C. P.]

POWELL (resp.)

Free Labour Registration Society. Head Offices-9, Victoria-chambers, Westminster, S.W. Bankers-Messrs. Ranson, Bouverie, & Co.

1, Pall-mall East, S. W.

Dear Sir,-In reply to your note I beg to state that we can supply you with plenty of non-union, good steady men, at a few hours' notice. I enclose a form of application, which please fill in with the requisite particulars, and send to us by return of post.-I am, dear Sir, yours obediently, F. C. MAUDE, Colonel, Hon. Sec. pro J. R. T.'

April 18th, 1868. Brook Hill, Sheffield. Dear Sir,-I am in receipt of your note of yesterday. I return you one of the forms, filled up and sined. The work that I want the men to do is clensed moulded work.

I hope the men you send will be good steady men, as I do not like any drunkards. Will you please write and say by what train they will come by, and the date, and I will meet them, so that they will not be lost or make any mistake. Waiting your reply, I remain, yours truly,

JAMES POWELL, Builder.

Piece, day-work, or otherwise.-7d. per hour.
Wages-32s. 4d. per week.

Probable duration of employment-Until Crismas or longer. Price of lodgings in neighbourhood.-About 38. per week. Whether in consequence of a strike or not.-Strike on account of letting some men work by the piece.

What portion of railway fare will be paid by employer.-10s. each man, and if they are steady good men, and will stop until the work is completed, I will pay the remainder of

their fares.

FREE LABOUR SOCIETY.

We, the undersigned members of the above society, having accepted employment in Sheffield, do agree that one half day's wages (and 9d.) for a card of membership, being the fee to the said society for obtaining us the employment, shall be deducted by instalments from our wages during the ensuing four weeks. And we do also agree that we will not quit the service of our employer without just or reasonable cause, or unless by mutual agreement, before the expiration of the current year. London, 22nd April, 1868.

The agreement was sealed with Colonel Maude's seal for the purpose of identification, and on the 22nd April the appellant and seven other men went down to Sheffield. but refused to work for the respondent.

It was contended for the appellant, first, that the respondent ought, under the Master and Servant Act 1867, and in the information laid by him before the justices, under sect. 4, to have set forth the amount of compensation claimed for breach of contract and not claim the fulfilment of the contract. Secondly, that under the 3rd section of the Master and Servant Act 1867, the respondent was bound to prove a contract of service within the meaning of some enactment described in the first schedule to that Act, and that he had not done so. Thirdly, that there was no jurisdiction in the justices of the borough of Sheffield to hear and determine the case at Sheffield. Fourthly, that the contract

thereby vitiated. Fifthly, that the appellant was brought to Sheffield through fraud by the Free Labour Registration Society, and that the respondent having accepted what they had done, it became his fraud.

The magistrates overruled all the above five objections, and made the following order:

That the said employed shall fulfil the contract forthwith, and that the said employed shall forthwith find good and sufficient security by recognisance, himself in the sum of 201., and two sureties in the sum of 101. each, for the due fulfilment of the said contract; and if, upon a copy of a minute of this order being served upon the said employed, he shall neglect or refuse to comply with the same, in that case we adjudge the said employed, for such his disobedience, to be imprisoned in the house of correction, at Wakefield, in the West riding of Yorkshire, for the space of one month, unless he shall sooner find such security as aforesaid.

The question for the court was, whether, regard being had by the court to the evidence as presented to the magistrates, and to the five objections taken on the hearing by the appellant's attorney, and their views and opinions thereon, the order made by them in this case was or was not a valid and effectual order within the provisions of the Master and Servant Act 1867.

C. Crompton, for the appellant.-The information is bad, because it is not in the alternative requiring the defendant to fulfil his contract, or to pay compensation. The complainant is not entitled to insist on having the contract performed, he must leave that to the magistrate. [WILLES, J.-We think there is nothing in that point, therefore it is not worth while sending the case back to the magistrates to consider it, as the respondent did not insist on having compensation.] The next point is, that sect. 9 allows the justices to order the contract to be performed, and if the defendant disobeys the order, they may imprison him; but there must be disobedience before the justices have jurisdiction to imprison, and therefore this order is bad, because it says that if the defendant disobey the order he shall order; we can only give an opinion as to the decibe imprisoned. [WILLES, J.-We cannot quash the sion of the justices, and if you want the order quashed, you must go to a court that has jurisdiction to quash it.] The next point is, that this was not a contract of service within the meaning of the Act. The magistrates say that it came within the 20 Geo. 2, c. 19, and if it is within any Act it must be that or the 4 Geo. 4, c. 34. The 20 Geo. 2, c. 19, does not apply to contracts where the service has not commenced, and though the 4 Geo. 4, c. 34 does extend to such cases, there is proviso that it shall only apply to such cases when the contract is in writing, and it is submitted that there was no contract in writing here. The agreement signed by the appellant does not contain the terms of the contract, either as to wages or the duration of the service, and there is no reference in it to the other documents.

a

Hannay, for the respondent, was only called upon to argue the question whether the contract was a contract within the meaning of the statutes. The interpretation clause, sects. 2 and 3, show that it was the intention to confine the operation of the statute to parties affected by the former Acts, and sect. 4 must be interpreted by sect. 2.

Lowther v. Lord Radnor, 8 East, 113; Branwell v. Penneck, 7 B. & C. 756, show what classes of servants are within the statute of George. He further contended that the contract in this case was in writing, because the document, signed by the manager, was referred to when the agreement was signed.

WILLES, J.-It is not necessary for us to say whether the order can be enforced. The respondent must consider whether he can enforce that part of it which adjudges that the appellant should be imprisoned, or whether the proper course would not be to bring him before the justices again upon another summons. The substantial question before us is, whether the contract was within the jurisdiction of the justices, or, in other words, whether sect. 3 of the 30 & 31 Vict. c. 141, must be so read, that the law introduced by the 20 Geo. 2, c. 19, and 4 Geo. 4, c. 34, should be considered to be still existing for the purpose of defining what cases are within the Act. It is unnecessary to pronounce an opinion as to whether it is necessary that there should be a contract in writing when the service has not commenced, because I think that

there is in the document signed by the appellant in this case a reference to the document signed by the employer with abundant clearness. In the case of Boydell v. Drummond, 11 East, 142, which is the leading case on this subject, there was a book headed "Shakespeare subscribers, their signatures," which was signed by Drummond, and it was sought to make him liable by reference to a prospectus which lay upon the table at the time he signed the book. But that would not do, because there was no reference in the book to the prospectus. Here we must take the history of the documents and see what they are. The employer applied to the society, and the head of the society sent him a form showing the headings of the contract, with details to be filled in by the employer. That document is brought to the knowledge of the men, and they assented in parol to the terms. Then the document sigued by the men is, "we having accepted employment in Sheffield do agree, &c." Therefore it amounts in terms to this: "We accept the employment which you have obtained for us." What employment is that? That question is answered by the document signed by the employer. Therefore, there is a complete contract in writing, and the statute is substantially and literally complied with Therefore I cannot come to any other conclusion than that the magistrates were right.

KEATING, J. Concurred.

BRETT, J.-The only objection on which it is necessary for us to give judgment is, that there was not a contract in writing. I have very considerable doubt whether this contract would not come within the 4 Geo. 4, c. 34, whether it were in writing or not, but I entirely agree that here there was a sufficient writing signed by the parties. I agree that to be so, the one document must refer to the other, but I think that here there is such a reference in the document signed by the appellant, and as soon as evidence is given to show what the employment referred to is, it appears that it is a reference to a written document signed by the other party. I think, therefore, that the two documents may be taken together, and, therefore, that the magistrates were right.

Judgment for the respondent. Attorneys for the appellant, Purkis and Perry. Attorney for the respondent, W. Pitman.

[Ex.

COURT OF EXCHEQUER. Reported by H. LEIGH and E. LUMLEY, Esqrs., Barristersat-Law.

Monday, May 31, 1869.

CASE v. STOREY.

Hackney carriage-1 & 2 Will. 4, c. 22, s. 35— Refusal to take fare -"Street or place"--Railway station "Public street or road."

A cab was admitted within the station of the Great Northern Railway Company at King's Cross for the purpose of taking up persons arriving by the train. One of the public who had not so arrived entered the station and claimed to hire the carriage; the driver refused to take him. The station is the private property of the company :

Held, that the driver had been guilty of no offence under the Acts relating to hackney carriages, the provisions of those Acts which make it compulsory on a driver to be hired only referring to cabs plying for hire in streets or places where the public at large have a right to be. This was a case stated by a metropolitan police magistrate. The facts of the case appeared to be as follows:

On the 8th Sept. 1868, William Henry Case, the appellant, made a complaint before the magistrate against the driver of the hackney carriage No. 3435, charging that the said driver on the 2nd Sept. then instant, at or about the hour of nine in the afternoon, did in a certain public place, to wit, the Great Northern Railway Station at King's-cross, in the parish of St. Pancras, in the county of Middlesex, and within the Metropolitan Police District, refuse to drive the said carriage to a certain place not exceeding six miles, to which he was required to drive the appellant.

Upon such complaint a summons was issued against the driver.

On the day named in the summons, Storey, the respondent, appeared in answer to the summons.

It was proved, and the magistrate found, that at the time of the commission of the alleged offence a cab strike was in progress in consequence of a large number of cab propietors being dissatisfied with the refusal of the railway companies to allow their cabs to enter and remain at railway stations for the purpose of plying for hire therein, and to convey passengers arriving in London by train, the companies permitting or only allowing such cabs as they approved of, popularly known as privileged cabs, to be and remain inside such stations to convey the passengers so arriving, and which privileged cabs were subjected to regulations imposed by the said companies. The dissatisfied cab proprietors therefore withdrew their cabs from public use, but the privileged cabs continued to work at the railway stations. The appellant, who was a cab proprietor, admitted that he was a member of the cab strike committee, and believed that it was one of the resolutions of the committee that certain of the proprietors should go to the several railway stations and seek to engage privileged cabs there waiting in order to try the question whether the railway stations were proper cabstands. On the day in question the appellant went in a cab to the Great Northern Railway Station to meet other proprietors to try that right, and waited till the train arrived, when finding the cab driven by the respondent standing on the arrival platform he required the respondent to drive him to Camden Town, being less than six miles, but on hearing that the appellant had not arrived by train, the respondent refused to drive him. This was the offence complained of. The Great Northern Railway Station is not a place appointed by the Com

missioners of Police as a cabstand, and it is the pri- | vate property of the company.

It was objected before the magistrate, on the part of the respondent-first, that the cab in question was not a cab within the meaning of the Hackney Carriage Act, which the appellant had a right to insist on hiring, it being on private property, and not on a public stand or public place; secondly, that it was already engaged by the Great Northern Railway Company to convey their passengers who come by train, and that the appellant had no right to enter the railway company's premises not being a railway traveller, and insist on hiring a cab waiting there; thirdly, that it was not a legitimate attempt to hire the cab on the part of the appellant, it being a mere endeavour to inconvenience the railway company by withdrawing their cabs from being hired, and used by the passengers of the company; fourthly, that under sect. 34 of 1 & 2 Will. 4, c. 22, the driver may give a reasonable excuse for not taking a passenger, and in this case there was a reasonable excuse on two grounds, first, that he was engaged, and secondly, that the appellant did not contemplate a hiring for legitimate purposes; fifthly, that the proprietor of the cab had a right to engage with a railway company for the exclusive use of his cabs, and the railway company had a right to engage cabs for the convenience of the passengers arriving by railway.

On the part of the appellant it was contended that the respondent was bound to drive him, and in refusing to do so made himself liable to a penalty under the 35th and 42nd sections of 1 & 2 Will. 4, c. 22, and 17th section of the 16 & 17 Vict. c. 33, or one of those acts.

On the part of the respondent it was urged that the Great Northern Railway Station was private property, and that the respondent, as all other cabmen who entered that station to take passengers were either hired by the company, or at all events, were on private ground, and not in any street or place, so as to be under the jurisdiction of the Commissioners of Police, and when there could not be said to be plying for hire within the meaning of the Hackney Carriage Act.

The learned magistrate decided that a railway station, being the private property of the railway company, they might at their pleasure exclude or admit cabs, or admit them only on conditions which they might think fit to impose; that neither 6 & 7 Vict. c. 86, nor 13 Vict. c. 7, which authorise the Police Commissioners to appoint standings in any street, thoroughfare, or place of public trust, or the times at which cabmen may ply, or make regulations, can apply to a railway station when neither cabmen nor the commissioners themselves could enter without committing a trespass; that the cabmen, in coming into the station under the licence of the railway companies cannot be said to be plying for hire under, or to be when there governed by the rules laid down in the Hackney Carriage Acts, and that whilst each party was within the railway station their transactions with each other must be governed, not by those Acts, but by the ordinary law which controls cases of contract. He therefore held that, so far as the Hackney Carriage Acts were concerned, the appellant could not seek any redress for the respondent's refusal to convey him to his place of destination, and therefore dismissed the summons. The question for the court was whether, upon the foregoing grounds, the magistrate was justified in dismissing the complaint.

The 1 & 2 Will. 4, c. 22, s. 35, enacts that every hackney carriage which shall be found standing in any street or place, and having thereon any of the numbered plates required by this Act to be fixed on hackney carriages, shall, unless actually hired, be deemed to be plying for hire, although such hackney

[Ex.

carriage shall not be on any standing or place usually appropriated for the purpose of hackney carriages standing or plying for hire; and the driver of every such hackney carriage which shall not be actually hired shall be obliged and compelled to go with any person desirous of hiring such hackney carriage. The 4th section of the same Act enacts that every carriage with two or more wheels which shall be used for the purpose of standing or plying for hire in any public street or road within five miles of the General Post-office, in the city of London, shall be deemed and taken to be a hackney carriage within the meaning of the Act.

The 23rd section enacts that if any carriage shall be used for the purpose of standing or plying for hire as a hackney carriage in any public street or road at any place within the distance of five miles from the General Post-office in the city of London, such carriage, not having the proper stamp office plate fixed thereon, as required by the Act, certain penalties shall be payable by the driver and proprietor.

The 42nd section enacts that if the driver of any hackney carriage shall refuse to go with any person desirous of hiring his carriage for the legal and proper fare allowed by this Act, he shall be subject to a penalty.

The 16 & 17 Vict. c. 33, s. 7, enacts that the driver of every hackney carriage which shall ply for hire within the limits of the Act, shall, unless such driver have a reasonable excuse to be allowed by the justice before whom the matter shall be brought in question, drive such hackney carriage to any place to which he shall be required by the hirer thereof to drive the same, not exceeding six miles from the place when the same shall have been hired.

Denman, Q.C. (with him H. Williams and Hancock) for the appellant.-The magistrate's decision comes to this: The Hackney Carriage Acts, do not apply at all to cabs plying within a station, but all engagement of such cabs must be regulated by the ordinary law of contract. [BRAMWELL, B.-Are we concerned with the reasons given for his decision by the magistrate if we think his conclusion right in law? I am inclined to think that the cabman had a reasonable excuse here.] The magistrate has not based his decision on the existence of a reasonable excuse of which he is made by the statute the judge. I contend that it is not necessary that the cab should be in a public street or place, provided that it is plying for hire within the metropolitan district and bearing a numbered plate. That is all the words of the 35th section on which this case depends, require. A cab which is intended for plying in the public streets does not cease to be a hackney carriage and subject to the Hackney Carriage Acts because it has gone up a private carriage drive for a moment. The cabman was not in this case hired by the railway company he had only gone on their premises by their licence to take up any of the public there who might require him; if he was thereby entitled to say, "I will not take you because you have not come by the train," he might say to another, "I will not take you because you have not got a large family with you, or a great quantity of luggage." If the hiring depends on the ordinary law of contract, there is nothing to make the cabman compellable to go at the statutory rate of charges. Secondly, should the court be of opinion that the section only applies where the cab is standing in a public place, I contend that a railway station is a public place for this purpose. It is true it is not open to the whole of the public, but only to persons having business with the company by their licence. Still it is a place of public resort, and there have been many decisions that private property may for certain purposes be considered a

public place. [KELLY, C. B.-Suppose the owner of a private mansion was giving a party, and permitted cabs to come up and stand in the carriage drive in his park to take up any guests who might require their services, do you say that a stranger could come into the park and claim to hire one of these cabs as of right?] The cabman could have no right to refuse to take one of the public on the ground that he was a trespasser.

Brown, Q. C. (with him A. Wills), for the respondent, was not called upon.

KELLY, C. B.-This case, though of considerable importance, does not present much difficulty. The question is, whether the cabman was, in this case, bound to agree to be hired by the appellant. By the definition of a hackney carriage, contained in the 4th section of the 1 & 2 Will. 4, c. 22, which must be deemed incorporated in all the other clauses, the standing or plying for hire in any public street or road, is made essential to the character of a hackney carriage. The question here is, whether the cab was standing or plying for hire within the meaning of the Act. Now such a standing or plying for hire must, it appears to me, mean a standing or plying for hire by any one of the public who may think fit to hire. Now this cannot be said to be the case here. A railway company allows-perhaps there was what amounted to a contract between the cabowners and the company, but this is not clear on the facts stated-at any rate the company allows cabs to come into the station before the arrival of the train, on the condition that they shall be hired only by persons coming by the train. The cabs were, no doubt, in one sense, standing or plying for hire within the company's premises, while waiting to be hired by persons arriving by the train; but that is only done by the licence of the company; it must accordingly depend upon the arrangement made with the company by whom they shall be liable to be hired, in what order and subject to what regulations. So far as such matters as these are concerned, they must be regulated by the authority of the company by whose licence alone they are admitted on the premises. This cannot be a standing or plying for hire within the meaning of the Act, for that must mean, as I have before said, for hire by any one of the public as a matter of right, not under any particular arrangement or licence of a railway company. When we look further to the subsequent words of the definition, we find the standing or plying for hire must be in a "public" street or road. That appears to me to remove all doubt on the subject. It appears that the premises on which these cabs were standing was not a public street or place, but private property. It was certainly a place of public resort, but the public only resorted there under the authority of or by virtue of a contract with the company upon business connected with the company. The company might exclude the public from the place where the cabs were standing. They open it only so far as they find it necessary for the ordinary traffic of the railway; in every other sense it is a private, not a public place. The public street or road within the Act must be open to the whole public; this, the station, is not, but only for the use of passengers and persons having business with the company. Therefore, in my opinion, this cab was not standing or plying for hire within the meaning of the Act. The argument which Mr. Denman founded upon the words "street" or "place" would, if carried out, apply to the premises of a private proprietor who had permitted cabs to come within his premises for the purpose of taking up any of his guests who might require them. There may be certain inconveniences

[Ex.

arising from this decision in the absence of any regulations made by the railway companies that the cabs shall be bound to take the persons first claiming their services or any other regulations as to the order of hiring. These inconveniences it is in the power of the company to remedy; we have only to deal with the law as we find it.

BRAMWELL, B.-I am of the same opinion. I quite agree with the decision of the learned magistrate. The 35th section of the 1 & 2 Will. 4, c. 22, appears to me very inartificially drawn. But the question is, whether the cab was in this case found standing in a street or place within the meaning of the Act. I should say certainly not. It must be a place to which the public have access as a matter of right. Otherwise the most absurd consequences would follow; a cab might be liable to be hired while standing in its proprietor's own yard. Another observation occurs to me. By the language of the section the obligation to be hired does not arise unless the cab has on a numbered plate. By sect. 23 it appears that the penalty for not having a numbered plate is confined to cases where the carriage is used for the purpose of standing or plying for hire as a hackney carriage in any public street or road. Now the station is not a public street or road, and consequently the cab might ply in the station without a numbered plate, and the only result would be that by taking off the plate, the driver would be free from the effect of sect. 35, within the station. It seems to me clear that reading all these sections together the "street or place in sect. 35," is the same thing as the "public street or road," in sect. 23. Mr. Denman has urged that if this be so, the public at railway stations are at the cabman's mercy. I doubt whether that is the effect, for it seems to me, on looking to the provisions of the Act that, although the cabman may not be liable to be hired compulsorily in the first instance, if he once submit to be hired, he must go for the statutory rate of charges.

CHANNELL, B.-I agree with the magistrate's decision. The reasons upon which he based it appear to me quite immaterial for us to consider. The 35th section of the Act was no doubt meant to prevent cab drivers from capriciously refusing fares, and it appears to me that it was only intended to apply to public streets or places where both the cabs and the public have a right to be. This case appears to me to fail in two points. The cab had no right to be in the station; it is a matter of convenience for the public that there should be cabs close by the place where the train stops. That, however, is brought about by arrangement with the railway company. The second point is, that the person who claimed to hire the cab had no right to be on the premises.

CLEASBY, B.-I also have come to the same conclusion. I think the 4th section amply justifies the decision we now give. That section being the one which defines what a hackney carriage is to be must govern the whole Act, and it seems to me clear, looking to the words used in it, that the 35th section must be confined in its effect to cabs standing in a public street or place, and cannot apply to private premises. Judgment for respondent.

Attorney for appellant, Fry.
Attorneys for respondent, Wontner and Sons.

A writ of sequestration may issue, notwithstanding a partial levy may have been made under a former writ, the clergyman having only a life estate in certain freehold rents, the sheriff could not make the usual return of nulla bona.

Motion for the issuing of a writ of sequestration under the following circumstances :

By an order made in this cause, and dated the 20th Feb. 1868, the plaintiff, a clergyman, was ordered to pay into court a sum of 3297. 98. within seven days after service of the order. This was not done by the time specified, and on the 10th July following a commission of sequestration was issued of the plaintiff's personal estate, and the rents, issues, and profits of any real estate the plaintiff might have within the jurisdiction of the sheriff of Somersetshire. The personalty consisted of certain household goods, and he had a life estate in certain real estate of about the annual rental of 1401. The sequestrators under the commission had sold the goods, which realised about 50%, and having received some rents of the real estate, were desirous of paying into court the balance of the sum directed to be paid in by the former order.

A summons for leave to do this had been taken out, but a difficulty arose in consequence of there being no sufficient return by the sheriff as to what had been done under the former levy.

[V.C J.

The defendants now gave a notice of motion before this court that a writ of sequestration might issue to the Bishop of Bath and Wells, in whose diocese the plaintiff's rectory was situated, commanding him to enter into the rectory and parish church, and to take and sequestrate and hold the same until he should have levied the sum of 2137. 11s. and interest thereon of the rents, tithes, issues, and profits thereof, and other ecclesiastical goods in his diocese of and belonging to the said rectory and parish church, and to the plaintiff as rector thereof, and the consequential directions.

B. B. Rogers, in support of the motion, said it was considered that under the consolidated orders of the court, No. 29, Rule 11, Schedule J, a writ of sequestration could not issue until the sheriff of the county had made a return of nulla bona within his jurisdiction. This it was impossible he should do in the present case, the plaintiff having only a life estate in the freehold premises beforementioned. The defendants should not be obliged to wait until the annual proceeds of the real estate had realised the balance due as the life estate might any day fail.

The VICE-CHANCELLOR, after some consideration, directed that the writ of sequestration might issue as moved for, with a recital, in lieu of the usual one of a previous return of nulla bona; that it missioners under the former writ was insufficient to appearing that the property returned by the compay the balance due under the former order of the court of the 10th Feb. 1868, the amount should be realised under the writ, with the usual directions. Order accordingly. Solicitors: Dyne and Harvey, Lincoln's-inn-fields.