really amounts to a defence. Whiley v.
Whiley,
653

Appeal from a Judge at Chambers.

4. An appeal from a decision of a judge at cham-
bers will not be entertained after the lapse of
a term. Craske v. Smith,
446
5. The plaintiff recovered 408. only in an action
under Lord Campbell's Act; and the judge
on the 21st of August refused to grant a cer-
tificate under the 13 & 14 Vict. c. 61, s. 12,
that the cause was proper to be tried in the
superior court. In the following Michaelmas
Term, the plaintiff applied by summons for
costs under the 15 & 16 Vict. c. 54, s. 4,
and the judge endorsed thereon "no order."
An application to the same effect was made
to the court in Hilary Term:-Held, that this
was in effect an appeal against the decision of
the 21st of August, and therefore that the
motion was too late.
Id.

Staying Proceedings,-See ARBITRAMENT.
Consolidation Rule.

6. Actions having been brought against eight
several defendants upon mutual insurance
policies, the court, at the instance of the de-
fendants, granted a rule for consolidating
them,-upon the terms that the several de-
fendants should admit the amounts for which
they were respectively liable, in case their
liability should be established, and should
consent, if necessary, to an order referring it
to the master to settle the same. Lewis v.
Barkes, Lewis v. Blagdon,
330

Dealing with Agent as Principal, at the request
of the real Principal.

1. To a declaration for money paid, money re-
ceived, &c., the defendants pleaded that they
at the request and with the consent of the
plaintiffs dealt with and treated one F. as
the principal in the transaction in respect of
which the moneys were received by the de-
fendants, and as the party with whom alone
they were dealing; that the plaintiffs further
authorized and requested the defendants to
receive any moneys resulting from the trans-
action on account of and as the moneys of
F., and on the terms that the defendants

2.

might deal with such moneys as the moneys
of F.: Averment, that the moneys, being the
moneys resulting from the said transaction,
were afterwards, in pursuance of the said re-
quest, authority, and consent of the plaintiffs,
received by the defendants in respect of and
as the result of the said transaction, and on
account of and as the moneys of F.; that,
upon the faith and in consequence of the
said request, authority, and consent of the
plaintiffs, the defendants afterwards gave
credit to F. in respect of divers other trans-
actions, and were induced to allow F. to incur
debts to them which were still due; and that,
before and at the time when the said moneys
were so received by the defendants as afore-
said, on account of and as the moneys of F.,
he the said F. was, and still remained, in-
debted to the defendants for and in respect
of the debts therein before mentioned, in an
amount equal to the plaintiffs' claim,-which
amount the defendants were willing to set
off:-Held, bad, on demurrer. Farrand v.
Bischoffsheim,
710

Ratification of Act of Agent.

A., professing to act as the agent of B., the
owner of a vessel in the African trade, under
a power of attorney, during the voyage re-
moved C. (the master) from the command,
for alleged misconduct. At the termination
of the voyage, the master (who had been per-
mitted to remain on board) sued the owner
for wages:-Quære, whether the act of A. in
removing C. from the command of the vessel,
was one which could be ratified by B. after
the voyage was over? Berwick v. Horsfall,

PRIVATE WAY.
Obstruction of,-See NUISANCE, 1.

PROCESS.

See PRACTICE, 1, 2, 3.

PROHIBITION.

See COUNTY COURT, 4-6.

PROMOTIONS.

See MEMORANDA.

PROVISIONAL SPECIFICATION.
See LETTERS Patent, 1.

PUBLIC HEALTH ACT.

450

1. The first count of the decaration stated that the defendants were the owners and occupiers of a railway, and of a station thereon for the loading, unloading, &c., of cattle carried thereby and of a yard adjoining the station and railway, into and through which yard cattle brought by the railway to the station were used and accustomed and were obliged to pass in going from the station to a certain common highway near thereto; and that the defendants by reason of the premises ought to have made and maintained good and sufficient fences between the said yard and the railway, so as to prevent cattle lawfully being in the yard from straying thereout into and upon the railway; but that they omitted to make and maintain such fences, whereby a bull of the plaintiff, lawfully being in the yard, on his way to the highway, without default or negligence on his part, strayed from the yard on to the railway, and was killed by a passing train: -Held, that there was no liability upon the company, either by the common law or by the statute 8 & 9 Vict. c. 20, s. 68, to fence their yard from the railway, and consequently that the count disclosed no cause of action. Roberts v. The Great Western Railway Company,

506

2. The second count alleged that a certain bull of the plaintiff was lawfully in a close adjoining a railway of which the defendants were owners and occupiers, and along which railway they had not made any fences for preventing cattle being in the close from straying thereout upon the railway, and that, whilst the bull was lawfully in the close, the defendants and their servants, negligently and wrongfully, chased, startled, and frightened the bull, and so caused it to run upon the railway, where it was killed. At the trial, it appeared that the bull, with other cattle which had been brought by the railway, being in the station yard, a place unlighted and not fenced from the railway, a porter came out of the office with a lantern such as were ordinarily used by porters in his hand, and that the light startled some of the beasts, and caused the plaintiff's bull

Liability of, for loss of Passengers' Luggage. 3. By a railway act it was enacted, "that, without extra charge, it should be lawful for every passenger travelling upon or along the said railway to take with him his articles of clothing, not exceeding 40 lbs. in weight and four cubic feet in dimensions; and that the said company should in no case be in any way liable or responsible for the safe carriage or custody of, or for any loss of or injury to any articles, matters, or things whatsoever carried upon or along the said railway with or accompanying the person of or belonging to any passenger, or delivered for the purpose of being carried, other than and except such passenger's articles of clothing not exceeding the weight and dimensions aforesaid."

Pursuant to the powers conferred upon them by the act, the company made certain rules and regulations as to passengers' luggage; amongst others, one requiring it to be labelled, and declaring that they would not be responsible for the loss or detention of articles not labelled and properly addressed, and another declaring that all unclaimed property found on their premises or in their carriages should be deposited in a place called the lost property office, and restored to the owner on payment of a fee of 6d. for each article. In addition to these regulations, the company gave private instructions to their servants, to the effect that "no small articles, such as rugs, coats, umbrellas, sticks, caps, or small paper parcels, nor bundles of rugs, coats, and wrappers strapped together, are to be labelled or placed in the luggage-van: the passengers must take charge of such articles themselves, or send them as booked parcels."

The plaintiff, a passenger upon the railway, required one of the company's porters to label and place in the luggage-van a package (within the stipulated weight and dimensions) consisting of articles of wearing apparel, and wrapped in a shawl fastened with a strap, and properly addressed. The porter refused to label the package, and insisted upon placing it in the carriage with the plaintiff. The plaintiff declined to allow this, unless it was to be at the company's risk. The package was left behind, and was afterwards taken to the lost property office, where it was detained, and 6d. demanded for its restoration:—

Held, that the company were not justified in refusing to carry the package at their own

risk, and were responsible for its detention. Munster v. The South Eastern Railway Company, 676

4. Semble, that, if the company had been justified in refusing to carry the parcel, they might have been justified in taking it to the lost property office. Id. 5. Bailment.]-A box containing goods, some of which were the property of A., and some the property of B., was delivered on their behalf by a third person at a railway station, to be carried from Worthing to London. The box was addressed to A., and was received by him in London, and he paid the carriage:Held, that there was evidence of a joint bailment in respect of which a joint action might be brought by A. and B. for the loss of the goods. Metcalfe v. The London, Brighton, and South Coast Railway Company, 6. Loss by felonious acts of servants.]—In an action against a common carrier for the loss of a parcel, a replication that the loss arose from the felonious acts of the defendants' servants is a good answer to a plea founded upon the Carriers' Act, 11 G. 4 & 1 W. 4, c. 68, s. 1, that the value exceeded 10., and was not declared at the time of delivery to the carrier. Metcalfe v. The London, Brighton, and South Coast Railway Company,

317

307

7. Evidence of Felony.]-In an action against a railway company, as common carriers, for the loss of goods, the defendants pleaded a plea founded upon the Carriers' Act, 11 G. 4 & 1 W. 4, c. 68, s. 1, that the value of the goods exceeded 107., and was not declared at the time of the delivery to them; to which plea the plaintiffs replied that the loss arose from the felonious acts of servants of the company. It was proved that the goods in respect of which the action was brought consisted of articles of jewelry, &c., contained in a tin box, which was enclosed in a deal box fastened with a padlock; that the box was brought to the company's station at Worthing, by a servant of a person in whose house the plaintiffs had lodged, to be forwarded to the plaintiffs in London; and that, when the box was delivered to the plaintiffs there by a porter of the company, it was found that the outer box had been opened, and the tin box and its contents abstracted from it:-Held, no evidence for the jury of a felony by the company's servants. Metcalfe v. The London, Brighton, and South Coast Railway Company,

311

Injunction against, under the Railway Traffic Act, 1854.

8. A railway company were empowered by the 175th section of their act of incorporation (6 & 7 W. 4, c. cvi.) to charge certain tonnagerates or tolls for all articles, matters, and

things carried or conveyed along the line, and (by ss. 177 and 179) to provide locomotive or other power for the carriage and conveyance of passengers, cattle, goods, &c., and to make reasonable charges for such carriage and conveyance, in addition to the tonnage

rates.

By s. 182, it was provided that the company might "from time to time make such orders for fixing, and by such orders fix, the sum to be charged by them in respect of small parcels, not exceeding 1 cwt. each, as to them should seem proper."

And by s. 186, it was further provided that "the aforesaid rates and tolls to be taken by virtue of the act should at all times be charged equally and after the same rate per ton throughout the whole of the said railway, in respect of the same description of articles, matters, or things," and that "no reduction or advance in the said rates and tolls should either directly or indirectly be made partially or in favour of or against any particular person or company."

Under the powers given to them by s. 182, the company framed a scale of charges for the carriage of parcels not exceeding 1 cwt. each, which charges were higher than the tonnage-rates warranted by s. 175, but which included a reasonable charge for the use of their carriages and locomotive power under ss. 177 and 179. Under this scale, where a number of separate parcels (each weighing less than 1 cwt., but exceeding 1 cwt. if taken in the aggregate) were brought to the railway by the same person, and containing the same article, and all directed to the same person at their place of destination, the company charged the tonnage or lower rate allowed by s. 175: but, if similar parcels were brought addressed to several different persons, they were charged the higher or parcels rate.

Upon a special case setting out these facts, -Held, that there was nothing to induce the court (or which ought to induce a jury) to infer that the charges so made were unreasonable, regard being had to the additional trouble incurred by the company. Baxendale v. The Eastern Counties Railway Company,

63

9. Quære, whether the 186th section applies to "small parcels?" Semble, per Byles, J., that it does. Id.

10. Though limited to a reasonable charge, there is no common-law obligation on a carrier to charge equal rates of carriage to all his customers. Id. 11. The Railway Traffic Act, 17 & 18 Vict. c. 31, does not interfere with the right of a party aggrieved by overcharges, to maintain an action to recover back the sums paid in excess. Id.

12. A railway company established a system of carrying coals according to assigned districts, comprising certain places on their lines and branches, carrying them within those several districts at certain lower rates for quantities not less than a "train-load" of 200 tons. The complainants, who were coaldealers at Ipswich, also carried on that business at N., S., E., T., and B., which are places on that branch of the company's lines which conducts to Peterborough, and also at M. and D., which are on another branch line communicating with that first mentioned, and also at H., which is on another distinct branch. These districts were so adjusted that the places where the complainants dealt were distributed into three of them, so that, in order to take advantage of the reduced rates, the complainants would have to send from Ipswich three full "train-loads," which was a larger quantity than they could profitably send to those districts; and thus they sustained great injury: whereas, the rival dealers at Peterborough, by reason of one of the assigned districts embracing seven of those places at which the complainants dealt, were enabled to send their coals in such quantities as to avail themselves of the reduction. It being sworn, on the part of the company, that these districts were adjusted, not with a view to give an undue preference to the one set of dealers over the other, but solely with regard to their own convenience, and the wants of the neighbourhood:-Held, that the complaint was not sustained. In re Ransome and the Eastern Counties Railway Company,

135

13. The company made a scale of charges for the carriage of coals from Peterborough and Ipswich respectively to various places, the effect of which was to diminish the natural advantages which the Ipswich dealers possessed over those of Peterborough, from their greater proximity to those places, by annihilating (in point of expense of carriage) in favour of the latter a certain portion of the distance between Peterborough and those places-Held, an undue preference to the Peterborough dealers over those of Ipswich.

Id.

14. The South Western Railway Company had been in the habit of unloading goods coming by their railway from the Southampton Docks consigned to carriers in London, out of their trucks, and of placing them (by their servants) in or conveniently near to the wagons of the consignees without any extra charge. This practice they discontinued, refusing to allow their servants to unload the trucks without an extra charge for such service,-except in the case of Messrs. Pickford, whose goods they continued to unload as before, the smallness of their quantity, and the fact of

their being carried intermixed with the company's own traffic, rendering it (as the company alleged) more convenient to themselves so to do. C., however, another carrier, was denied the aid of the company's servants in the unloading of his goods of the same description, and coming from the same place, -the company alleging that the same reasons did not apply to his goods as to Messrs. Pickford's, inasmuch as the former came in large quantities, and in separate trucks.

The court refused to make absolute a rule for an injunction under the Railway Traffic Act, 1854 (17 & 18 Vict. c. 31), enjoining the company to unload the trucks containing C.'s goods, and to deliver such goods to C. by placing the same in or adjoining to his wagons, -holding the demand to be too large. But they intimated, that, if C.'s complaint had been confined to the company's giving an advantage to Messrs. Pickford in the unloading of their goods, which they withheld from him, C. might have been entitled to relief under the statute. In re Cooper and The London and South Western Railway Company,

738 15. Attachment for disobedience of injunction.] -The court refused to grant an attachment against a railway company for disobedience to a writ of injunction under the 17 & 18 Vict. c. 31, enjoining them to desist from giving an undue preference, in respect of the carriage of coals, to persons carrying coals from P. or other places to or towards certain places mentioned in the rule,-the affidavits on the part of the company showing a bona fide endeavour on their part to conform to the order of the court, although it appeared that the reformed scale of charges still operated in some other respects injuriously to the interests of the complainants, and advantageously to the other parties. In re Ransome and The Eastern Counties Railway Company, 159

RELEASE.

Covenant not to sue one of Several Debtors.

To an action for goods sold and delivered, the defendant pleaded that the causes of action accrued to the plaintiffs against the defendant and A., B., and C., jointly, and not otherwise, and not separately against the defendant, and that the defendant and A., B., and C. were jointly liable to the plaintiffs in respect of the causes of action in the declaration, and not otherwise; and that, after the accruing of the causes of action, and before suit, the plaintiffs by deed released A., B., and C. from the said causes of action, &c.

Replication, that the deed in the plea mentioned was a deed of assignment by A., B., and C., of their estate and effects for the benefit of their creditors, and contained words purporting, if considered without reference to any other part of the deed, to release as in the plea pleaded, but that, in another and earlier part of the same deed, it was agreed and declared in the words following, that is to say, "that it shall be lawful for the creditors to execute these presents without prejudice to any mortgage, lien, or security which they may have for their respective debts, or any part thereof, or to any claim against any surety or sureties or any other person or persons who may be liable for the payment thereof;" and that all the creditors who executed the deed, executed the same without prejudice as aforesaid; and so the plaintiffs said that the defendant was not released as in and by the plea supposed :

Held, on demurrer, that, taking the plea and replication together, the deed appeared to amount only to a covenant not to sue A., B., and C., and not to a release; and, consequently, that the liability of the defendant,-whether joint only, or joint and several, was not thereby discharged. Willis v. De Castro, 216

3.

in the witnessing part of a conveyance (dated in 1844,-twelve years before the date of the sale) from one Mears to one Humphreys (from whom the property came by various mesne assignments to the vendor), in which the then vendor acknowledged to have received the amount of the purchase-money for the purchase of the premises "and the fee-simple and inheritance thereof in possession, free from land-tax and all other encumbrances," and a statutory declaration by Mears, to the effect, that to the best of his knowledge and belief, no land-tax had ever been paid for or in respect of the land "subsequently to the purchase or redemption thereof in or about the year 1799 :”

-

Held, that this was not such evidence of the fact of the land-tax having been redeemed, as to entitle the vendor to insist upon a completion of the purchase,-notwithstanding a condition which provided that "every deed and entry on or copy of court roll dated more than ten years ago shall be conclusive evidence of everything recited or stated therein :" for, that this was not a direct statement or recital of the fact that the landtax had been redeemed, but only an acknowledgment by the then vendor that the then purchaser had paid a certain sum for the land as being free of land-tax and other encumbrances; and it was consistent with such statement that the land-tax had not been redeemed, but that it had been purchased or assigned to the then purchaser, or to a trustee for him, in whom or in whose representatives it might still be vested. Poppleton v. Bu20 chanan, Buchanan v. Poppleton,

Id.

And held, that the purchaser was entitled to recover back the deposit with interest, and the costs of investigating the title. 4. Quære, whether this was not properly the subject of compensation, under the ordinary Id. condition for that purpose? Of Goods,-See CONTRACT, 1, 2, 3. STOPPAGE IN TRANSITU.

REPAIRS. See LEASE, 2.

RETRACTATION.

See CONTRACT, 3.

RIGHT TO BEGIN.

See JUSTICES, 4.

SALE. Of Lands.

SET-OFF.

Special Plea of,-See PRINCIPAL AND AGENT, 8.

SHARE DEALER.

See BROKER.

SHIFTING CLAUSE.

See DEVISE.

SHIPPING.

sale by auction of freehold land, the property was described as "land-tax redeemed." The only evidence of that fact, was, a statement

of the Ship's Husband.

1. Necessaries were furnished to a ship on the order of the ship's husband (himself a part