff was not there to receive the goods, and an agent of the defendants who owned the wharf and a storehouse upon it, as such agent took charge of the goods and stored them, and on the plaintiff's calling for them at 9 o'clock the same morning, demanded a fee of ten per cent on the amount of the freight, which the plaintiff refused to pay. In replevin brought for the goods it was found that it was the custom of the river agents of the defendants to take charge of goods landed by them when the consignees were not present to receive them and to charge at that rate for their sevices, and that the custom was known to the plaintiff; also that the commissions received by this agent were retained by him for his services, and that the charge in the present case was a reasonable one for the service rendered. Held-1. That the duty of the defendants being two fold, to transport and land the goods, and to keep them safely for a reasonable time after landed for delivery to the consignee, they had a right in the absence of an agreement to perform the entire service for a stipulated sum, to make a general charge for the whole service, or to charge separately for the two parts of the service. 2. That it did not affect the case that the agent was allowed to retain the entire amount charged for the storage for his own compensation. 3. That the custom being well established, and having been known to the plaintiff, it became part of the implied contract under which the goods were shipped. Hurd v. Hartford & New York Steamboat Co., 41 Conn. 48.

EASEMENT.

4. Flow of water. -The complaint avers, in substance, that defendant, more than twenty years before the commencement of the action, erected a dam and mills on a certain stream about half a mile from the outlet of a certain lake; that plaintiff has maintained