OGDEN
 
 -ft**>rl '
 
 REPORTS OF CASES 
 
 IN 
 
 THE COUNTY COURTS INCLUDED IN 
 CIRCUITS Nos. 45 & 46. 
 
 HEAED AND DETEEMINED BY HENEY JAMES STONOE, ESQ., 
 JUDGE OP THE SAID COUETS. 
 
 INCLUDING RECENT CASES UNDER THE EMPLOYERS' 
 LIABILITY ACT. 
 
 ttfj a preface, "Notes, antr jFuil 
 
 BY 
 
 HENEY ANSELM DE COLYAK, ESQ., 
 
 Of the Middle Temple and South-Eastern Circuit, Barrister -at-Law. 
 Author of a Treatise on " The Law of Guarantees," fyc. $c. 
 
 LONDON: 
 HORACE COX, 
 
 'LAW TIMES" OFFICE, 10, WELLINGTON STEEET, STEAND, W.C. 
 
 1883.
 
 LONDON : 
 PRINTED BY HOKACE COX, 10, WELLINGTON STKEET, STRAND, W.C.
 
 s 
 
 (BY PERMISSION) 
 WITH THE GEE ATE ST RESPECT 
 
 TO 
 
 THE BIGHT HON. THOMAS, LOKD O'HAGAN, K.P. 
 
 &c. &c. &c. 
 
 1C91S48
 
 PREFACE. 
 
 THE object of this work is to present to the profession and the 
 public, and especially to members of the Legislature, and others 
 who may be interested in the reform of our legal tribunals, and 
 procedure, a fair example of the onerous duties which have by 
 continuous legislation, especially during the last eighteen years, 
 been imposed upon the judges of County Courts, and likewise of 
 the satisfactory manner in which those duties have been 
 performed. These tribunals originally existed solely by virtue 
 of the common law, and were, in the early period of the history 
 of this country, "the great constitutional judicature in all 
 questions of civil rights." (a) After retaining this proud position 
 for several centuries, they gradually, from various causes which 
 it is unnecessary here to specify, fell into almost complete 
 desuetude, (b) until, in the year 1846, it was determined by the 
 Legislature to revive them. " The County Court Act, 1846," 
 was accordingly passed. This statute expressly provides 
 (sect. 3) that " every court to be holden under this Act shall 
 have all the jurisdiction and powers of the County Court for the 
 recovery of debts and demands, as altered by this Act/' and 
 confers upon them a limited statutory jurisdiction providing, by 
 sect. 58, that such jurisdiction should comprise all pleas of 
 personal actions where the debt or damage claimed is not more 
 than 20Z., but should not extend to actions even indirectly 
 affecting real property, nor to certain specified personal 
 actions. 
 
 The original intention of the Legislature in establishing the 
 modern County Courts is sufficiently apparent from the preamble 
 
 (a) Hallam's Middle Ages, llth ed., vol. ii., chap, viii., p. 281. 
 (&) Stephen's Blackstone, 7th ed., vol. iii., p. 282.
 
 VI PEEP ACE. 
 
 of the County Courts Act, 1846, which defines it to be the 
 establishment of "one rule and manner of proceeding for the 
 recovery of small debts and demands . . . throughout England." 
 Gradually, however, the jurisdiction of these courts has developed, 
 by process of legislation, until the judges who preside over 
 them have been made to share the work of the Superior 
 Courts of First Instance (now represented by the High Court) 
 in no small proportion, and, in addition to the exercise of their 
 normal jurisdiction, daily perform identical duties with those of 
 vice-chancellors, judges in banco and at nisi prius, judges in 
 admiralty and judges in bankruptcy, determining cases of 
 importance often involving very large amounts. The practical 
 administration of justice in the County Courts since the great 
 and repeated extensions of their jurisdiction by the Legislature, 
 must unquestionably be of public and almost universal interest, 
 and a work like the present needs, therefore, no apology. 
 
 Bearing in mind the enormous number of cases over a 
 million (a) which annually come before these courts, it of 
 necessity constantly happens that difficult points of law and 
 practice, not previously raised in the Superior Courts, have to be 
 decided by the County Court judges, and often without their 
 receiving that assistance from arguments at the bar which is 
 never wanting to judges of the High Court, and which their 
 Lordships so often courteously acknowledge. 
 
 Moreover, it not unfrequently falls to the lot of County Court 
 judges to be the first authorities called upon to interpret the 
 meaning of difficult and important Acts of Parliament. A leading 
 article on the Married Women's Property Act, 1882, which 
 appeared in the Times of 20th June, 1883, bears testimony 
 to the truth of this statement in the following words : ' ' Though 
 the Act has been nearly six months in force it has been little 
 heard of outside County Courts, to the judges of which in the 
 main has fallen the not very simple task of spelling out its 
 meaning." The Employers' Liability Act, 1880, affords another 
 and even stronger example of a similar, and exclusive responsi- 
 bility devolving upon the judges of County Courts. 
 (a) See Appendix A, post.
 
 PREFACE. Vll 
 
 It had been, in the first instance, contemplated by the editor 
 to give a selection from the considered judgments of the whole 
 body of County Court judges ; but, on reflection, it was thought 
 better to limit the field of selection to the decisions of a single 
 judge of long standing and established reputation, and thus to 
 demonstrate, by practical example, the demands which may be, 
 and are actually, made upon the individuals who compose that 
 meritorious judicial body the County Court Bench. 
 
 Having the honour of the acquaintance of the learned judge of 
 Circuit 46 (comprising the two metropolitan courts of Southwark 
 and Wandsworth), (a) and who presided previously for many years 
 over Circuit 45 (comprising a large number of courts in the 
 counties of Surrey and Berks), both of which circuits have 
 increased in business to an extraordinary extent, and are 
 remarkable for the novel and difficult cases which have arisen 
 in them, especially under recent Acts, the Editor applied to him 
 for his sanction to the publication of this selection of cases, which 
 he most kindly granted. (6) The notes which have been added 
 mainly consist of references to authorities bearing upon the 
 cases to which they are respectively subjoined, but occasionally 
 
 (a) Since the above was written the learned judge has been transferred by 
 the Lord Chancellor to Circuit 43 (comprising the Metropolitan Courts of 
 Marylebone and Brompton, and also Brentford.) 
 
 (6) The Editor received the following letter from the learned judge : 
 
 County Court, Southwark, 
 
 10th December, 1882. 
 My dear De Colyar, 
 
 I have much pleasure in consenting to the collection and publication 
 of such of my judgments as you think will be useful, either as showing the 
 character of the business transacted at present by County Courts, or on 
 account of the novelty and practical value of the points involved in them. I 
 must, however, make the following remarks : First, that my judgments 
 cannot be compared with the judicial efforts of many other County Court 
 judges, past and present ; secondly, that the length of some of my judgments 
 must be excused on account of the necessity (in the absence of regular 
 reports) of stating fully the facts of the case decided, in order to make the 
 reasonings and conclusions intelligible; and, thirdly, that I am sure the 
 practical notes which you propose to append to them will add considerably 
 to whatever merit my judgments may possess in themselves. 
 
 Yours sincerely, 
 
 HENKY J. STONOK.
 
 Vlll PREFACE. 
 
 contain observations on the points decided or on the principles 
 involved in particular decisions. The selection itself chiefly 
 comprises cases arising under the various Acts which have 
 been passed during the last eighteen years, extending the 
 jurisdiction of the County Courts, and thereby relieving the 
 High Court from considerable judicial work. A brief synopsis 
 of these Acts will doubtless be acceptable both to the pro- 
 fessional and general reader. 
 
 Passing over the earlier County Court Acts, (a) and com- 
 mencing with the year 1865, the increased jurisdiction which 
 has been given to the County Courts since this date may be 
 summarised as follows : 
 
 I. In cases of an equitable character and comprising several 
 important heads of the jurisdiction which is now administered 
 by the Chancery Division of the High Court, when the amount 
 involved does not exceed 500Z. : (County Courts Act, 1865, 
 sect. 1.) 
 
 II. In actions involving title to real estate, the annual value of 
 which does not exceed 20L, though the property in dispute may 
 be, and very often is, worth over 500L : (County Courts Act, 
 1867, sect. 11.) 
 
 III. In actions transferred by the High Court to the County 
 Court, where the claim does not exceed 50Z. in contract, and 
 irrespective of the amount in dispute where the claim is in tort : 
 (County Courts Act, 1867, sects. 7 and 10. See as to this, post, 
 p. 272.) 
 
 IV. In Admiralty cases, (b) varying in amount from 300Z. to 
 1000L, according to the subject matter of the action : (County 
 Courts Admiralty Jurisdiction Acts, 1868 and 1869.) 
 
 Y. In Bankruptcy cases up to any amount, and extending to 
 any question either legal or equitable : (Bankruptcy Act, 1869.) 
 
 VI. In many other special cases under various modern 
 
 (a) The sum of 20L, fixed by sect. 58 of the County Courts Act, 1846, as the 
 limit of the ordinary jurisdiction of the County Courts, was extended to 50Z., 
 by the County Courts Act, 1850, sect. 1. 
 
 (&) The County Courts also possess contentious Probate jurisdiction where 
 the personal estate is under 200Z., and the deceased does not possess real 
 estate of the value of 300Z. : (The Court of Probate Act, 1858, sect. 10.)
 
 PREFACE. IX 
 
 acts (a) such as the Companies Act, 1867; the Partition 
 Acts, 1868 and 1876; the Pharmacy Act, 1868; the Tithe 
 Commutation Act, 1868; the Charitable Trusts Act, 1869; the 
 Attorneys and Solicitors Act, 1870 ; the Married Women's 
 Property Acts, 1870 to 1882; the Ballot Act, 1872; the Coal 
 Mines Regulation Act, 1872; the Building Societies Act, 1874; 
 the Hosiery Manufactures (Wages) Act, 1874 ; the Agricultural 
 Holdings Act, 1875 ; the Employers and Workmen Act, 1875 ; 
 the Explosives Act, 1875 ; the Friendly Societies Act, 1875 ; the 
 Local Loans Act, 1875; the Public Health Act, 1875; the 
 Industrial and Provident Societies Act, 1876 ; the Rivers 
 Pollution Act, 1876 ; Habitual Drunkards Act, 1879; the Alkali 
 Act, 1881 ; and the Army Act, 1881. (b) 
 
 VII. Lastly, In cases under perhaps the most important 
 statute of all, viz., the Employers' Liability Act, 1880, under 
 which the County Courts practically exercise an exclusive and 
 unlimited jurisdiction. 
 
 The practical working of the increased and increasing juris- 
 diction of the County Courts will best appear by Tables com- 
 piled from Mr. Norwood's valuable annual parliamentary return 
 of business transacted in those courts, which are presented to 
 the reader in an appendix to this volume, (c) 
 
 Whilst the jurisdiction of the County Courts has been thus 
 greatly increased, the manner in which it has been exercised has 
 been admittedly for the most part highly meritorious. The best 
 proofs of this are afforded by the increase of business already alluded 
 to, (d) and by the small number of appeals, and still smaller number 
 of successful appeals, from these courts, which favourably com- 
 
 (a) i.e., Acts passed since the year 1865 (see ante, p. viii). 
 
 (&) An attempt to reduce this " legislative chaos " to some order is made, 
 in a recent work on County Court practice, where the special statutes con- 
 ferring jurisdiction on the County Courts are grouped as follows : (I.) Special 
 statutes relating to penalties and forfeitures; (II.) Special statutes pro- 
 viding for the recovery of moneys other than penalties ; (III.) Special statutes 
 providing specially for the settlement of disputed matters; (IV.) Special 
 statutes conferring an administrative jurisdiction ; and (V.) Special statutes 
 relating to matters of public concern : (County Court Practice, by G. Pitt- 
 Lewis, assisted by H. A. de Colyar, Part II., Second Edition, p. 948 et seq.) 
 
 (c) Appendix A, post, p. 285. (d) Supra.
 
 X PREFACE. 
 
 pare in these respects with the High Court itself ; and it must 
 be remembered that, by the County Courts Act, 1875, every 
 reasonable facility of appeal is given to suitors who are anxious 
 to appeal from the decisions of County Court judges, (a) As 
 regards the learned judge whose judgments are contained in 
 this volume, the only reversals of any decisions of his known to 
 the editor are the two reported at pp. 140 and 173 of this work, 
 whilst judgment after judgment of his will be found on perusal 
 of the following pages and reference to the Law Reports, to have 
 been confirmed, (6) and on one occasion a judgment of his was 
 supported by the Appellate Court on a most important point of 
 the law of master and apprentice against the decisions of two 
 Divisional Courts which were both reversed : (post, pp. 108 and 
 110.) Some few instances there are, however, of directions of his 
 to juries being overruled and new trials granted in difficult cases, 
 such as Phillipson v. Hayter, L. Rep. 6 C. P. 38 ; and Smith v. 
 Hughes, 6 Q. B. Div. 597, both of which may be termed leading 
 cases. In the latter the Lord Chief Justice Cockburn and 
 
 (a) At the Social Science Congress, held at Nottingham last autumn, the 
 Editor ventured, in a short speech delivered by him during the debate which 
 ensued upon valuable papers dealing with County Court reform, contributed 
 by Mr. Motterain, Q.C. (the learned judge of the Birmingham Court) and by 
 Dr. Pankhurst, to draw attention to the great additional work imposed on 
 County Court judges, and the satisfactory manner in which it had been per- 
 formed, and also to the illiberal treatment which County Court judges have 
 received at the hands of Parliament. The views which he expressed were 
 endorsed by several of the subsequent speakers, and the almost unanimous 
 sentiment of the meeting appeared to be that, having regard to the important 
 and onerous duties now devolving upon County Court judges, their status 
 and remuneration ought both to be improved. A direct appeal on their 
 behalf was made some years since by the late lamented Earl of Lyttelton, 
 both in the House of Lords and the Press (see his letter, Times, May 
 14th, 1875), and which was unanimously supported by the public press : 
 (Appendix B., post, p. 287.) 
 
 (6) Since the above was in type the Queen's Bench Division have given 
 judgment in the case of London School Board v. Wright (see Times, July 
 6th, 1883), affirming the decision of the learned judge of the Westminster 
 County Court, and deciding in accordance with the judgment of Mr. STONOR 
 in School Board for London v. Hall (see post, p. 125), that there is no implied 
 contract between the School Board and a parent enabling the former to 
 recover from the latter in a County Court the fees payable for a child 
 attending a Board School. Leave to appeal was, however, given.
 
 PREFACE. XI 
 
 Mr. Justice Blackburn differed from each other as to the right 
 direction to the jury, and ultimately, after repeated trials, no 
 jury could agree to a verdict, a remarkable instance of the 
 difficulty of the cases which frequently come before the judges 
 of County Courts. 
 
 A further proof of the satisfactory manner in which the 
 County Court judges perform their duties will be found in the 
 public demand for a still further increase of their jurisdiction. 
 In 1878 a Select Committee of the House of Commons of a very 
 representative character, unanimously resolved that increased 
 concurrent common law jurisdiction, to the amount of 200L, 
 should be conferred upon the County Courts, and likewise that an 
 improvement should be made in the position of the judges of those 
 courts, in return for their largely increased duties and respon- 
 sibilities ; and that their salaries should be raised from 1500Z. 
 to 2000Z. per annum. The recommendations of the committee 
 were embodied in Mr. Norwood's Bill, which passed a second 
 reading in the House of Commons in 1878, and again in 1879. 
 Unfortunately this bill ultimately perished, together with the 
 rest of the legislative harvests of that and subsequent years. 
 During the present Session of Parliament another bill has been 
 introduced by Mr. Norwood, giving not only the concurrent 
 jurisdiction recommended by the committee, but also practically 
 exclusive jurisdiction (protected by provisions as to costs) up to 
 SOL in contract and 201. in tort, thus more than doubling the 
 present exclusive jurisdiction of the County Courts. (a) Yet, strange 
 to say, contemporaneously with this increase of jurisdiction the 
 bill proposes to increase the salaries only of twenty County Court 
 judges to be nominated by the Lord Chancellor. It is much to 
 be feared that such an increase of jurisdiction without provisions 
 enabling the registrars to dispose of some of the enormous 
 
 (a) The Rules of the Supreme Court, 1883, which come into operation on 
 the 24th October next, subject to disallowance by Parliament, will practically 
 confer upon the County Courts exclusive jurisdiction in contract up to 501. 
 For they provide that " in actions of contract, in which the plaintiff recovers 
 no more than 50Z. he will be entitled to County Court costs only, unless the 
 judge otherwise orders, and that in such cases the costs of one counsel only 
 will be allowed : (see Times, July 10th, 1883.)
 
 xii PREFACE. 
 
 number of small cases of contract under 5Z., or some other limit, 
 (subject of course to an appeal to the judge), would soon produce 
 arrears in the County Courts from which they have hitherto been 
 happily free, and thus jeopardise " the one successful legal 
 reform of modern times," as the County Courts have been truly 
 described by the leading journal. With regard to the limitation 
 of the proposed increase of salaries to twenty County Court judges, 
 it is submitted that this would be an act of injustice, as all 
 County Court judges are liable to perform the same duties, and 
 are presumed to possess equal learning and ability ; and if, as no 
 doubt is the case, some of the circuits are exceptionally light, 
 the remedy rests with the Lord Chancellor, who has the absolute 
 power of consolidating and re-arranging circuits a power which 
 has often been exercised. Differential salaries for County 
 Court judges have been long since fully considered by the 
 Legislature, and finally condemned by it in 1856; and the 
 power of selection now proposed to be given to the Lord 
 Chancellor is manifestly objectionable, and one which no 
 Chancellor would willingly accept. (a) 
 
 (a) It is quite impossible to ascertain, even approximately, the relative 
 amount of labour which the various County Court Circuits impose on 
 the judges who preside over them. The Provincial County Court judges 
 have Bankruptcy Jurisdiction, and some of them likewise possess Admiralty 
 Jurisdiction, and the amoxmt of business in each of these branches of juris- 
 diction varies, of course, very much in the different Circuits. The time and 
 exertion expended in travelling is also a very important item to be considered 
 in estimating the labours of the Provincial County Court judges, and the 
 length of the journeys accomplished in the course of the year by a judge 
 differs on every Circuit, though perhaps, on an average, it may be taken at 
 5000 miles a year. On the other hand, five of the judges of the Metropolitan 
 County Courts have no Bankruptcy Jurisdiction, but one of this number, Mr. 
 F. Bayley the judge of the "Westminster County Court has, of all the 
 County Court judges, by far the largest number of Issues and Actions 
 remitted to him from the High Court, and probably sits more hours in the 
 course of the year than any other of the County Court judges. The 
 remaining three Metropolitan County Court judges have Bankruptcy Juris- 
 diction, although the business is not of so heavy a character as that devolving 
 upon the judges who sit in the larger provincial towns. The distribution 
 between the Metropolitan and Provincial Circuits of the Remitted Issues and 
 Actions (which of necessity comprise cases of the greatest difficulty and 
 importance, and very frequently give rise to appeals) is, however, most 
 unequal ; that is to say, in round numbers, about one half of all the causes
 
 PREFACE. Xlll 
 
 This short notice of the increased and increasing jurisdiction 
 of the County Courts cannot conclude better than with a quo- 
 tation taken from a very able pamphlet (a) written shortly after 
 the passing of the Bankruptcy Act, 1869, by one of the ablest 
 County Court judges, whose judicial career was, unfortunately 
 for the public service, cut short by his untimely death. True as 
 the following words were when employed by the learned judge, 
 still more true (if there can be degrees of truth) are they now : 
 
 " The County Courts have achieved a success far beyond the 
 expectation of their founders. They have outlived the not 
 unnatural jealousy of the Profession ; (6) they are rising year by 
 year in the respect and confidence of the public, and year by year 
 fresh duties and responsibilities are cast upon them. It behoves 
 the Legislature, which imposes these duties and responsibilities, 
 to grant in a spirit of wise and just liberality a fitting position to 
 
 those who perform and sustain them." 
 
 H. A. DE C. 
 1, Elm-court, Temple, July, 1883. 
 
 remitted by the High Court to the County Courts are disposed of in the 
 eight Metropolitan Circuits, as appears from the following figures for the 
 years 1881 and 1882, taken from Mr. Norwood's Annual Parliamentary 
 Return : 
 
 Eight Metropolitan Forty-seven T t 1 
 
 Circuits. Provincial Circuits. 
 
 R emitted Issues 520 493 1013 
 
 Remitted Actions 327 ,.-. 461 788 
 
 847 954 1801 
 
 (a) " The County Courts, their Past, Present, and Future Functions." 
 H. Sweet, Chancery-lane. 1869. By Mr. Ellis, who, shortly before his 
 death, assumed the name of McTaggart, and was successively judge of 
 circuits Nos. 34 and 43. 
 
 (6) The learned judge appears to have been a little too sanguine in this 
 respect : (see Appendix C., post, p. 288.)
 
 NOTICE. 
 
 THE cases included in this selection are given under five titles, namely, I., 
 Contract; (a) II., Torts ; III., Railway Cases; IY., Bankruptcy Cases; V., 
 Miscellaneous. They are arranged under each head in chronological order, 
 and, with a few exceptions, they are taken from the Law Times and County 
 Courts Chronicle. The Profession and the public are much indebted to the 
 proprietors of the Law Times and County Courts Chronicle ; and the latter, 
 with its valuable reports of County Court and bankruptcy appeals, ought to 
 be supplied at least to every County Court having bankruptcy jurisdiction. 
 
 (a) One or two cases relating indeed to the law of contracts, but, having regard 
 to the precise points decided, more properly belonging to the second title of thia 
 Division, have been accidentally included in Title I.
 
 LIST OF CASES REPORTED. 
 
 PART I. 
 
 CONTRACTS. 
 
 PAGE 
 
 PHILLIPS v. BURROWS AND ANOTHER (Jurisdiction of County Courts 
 
 Specific performance) ... ... ... ... ... ... ... 1 
 
 ROWLEY v. MORRIS (Meaning of term " law expenses " in a will 
 
 Bight of executor to recover) ... ... ... ... ... ... 7 
 
 BRYANT AND OTHERS v. THE KINGSTON BURIAL BOARD (A free- 
 holder, although non-resident, is a "parishioner" ... ... ... 10 
 
 MAYNARD v. PENN (Foreclosure costs) 13 
 
 BARNETT v. MASTERS (Notice to determine a weekly tenancy) ... 14 
 
 BAYLISS v. LEAR (Easement Parol licence) ... ... ... ... 16 
 
 TOOMER AND TOOMER V. THE E/ADSTOCK COAL AND WAXJGON 
 
 COMPANY (Agreement to repair Unnecessary delay Average 
 clause Penalties) ... ... ... ... ... ... ... 18 
 
 KNIGHT v. WAYTE (Specific performance Qualified title to lease- 
 holds) 22 
 
 FLUDGER v. STEVENSON (Right of auctioneer to recover for expenses 
 
 incurred and work done on revocation of authority to sell) ... ... 24 
 
 TOMKINS v. HEWITT (Right of tenant, who has not deducted it from 
 
 his rent, to recover tithe rentcharge from landlord) ... ... ... 26 
 
 SCEATS v. HUTCHINGS (Executor de son tort has no right of retainer) 30 
 
 GREEN v. DIRECTORS OF PRISONS (Statutory provisions as to notice 
 of action) 31 
 
 HYAMS v. HANKEY AND OTHERS (Joinder of strangers with landlord 
 
 in distress renders it void) 34 
 
 BRAILSFORD v. WILSON (Hiring domestic servant Sect. 4 of Statute of 
 Frauds) 37 
 
 CRYSTAL PALACE GAS COMPANY v. SMITH (What constitutes a 
 
 guarantee within Statute of Frauds) ... ... ... ... ... 38 
 
 JOHNSTON v. EATON (Contract by trustee in liquidation to value pro- 
 perty belonging to the estate on the part of purchaser void) ... 46 
 
 FARN v. GRANGER (Executor's right of retainer) 47 
 
 WOODHOUSE v. MAYOR AND CORPORATION OF KINGSTON (Money 
 
 paid by mistake When time begins to run) ... ... ... ... 50
 
 XVI CONTENTS. 
 
 PAGE 
 
 BATCHELOE v. KEITH (Secondary evidence of unstamped agreement 
 
 to a lease When it may be given) ... ... ... ... ... 56 
 
 IZOD v. LAYMAN (Computation of interest under the 15th section and 
 4th schedule of Pawnbrokers Act) ... ... ... ... ... 59 
 
 NESBITTS v. WEBB (Warranty Contract of sale) 62 
 
 WAGSTAFF AND WAEMAN v. MC!LROY (Balance of purchase money 
 due in respect of a contract of sale not yet performed is not 
 attachable) 66 
 
 AEMFIELD v. AEMFIELD (Loan Promise to repay Consideration)... 67 
 
 HEAEN v. ME CHAN (Right of auctioneer to remuneration for his 
 
 services on revocation of his authority to sell) ... ... ... ... 70 
 
 SANDELL v. DAVIS (Principal and agent Determination of relation- 
 ship Commission) ... ... ... ... ... ... ... 75 
 
 BLOYD v. HUNT (Landlord and tenant Annual rental value above 20Z. 
 
 Actual length of tenancy in question Jurisdiction of County Court) 77 
 
 COLE v. WOOD (Action on lost bill of exchange)... ... ... ... 81 
 
 SALTEE v. BEOOKS (Receipt by bailiff to purchaser of goods taken in 
 
 execution need not be registered as a bill of sale) ... ... ... 82 
 
 HAEEIS v. TAEGETT (Construction of Bills of Sale Act, 1878 Davies 
 v. Goodman considered) ... ... ... ... ... ... ... 87 
 
 BAKEE v. MEIKLE (Receipt of cheque operating as accord and satis- 
 faction) 90 
 
 NEIL v. RENNIE (Bill of sale Its release presumed) ... ... ... 92 
 
 MAESHALL v. MAETIN (Liquidated damages or penalty) 93 
 
 HATTON v. WILKINS (Implied warranty on sale of food ... ... 96 
 
 SCAED v. BAILEY (Sufficiency of notice of dishonour of bill of 
 
 exchange) ... ... ... ... ... ... ... ... ... 98 
 
 NOYE v. WISEMAN (Fraudulent representations on letting premises 
 
 Unstamped agreements admitted as evidence of fraud) ... ... 99 
 
 STEINGEE v. CAEPENTEE (Sale of goods as " owner " Implied war- 
 ranty of title) 102 
 
 GIBSON v. HOLMES (Forfeit of purchaser's deposit on his failing to 
 perform his contract) ... ... ... ... ... ... ... 105 
 
 EATON v. WESTEEN (Implied stipulation in contract of apprenticeship 
 
 as to place of performance) ... ... ... ... ... ... 108 
 
 GODDAED v. O'BEIEN (Acceptance of cheque for a smaller amount in 
 
 full of a debt, good accord and satisfaction) ... ... ... ... 110 
 
 MONTAGU v. SINCLAIE (Assignment of a debt under 25th section 
 Judicature Act, 1873) 115 
 
 PAEK v. DEUEY (Recovery by tenant of property tax from landlord)... 116 
 
 PEICE v. BOYCE AND BAYLISS (Action by vicar against church- 
 wardens Charitable Trusts Act) ... ... ... ... ...117 
 
 MAECUSSEN v. LAYMAN (Auctioneer under contract with assignor, 
 but without authority of assignee, selling goods assigned by bill of 
 sale)... . 123
 
 CONTEXTS. XV11 
 
 PAGE 
 
 SCHOOL BOARD FOB LONDON v. HALL (Elementary Education Act, 
 1870 No implied contract between school board and parent to pay 
 fees) 125 
 
 EVANS AND SALMON v. SMITH (A post-office order is a negotiable 
 
 instrument) ... ... ... ... ... ... 129 
 
 PAET II. 
 
 TORTS. 
 
 GROVER v. ROUSELL (Liability of soldier to arrest on civil process) . . . 132 
 
 BEAMAN v. PRITCHARD AND SHARLAND (Action against high bailiff 
 
 of County Court Explanation of 13 & 14 Viet. c. 61, s. 19) 133 
 
 MADDISON v. BROWN (Measure of damages under Lord Campbell's 
 
 Act) 136 
 
 NORMAN v. ELLIS (Liability of owner of cattle straying from a 
 
 common) ... ... ... ... ... ... ... ... ... 137 
 
 THE SINGER MANUFACTURING COMPANY v. CLARKE (Wrongful 
 conversion by pawnbroker Effect of indemnity provided by 25th 
 section of the Pawnbrokers Act, 1872)... ... ... ... ... 140 
 
 LAW v. GOODING (Detinue not maintainable against landlord who has 
 distrained goods taken in execution, and which with permission of 
 sheriff he has removed) ... ,.. ... ... ... ... ... 145 
 
 DANIELS AND WIFE v. JONES (Negligence of servant Liability of 
 
 master as for a misfeasance) ... ... ... ... ... ... 146 
 
 MARTIN v. BARWICK (Master and servant Scope of employment and 
 
 authority) ... ... ... ... ... ... ... ... ... 149 
 
 LEE v. TAIGEL (Damage by pigeons Owner not liable) ... ... 150 
 
 SULLIVAN v. CULLING (Liability of master for negligence of servant 
 Whether a lighterman may be a contractor when employed by a 
 barge owner) ... ... ... ... ... ... ... ... 151 
 
 OWENS v. MAUDSLEY (Refusal by High Court to issue certiorari 
 
 removing action under Employers' Liability Act, 1880) 153 
 
 Ibid. (Questions to be left to jury in cases under Employers' Liability 
 
 Act, 1880) ...~ 154 
 
 ADAMS v. NIGHTINGALE (Notice of injury under Employers' Liability 
 Act Its sufficiency when served after business hours) ... ... 156 
 
 HATFIELD v. ENTHOVEN (Employers' Liability Act, 1880, s. 1, sub- 
 sect. 1 Moving a hand crane within scope of labourer's employment 
 Sec us as to a steam crane) ... ... 160 
 
 PITMAN v. BENNETT AND SON (When contributory negligence a 
 
 defence under the Employers' Liability Act) ... ... ... ... 162 
 
 SMITH v. LAFONE (Employers' Liability Act, s. 1, sub-sect. 1 Defect 
 
 in plant Sub-sect. 2 Negligence of person with superintendence) 164 
 
 b
 
 XV111 CONTENTS. 
 
 PAGE 
 
 HAKRISON v. DAWSON (Employers' Liability Act, s. 8 Lighterman 
 
 when a " contractor," and not a " workman," within the Act) . . . 165 
 
 SPINKS v. ALEXANDER COWAN AND Co. (Employers' Liability Act, 
 s. 1, sub-sect. 1 Defect in ways and plant Sect. 1, sab-sect. 2 
 Person with superintendence) ... ... ... ... ... ... 166 
 
 GRACE v. CAWTHORN (Whether fireman is a " seaman " within Em- 
 ployers and Workmen Act, 1875, and Employers' Liability Act, 
 1880) 168 
 
 RUNHAM v. BONCA (Liability of householder for injury to neighbour- 
 ing premises caused by negligence of competent person employed 
 byhim) 173 
 
 DUCK v. BATE (Exclusive right of performing dramatic composition 
 conferred by 3 & 4 Will. 4, c. 15, and 5 & 6 Yict. c. 45, on the 
 author or his assignee, extends only to performances in public) ... 174 
 
 PART III. 
 
 RAILWAY CASES. 
 
 FREEMAN v. GREAT WESTERN RAILWAY COMPANY (Railway com- 
 pany liable for delay caused by waiting for train of another 
 company) ... ... ... ... ... ... ... ... ... 177 
 
 FORSYTH v. GREAT WESTERN RAILWAY COMPANY (Liability of 
 railway company for not observing time advertised in their time 
 table) ... 179 
 
 BECKE v. GREAT WESTERN RAILWAY COMPANY (Condition limiting 
 liability of railway company, as carriers of passengers, for delay, 
 except when occasioned by wilful misconduct) ... ... ... 181 
 
 HOBSON v. GREAT WESTERN RAILWAY COMPANY (Condition limiting 
 liability of railway company, as common carriers, to accidents 
 occasioned by wilful misconduct) ... ... ... ... ... 188 
 
 HOARE v. GREAT WESTERN RAILWAY COMPANY (Property in goods 
 wrongly consigned New contract between carriers as involuntary 
 bailees and consignors) ... ... ... ... ... ... ... 192 
 
 BARRATT v. LONDON, BRIGHTON, AND SOUTH COAST RAILWAY 
 (Where object of sender of goods known to railway company, 
 exceptional damages on their destruction recoverable against them) 195 
 
 BISHOP v. LONDON AND SOUTH-WESTERN RAILWAY COMPANY 
 (Commercial traveller's account books and stationery are personal 
 luggage) _ 199 
 
 M'GEDY v. LONDON AND SOUTH-WESTERN RAILWAY COMPANY 
 (Special agreement limiting liability of railway company signed by 
 season ticket holder) ... ... ... ... ... ... ... 202 
 
 CASE v. LONDON AND SOUTH-WESTERN RAILWAY COMPANY (Pro- 
 visions carried by passengers, as a present for another, personal 
 luggage) ... ..205
 
 CONTENTS. XIX 
 
 PAGE 
 
 VAN RAALTE v. LONDON, BRIGHTON, AND SOUTH COAST RAILWAY 
 
 (Action by consignor against carrier for breach of contract) . . . 208 
 
 YETTS v. LONDON AND SOUTH-WESTERN RAILWAY COMPANY 
 
 (Liability of railway company for overcrowding carriages) ... ... 210 
 
 DAVOSS v. SOUTH-EASTERN RAILWAY COMPANY (Liability of railway 
 
 company for goods deposited in cloak-room) ... ... ... ... 211 
 
 SOUTH-EASTERN RAILWAY COMPANY v. SANKEY (Difference in cir- 
 cumstances of traffic may justify inequality of rates) ... ... 214 
 
 LAWSON v. LONDON AND SOUTH-WESTERN RAILWAY COMPANY 
 (Author's MS. is a writing within Carriers' Act <-In case of loss, 
 its value is capable of being estimated) ... ... ... ... 221 
 
 HARKER v. SOUTH-EASTERN RAILWAY COMPANY (What is a fulfil- 
 ment of contract by railway company to convey goods to a certain 
 siding on their line) ... ... ... ... ... ... ... 223 
 
 BALDWIN v. LONDON, CHATHAM, AND DOVER RAILWAY (Where 
 mode of packing main cause of injury to goods, nominal damages 
 only recoverable against railway company for delay in carrying them) 224 
 
 PART IV. 
 
 BANKRUPTCY. 
 
 Be LANDON (an Infant) ; Ex parte HODGSON (Liability of infants to 
 
 be made bankrupts under Bankruptcy Act, 1869) ... ... ... 227 
 
 Re W. AND T. MILES ; Ex parte MILES (Registrar has no power 
 before first meeting of creditors to estimate an unascertained debt 
 under Bankruptcy Act, 1869, s. 31) 229 
 
 Be THREADKELL ; Ex parte SHRUBSOLE (Absolute garnishee order a 
 " charge " on debt attached within sects 12 and 16 of the Bank- 
 ruptcy Act, 1869 233 
 
 Ex parte MARSH ; Ex parte BAYLEY (Written orders given by debtor 
 for payment of money due to him are charges under sects. 12 and 16 
 of Bankruptcy Act, 1869) 234 
 
 Be POTTER AND FERREGE ; Ex parte PARK (Qualified right of dis- 
 tress possessed by mortgagees where mortgagors are tenants in 
 common, and each has separately attorned as tenant of his undivided 
 moiety) ... ... ... ... ... ... ... 235 
 
 Be WILLIAM DREW HARVEY (Levy of distress under a magistrate's 
 warrant Gas company empowered to distrain for gas in arrear, not 
 " a landlord or other person to whom rent is due " within Bank- 
 ruptcy Act, 1869, s. 34) 241 
 
 Be SWAIN ; Ex parte EGGINGTON (What amounts to transfer of 
 
 growing timber sold to bankrupt Lien for purchase money) . . . 246 
 
 Be MILLS ; Ex parte GILBERT (Debt due to friendly society from its 
 
 officer has no priority in bankruptcy) ... ... ... ... ... 248
 
 XX CONTENTS. 
 
 PAGE 
 
 Re FEEEIGE and FERRIGE ; Ex parte SHATTOCK and Ex parte HAY- 
 WAED (Fraudulent preference negatived by a distinct demand of 
 debts by creditor without notice of bankruptcy) ... ... ... 251 
 
 KEYSELL v. PADOW (Bankrupt may sue for mere personal labour 
 
 pending bankruptcy) ... ... 252 
 
 Re COOKE ; Ex parte HILDEB (Bankruptcy Act, 1869, s. 92 Fraudu- 
 lent preference) ... ... ... ... ... ... ... ... 252 
 
 Re ELLIOTT (Motion for removal of proceedings on the ground that 
 
 petitioning creditor was a client of registrar refused) ... ... 257 
 
 Re MASSTJBINI (Priority of parochial rates under sect. 32 of Bankruptcy 
 
 Act, 1869, notwithstanding composition under 126th section) . . . 259 
 
 Re PHILIPPART ; Ex parte PHILIPPART AND OTHERS (Presents to 
 a married woman by strangers held to be gifts to her for her separate 
 use) 260 
 
 JENNINGS v. WARREN (Tender by debtor of and refusal^by creditor to 
 accept composition, and subsequent application by creditor and 
 refusal by debtor to pay the same Tender held no defence But 
 offer of composition and payment of amount into court a good 
 defence) 261 
 
 PART V. 
 
 MISCELLANEOUS. 
 
 WERDERMAN v. BUTTIN (Matter arising after action brought available 
 
 as a counter-claim) ... ... ... ... ... ... ... 263 
 
 CULLIN v. GOVER (Observations as to duty of judge to take notes) . . . 267 
 
 MOERIS v. LONDON AND SOUTH-WESTERN RAILWAY COMPANY 
 (High Court has no power to refer issues of interpleader to County 
 Courts for trial) 270 
 
 MARCUSSEN v. ADRIAN (County Court has no power to try issues in 
 
 actions of tort sent to be tried by High Court) 273 
 
 IMPRISONMENT FOE DEBT (Observations of Judge Stonor as to) ... 274 
 
 EVES v. RAFTERY (Leaseholds can be taken in execution or County 
 
 Court judgments)... ... ... ... ... ... ... ... 280 
 
 WORTHINGTON v. JOHNSON (Costs out of deposit made by plaintiff on 
 
 appeal refused to defendant Solicitor has no lien on such deposit) 283
 
 ALPHABETICAL LIST OF CASES 
 REPORTED. 
 
 PAGE 
 
 ADAMS v. NIGHTINGALE 67 
 
 ARMFIELD v. ARMFIELD 156 
 
 BAKER v. MEIKLE 90 
 
 BALDWIN v. LONDON, CHATHAM, AND DOVER RAILWAY COMPANY 224 
 
 BARNETT v. MASTERS ... ... ... ... ... 14 
 
 BARRATT v. LONDON, BRIGHTON, AND SOUTH COAST RAILWAY 
 
 COMPANY 195 
 
 BATCHELOR v. KEITH 56 
 
 BAYLISS v. LEAR 16 
 
 BEAMAN v. PRITCHARD AND SHARLAND 133 
 
 BECKE v. GREAT WESTERN RAILWAY COMPANY 181 
 
 BISHOP v. LONDON AND SOUTH-WESTERN RAILWAY COMPANY ... 199 
 
 BLOYD v. HUNT 77 
 
 BRAILSFORD v. WILSON 37 
 
 BRYANT AND OTHERS v. THE KINGSTON BURIAL BOARD 10 
 
 CASE v. LONDON AND SOUTH-WESTERN RAILWAY COMPANY ... 205 
 
 COLE v. WOOD 81 
 
 COOKE, Re; Ex parte HILDER 252 
 
 CRYSTAL PALACE GAS COMPANY v. SMITH 38 
 
 CULLIN v. GOVER 267 
 
 DANIELS v. WIFE AND JONES ... ... ... ... 146 
 
 DAVOSS v. GREAT EASTERN RAILWAY COMPANY 211 
 
 DUCK v. BATE 174 
 
 EATON v. WESTERN 108 
 
 ELLIOTT, Re 257 
 
 EVANS AND SALMON v. SMITH /. 129 
 
 EVES v. RAFTERY 280 
 
 FARN v. GRANGER ... 47 
 
 FERRIGE AND FERRIGE, Re ; Ex parte SHATTOCK AND HAYWARD 251 
 
 FLUDYER v. STEVENSON 24 
 
 FORSYTE v. GREAT WESTERN RAILWAY COMPANY 179 
 
 FREEMAN v. GREAT WESTERN RAILWAY COMPANY 177 
 
 GIBSON v. HOLMES 105 
 
 GODDARD V. O'BRIEN 7 '... ' ... 110 
 
 GRACE v. CAWTHORN 168 
 
 GREEN v. DIRECTORS OF PRISONS 31
 
 XX11 LIST OP CASES REPORTED. 
 
 PAGE 
 
 GEOVEE v. ROWSELL 132 
 
 HAEKEE v. SOUTH-EASTEEN RAILWAY COMPANY 223 
 
 HAEEISON v. DAWSON 165 
 
 HAEEIS v. TABGETT ; 87 
 
 HAEVEY, Re W. D 241 
 
 HATFIELD v. ENTHOVEN 160 
 
 HATTON v. WILKINS , 96 
 
 HEAEN v. MEGHAN 70 
 
 HOAEE v. GEEAT WESTEEN RAILWAY COMPANY 192 
 
 HOBSON v. GEEAT WESTEEN RAILWAY COMPANY 188 
 
 HYAMS v. HANKEY AND OTHEES 34 
 
 IZOD v LAYMAN 59 
 
 JENNINGS v. WAEEEN 261 
 
 JOHNSON v. EATON ... 46 
 
 KEYSELL v. PADOW 252 
 
 KNIGHT v. WAYTE 22 
 
 LANDON, Re ; Ex part e HODGSON 227 
 
 LAWSON v. LONDON AND SOUTH-WESTEEN RAILWAY COMPANY ... 221 
 
 LAW AND ANOTHEE V. GOODING 145 
 
 LEE v. TAIGEL " 150 
 
 M'GEDY v. LONDON AND SOUTH- WESTEEN RAILWAY COMPANY ... 202 
 
 MADDISON v. BEOWN 136 
 
 MAECUSSEN v. ADEIAN 273 
 
 MAECUSSEN v. LAYMAN 123 
 
 MAESHALL v. MAKTIN 93 
 
 MAESH, Exparte; Exparte BAYLEY 233 
 
 MAETIN v. BABWICK 149 
 
 MASSUBINI, Re 259 
 
 MAYNAED v. PENN 13 
 
 MILES, Re ; Ex parte MILES 229 
 
 MILLS, Re; Exparte GILBEET 248 
 
 MONTAGU v. SINCLAIE 115 
 
 MOEEIS v. LONDON AND SOUTH-WESTEEN RAILWAY COMPANY ... 270 
 
 NEIL v. RENNIE ... ... .., ... ... ... ... ... 92 
 
 NESBITTS v. WEBB ... ... ... ... ... ... ... ... 62 
 
 NOEMAN v. ELLIS 137 
 
 NOYE v. WISEMAN 99 
 
 OWENS v. MAUDSLEY 153,154 
 
 PABK v. DEUEY 116 
 
 PHILIPPAET, Re; Ex parte PHILIPPAET AND OTHEES 260 
 
 PHILLIPS v. BUEEOWS AND ANOTHEE ... ... ... ... ... 1 
 
 PITMAN v. BENNETT AND SON 162 
 
 POTTEE AND FEEEiGE, Re ; Exparte PAEK AND OTHEES 235 
 
 PEICE v. BOYCE AND BAYLISS 117 
 
 ROWLEY v. MOEEIS 7 
 
 RUNHAM V. RONCA 173 
 
 SALTEE v. BBOOKS 82 
 
 SANDELL v. DAVIS ... ... 75
 
 LIST OF CASES REPORTED. XX111 
 
 PAGE 
 
 SCARD v. BAILEY 98 
 
 SCEATS V. HUTCHINGS 30 
 
 SCHOOL BOARD FOR LONDON v. HALL... ... ... ... ... 125 
 
 SINGER MANUFACTURING COMPANY v. CLARKE 140 
 
 SOUTH-EASTERN RAILWAY COMPANY v. SANKEY 214 
 
 SPINKS v. ALEXANDER COWAN AND Co. 166 
 
 STRINGER v. CARPENTER 102 
 
 SULLIVAN v. CULLING 151 
 
 SWAIN, Re; Ex parte EGGINGTON 246 
 
 THREADKELL, Re ; Ex parte SHRUBSOLE 233 
 
 TOMKINS v. HEWITT 26 
 
 TOOMER AND TOOMER V. RADSTOCK COAL AND WAGGON COMPANY 18 
 
 VAN RAALTE v. LONDON, BRIGHTON, AND SOUTH COAST RAILWAY 
 
 COMPANY 208 
 
 WAGSTAFF AND WARM AN v. MC!LROY 66 
 
 WERDERMAN v. BUTTIN 263 
 
 WOODHOUSE v. MAYOR AND CORPORATION OF KINGSTON 50 
 
 WORTHINGTON V. JOHNSON 283 
 
 YETTS v. LONDON AND SOUTH-WESTERN RAILWAY COMPANY 210
 
 TABLE OF CASES CITED. 
 
 A. 
 
 Adain, Ex parte page 228 
 
 Adams, Re 237 
 
 Allsopp v. Day 84 
 
 Andrew v. Swansea Cambrian 
 
 Building Society 6 
 
 Anglo-Italian Bank v. Davis ... 282 
 
 Ardern v. Rowney 44 
 
 Armsworth v. The South-Wes- 
 
 tern Railway Company 137 
 
 Attorney- Gene ral v. Parker ... 11 
 
 B. 
 
 Baguley v. Hawley 103 
 
 Baker v. GreenhiU 28 
 
 Baker v. Jacob 69 
 
 Bank, National Mercantile, v. 
 
 Hampson 92, 123 
 
 Banks v. Crossland 38 
 
 Barrell, Ex parte 107 
 
 Bayley, Ex parte 237 
 
 Beddall v. Mailland 266 
 
 Beer v. Walker 65 
 
 Bell v. London and North- Wes- 
 tern Railway Company 235 
 
 Belton v. Hodges 228 
 
 Bettstf. Burch 95, 96 
 
 Bigge v. Parkinson 64, 65 
 
 Birchall v. Pugin 284 
 
 Birmingham and Staffordshire 
 Gaslight Company, Ex parte; 
 
 Re Fanshawe 244 
 
 Blades v. Lawrence 273 
 
 Blake v. Appleyard 265 
 
 Boehmv. Wood 23 
 
 Bones v. Booth 61 
 
 Bower v. Peate 174 
 
 Boyd v. Dubois 226 
 
 Boys v. Auc ell 95 
 
 Bracegirdle v. Heald 38 
 
 Branton v. Griffith 85 
 
 Brice v. Bannister .235 
 
 Bridges v. Lewis 16 
 
 Brooksbank v. Smith 55 
 
 Brown, Re .. 237 
 
 Brown v. Groombridge ...page 9 
 Brown v. Manchester and Shef- 
 field Railway Company... 193, 213 
 Brown v. Metropolitan Insurance 
 
 Society 238 
 
 Bryant v. Foote 12 
 
 Buckmaster v. South-Eastern 
 
 Railway Company 186 
 
 Budd v. Marshall 29 
 
 Burn v. Carvalho 235 
 
 Burslem v. Attenborough.. 141, 143 
 Butcher, Ex parte ; Re Mel- 
 drum 255 
 
 C. 
 
 Cahill v. London and North- 
 Western Railway Company . . . 206 
 
 Campanari v. Woodburn 74 
 
 Carruthers v. Paine ... . ... 32 
 
 Carr v. Cooper 227 
 
 Carr v. Lancashire and York- 
 shire Railway Company ... 203 
 
 Casson v. Roberts 107 
 
 Cawley v. North Staffordshire 
 
 Railway Company 198 
 
 Chalmers, Ex parte ; Re 
 
 Edwards 247 
 
 Chapman v. Spoiler 103,104 
 
 Charles v. Taylor ,Walker and Co. 153 
 
 Chasemore v. Turner 69 
 
 Chatterton v. Watiiey 234 
 
 Clarkson v. Musgrave ... 269, 270 
 
 Clayton v. Blakey 15 
 
 Clayton v. Renton 122 
 
 Coggs v. Bernard 193 
 
 Cook v. Ipswich Board of 
 
 Health 55 
 
 Cooper, Ex parte 85 
 
 Cooper v. Fletcher 240 
 
 Corbyv. Hall 147 
 
 Corby v. Hill 166, 174 
 
 Cornish v. Stubbs 17 
 
 Cory v. Thames Iron Works 
 
 Company 198 
 
 Coventry v. Coventry 9
 
 TABLE OF CASES CITED. 
 
 XXV 
 
 Craven, Ex parte page 251 
 
 Crosse v. Raw 29 
 
 Crouch v. Credit Foncier of 
 
 England 131 
 
 Crowder v. Stewart 50 
 
 Climber v. Wane 115 
 
 dimming v. Bedborough 117 
 
 D. 
 
 Daltori v. Angus 174 
 
 , Daniels v. Jones 174 
 
 D'Arc v. London and North- 
 Western Railway Company 
 
 190, 205 
 
 David v. James 209 
 
 Davies v. Goodman 89 
 
 Davis v. Curling 32 
 
 Davis v. Mayor of Swansea 32, 34 
 
 Denby v. Moore 29, 117 
 
 Denton v. Great Northern Rail- 
 way Company 178, 180, 185 
 
 Devonshire, Duke of, v. Elgin... 17 
 
 Dewell v. Sanders 151 
 
 Dobson v. Collis 38 
 
 Doe and Rigge v. Bell 15 
 
 Doe d. Lambourne v. Pedgripp 29 
 
 Dolphin v. Lay ton 284 
 
 Dovaston v. Payne 140 
 
 Duff v. Budd 192 
 
 Duff v. Great Northern Railway 
 
 Company 204 
 
 Dunlop v. Lambert 209 
 
 Dunnage v. White 3 
 
 Dynes v. Leach 163 
 
 E 
 
 Edge-y. Strafford ' 15 
 
 Edwards v. Combe 262 
 
 Edwards v. Edwards 85 
 
 Edwards v. Wickwar 37 
 
 Eicholz v. Bannister 103 
 
 Ellis v. Munson 264 
 
 Emmanuel v. Bridget 234 
 
 Evershead v. London and North 
 Western Railway Company 
 
 215, 216, 217, 219, 221 
 
 F. 
 
 Fanshaw, Re 237 
 
 Fletcher v. Greenwell 32 
 
 Flockton v, Peake 13 
 
 Forden, Ex parte 47 
 
 Franklin v. South-Eastern Rail- 
 way Company 137 
 
 Franks v. Cooper 47 
 
 G. 
 
 Gallin v. London and North- 
 Western Railway Company... 204 
 
 Gill v. Manchester Railway 
 
 Company .page 190 
 
 Gimes v. Harrison 13 
 
 Glinister v. Great Western Rail-- 
 way Company 190, 191, 193 
 
 Good, Ex parte ; Re Lee 233 
 
 Goodwin v. Roberts 131 
 
 Goodwin v. Cheeverley 140 
 
 Gore v. Bowser 281 
 
 Graham v. Lord Londonderry . . . 261 
 
 Grainger v. Aynsley 165, 166 
 
 Great Northern Railway Com- 
 pany v. Shepherd 202, 207 
 
 Green v. Bartlett 76 
 
 Green v. Lucas 26 
 
 Griffenhoof v. Daubeney 27 
 
 Griffiths v. Gidlow 163 
 
 H. 
 
 Hadley v. Baxendale ... 197, 198, 225 
 
 Haffell v. Armstead 15 
 
 Hamlyn v. Great Northern Rail- 
 way Company 178 
 
 Hannam v. Mockett 151 
 
 Hardman v. Belhouse 92 
 
 Harmer v. Bean 37 
 
 Harris v. Cockermouth and 
 Worthington Railway Com- 
 pany 221 
 
 Harris v. Great Western Rail- 
 way Company 212 
 
 Hartley v. Hudson 29 
 
 Hernaman v. Bowker 86 
 
 Hewitt v. Snare 9 
 
 Hewlins v. Shipparn 16 
 
 Hill, Ex parte ; Be Roberts ...246 
 
 Hill v. Kirkwood 90 
 
 Hinton v. Sparks 95 
 
 Hobson v. Great Western Rail- 
 
 193 
 
 124 
 
 Holmes v. Clark 163 
 
 Hooper v. London and North- 
 Western Railway Company . . . 226 
 
 Hopkins v. Grazebrook 101 
 
 Home v. Midland Railway Com- 
 pany 197, 198 
 
 Hudston v. Midland Railway 
 
 Company 201 
 
 Huff ell v, Armitage 16 
 
 Hugh v. London and North- 
 Western Railway Company... 192 
 
 Humber v. Daniel 23 
 
 Hurst v. Great Western Railway 
 Company 178, 180 
 
 way Company . . 
 Hollins v. Fowler 
 
 J. 
 
 Jeffrey v. Neale . . . 
 Jenner v. Smith . . 
 
 ... 28, 29 
 . 192
 
 XXVI 
 
 TABLE OF CASES CITED. 
 
 Johnson v. Lawson page 36 
 
 Jones, Re ; Ex parte Jones . . . 229 
 Jones v. Eastern Counties Rail- 
 way Company 221 
 
 Jones v. Just 64,65, 97 
 
 Jones v. Mills 15 
 
 Joseph, Be 49 
 
 Judd v. Plum 13 
 
 K. 
 
 Kemp, Ex parte; Re Sir W. 
 
 Russell 233 
 
 Kemp?). Cory 239 
 
 Kerkin v. Kerkin 80 
 
 Keyworth,jRe , ... 249 
 
 Knight v. Abbott 272,273 
 
 Knowlman v. Bluett 38 
 
 L. 
 
 Lamb v. Brewster 29 
 
 Leach v. Simpson 268 
 
 Lea v. Whitaker 95 
 
 Le Blanche v. London and 
 North- Western Railway Com- 
 pany 128,179,180,203 
 
 Lee ?>. Nuttall 50 
 
 Leev. Wilmot 69 
 
 Lees v. Paterson 266 
 
 Leirv. Lindo 23 
 
 Lewis v. Great Western Railway 
 
 Company 191, 193, 205 
 
 Liggins v. Ingo 16 
 
 Lowe v. Blackmore 234 
 
 M. 
 
 McCawley v. Furness Railway 
 
 Company 190, 204 
 
 McClellan v. Yoring 36 
 
 McKean v. Mclvor 192 
 
 Macrow v. Great Western Rail- 
 way Company . . . 200, 201, 206 
 
 Magee v. Lovell 96 
 
 Marriott v. Thompson 47 
 
 Martin v. Great India Peninsular 
 
 Railway 190 
 
 Martina. Wood 237,238 
 
 Matthews, Re 249 
 
 Medina v. Stoughton 104 
 
 Mellor v. Watkins 17 
 
 Miller v. Davies 91 
 
 Mody v. Gregson ... 64,65, 97 
 
 Moffat v. Adams 141 
 
 Moff at v. Laurie 74 
 
 Monck v. Clements 76 
 
 Montague v. Sinclair 235 
 
 Morgan v. Rees .... 269,270 
 
 Morley v. Attenborough ... 103, 104 
 
 Moss v. Gallimore 36 
 
 Moule, Ex parte 238 
 
 Mountstephen v. Lakeman page 45 
 Mytton v. Midland Railway Com- 
 pany 201 
 
 N. 
 
 National Mercantile Bank v. 
 
 Hampson 93, 123 
 
 Newbegin v. Bell 9 
 
 Nicholson v. Hooper 5 
 
 Noble v. Governor and Company 
 
 of Bank of England 81 
 
 O. 
 
 Ockenden v. Henty 107 
 
 Odell, Ex parte 86 
 
 Ongley v. Ongley 115 
 
 Original Hartlepool Colliery 
 Company v. Gibbs,... .... 264, 266 
 
 Oxlade v. North-Eastern Rail- 
 way Company 180 
 
 P. 
 
 Palmer v. Temple 107 
 
 Parish v. Sleeman 28 
 
 Parke, Ex parte; Re Potter ...240 
 Parker v. South-Eastern Rail- 
 way Company 212,213 
 
 Parkin v. Thorold 23 
 
 Parkinson v. Lee 65 
 
 Parry v. Smith 147 
 
 Pearson v. Glazebrook 80 
 
 Peet V.Baxter 141,142 
 
 Peglin v. Monmouthshire Rail- 
 way Company 220 
 
 Percival v. Hughes 174 
 
 Peter v. Compton 38 
 
 Phelps v. London and North- 
 Western Railway Com- 
 pany 200,201, 202 
 
 Pierce v. Hopper 122 
 
 Poplar Board of Works v. Love 54 
 
 Potter v. Chambers 265 
 
 Prickett v. Badger 26, 74 
 
 Purser, Re 228 
 
 R. 
 
 73 
 
 Rainy v. Vernon ... 25, 72, 
 Ransome v. Eastern Counties 
 
 Railway Company 221 
 
 Read v. Edwardes 138 
 
 Reg. v. Bowen 133 
 
 Reg. v. Wilson 229 
 
 Reilly v. Jones 95, 96 
 
 Rext). Cole 228 
 
 Rhodes v. Liverpool Commercial 
 
 Company 270 
 
 Richardson v. Elmit ; Metropo- 
 litan Board of -Works, gar- 
 nishee 66
 
 TABLE OF CASES CITED. 
 
 XXVll 
 
 Richmond v. White page 51 
 
 Rippener v. Wright 58 
 
 Robinson v. Great Western Rail- 
 way Company 190,205 
 
 Robinson v. Hoffman 37 
 
 Royee v. Charlton ... 110 
 
 Russell v. Great Western Rail- 
 way Company 187 
 
 Russell v. Smith 175 
 
 S. 
 
 Sandell v. Davies 265 
 
 Sanders v. Richardson 126 
 
 Savin, Re 243 
 
 Seckf ord's case 69 
 
 Senior v. Ward 163 
 
 Seymour v. Coulson 270 
 
 Seymour v. Maddox 166 
 
 Shaffers v. General Steam Navi- 
 gation Company 166 
 
 Sibree v. Tripp 114,115 
 
 Sidebottom, Ex part e 228 
 
 Silk v. Prime 47 
 
 Simpson v. Lamb 25, 74 
 
 Simpson v. London and North- 
 Western Railway Company... 198 
 
 Slater v. Jones 262 
 
 Smedley, Re 228 
 
 Smith o. CoweU 280 
 
 Smith v. Day 37 
 
 Snelling v. Huntingfield 38 
 
 Snowdon v. Davis 11 
 
 Southsea Company v. Wymond- 
 
 sell 51, 55 
 
 Spain, Queen of, v. Parr 74 
 
 Stamford, Earl of, v. Dawson ... 13 
 
 Standen v. Christmas 17 
 
 Stanhope Silkstone Collieries 
 
 Company, Re 234 
 
 Staple v. Young 265 
 
 Stevenson v. Hart 192 
 
 String v. Bird 115 
 
 T. 
 
 Tansley v. Turner page 247 
 
 Tempest, Exparte 251 
 
 Thompson v. Lapworth ....... 29 
 
 Thomson v. Harding 31 
 
 Tidswell v. Whitworth ... 28, 29 
 
 Toke v. Andrews 266 
 
 Tollnerct v. Brickenden 69 
 
 Topping v. Healey 26 
 
 Towne v. Campbell 15 
 
 Trent and Humber Company, Re 198 
 Turner v. Great Western Rail- 
 way Company 185, 187 
 
 Turner v. Marriott 4 
 
 U. 
 
 Udell v. Atherton 
 
 V. 
 
 Van Toll v. South-Eastern Rail- 
 way Company 212 
 
 W. 
 
 Walker v. Giles 237, 238 
 
 Wallv. Martin 175 
 
 Wall v.Taylor 175,176 
 
 Walters v. Walters 50 
 
 Watkius v. Ryniill 213 
 
 Watson, Ex parte 228 
 
 Wells v. Maxwell 23 
 
 Whiteley v. Armitage 165 
 
 Whitely v. Roberts 36 
 
 White v. France 166 
 
 Williams v. BoUand 282 
 
 Williams v. Leper 44 
 
 Wilson v. Newport Dock Com- 
 pany 198 
 
 Wiltshire Iron Company, Re ... 192 
 
 Woodgate v. Godfrey... 84, 85, 86 
 
 Y. 
 
 Yeomans v. Williams 
 
 115
 
 KEPORTS OF CASES. 
 
 PART I. 
 CONTRACTS 
 
 CROYDON COUNTY COURT. 
 
 Thursday, May 9, 1867. 
 
 (Before H. J. STONOR, Esq., Judge.) 
 
 PHILLIPS v. BURKOWS AND ANOTHER, (a) 
 
 Equitable Jurisdiction Specific Performance Lien for Purchase- 
 money. 
 
 B. induced C. to sell to him his interest in a lease at an inadequate 
 price. B. paid G. 40Z. and received the lease ; but no receipt 
 was given, nor was there any writing between the parties, and B. 
 refused to sign any, saying, " You have the lease, I have the 
 money ; what more do you want ? " C. was a trustee of the 
 lease for D., and had assigned his interest to D. before the sale. 
 B. communicated with D. before the sale, and D. had told him 
 that " C. could not sell the lease" It was alleged by 0. that he 
 was intoxicated at the time ; but it appeared that he was only 
 partially so, and knew what he was doing ; the sale was held to 
 be void ; but that B. was, under the circumstances, entitled to a 
 lien upon the lease for the purchase-money he had paid, interest, 
 and costs. 
 
 Tindal Atkinson for the plaintiff. Wood for defendant William 
 Burrows, and Drummond for defendant J. Burrows. 
 
 (a) Law Times, 1st June, 1867, vol. xliii., p. 46. 
 6
 
 Z REPORTS OF CASES. 
 
 PHILLIPS The arguments and evidence occupied three days. The facts 
 
 BURROWS sufficien % appear in the judgment. 
 
 AND His HONOUR said : This is a suit for the specific performance 
 
 ANOTHER. o f an agreement for the sale of a lease, or in the alternative for 
 a lien on the premises comprised in the lease for the purchase- 
 money (40Z.), which was paid at the time of the agreement, 
 together with the interest thereon, and the costs of the suit. The 
 indisputable facts on the evidence before me are as follows : The 
 lease in question was made to John Burrows, one of the defen- 
 dants in this case. He was regarded by the lessor as the bene- 
 ficial tenant of the premises, he acted and behaved as such on 
 many occasions in regard to the plaintiff, with the knowledge, 
 and at all events without the dissent, of the other defendant 
 William Burrows. It, however, clearly appears that John 
 Burrows was, in respect of the lease, from first to last, only 
 trustee for William Burrows, and that shortly before the alleged 
 agreement he had actually executed an assignment of the pre- 
 mises to William Burrows, but still retained possession of the 
 lease for the reason or under the pretence that he had mislaid it. 
 On the evening of the 17th Sept., 1866, the plaintiff and the 
 defendant, John Burrows, met at Norwood, and from this point 
 the evidence is contradictory. The plaintiff swears that this 
 meeting was in consequence of a previous interview and negotia- 
 tion for the sale of the lease, and he is confirmed by his wife. 
 The defendant John Burrows positively denies this. Plaintiff 
 also swears that upon the meeting on the 17th the defendant 
 John Burrows agreed to sell him the lease for 40Z. Defendant 
 denies this. They both, however, agree that the plaintiff pro- 
 cured a carriage, and drove the defendant John Burrows to 
 Forest Hill a considerable distance to get the lease from his 
 residence there ; that they returned with the lease, and went to 
 the house of the plaintiff's father-in-law, Wm. Wood. The 
 plaintiff and several witnesses swear that then and there he paid 
 the defendant John Burrows 40Z., and received the lease ; but 
 that no receipt or writing passed, and that the defendant refused 
 to sign any, saying, "You have the lease, I have the money; 
 what more do you want ? " The defendant John Burrows does 
 not directly contradict these facts, but professes his absolute 
 ignorance of them, and of everything that passed at Wood's 
 house, on account of his being then in a state of complete 
 intoxication. The plaintiff and several witnesses contradict the
 
 REPORTS OP CASES. 
 
 defendant's statement as to his state of intoxication. I do not 
 think it necessary to go into minute details, but declare my 
 judgment to be that the evidence of the defendant is out-balanced 
 by the evidence of the plaintiff and his witnesses, and that I 
 believe not only that the money was paid, and the lease delivered, 
 but also that John Burrows was not in a state of complete 
 intoxication, and, in fact, knew what was done. It is, how- 
 ever, another question whether he was in a proper state to enter 
 into such a contract as the present, or whether he was not in a 
 partial state of intoxication, which, together with other circum- 
 stances,, and especially absence of legal advice, and inadequacy 
 of price, would be sufficient to invalidate the contract, or, at 
 least, to prevent a court of equity from enforcing its performance, 
 according to numerous cases and authorities, and amongst others 
 Dunnage v. White, Swanst. 137 ; Addison on Contracts, 4th edit., 
 p. 41 ; Story's Equity Jurisprudence, vol. i., s. 231. After much 
 consideration I have come to the conclusion that the defendant 
 John Burrows was, at the time of making the agreement, in such 
 a state of intoxication as I have last mentioned, or as an 
 impartial witness, Ford, expressed it, that he was "neither 
 drunk or sober/' and I am also of opinion that the *price was 
 inadequate, for, although the plaintiff does not recollect or deny 
 using the words, I believe him to have stated previously to the 
 sale as deposed by Wm. Burrows and George Aynsley, that he 
 was ready to give 100L for the lease, and I also believe that 
 Wm. Burrows, the real owner, had refused 150Z. for the sale of 
 it, and had been offered a loan of the like amount as deposed by 
 him ; and I think that there is some evidence of even greater 
 value. But, independently of_such last-mentioned evidence, I 
 feel no doubt that upon the evidence of the defendant Wm. 
 Burrows and the general facts of this case a jury would find the 
 lease to be worth at least 150Z., and under these circumstances I 
 think that 40L was an inadequate price. It is admitted that 
 John Burrows had no legal advice or assistance ; but, perhaps, 
 this is not of great importance in the present case. On the 
 whole, I am of opinion that this contract ought not to be enforced 
 against J. Burrows, if the property were his own, nor, a fortiori, 
 where he is at best a trustee or agent only. With regard to 
 the purchase-money of 40L, I think that, according to the 
 decisions of the Court of Chancery in cases where specific per- 
 formance is refused upon even clearer and stronger grounds than 
 
 B 2 
 
 PHILLIPS 
 
 v. 
 BURROWS 
 
 AND 
 ANOTHER.
 
 4 REPORTS OF CASES. 
 
 PHILLIPS exist in the present case, it ought certainly to be held a lien on 
 T, v ' the leasehold premises if they belonged to the defendant John 
 AND Burrows, and whether it ought to be so under the actual cir- 
 ANOTHEB. cumstances of the case I will presently consider. I also think 
 that, having regard to the great peculiarities of the defendant 
 John Burrows, the plaintiff might not be aware of the state of 
 intoxication in which he was, or his consequent inability to enter 
 into a binding contract ; and therefore I think that the plaintiff 
 is entitled to the costs of the suit as against the defendant John 
 Burrows, and that the same should be added to his lien (if any) 
 on the lease, according to the principle of the case of Turner v. 
 Marriott (L. Eep. 3 Bq. 744) and the authorities there cited. I 
 now come to the most difficult part of the case, viz., whether the 
 plaintiff is entitled to the above lien on the leasehold premises 
 under the present circumstances when the lease turns out to be 
 the property, not of the defendant John Burrows, but of the 
 defendant Win. Burrows, and this question appears to me to 
 depend wholly on the conversation which took place between the 
 plaintiff and the defendant Wm. Burrows, on the 17th Sept., 
 the day before the alleged contract. The account of this 
 conversation given by the plaintiff, on the one hand, the 
 defendant Wm. Burrows and his servant George Aynsley on the 
 other, is very different in many particulars ; but I think the 
 difference is not material for the present purpose. There is one 
 material fact in which all three agree, viz., that the defendant 
 Wm. Burrows, being informed that his brother was in treaty for 
 the sale of the lease, and knowing the lease to be in his brother's 
 possession, did not tell the plaintiff, as he was bound to do, that 
 the lease did not belong to his brother, and had been assigned 
 by him (no matter to whom), but suffered him to depart under 
 the same impression with which he had entered the defendant's 
 house, that the lease did belong to his brother, and had never 
 been assigned by him, and upon which impression the plaintiff 
 subsequently acted. I do not forget that the defendant Wm. 
 Burrows swears that he told the plaintiff that his brother "could 
 not or would not sell it " for 20Z., 40Z., or 100L, but these words 
 were certainly too vague and indefinite to put the plaintiff on his 
 guard, especially taken in context with the question of price with 
 which they were connected. George Aynsley goes further than 
 W. Burrows, and says that W. Burrows positively stated that 
 his brother " had not the power to sell it, but this also is capable
 
 REPORTS OF CASES. 
 
 5 
 
 AND 
 
 of different interpretations, and does not appear to me sufficiently PHILLIPS 
 
 precise, taking it in conjunction with the rest of the conversation, 
 
 to put the plaintiff on his guard, and 1 cannot help regarding the 
 
 expression rather as Aynsley's impression derived from the 
 
 conversation and his own knowledge of the case, than the actual 
 
 words used by William Burrows. On the whole, I feel no doubt 
 
 that the defendant William Burrows by his conduct misled the 
 
 plaintiff and occasioned the fraud which Has been perpetrated 
 
 with more or less design and consciousness by the brother, and 
 
 that he is bound by his brother's acts. I therefore consider that 
 
 the plaintiff is entitled to a lien on the leasehold premises for 
 
 purchase-money, the interest, and the costs, notwithstanding the 
 
 same belong and have been assigned to the defendant Wm. 
 
 Burrows, and that the last-named defendant ought likewise to 
 
 be held personally liable for costs of the plaintiff. On this part 
 
 of the case I would refer to the case of Nicholson v. Hooper (4 
 
 Myl. & Cr. 186), and particularly to the Lord Chancellor's 
 
 judgment. I think it not necessary for me to decide the question 
 
 raised upon the Statute of Frauds, but my opinion is that the 
 
 payment of the purchase-money and the delivery of the lease 
 
 constitute a part performance of the agreement, and take the 
 
 case out of the statute. The minutes of the decree will be : 
 
 Order the plaintiff's costs to be taxed and paid by the defendants, 
 
 and that the defendants do within fourteen days after the service 
 
 of this order such service to be verified by affidavit pay to 
 
 plaintiff the pur chase -money of 40Z., with interest thereon at the 
 
 rate of 4 per cent, per annum from the 18th Sept., 1866, until 
 
 payment, the amount to be verified by affidavit ; and on payment 
 
 thereof let the lease produced in this cause be delivered up by 
 
 the plaintiff to the defendant Wm. Burrows; declare that the 
 
 plaintiff is entitled to a lien on such estate or interest as the 
 
 defendants or either of them have in the premises comprised in 
 
 the lease for the amount of the purchase-money, interest, and 
 
 costs as aforesaid, and it is ordered that the plaintiff be at liberty 
 
 to apply to the judge of this court at any time to give effect to 
 
 the said declaration. 
 
 Phillips v. Burrows. The judgment of the County Court judge in this 
 case was appealed from to Vice-Chancellor Stuart, who, in dismissing the 
 appeal with costs, said " the County Court judge has taken very great care in
 
 6 
 
 REPORTS OF CASES. 
 
 PHILLIPS 
 
 v. 
 
 BUEROWS 
 AND 
 
 ANOTHER. 
 
 giving his judgment, which is based on sound equity principles :" (County 
 Court Chronicle, vol. i., N. S. p. 151.) Such an appeal, it may be well to 
 mention, would, under the existing practice, lie to the Queen's Bench Division 
 of the High Court instead of to a Vice-Chancellor, the distinction which 
 formerly existed in regard to appeals from the County Courts, between 
 Common Law and Equity cases, no longer prevailing (see generally on this 
 subject County Court Practice, 2nd edit., by G. Pitt-Lewis, assisted by 
 H. A. de Colyar. See also Andrew v. Swansea Cambrian Building Society, 
 50 L. J. 428-432, Q. B. Div.). 
 
 So long as Equity was administered separately from Common Law, the 
 procedure and fees prescribed by the County Court Rules and Orders in 
 Equity cases were distinct from those which prevailed in Common Law 
 cases, and the case now under consideration furnishes a good example of this 
 now obsolete distinction. Since the fusion of Law and Equity established by 
 the Judicature Act, and which operates in the County Courts as well as in 
 the Superior Courts, the summons issued from the County Court and the fees 
 are the same, whether the action be in its nature legal or equitable. There 
 would seem, therefore, to be no reason why, under the new system, the 
 County Court judge should not be at liberty at his discretion to convert, by 
 amendment of the summons, an action of an equitable nature into one of 
 a common law nature, and vice versa according to the exigencies of the 
 case. The exercise of such a power would be extremely useful in many cases, 
 of course always bearing in mind the distinctions between the pecuniary 
 limits of County Court jurisdiction in legal and equitable cases. It is, 
 moreover, submitted that this power of amendment extends generally over 
 all County Court actions, subject, however, to this exception, that a posses- 
 sion summons cannot by amendment be converted into a summons in 
 ejectment, because the conditions under which the latter summons is issued 
 differ from those which prevail in the former case. As regards actions 
 under the Employer's Liability Act, there seems to be no valid reason why, 
 if the plaint be for less than 501., it could not be converted into a common 
 law action. And, certainly, the adoption of such a course where practicable 
 would be extremely advantageous in those cases which only too frequently 
 occur, in which it is discovered at the trial that the prescribed statutory 
 notice of injury has not been given, or where, as sometimes happens, the 
 evidence shows that cither of the parties does not belong to the class of 
 persons to whom the Employer's Liability Act applies, and where a common 
 law liability can be established. If, however, more than 501. be claimed, 
 the course suggested could not, of course, be followed, as such a sum exceeds 
 the limits of the ordinary jurisdiction of County Courts. On the other 
 hand, a common law action for negligence by a servant against his master 
 could not certainly] be converted into one under the Employers' Liability 
 Act, because the preliminary conditions as to notice of injury, &c., imposed 
 by that statute would necessarily remain unfulfilled.
 
 REPORTS OF CASES. 7 
 
 ROWLEY 
 
 v. 
 WANDSWORTH COUNTY COURT. MORRIS. 
 
 Tuesday, May 5, 1868. 
 
 (Before H. J. STONOE, Esq., Judge.) 
 
 ROWLEY v. MOEEIS. (a) 
 
 Law expenses Executor. 
 
 The term " law expenses " in a will means something beyond 
 
 ordinary testamentary purposes ; and includes expenses of sale 
 
 of testatrix's leasehold property. 
 
 THIS was a case in which the plaintiff was executor to the will of 
 one Sarah Morris, and he brought his claim to recover certain 
 moneys alleged to have been overpaid by him on account in 
 anticipating the realisation of the estate of the said Sarah Morris. 
 The case was fully heard before his honour at the previous court, 
 when Macrae Moir appeared as counsel for Mr. Morris, and 
 Wright for the plaintiff. 
 
 His HONOUE reserved his decision on that occasion, and at this 
 court gave judgment as follows : This is an issue from the 
 Court of Exchequer. The plaintiff's claim is for the sum of 
 4Z. 12s. 4d. money had and received by the defendant to the use 
 of the plaintiff, and for the like amount on the account stated. 
 The defendant pleads never indebted, and the plaintiff joins issue 
 on the plea, and the facts of the case are as follows : The 
 plaintiff is the executor of the will of Mary Morris, deceased, 
 dated the 26th Dec. 1854. The testatrix died shortly after the 
 date of the will, and the plaintiff duly proved the same. The 
 house, No. 1, Bolingbroke-terrace, Battersea, was leasehold, and 
 was sold by the plaintiff for 357Z. The plaintiff paid out of the 
 proceeds divers sums in respect of the charges which he con- 
 ceived was properly payable out of the fund under the will, 
 .amounting together to 244L 12s. 4d. t and he also paid to the 
 residuary legatees of the specific fund, Sarah Morris, and the 
 defendant, Thomas Morris, 61 Z. each on account, which was an 
 over-payment to each of 4/. 16s. 2cZ., and this sum is now claimed 
 by the plaintiff of the defendant. Full particulars of the 
 plaintiff's accounts have been delivered to the defendant in this 
 action. The debit side consists of one item, being the purchase 
 money of the house, 357Z., as to which there is no dispute. The 
 credits consist of eighteen items, being payments made by the 
 
 (a) County Court Chronicle, vol. i., p. 148.
 
 s 
 
 REPORtS OF CASES. 
 
 ROWLEY 
 
 u. 
 MORRIS. 
 
 plaintiff on account of charges as above, and in support of which 
 evidence was adduced. The main question is whether all these 
 charges were imposed by the testatrix on this fund in exonera- 
 tion of her residuary personal estate ? But as to one of these 
 charges there is a trifling question of amount, which I shall 
 notice in the last place. On the main question it is to be observed 
 that the will is very informally drawn, and that no executor could 
 safely administer it without the direction of a court of equity, 
 not only as to administration of the assets generally, but also as 
 to the construction of some of the devises and bequests contained 
 in it. It appears to have been a common printed form, with 
 considerable additions and alterationss made by an unskilled 
 person, and therefore certain to prove ultimately a source of 
 litigation. For the present I have only to consider whether, in 
 a due course of administration, all the payments for which the 
 plaintiff claims credit ought to be allowed to him as against the 
 fund in question. If so, the plaintiff has overpaid the defendant 
 the amount sued for, and is entitled to the verdict ; but if any of 
 these payments ought to be disallowed the defendant will be 
 indebted to the plaintiff in a lesser amount, or not at all, as the 
 case may be ; and probably the plaintiff may even be indebted to 
 the defendant. The payments which the plaintiff has made, and 
 for which he now claims credit, are divisible into four kinds : 
 First, funeral expenses ; secondly, testamentary expenses ; 
 thirdly, legal expenses; fourthly, debts and certain legacies. 
 The will contains no less than three separate directions as to all 
 or some of these charges. The first direction is simply for the 
 payment of ' ' all the testatrix's debts, funeral, and testamentary 
 expenses, by her executor, as early and conveniently as might be 
 after her decease." This is merely what the law would require 
 of the executor without any direction, and leaves the whole of 
 these expenses chargeable according to the usual course of 
 administration in the first instance out of testatrix's residuary 
 personal estate. The second direction is that " the funeral 
 expenses and the cost of the sale of the house at Bolingbroke- 
 terrace, Battersea, &c.," should be put out of the sum realised by 
 the sale, previously to the payment thereout of three legacies of 
 50L each. This clause clearly imposed the payment of 
 " funeral expenses and the cost of selling the house and the 
 three legacies " upon the proceeds of the sale, but not the 
 debts, nor the testamentary expenses, unless they are in-
 
 REPORTS OF CASES. 
 
 
 
 eluded under the form " &c.," and I do not think this is the 
 case. The term " et cetera " must, I think, be limited by the 
 immediately preceding term, viz., " cost of selling the house/' 
 and must mean other remaining expenses consequent upon, or 
 incidental thereto, such as advertisements, conditions, and 
 contract for sale and conveyances. There remains the third 
 direction as to the surplus after the payment of the legacies, 
 viz., that there should be paid thereout " the debts, funeral, and 
 law expenses." This clause clearly adds the debts to the funeral 
 expenses and legacies, and cost of sale already charged on this 
 fund; and the only question remaining is whether the testa- 
 mentary expenses are also added under the term " law expenses," 
 or whether that term ought not to be restricted to the legal 
 expenses attending the sale. After much consideration, I have 
 come to the conclusion that the latter is the right construction. 
 The words " testamentary " expenses employed by the testatrix 
 in the first direction have a technical meaning and purport, viz., 
 " usual and proper charges of probate " (Brown v. Groombridge, 
 4 Madd. 495), and the terms " law, or legal expenses," have 
 also an ascertained meaning and purport, viz., the expenses 
 incurred besides testamentary expenses in the testatrix's affairs : 
 (Coventry v. Coventry, 13 W. R. 985.) Now, the testatrix 
 has imposed the latter on the fund in question, as well as the 
 payment of his debt and funeral expenses, and inasmuch as 
 there is a residuary devise and bequest, and not an undisposed 
 of residue, these charges will be so charged upon this fund in 
 exoneration of the residuary estate : (see the cases already cited, 
 and the cases of Hewett v. Snare, 1 D. G. & S. M. 333 ; and 
 Newbegin v. Bell, 23 Bear. 386.) But the " testamentary 
 expenses," being the charges of probate, stamp duty, &c., 
 amounting to 33Z. 5s., claimed by the plaintiff, according to my 
 judgment, are not charged on the fund now in question, and 
 remain therefore primarily charged on the residuary estate, and 
 the plaintiff is not entitled to credit as against the specific 
 legatees of the clear surplus moneys arising from the sale of the 
 house. Unless the residuary estate be inadequate, which is not 
 contended, it follows that the plaintiff is, in fact, now indebted 
 to the defendant in the sum of 16Z. 12s. 6d., being a moiety of 
 the last-mentioned sum, and subject to a deduction of 4>l. 12s. 4d., 
 the amount appearing to be overpaid by the account furnished, 
 and that therefore the defendant is not indebted to the plaintiff. 
 
 ROWLEY 
 v. 
 
 MOEEIS.
 
 10 
 
 REPORTS OF CASES. 
 
 ROWLEY 
 
 v. 
 MORRIS 
 
 and has made out his plea in this action. The repetition of the 
 same terms in the various directions by the testatrix for the 
 payment of the charges imposed by her or her wish generally, 
 and on the fund in question, is a strong argument against her 
 intention to charge the specific fund with the testamentary 
 expenses ; for it will be observed that the " debts " are 
 repeated twice, and the " funeral expenses " three times, 
 whilst the "testamentary expenses" only occur once in the 
 general charge, and according to the general rule of interpreta- 
 tion that effect should be given to every word, the other terms 
 subsequently employed, viz., " costs of selling," and " law 
 expenses," must mean something else. Again, I subscribe to 
 the opinion that the same reasonable intention is for the residuary 
 estate to bear the probate duty. There is amongst the charges 
 made by the plaintiff a claim of 21. 2s., which was not fully 
 sustained, as the charge against the fund now in question, and 
 on the evidence, I think only half that amount ought to be 
 allowed ; but my decision as to the disallowance of the " testa- 
 mentary expenses " renders this immaterial in the present action. 
 The verdict will be for the defendant. The costs do not rest 
 with this court, but if they did I think they should follow the 
 verdict. 
 
 KINGSTON COUNTY COURT. 
 
 Friday, Nov. 6, 1868. 
 (Before H. J. STONOE, Esq., Judge.) 
 BRYANT AND OTHERS v. THE KINGSTON BURIAL BOARD, (a) 
 Action against a Burial Board A Freeholder, although non- 
 resident, is a " Parishioner." 
 
 THIS was an action to recover 121. Os. 2d., alleged by plaintiffs 
 to be burial fees charged in excess of the proper amount. 
 
 His HONOUR gave judgment as follows : The plaintiffs are the 
 executors of Mr. John Phillips, who died in 1864, possessed of 
 freehold property in the parish of Kingston, but without having 
 any residence in that parish. The defendants are the Burial 
 Board of Kingston, which was established in 1854, under the 
 Acts 15 & 16 Viet. c. 85, and 16 & 17 Viet. c. 134. ss. 18, 19, 
 and 128. At the death of Mr. Phillips, the plaintiffs applied to 
 the defendants for permission to bury him in the burial ground 
 
 (a) County Court Chronicle, vol. i., p. 293.
 
 REPORTS OF CASES. 
 
 11 
 
 of the parish of Kingston, upon payment of the ordinary fees 
 of a parishioner, but the board declined to give such leave, 
 except upon the payment of double fees, payable by non- 
 parishioners, according to their printed table of fees, which the 
 executors accordingly paid under protest. Subsequently double 
 fees were also required for the erection of gravestones and 
 railings, and were also paid under protest. The plaintiffs now 
 sue the defendants for the sum of 12L Os. 2d. being the amount 
 of the difference between the ordinary fees and the double fees. 
 The defendants resist the claim on the grounds first, that by 
 the table of fees settled by them in 1855, and produced by them 
 to the plaintiffs at the time of their application, double fees are 
 fixed to be paid for the interment of non-parishioners, and that 
 the late Mr. Phillips was, in consequence of his non-residence in 
 the parish, a non-parishioner; and, secondly, the defendants 
 having paid over the double fees to the vicar and clerk of the 
 parish as their agents are not liable to the plaintiffs. Upon the 
 first point I feel no doubt that the late Mr. Phillips must be held 
 to have been a parishioner. The rule of the canon law was that 
 where a man paid his tithes he was entitled to be buried, " ubi 
 decimas, persolvebat vivus, sepeliatur mortuus" and Mr. Phillips, 
 as holding lands in the parish, was undoubtedly subject to the 
 liabilities, and entitled to the rights of a parishioner. And, in 
 the case of Attorney -General v. Parker (1 Yes. Sen. 43 ; 3 Atk. 
 576), Lord Hardwicke says, "Parishioners is a very large word. 
 It takes in not only inhabitants of the parish but persons who 
 are occupiers of lands. " On the second point I think that the 
 double fees having been demanded by the burial board in respect 
 of their official duty, and having been paid to them under protest, 
 they must clearly remain liable to the plaintiff for the excess of 
 fees so demanded by them, although it may have been handed 
 over by them. The case of Snowdon v. Davis (1 Taunt. 359) 
 appears to me to be in point. It, however, appears by the papers 
 left with me,, and it was admitted at the argument, that the scale 
 of fees produced by the defendants to the plaintiffs was never 
 laid before the vestry and approved by the bishop of the diocese 
 and a Secretary of State, as required by the Acts which I have 
 cited, and was, therefore, a nullity'; and it follows that the vicar 
 and clerk, under the 33rd section of the 15 & 16 Viet. c. 85, 
 remained and still remain entitled to the fees to which they 
 otherwise would be entitled by law or custom. This introduces 
 
 BRYANT 
 
 THE 
 
 KINGSTON 
 BURIAL 
 BOARD.
 
 12 
 
 REPORTS OF CASES. 
 
 BRYANT a new question, namely, whether previously to the passing of 
 
 AND OTHERS 
 
 THE 
 
 KINGSTON 
 
 BOARD. 
 
 Board Acts the vicar and the clerk were entitled to 
 double fees by law or custom. Now there does appear to have 
 \) eeii an o ]^ sca le of fees settled by the vicar and vestry in 1830, 
 i n which it is provided that in respect of burial " non-inha- 
 bitants " should pay double fees, and if this scale was lawful I 
 think that the defendants were entitled to demand double fees, 
 Mr. Phillips being clearly a non-inhabitant. I have, however, 
 great doubts as to the validity of that scale for the present 
 purpose, or in other words as to the power of the vicar and vestry 
 to make a distinction between inhabitant and non-inhabitant 
 parishioners as to fees for interment. This point was not raised 
 before me at the argument, nor is it raised in the papers left with 
 me, and I think that this case is one of such importance that it 
 ought to be fully argued before I give my final judgment upon 
 it, and I propose to adjourn it to next court for that purpose, and 
 I think it would be very desirable if counsel attended upon it. 
 
 Solicitors for the plaintiffs, Wilkinson and Eowlett. 
 
 Solicitor for the defendants, Walters. 
 
 Bryant and others v. The Kingston Burial Board. This case was re- 
 argued by Foard for the plaintiff, who cited Spelman De Sepultura, Wood- 
 ward v. Makepeace (1 Salk Hobart, 175), Bryant v. Foote (L. Rep. 2 Q. B. 
 197), Barker's Burial Law, p. 74, and other authorities ; and contra, Jenkins 
 for the defendants. 
 
 His HONOUR adhered to the opinion expressed by him on the former 
 occasion, and directed a verdict for the plaintiffs with costs, but with liberty 
 to the defendants to appeal. No appeal was, however, brought, and on the 5th 
 Feb. 1869, Walter, the defendant's solicitor, stated in court that he was 
 instructed to appear on the part of the defendants to acquaint his Honour that, 
 in pursuance of leave reserved to appeal to the court above, the defendants 
 had taken the opinion of eminent counsel, and were advised to submit to 
 his Honour's judgment ; but at the same time he was desirous of directing 
 his Honour's attention to some portion of his first and second judgments in 
 this case. The Burial Board was not constituted under the 18 & 19 Viet. 
 c. 128. The board was established in the year 1854, under the provisions 
 of the 15 & 16 and 16 & 17 Viet. ; and under neither of those Acts was 
 any approval by the bishop or Secretary of State necessary, inasmuch as 
 the old fees to the vicar, sexton, and parish clerk were reserved under the Act 
 15 & 16 Viet. At the present time, so far as regarded this case, the board 
 were advised to submit to the judgment, and not to appeal, upon the simple 
 ground that they made a mistake in regarding the late Mr. Phillips as a 
 non-parishioner.
 
 REPORTS OP CASES. 13 
 
 WANDSWORTH COUNTY COURT. 
 
 Tuesday, Feb. 2, 1869. 
 
 (Before H. J. STONOE, Esq., Judge.) 
 
 MAYNARD v. PENN. (a) 
 
 Foreclosure Costs. 
 Where at the time of the filing of the plaint the amount in dispute 
 
 is less than 100Z., the costs will be taxed on the lower scale. 
 TO-DAY the learned JUDGE delivered the following judgment : 
 This is an application in a foreclosure suit to vary the certificate 
 of the registrar in several particulars. I consider the registrar 
 to have been right in all of them, and the only one on which I 
 entertained any doubt (as I intimated at the hearing) was 
 whether the costs ought to have been taxed on the higher or 
 lower scale of fees allowed by the court. This depends on the 
 question whether " the subject-matter of the suit exceeds or does 
 not exceed 100Z.," according to the terms of the note subjoined 
 to the scale of costs in equity under the County Courts Acts, 
 1865 and 1867. The facts in the present case are that the 
 original mortgage exceeded 100L, that the mortgagee went into 
 possession, and on an account being taken before the registrar, 
 of principal, interest, and expenses due to the mortgagee, and of 
 rents and profits received by him, it appeared that a balance 
 of less than 100Z. was due to him at the time of his insti- 
 tuting this suit. The only cases which can assist me in the 
 construction of the terms employed in the note to the 
 above scale are those which have been decided on the 
 regulations of the Court of Chancery, 1860, providing a 
 higher and lower scale of fees according as the amount or value 
 of the subject-matter is above or below 1000Z. Under these 
 regulations it has been held that the court looks simply to the 
 amount due when the bill is filed, unless fraud or some special 
 circumstance intervene: (Flockton v. Peake, 12 W. R. 1025; Re 
 Reeve, L. Rep. 2 Eq. 609 ; and Judd v. Plum, 29 Beav. 21 ; Earl 
 of Stamford v. Dawson, 15 W. R. 396 ; Gimes v. Harrison, 
 27 Beav. 198.) Now there is no doubt from the accounts in the 
 present case that at the institution of this suit the amount due 
 to the plaintiff was less than 100Z., and that there was no fraud 
 or special circumstance in the case; and therefore, following 
 
 (a) County Court Chronicle, vol. i., p. 358.
 
 14 REPORTS OP CASES. 
 
 MAYKABD the authorities to which I have referred, I think that the costs 
 p Vt in the present case were rightly taxed on the lower scale. I 
 
 observe that there is a slight difference between the wording of 
 
 the note to the above scale and the regulations of the Court of 
 Chancery, 1860, as to the test of excess, or amount ; but I think 
 that it is immaterial. I also observe that the terms of the note 
 are general, extending to all cases in equity, whilst the 
 regulations of the Court of Chancery are special, and confined 
 to suits for particular objects, and it appears bo me that there 
 will be some difficulty in applying the terms of the note to costs 
 in suits for the dissolution of partnership and some other cases, 
 but that there is no difficulty in the present case. I must, there- 
 fore, refuse the application. 
 
 CROYDON COUNTY COURT. 
 
 Monday, Jan. 16, 1870. 
 
 (Before H. J. STONOK, Esq., Judge.) 
 
 BAKNETT v. MASTERS. (a) 
 
 Weekly tenancy Notice. 
 
 In the absence of express agreement or special custom, a week's 
 
 notice not required to determine a weekly tenancy, but only a 
 
 reasonable notice. 
 
 Hare for the plaintiff, and Bullock for the defendant. 
 
 His HONOUR said In this case the defendant verbally agreed 
 to take some furnished lodgings of the plaintiff from a future day, 
 which was a Friday, at a certain weekly rent. The plaintiff also 
 deposed that it was agreed that such letting should be deter - 
 minable at a week's notice, which was denied by the defendant's 
 counsel on the part of the defendant; but as the defendant did 
 not attend, it must be taken to have been the case. The defen- 
 dant entered into possession on the Friday, and occupied the 
 lodgings for two weeks and paid rent ; then went away for some 
 time, and returned on a Saturday and gave notice to leave on the 
 following Friday. The plaintiff demanded a week's notice from 
 the following Friday, or rent up to the day when such notice 
 would have expired, and this action is brought to recover such 
 rent. No evidence was given of any particular custom as to the 
 
 (a) County Court Chronicle, vol. ii., p. 329.
 
 REPORTS OF CASES. 
 
 15 
 
 letting furnished apartments in the locality. On the part of the 
 plaintiff it was contended, first, that without any special agree- 
 ment a weekly tenancy could only be determined by a week's 
 notice ; and, secondly, that the agreement for a week's notice, to 
 which the plaintiff deposed, was binding, although not reduced 
 into writing. On the part of the defendant it was contended 
 that the weekly tenancy was determinable at the expiration of 
 any week without notice, or, at all events, upon reasonable notice; 
 and that the alleged agreement, for a week's notice, if entered 
 into, was not binding on the defendant under the Statute of 
 Frauds. Before considering the first point, I would observe 
 that in every case of this kind evidence of the custom of the 
 locality ought to be adduced, and would generally determine the 
 case. In the absence of such evidence in the present case, I 
 have to express my opinion on the first point, which is of some 
 general importance, and I must hold, that in the absence of any 
 special agreement, or evidence of local custom, a week's notice 
 is not necessary to determine a weekly tenancy, but only a 
 reasonable notice ; and if I am asked what is to be considered a 
 reasonable notice, I can see no rule to be followed excepting by 
 analogy to the notice on a yearly tenancy ; and, therefore, that a 
 full half week's notice (four days) is sufficient, and is necessary. 
 The present state of the law on this point is thus summed up in 
 the note to Clayton v. Blakey (Sm. L. Cas., 6th edit., vol. 2, 
 p. 107), as follows : " On a weekly tenancy it has been doubted 
 whether any notice to quit is necessary, per Cresswell, J., in 
 Towne v. Campbell (3 0. B. 922), citing Ha/ell v. Armstead (7 C. 
 & P. 56). But a reasonable notice is, it is apprehended, clearly 
 necessary, and the safest plan is to give a week's notice. See 
 Jones v. Mills (10 C. B. N. S. 788), where Mr. Justice Williams 
 thought that the notice should be a week's notice, but Willes, J. 
 was not satisfied with the correctness of that view. On the second 
 point I think it quite clear that the agreement for the lease was 
 void under the Statute of Frauds (Edge v. Straff ord, 1C. & J. 
 321), but, nevertheless, when the tenant subsequently entered 
 into possession, such agreement must regulate the terms on 
 which the tenancy was to subsist as regards the notice to deter- 
 mine it, as was held by Lord Kenyon in the well-known case 
 Doe and Rigge v. Bell (Sm. L. Cas., 6th edit., vol. 2, p. 99), 
 where he held that if a landlord lease for seven years by parol, 
 and agree that the tenant shall enter at Lady-day and quit at 
 
 BARNETT 
 
 v. 
 MASTERS.
 
 16 REPORTS OF CASES. 
 
 BARNETT Candlemas, and the tenant enter, though the lease be void under 
 MASTERS ^ e Statute of Frauds, the tenant holds under the terms of the 
 lease in other respects, and the landlord can only put an end to 
 the tenancy at Candlemas. I therefore hold that the agreement 
 as to notice in the present case is binding as between the plaintiff 
 and defendant, namely, the landlord and tenant who entered 
 into it, although, as it was not in writing, a grantee of the rever- 
 sion from the landlord, whether upon a yearly or weekly tenancy, 
 might not be able to take the benefit of it under the statute 
 32 Hen. 8, c. 34, which extends only to leases under seal : (see 
 the cases of Bridges v. Lewis (3 L. B. 603); Standen v. Christmas 
 (10 L. B. 135). There will be a verdict for the plaintiff with 
 costs, or fourteen days. 
 
 Barnett v. Masters. The decision in the above case is certainly in 
 harmony with the ruling of eminent judges, as appears from the authorities 
 cited in the judgment, and from what PARKS, B. laid down in Huffell v. 
 Armitage (7 C. & P. 56, 58). However, it would seem that a conflict of 
 judicial opinion still prevails as to whether a week's notice, in the case of a 
 weekly tenancy, be necessary (WoodfalPs Landlord and Tenant, 12th edit., 
 p. 312). But it is clear that a week's notice is sufficient (Huffell v. 
 Armitage, ubi supra), in the absence of custom, or express stipulation to the 
 contrary (Woodfall's Landlord and Tenant, 12th edit., p. 313). 
 
 KINGSTON-ON-THAMES COUNTY COURT. 
 
 Friday, Feb. 10, 1871. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 BAYLISS v. LEAK, (a) 
 Easement Parol licence. 
 
 His HONOUE gave judgment as follows : The defendant is owner 
 of certain premises adjoining other premises, formerly in the 
 occupation of J. Nosworthy, under a lease. On Nov. 2, 1868, 
 J. Nosworthy signed a written agreement authorising the 
 defendant to connect a pipe with the suction pipe of the pump 
 which raised water from a well on Nos worthy's premises. This 
 agreement was only a parol licence, countermandable at any time 
 by the person who gave it, for those claiming under him : 
 (Hewlins v. Shippam, 5 B. & C. 221 ; Liggins v. Inge, 7 Bing. 
 632.) On March 1, 1869, Nosworthy assigned his lease to the 
 
 (a) County Court Chronicle, vol. ii., p. 357,
 
 REPORTS OF CASES. 17 
 
 plaintiff; in July, 1870, defendant openly entered on plaintiff's BATLISS 
 premises, broke open the ground and connected a pipe with the T v ' 
 
 suction pipe of the pump, and used the water for some time. 
 
 The supply of water having failed consequently, the plaintiff 
 examined the pump and well, and disconnected the defendant's 
 pipe. So far the facts are agreed upon, but the defendant 
 asserts that the plaintiff had notice of the licence at the time of 
 the assignment of the lease to him by Nosworthy, and called 
 evidence to prove it. The plaintiff denied having received such 
 notice. The plaintiff further denied that he or the occupants of 
 the house under him knew of the insertion of the pipe. Sitting 
 here as jury as well as judge, I find that the plaintiff had notice 
 of the licence at the time of the assignment, and also that the 
 plaintiff must by himself or his agents (viz., the occupants of the 
 house) have had notice of the disturbance of the soil and 
 connection of the pipe, and that the notice to the plaintiff of the 
 licence, and his knowledge of the connection of the pipe, would 
 act as a confirmation of the parol licence until countermanded. 
 I therefore think that the defendant was guilty of no trespass in 
 connecting the pipe or using the water; but of course the 
 plaintiff has now countermanded the licence by the act of dis- 
 connecting the pipe and otherwise. If there had been any 
 valuable consideration given for the licence, any great expense 
 incurred in acting under it, or any lengthened user of it, or other 
 special circumstances, the defendant might possibly have relief 
 in equity against the plaintiff, according to the case of the Duke 
 of Devonshire v. Elgin (14 Beav. 530), and other authorities; 
 but, so far as I can now see, a court of equity must decline to 
 interfere in the case. There will be a verdict for defendant, 
 with costs. 
 
 Sayliss v. Lear. The above decision, it may be mentioned, is quite in 
 accordance with those cases which determine that a licensee, under a revocable 
 licence, is entitled to reasonable notice of revocation (see Cornish v. Stubbs, 
 L. Rep. 5 C. P. 334, 339 ; Mellor v. Wafkins, L. Rep. 9 Q. B. 400).
 
 18 REPORTS OF CASES. 
 
 READING COUNTY COURT. 
 
 Wednesday, June 21, 1871. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 TOOMEE AND ToOMEE V. THE RADSTOCK COAL AND WAGGON 
 
 COMPANY, (a) 
 Agreement to Repair Unnecessary Delay Average Clause 
 
 Penalties. 
 
 His HONOUE delivered the following judgment : In this case 
 the plaintiffs sued the defendants, for that the defendants by an 
 agreement dated 25th March, 1870, agreed with the plaintiffs, in 
 consideration of the payments thereby agreed to be made by the 
 plaintiffs as therein mentioned, to supply, whenever and wherever 
 the same should be required, all articles, materials, and labour 
 necessary for the repair of certain broad-gauge railway waggons 
 of the plaintiffs, and from time to time and at all times during 
 the term therein mentioned, without any unnecessary delay, to 
 restore and renew the said waggons. Yet the defendants failed 
 and neglected to supply such necessary articles, materials, and 
 labour, and to duly execute such repairs, whereby the plaintiffs' 
 waggon, No. 125, was unnecessarily delayed and detained at 
 Reading from the 28th Nov. 1870, until the 12th Jan. 1871, 
 whereby the plaintiffs have been put to expense in and about the 
 hire of other trucks, and have been otherwise injured, and the 
 plaintiffs claimed 1Z. 5s. for damages. On the hearing it appeared 
 that the agreement of the 25th March, 1870, was entered into 
 between the defendants, the Radstock Coal and Waggon 
 Company, of Radstock, Somerset, thereinafter referred to as the 
 said " builders," of the one part, and the plaintiffs, Messrs. 
 Toomer Brothers, of Reading, Berks, coal merchants, therein- 
 after referred to as the said "owners" of the other part, 
 whereby, after reciting that the said owners were possessed of 
 thirty broad-gauge railway waggons therein specially described, 
 and that the said builders had agreed with the said owners to 
 maintain and keep the said thirty waggons in good repair and in 
 good working order and condition for the term of six years, to 
 commence frem the first day of Jan. 1875, upon the terms and 
 conditions thereinafter expressed, the said builders covenanted 
 and agreed with the said owners (amongst other stipulations 
 
 (a) County Court Chronicle, vol. iii., p. 64.
 
 REPORTS OF CASES. 19 
 
 immaterial to the present case) as follows : 1 . To supply at their TOOMER 
 own expense, whenever and wherever the same should be T AND 
 required, and to pay all requisite charges and expenses attending . 
 
 the transit or conveyance of all articles, materials and labour ... THE 
 
 ,.,.,,,,' . ,, , , RADSTOCK 
 
 which might be or become necessary tor the due, proper, and COAL AND 
 
 complete repair of the said thirty waggons for and during the WAGGON 
 j] j 1 -L- -,i COMPANY. 
 said term 01 six years, and trom time to time, without any 
 
 unnecessary delay, to take charge of the said waggons, or any or 
 either of them, when, where, and so often as it may happen that 
 any renewals, restorations, or repairs to the same should be 
 required, on having notice of the same, as thereinafter expressed 
 (which notice was admitted to have been given in the present 
 case), and to pay the expense of the transit or conveyance of 
 such waggons, if necessary, to their workshops at Eadstock or 
 elsewhere. 2. From time to time, and at all times during the 
 said term, without any unnecessary delay, at their own expense, 
 to restore or renew and thoroughly repair the said waggons, and 
 to keep and maintain the same in good and substantial working 
 order and condition, and from time to time after any such 
 restorations, renewals, repairs or painting should have been 
 completed, to return and redeliver the said waggons to the said 
 owners, either at Radstock or Gloucester station, or, at the option 
 of the said builders, at the place or places where the same should 
 have been taken charge of for the purpose of such repairs or 
 painting being done. 6. To pay or allow to the said owners 
 yearly, and every year during the said term, the sum of 2s. per 
 waggon per day for each and every working day over and above 
 an average of fifteen days per year for and during which the said 
 waggons shall be under repair or painting, or be otherwise unfit 
 for use, such days to be in each case calculated from the day on 
 which notice in writing shall have been received by the said 
 builders of repairs, renewals, or painting being required to such 
 waggons, and for the purpose of this clause and the payment to 
 be made thereunder by the said builders to the said owners, the 
 waggons requiring repair, and in respect of which such notice in 
 writing should have been given to the said builders should be 
 considered as being still under repair and unfit for use until 
 notice in writing from the said builders should have been 
 received by the said owners, and also by the said railway 
 company, that the waggons had in each case been duly repaired 
 and were fit for use/' The last clause is commonly known by 
 
 c 2
 
 20 REPORTS OF CASES. 
 
 TOOMER the name of the average clause. On the other hand the owners 
 
 TOOME thereby agreed with the said builders as follows: " 1. To pay 
 
 v. to the said builders for and during the term of six years the 
 
 THE following increasing annual sums viz., the sum of 120Z. during 
 
 COAL AND the first and second years, 150Z. during the third and fourth years, 
 
 WAGGON an( j isg/. during the fifth, sixth, and last year, by equal quarterly 
 
 payments in each year, unless they, the said owners obtain proof 
 
 of the non-performance by the said builders of any part of this 
 agreement, in which case such sum may be retained as therein 
 mentioned. 2. To give notice in writing, either by themselves 
 or their secretary or manager, or by their lessees, to the 
 said builders, at their principal place of business, or nearest 
 manufactory or workshop, whenever any repairs, renewals, or 
 restorations should be required to any of the said waggons, or 
 any of the articles or appendages belonging thereto, as therein 
 mentioned, and arranging, so far as conveniently might be, that 
 such waggons should be delivered to the said builders at such 
 times and at such places on the line of the said Great Western 
 Railway, or some other broad gauge railway as should be most 
 convenient to the said builders for the repairs of the same, and 
 so that as little time as possible might be consumed in the 
 doing and completing of the repairs, renewals, or restorations 
 required/' Upon the evidence before me at the hearing, it 
 clearly appeared that the defendants had been guilty of the 
 breach of contract charged against them in the plaint, that they 
 had delayed the waggon No. 125 unnecessarily, from the 28th 
 Nov. 1870 until the 12th Jan. 1871, on account of repairs which 
 could have been and were in fact subsequently executed in one 
 day ; that the plaintiffs were thereby deprived of the use of the 
 said waggon during the whole of the said period, and that they 
 had hired five other waggons during a considerable portion of 
 the said period. The plaintiffs now claim as damages in respect 
 of such breach of contract the trifling amount of 1Z. 5s., being 
 the cost of the hire of one waggon for the period of six weeks, 
 in respect of the like period during the whole of which he 
 entirely lost the use of the waggon No. 125, which required 
 repair, and was unnecessarily delayed by the defendants, and for 
 a portion of which he paid for the use of another in its place. 
 Primd facie, there can be no doubt that the plaintiffs are entitled 
 to recover these damages for the breach of the contract contained 
 on the part of the defendants in the first and second clauses of
 
 REPORTS OF CASES. 21 
 
 the above agreement, whereby they bound themselves to provide TOOMER 
 all necessary materials and repair the waggons in question without , AND 
 unnecessary delay ; but the contention of the defendants is, that . 
 
 the sixth or average clause, as it is termed, entitles the defen- ^ HB 
 
 RADSTOCK 
 dant to retain any waggon or waggons in any one year for any COAL AND 
 
 period, so that the whole of the waggons are not detained on an WAGGON 
 
 average more than fifteen days in the year each, whether neces- 
 
 tarily or unnecessarily, and that if the defendants exceed this 
 period the penalties mentioned in the sixth clause can alone be 
 recovered to the exclusion of any other damages. To this 
 construction of the agreement of the 25th March, 1870, I cannot 
 accede. If it were to prevail, at the end of every year the 
 defendants would be entitled to withdraw from the plaintiffs* 
 use for the last fortnight every waggon which had not been 
 repaired during the year, and for a proportionate time every 
 waggon which had been under repair for a shorter time than a 
 fortnight during the year. The defendants' advocate specially 
 relied on the concluding part of the sixth clause, which provides 
 that waggons should be "considered as under repair" until due 
 notice of their having been repaired should have been given by 
 the builders, and contended that this clause evidently contem- 
 plated delays which were unnecessary as well as those whieh 
 were necessary for repairs, and that as unnecessary delays were 
 within the meaning of this clause, the same penalties were to be 
 applied to them as to necessary delays, to the exclusion of or in 
 satisfaction for any other damages. I confess I have some little 
 difficulty in answering this argument, but upon the whole I 
 consider that whilst the average clause, which is very obscurely 
 worded, protects the "owners" by the imposition of certain 
 penalties from any delay whatever beyond fifteen days for each 
 waggon in the year, whether for necessary or unnecessary delays, 
 and entitles them to penalties for any excess of that period, it 
 still leaves them their remedy for any breach of the general 
 contract for the repair of the waggons " without unnecessary- 
 delay" contained in the first and second clauses. In my opinion 
 the owners are entitled to unliquidated damages for the breach 
 of contract by the unnecessary detention of a waggon for a single 
 day as well as for any longer period, and I do not think that the 
 average clause, which imposes certain fixed penalties for the 
 detention of the waggons for more than an average of fifteen 
 days each in the year, can deprive them of such right, but
 
 22 REPORTS OF CASES. 
 
 TOOMER possibly in some cases damages so recovered by the owners may 
 
 TOOMER h ave t be allowed by them thereafter in or towards satisfaction 
 
 v. of such penalties, or, vice versa, the penalties may have to be 
 
 RADSTOCK a ^ owe( ^ against damages. There will be a verdict for the 
 
 COAL AND plaintiffs for the full amount, with costs, payable in one month, 
 
 WAGGON w ^h liberty to the defendants to appeal. 
 COMPANY. * 
 
 WANDSWORTH COUNTY COURT. 
 
 Dec. 12, 1871. 
 (Before H. J. STONOE, Esq.) 
 
 KNIGHT v. WAYTE. (a) 
 
 Equity case Specific performance Qualified title to leaseholds. 
 His HONOUK this day delivered judgment at the Wandsworth 
 County Court in the present case, which was heard at the 
 Epsom County Court on the 17th Nov., as follows : This is a 
 bill for the specific performance of an agreement dated 
 29th June, 1871, whereby the plaintiff agreed to sell and the 
 defendant to purchase, for the sum of 42 5Z., an underlease of 
 certain premises in the parish of All Saints, Poplar, in the 
 county of Middlesex, such underlease to be for the term of 
 twenty-two years, and a quarter of a year, less ten days, com- 
 puted from the 25th March, 1871, at the annual rent of 37Z. 10s., 
 and it was thereby further agreed that the vendor should within 
 ten days furnish the purchaser with a draft of the intended 
 underlease, and which should contain covenants therein 
 mentioned, and also all such other covenants as were contained 
 in the lease under which the vendor held the premises, and the 
 purchaser was not to require the vendor to produce the free- 
 holders' or the original lessor's title, or his (the vendor's) title, 
 and any requisition as to the draft underlease was to be made in 
 writing within seven days after the delivery thereof, otherwise it 
 was to be deemed approved and accepted, and all objections 
 waived, and in all cases time was to be deemed the essence of 
 the contract. The purchaser was to pay 25?. deposit, and 
 complete on the 17th July, 1871, or to pay interest from that 
 day till the completion. If the vendor should be unable or 
 unwilling to remove any objection, or to comply with any 
 
 (a) County Court Chronicle, vol. iii., p. 168.
 
 REPORTS OF CASES. 23 
 
 requisition, he should be entitled to rescind the contract on KNIGHT 
 repayment of the deposit. The vendor delivered a draft under- 
 lease in due time, and the purchaser did not make any objection 
 or requisitions as to such draft or otherwise as to the purchase 
 within the prescribed time, but the vendor appears to me to have 
 waived the benefit of this objection, although time was originally 
 made essential (according to the cases of Boehm v. Wood, 1 
 J. & W. 420 ; Levi v. Lindo, 3 Mer. 81 ; Hunter v. Daniel, 4 
 Hare, 420 ; Parkin v. Thorold, 16 Beav. 59, 69, 71 ; Wells v. 
 Maxwell, 32 Beav. 408), and he did not insist on it at the 
 hearing. After some delay the purchaser, by his solicitor, called 
 for the production of the original lease to see that the covenants 
 in the draught underlease corresponded with the covenants 
 contained in such lease, and at the same time objected that the 
 description of the vendor in the draft underlease was insufficient. 
 The vendor produced the original lease, whereby it appeared that 
 the lease, which was dated 1 846, was made to John Lester, and 
 not to the vendor, and no subsequent assignment was then 
 produced. The purchaser does not appear to have made any 
 objection on that score at the time, but insisted on the objection 
 already made by him as to the draft underlease, viz., the 
 insufficiency of the description of the lessor, and refused or 
 neglected to complete until the vendor filed this bill for that 
 specific performance of the agreement. Upon the hearing the 
 defendant relied on the following grounds for resisting a 
 decree : First, That the description in the draft underlease was 
 insufficient, which I think he clearly proved, but the plaintiff 
 then and there supplied a proper description. Secondly, that 
 there had been a misrepresentation of the premises by the 
 vendor's agent, and that I think he failed in proving. Thirdly, 
 that the lease showed that the premises were vested in a third 
 person, the original lessee, and not in the vendor. The last 
 objection the vendor met by producing an assignment to him of 
 the lease dated the 7th November, 1865, by Charles M'Bean, 
 but no mesne assignment or assignments whereby the lease 
 became vested in M'Bean were produced or recited, and mention 
 is also made in the assignment by M'Bean to the vendor of an 
 underlease dated 2nd November, 1865, between the said Charles 
 M'Bean and George Joseph Jennings, whereby the premises were 
 demised to Jennings for the term of twenty-seven years, less ten 
 days, at the yearly rent of 37Z. 10s., which would be still
 
 24 REPORTS OF CASES. 
 
 KNIGHT subsisting, and not being mentioned in the agreement of sale, 
 WAYTE a Ppears to me to be a valid objection to the completion of the 
 contract, until it is removed. There must be an order referring 
 it to the registrar to inquire and certify whether the plaintiff can 
 make a valid underlease of the premises to the defendant, in 
 pursuance of the agreement of the 29th June, 1871, free from 
 incumbrances, having regard to the lease and assignment 
 produced, and the underlease mentioned in such assignment, or 
 the bill must stand dismissed. Adjourn further consideration. 
 No costs to either party to the present time. 
 
 CROYDON COUNTY COURT. 
 
 Monday, March 18, 1872. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 FLUDGER v. STEVENSON, (a) 
 Right of auctioneer to recover for expenses incurred and work done 
 
 on revocation of authority to sell. 
 
 IN this case the plaintiff, an auctioneer at Woolwich, sued the 
 defendant, a riding-master of Croydon, for 5Z., alleged to be due 
 as expenses in connection with an agreement on the part of the 
 defendant, empowering the plaintiff to sell a number of plots of 
 land situate at Abbey Wood, in Kent. 
 
 His HONOUR reserved his decision on that occasion, and now 
 delivered judgment as follows : In this case the defendant, both 
 verbally and in writing, employed and authorised the plaintiff, an 
 auctioneer, to sell certain plots of land, and letters of the defen- 
 dants were put in promising at first 2| per cent., and afterwards 
 5 per cent, commission, if he effected a sale, and urging him " to 
 go into the matter with spirit." The defendant asserts that he 
 acted thus merely as the agent of another, but it is quite clear 
 that he never disclosed his agency. Nothing was said in the 
 correspondence as to whether the sale was to be by private con- 
 tract or public auction ; but the authority appears to have been 
 general, and therefore including both. The plaintiff also deposes 
 that he had some conversation with the defendant as to a parti- 
 cular auction about to be held by him, and that he told the 
 defendant that it was too late to put up his land for sale in that 
 
 (a) County Court Chronicle, vol. iii., p. 247.
 
 REPORTS OF CASES. 
 
 25 
 
 auction, and also that he showed the defendant a large printed 
 notice, or advertisement, of a sale by auction, and said that he 
 would have a similar one prepared as to the defendant's land. 
 The defendant denies these statements, but throughout the trial 
 it was evident that the plaintiff's recollection was more accurate 
 and reliable than the defendant's, especially as tested by the cor- 
 respondence ; and therefore I must give credence in this respect 
 to the plaintiff. The plaintiff in due time caused a notice or 
 advertisement of a sale by auction of the land in question to be 
 prepared and posted at an expense of considerably more than 5Z. ; 
 but on the day previous to the day fixed for the auction the 
 defendant revoked the plaintiff's authority to sell, and the 
 plaintiff now claims 5Z. for the expenses so incurred by him in 
 advertising and posting, but makes no claims for his own work 
 and labour, or for his commission or loss of commission. Accord- 
 ing to the case of Rainy v. Vernon (9 Car. & P. 559), if the 
 defendant had sold by private contract, and countermanded the 
 sale by auction, the plaintiff would have been entitled to his com- 
 mission ; but in the present case the property has not been sold, 
 and, therefore, the case does not fall within the last mentioned, 
 but rather within the case of Simpson v. Lamb (17 Scott's Com- 
 mon Bench Reports, 616). There, indeed, the auctioneer claimed 
 the commission, but nothing for expenses or for work done, and 
 the Court of Common Pleas held that he was not entitled to 
 recover; but they were evidently of opinion that if there had 
 been a claim for expenses incurred, or work done, and evidence 
 in support of such claim, a contract to reinstate or indemnify the 
 agent whose authority had been revoked would be implied by 
 law, or at all events might be inferred from the facts by a jury, 
 unless there was an express agreement to the contrary. In the 
 present case I find that there was no express agreement to the con- 
 trary, and I also hold, and, if necessary, find that there was an 
 implied contract to pay the plaintiff all expenses properly 
 incurred by him upon the revocation of his general authority 
 to sell the land, and I think that a claim for work done might 
 also have been supported. There will be a verdict for the 
 plaintiff with costs. 
 
 FLUDGER 
 
 v. 
 
 STEVEN- 
 SON. 
 
 Fludger v. Stevenson. This case rests on the authority of Simpson v. Lamb 
 (17 C. B. 616), which does not appear to have been in any way altered by 
 subsequent decibions. In the most recent treatise on Contracts, the following
 
 26 
 
 REPORTS OF CASES. 
 
 v. 
 
 STEVEN- 
 SON. 
 
 FLUDGER passage occurs : " If trouble and expense have been properly incurred by 
 the agent in endeavouring to carry into effect the instructions of the principal, 
 and the latter revokes the authority, and prevents the agent from reaping the 
 expected reward, the principal is bound to remunerate him for his trouble 
 and expenses in the matter : " (Addison on Contracts, 8th ed., p. 473.) And in 
 corroboration of this statement of the law, reference may be made to 
 Prickett v. Badger (1 C. B. N. S. 296) ; Topping v. Healey (3 F. & F. 325) ; 
 and Green v. Lucas (31 L. T. Rep. N. S. 731 ; and 33 ib. p. 584), which were 
 all cases in which the agent recovered from a principal who had prevented 
 the former from earning his reward. And see the case of HEARN v. MEEHAN, 
 and Note to same, post. 
 
 WANDSWORTH COUNTY COURT. 
 
 Tuesday, May 14, 1872. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 TOMKINS v. HEWITT, (a) 
 Construction of lease Tithe Commutation Act, 6 $ 7 Will. 4, 
 
 c. 71. 
 Reddendum of rent " without any deduction whatever for land tax, 
 
 sewers rate, or any rates, taxes, or assessments or impositions 
 
 whatsoever (property tax excepted)," and covenant to pay rent 
 
 without any deduction, 8fc., with addition of word "charges : " 
 Held, that the tenant, having paid tithe rentcharge, cannot recover 
 
 it from landlord by action, but is entitled to deduct it from 
 
 rent. 
 Haines for plaintiff. 
 
 Fullager for defendant. 
 
 His HONOUE gave the following judgment : In this case the 
 plaintiff claims "the sum of 21. 9s. 5d., being the amount paid 
 by him under compulsion, and on behalf of the defendant, for 
 tithe rentcharge payable and demanded in respect of a piece of 
 land situate within the district of this court, belonging to the 
 defendant, and which tithe rentcharge the plaintiff alleges the 
 defendant was bound to pay under an indenture dated 20th 
 July, 1865." By this instrument the defendant, Frederick 
 Hewitt, demised and leased unto Henry Tompkins (the plaintiff) 
 a piece of ground, to hold the same for a period of seventy-eight 
 years and three-quarters, yielding and paying during the same 
 term the yearly rent of 5Z. of lawful money, by equal quarterly 
 payments, on the usual quarter days, without any deduction 
 
 (a) County Court Chronicle, vol. iii., p. 290.
 
 REPORTS OF CASES. 
 
 27 
 
 whatsoever for land tax, sewers rate, or any rates, taxes, assess- 
 ments, or impositions whatsoever (property tax excepted) ; and 
 the lessee covenanted with the lessor to pay unto the lessor the 
 rent reserved without any deductions whatsoever (property 
 tax excepted), and also to pay all rates, taxes, charges, assess- 
 ments, and impositions as aforesaid, therein or thereafter to be 
 assessed or imposed on the said premises (except as aforesaid) . 
 Plaintiff contends First, that by the terms of the reddendum he 
 is not liable to pay the rent without deducting the tithe rent- 
 charge, which, in the absence of agreement, he is entitled to 
 deduct under the 6 & 7 Will. 4, c. 71, s. 80. Secondly, that under 
 the terms of the covenant he is not liable to pay to or indemnify 
 the defendant against the tithe rentcharge ; and thirdly, that 
 having paid it by compulsion, he is now entitled to recover it by 
 action of the defendant. On the third point I am clearly against 
 the plaintiff. For, assuming for the present that the reddendum 
 and covenant impose no obligation on the plaintiff to pay the 
 tithe rentcharge, or rather to bear it finally in discharge of the 
 landlord's liability to allow it by way of deduction, still there is 
 no covenant, express or implied, on the part of the defendant to 
 pay it. The plaintiff may claim his right to deduct it out of his 
 rent, as provided by the Act, not having entered into agreement 
 to the contrary, but nothing more. The 67th section of the 6 & 
 7 Will. 4, c. 71, which relieves all persons from personal liability 
 to the tithe rentcharge, and the case of Griffenhoofv. Daubeney 
 (5 Ell. & Bl. 746) appear to throw some light on the question 
 thus raised ; but I do not consider it necessary to consider it 
 further, as I think that it was quite clear that, under the above 
 circumstances, the plaintiff has no right of action against the 
 defendant, in respect of the tithe rentcharge paid by him, and 
 must therefore be nonsuited. I have, however, been requested 
 by both parties to express my opinion on the two previous ques- 
 tions, viz., whether under the terms of reddendum the plaintiff is 
 entitled to deduct the amount of the tithe rentcharge paid by 
 him, as provided by the Act, and whether, under the terms of 
 the covenant, the plaintiff is bound to pay to or indemnify the 
 defendant against the tithe rentcharge, or to consolidate these 
 two questions, whether under this lease the plaintiff, the lessee, 
 is liable finally to bear the tithe rentcharge in relief of the 
 defendant, the lessor, It is to be observed that the terms of the 
 reddendum and covenant are the same, except that the word 
 
 TOMKINS 
 
 V. 
 
 HEWITT.
 
 28 .REPORTS OF CASES. 
 
 TOMKINS " charges " is introduced in the latter. After much consideration, 
 TT v ' I am of opinion that the terms employed do not include the tithe 
 rentcharge, on the ground that the operation of the general terms 
 " charges," and " impositions," is cut down by the preceding 
 and accompanying terms employed, viz. : " rates, taxes, and 
 assessments/' and that the former must be restricted to " charges 
 and impositions " of a similar nature with the latter, ejusdem 
 generis which the tithe rentcharge is not. See the case of Tids- 
 well v. Whitivorth (36 L. J. 103, C. P.), and especially the 
 judgment of Mr. Justice Keating, at p. 107. In the case of Parish 
 v. Sleeman (1 De Gex F. & J. 326), which has been cited, it was 
 decided by Lord Chancellor Campbell that a contract to pay the 
 rent free of " all out-goings " would throw the final liability for 
 the tithe rentcharge on the tenant, but in that case no other 
 words preceded or accompanied them. In the present case I am 
 inclined to think that the terms " free of all charges and imposi- 
 tions," without any other words, would be held to have the same 
 effect, as the tithe rentcharge is certainly a charge and an 
 imposition of lands, although not on persons, by the 6 & 7 Will. 
 
 6 1 Viet. c. 71 ', but these terms are not by any means so strong 
 as " outgoings," and it may be contended that they would not 
 have been applicable to tithes, which were distinct incorporeal 
 hereditaments, and not charges or impositions at common law, 
 and ought not, therefore, to be held to be applicable to the tithe 
 rentcharges substituted for them under the provisions of the 6 & 
 
 7 Will. 4 & 1 Viet. c. 71. However these points may be, I am of 
 opinion that in the present case the words "taxes, rates, and 
 assessments," control and narrow the general terms " charges 
 and impositions," as I have stated, and that the plaintiff is there- 
 fore not deprived of his right to deduct the tithe rentcharge from 
 his rent under the 80th section, and is not bound by his covenant 
 to pay to or indemnify the defendant against it. 
 
 Nonsuit without costs. 
 
 Tomkins v. Hewitt. It may be useful to state that a covenant by the 
 lessee to pay " all taxes and assessments whatsoever for or in respect of the 
 said demised premises, save and except the level tax, property tax, and land 
 tax," does not impose upon him liability to defray the tithe rentcharge : 
 (Jeffrey v. Neale, L. Rep. 6 0. P. 240.) In construing such a covenant the 
 exceptions must be looked at (ib., per BYLES, J.), and some amount of quali- 
 fication must be placed on words which at first sight might be capable of a 
 very extensive signification : ( Ib., per BOVIIX, C.J., and see Baker v. Green-
 
 REPORTS OF CASES. 
 
 29 
 
 hill, 3 Q. B. Div. 148 ; Tidswell v. Whitworth, L. Rep. 2 C. P. 326.) If it 
 be intended to impose upon the tenant the burden of paying tithe rentcharge, 
 an express stipulation should always be inserted : (Per BOVILL, C.J., in 
 Jeffrey v. Neale, ubi supra.) But the employment of the word " outgoings " 
 in the reddendum would seem of itself to be sufficient for the purpose, unless 
 there be something in the context to qualify its ordinary meaning : (/&., and 
 see Parish v. Sleeman, 29 L. J>53, Oh. ; 1 D. F. & J. 326.) 
 
 Where the tenant has covenanted to pay " all rates, taxes, charges, and 
 assessments whatsoever which now are or may be charged or assessed upon 
 the said premises, or any part thereof, or upon any person or persons in 
 respect thereof," he is liable to reimburse his landlord, who has been com- 
 pelled to pay a sewering and paving apportionment made upon the latter by 
 a local board of health : (Hartley v. Hudson, 4- G. P. Div. 367.) But it is a 
 little difficult to gather from the reported cases when a tenant's covenant 
 renders him liable to repay his landlord the sum expended by the latter, after 
 notice from the local sanitary authority, in the abatement of a nuisance 
 caused by defective drainage of the demised premises. In some cases the 
 tenant has been held liable : (Budd v. Marshall, 5 C. P. Div. 481 ; Hartley 
 v. Hudson, 4 C. P. Div. 367 ; Crosse v. Raw, L. Rep. 9 Ex. 209 ; Thompson 
 v. Lapworth, L. Rep. 3 C. P. 149.) In others, exempt, see Rawlins v. Briggs 
 (3 C. P. Div. 368); Tidswell v. Whitworth (L. Rep. 4 C. P. 326); per 
 BBETT, L.J., in Budd v. Marshall (ubi supra.) 
 
 As regards the property tax, it is expressly provided by statute (5 & 6 Yict. 
 c. 35) that, though the tax shall, in the first instance, be levied upon the 
 tenant in occupation of the premises, he shall be entitled to deduct the 
 amount of the tax from the next rent on paying the same to his landlord. No 
 agreement depriving the tenant of the benefit of this provision is binding upon 
 the parties : (5 & 6 Viet. c. 35, s. 73.) Where, however, an occupier of lands 
 had, during a course of twelve years, paid to the collector of taxes the land- 
 lord's property tax and the full rent as it became due to the landlord, without 
 claiming any deduction on account of the tax so paid, it was held that the 
 occupier could not recover back from the landlord any part of the property 
 tax so paid : (Denby v. Moore, 1 B. & Aid. 123.) This decision, or rather 
 some of the dicta of the judges who pronounced it, has been the subject of 
 much discussion in the recent case of Lamb v. Brewster (4 Q. B. Div. 220 ; 
 on App., ib., p. 607.) It was there held that an agreement that, if the tenant 
 will continue to pay his rent in full, without any deduction in respect of 
 landlord's property tax paid by him, the landlord will repay to the tenant all 
 sums which he has paid or shall pay for the landlord's property tax, is not 
 invalid as being contrary to the provisions of 5 & 6 Yict. c. 35. As a general 
 rule, however, that is to say, where there is no agreement binding the land- 
 lord to repay to the tenant the amount of the property tax, unless the tenant 
 deducts such amount from the next payment of rent, he is without remedy, 
 and cannot recover it : (per COTTON, L. J., in Lamb v. Brewster (4 Q. B. Div. 
 at p. 610.) 
 
 TOMKINS 
 V. 
 
 HEWITT.
 
 30 REPORTS OF CASES. 
 
 READING COUNTY COURT. 
 
 Wednesday, Dec. 18, 1872. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 SCEATS V. HUTCHINGS. (tt) 
 
 Executor de son tort has no right of retainer. 
 
 His HONOUR. The plaintiff in this case sued the defendant as 
 executor de son tort of a gentleman of the name of Basden, 
 deceased, for a small amount due to her from the deceased for 
 wages or for work done. It was clear from the evidence that 
 the defendant had possessed himself of certain assets or property 
 of the deceased, and that the deceased was indebted to the 
 defendant in an amount probably exceeding such assets, and that 
 the defendant had applied the whole of such assets in satisfaction 
 of his debt. I was of opinion at the trial that an executor de 
 son tort could not retain his own debt until he had paid all the 
 other debts of the testator, or intestate, and so profit by his own 
 wrong, and that the plaintiff was entitled to the verdict, but at 
 the request of counsel I reserved the point. On referring to 
 Williams on Executors, the great authority on this subject, I find 
 the law laid down as follows : <( An executor de son tort cannot 
 plead a retainer for his own debt, for otherwise the creditors of 
 the deceased would be running a race to take possession of his 
 goods without taking out representation to him, and it will make 
 no difference, though the debt due to the executor de son tort be 
 of a superior degree:" (See Williams on Executors, part 1, 
 book 3, chap. 5, and the cases there cited.) In the present case 
 it is therefore clear that the defendant was not entitled to retain 
 his own debt, and that the plaintiff is entitled to recover the 
 amount claimed. 
 
 Verdict for plaintiff with costs. 
 
 Sceats v. Hutchings. The point decided in the above case does not seem 
 to have been before the Superior Courts very recently. But in the case of 
 Vernon v. Curtis (2 T. B. 18), determined in 1792, the Exchequer Chamber 
 held that to an action brought by a simple contract creditor against an 
 executor de son tort, the defendant cannot plead a retainer for his own debt 
 of a superior degree, even though it was with the assent of the rightful 
 administrator. The principle upon which the decision in such a case rests is, 
 as pointed out by the learned County Court judge, that embodied in the familiar 
 
 (a) County Court Chronicle, vol. iv., p. 18.
 
 REPORTS OF CASES. 31 
 
 legal maxim, " No mail shall take advantage of his own wrong :" (see Broom's SCEATS 
 Legal Maxims, 5th ed., p. 216.) v. 
 
 Akin to the point adjudicated upon in the case above reported, is the HUTCHINGS. 
 question of how far a creditor may, as against the rightful executor, retain 
 payments made to him in due course of administration by the executor de son 
 tort out of the assets of the testator. This question, and the authorities 
 bearing upon it, were fully discussed in the case of Thomson v. Harding 
 (2 Ell. & Bl. 630), where it was held that the creditor of a deceased person 
 may retain such payments, if the executor de son tort was really acting as 
 executor, so that the creditor might reasonably suppose him to be the rightful 
 representative but that, on the other hand, acts sufficient to make the 
 executor de son tort chargeable as such, do not necessarily make the payment 
 good as against the rightful executor. 
 
 GODALMING COUNTY COURT. 
 
 Thursday, July 10, 1873. 
 
 (Before H. J. STONOR, Esq., Judge.) 
 
 GREEN v. DIRECTORS OF PRISONS, (a) 
 
 Prison Inspectors Liability Notice of Action. 
 
 Statutory provisions as to notice of action and limitation held to 
 
 apply only to cases of tort. 
 
 IN this case his HONOUR delivered judgment on points reserved. 
 He said : In this case James Green, a warder at Woking prison, 
 sues Her Majesty's directors of prisons for 19Z. 19s., three 
 months' salary (that is to say) for the months of July and 
 August, 1872, and one month hereafter, in lieu of notice, on the 
 wrongful dismissal of the plaintiff from his employment. The 
 defendants have set up three defences to this action firstly and 
 secondly, that under the 28th and 29th sections of the 6 & 7 
 Viet. c. 26, entitled an Act for regulating the prison at Milbank, 
 and the 13 & 14 Viet. c. 39, entitled an Act for the better 
 government of convict prisons, sects. 2 and 3, the defendants 
 were entitled to one month's notice previously to the action 
 being brought (which was not received by them), and the action 
 ought to have been commenced within six calendar months from 
 the dismissal of the plaintiff (which was not the case) ; and thirdly, 
 that the plaintiff was not entitled under the rules and regulations 
 for the government of convict prisons, which the plaintiff engaged 
 to perform by a declaration in writing, dated the 13th June, 1860, 
 
 (a) County Court Chronicle, vol. iv., p. 189.
 
 32 REPORTS OF CASES. 
 
 GREEN signed by the plaintiff on his joining the prison, retained by the 
 DIRECTORS Directors ^ prisons. As to the first ground of defence, viz., 
 OF PRISONS, the absence of the month's notice of action, the point turns upon 
 the 28th section of the 6 & 7 Viet. c. 26, whereby it is enacted 
 that the provisions of all Acts of Parliament for rendering 
 justices of the peace safe in the execution of their office shall 
 extend to the inspectors of Milbank prison, for whom the 
 directors of convict prisons were afterwards substituted by the 
 13 & 14 Viet. c. 39, sects. 2 and 3. And upon the 11 & 12 
 Viet. c. 44, sect. 9, whereby it is enacted that no action shall be 
 commenced against any justice of the peace until one calendar 
 month at least after notice in writing, which by the preceding 
 section of the general purview and intention of the Act is 
 limited to anything done by him in the execution of his office. 
 Now, omitting the charge of wrongful dismissal contained in the 
 particulars, and which was withdrawn at the hearing, this action 
 is not brought to recover damages in respect of anything done 
 by the defendants in the execution of their office, but simply for 
 the recovery of a debt due to the plaintiff, subject to the rules 
 and regulations of the convict prisons, and is an action of 
 contract, and not of tort. And after much consideration it 
 appears to me that notice of action is required under the last- 
 mentioned Acts only where the action is brought for a tort, and 
 not for a breach of contract; see Addison on Torts, 2nd ed. 
 p. 671. The cases of Davis v. Curling (8 Q. B. 293), Fletcher v. 
 Greenwell (4 Dowl. P. C. 166), Davis v. Mayor of Swansea (22 
 L. J. 297, Ex.) there cited, and see also the case of Carruthers 
 v. Paine (5 Bing. 270), where it is laid down by Best, C.J., that 
 the words " any act done " in the Bankruptcy Act (6 Geo. 4, 
 c. 16, s. 44) could scarcely apply to the pecuniary arrangements 
 of assignees, but only to acts done for the purpose of taking 
 possession of property, &c. The Public Health Act, 1848 (11 & 
 12 Viet. c. 93), appears to have received a similar construction. 
 See Glen's Public Health Act, 5th ed., p. 447), where the forms 
 of notice of action are restricted to actions of tort. On the 
 other hand I have been unable to discover any case where 
 provisions of this kind have been held to extend to actions of 
 contract. As to the second point the same reasoning applies. 
 The words of the 29th section of the 6 & 7 Viet. c. 26, are, " All 
 suits and prosecutions to be commenced by any person or persons 
 for anything done in pursuance of this Act, shall be laid or tried
 
 REPORTS OF CASES. 33 
 
 in the county or place where the fact was committed, and shall GREEN 
 
 be commenced within six calendar months after the fact committed ,, v " 
 
 DIRECTORS 
 
 and not otherwise. And here the expression " where the fact OF PRISONS. 
 was committed/' is much stronger, and manifestly applies with 
 propriety exclusively to torts. Another argument to my mind 
 against the last section applying to actions of contract is, that if 
 a creditor died within a short period of the expiration of the six 
 months his personal representatives might be barred before it 
 was possible to take out representation of his estate. The 
 difficulty, it will be observed, does not arise as to actions of tort 
 which do not survive to personal representatives. Lastly, I am 
 of opinion that a provision of this kind in restriction of the 
 common law rights of the subject ought to be construed almost 
 as strictly as a penal enactment, and I decline to apply it to 
 actions of contract, especially as some of the expressions 
 contained in it are not appropriate to such actions. I am, 
 therefore, of opinion that the plaintiff was entitled to bring his 
 action, without notice, and after the expiration of six months 
 from his dismissal. As to the third and remaining point, there 
 is no difficulty. It appears that by rules 23 and 24, subordinate 
 officers, disabled by illness at the end of one month's sick leave, 
 are removed from pay until they resume their duties, and every 
 subordinate officer is entitled to one month's notice, or one 
 month's pay, on the discontinuance of his service. In the 
 present case the plaintiff was disabled by a painful illness for 
 several weeks, and had ceased to receive his pay. He was then, 
 in spite of his remonstrances, most injudiciously and harshly 
 compelled to resume his duties (the superintendence of convicts), 
 and he performed them during an hour and a half in great pain, 
 and was then relieved in a fainting condition by another officer. 
 Two or three days afterwards he was dismissed, being still an 
 invalid, and he has remained so ever since. He now sues for three 
 months' salary. As to the last two or three days of his service 
 and one month's salary in lieu of notice there is no doubt of 
 his being entitled in consequence of his having re-entered upon 
 his duties, although for so brief a time. As to the two preceding 
 months, I think he is barred by the 25th rule. His advocate 
 states that he would not have included them in this action if the 
 defendants had complied with his request, and given him a copy 
 of or access to the declaration which he signed, and of the rules 
 referred to in it. It is impossible for me to speak too strongly 
 
 D
 
 34 REPORTS OF CASES. 
 
 GREEN as to the conduct of the defendants in refusing this information. 
 
 -P. v ' It is stated that the refusal by the directors of prisons to produce 
 
 OF PRISONS, the documents in question was in consequence of a general rule 
 
 laid down by them. If so, it is to be hoped that such a rule will 
 
 be speedily altered. There will be a verdict for one month's and 
 
 three days' pay, and the costs of the attorney of plaintiff two 
 
 days and the plaintiffs witnesses one day. 
 
 Hensman (attorney for plaintiff) said his expenses had been 
 considerably increased by the refusal of the directors to give him 
 access to certain documents, but he was aware that his Honour 
 could not help him. 
 
 His HONOUR regretted that he could not. 
 
 Green v. Directors of Prisons. The elaborate judgment above reported 
 deals with a point of very considerable importance to all legal practitioners, 
 to whom it is not unfrequently a matter of doubt whether, in a particular 
 case, the defendant be entitled to notice of action. The case of Fletcher 
 v. Greenwell (4 Dowl. 166) supports the view adopted by the learned County 
 Court judge. For it was there held that the defendant to an action for work 
 and labour was not entitled to notice of action under a Local Yestry Act. 
 The question, however, of whether notice of action is necessary, can only be 
 determined by reference to the particular enactment on the subject and to 
 the facts of each case, and does not necessarily depend upon whether the 
 action be in tort or contract : (see Chitty's Archbold, vol. ii., 13th ed., p. 1077, 
 and cases there cited.) But it is not in general requisite to give a notice of 
 action before suing on a specific contract (Addison on Torts, 5th ed., p. 718 ; 
 Davies v. The Mayor, Aldermen, and Burgesses of Swansea, 22 L. J. Ex. 297), 
 and certainly most of the cases in which notice is necessary are actions of 
 tort : (see further on the subject of Notice of Action, County Court Practice, 
 by G. Pitt-Lewis, assisted by H. A. de Colyar, 2nd ed., p. 275-283.) 
 
 WANDSWOKTH COUNTY COURT. 
 
 Tuesday, Feb. 17, 1873. 
 ' (Before H. J. STONOR, Esq., Judge.) 
 
 HYAMS v. HANKEY AND OTHERS, (a) 
 Illegal distress Joinder of strangers with landlord in distress 
 
 renders it void. 
 2 Qeo. 2, c. 19, s. 19, applies to irregularities after distress, not in 
 
 distress itself. 
 
 THE case first came on for hearing at the Wands worth County 
 Court a few weeks since, and 
 
 (a) County Courts Chronicle, vol. iv., p. 344.
 
 REPORTS OF CASES. 
 
 35 
 
 His HONOUR delivered judgment in the following terms: In 
 this case the defendants, George James Hankey and John Thomas 
 Hankey, were the freeholders of certain premises in the parish of 
 Clapham, in the county of Surrey, let to the plaintiff, Philip Hyams, 
 a.s yearly tenant, and demised the same, subject to the plaintiff's 
 tenancy, to the defendant Puttick, for a long term of years on a 
 building lease, and gave notice thereof to the plaintiff. The plaintiff 
 refused to attorn or pay rent to the defendant Puttick, and there- 
 upon the defendants Hankey gave the plaintiff notice to quit. 
 Subsequently the defendants Hankey and the defendant Puttiek 
 signed a joint warrant of distress to the remaining defendant, 
 Harding, authorising him to distrain upon the plaintiff's goods for 
 rent due to them, the defendants Hankey and Puttick jointly. The 
 defendant Harding distrained on the plaintiffs goods, and gave 
 notice of such distress to the plaintiff in conformity with such 
 warrant. Now, it is quite clear that if any rent became due prior 
 to the demise by the defendants Hankey to the defendant Puttick, 
 neither the defendants Hankey nor the defendant Puttick could 
 distrain for it, and the distress would be wholly illegal ; and if it 
 became due subsequently to the demise, which I presume to 
 have been the case, it became due to the defendant Puttick 
 alone, and the question is whether the defendants Hankey, 
 having improperly joined in the warrant of distress, and the 
 warrant being made for rent improperly claimed as due to 
 the defendants Hankey and the defendant Puttick jointly, the 
 distress under such warrant is not illegal, and the defendant 
 jointly and severally liable for the same. The learned counsel 
 who argued the case stated that they could find no authorities on 
 the point, nor have I been more successful. I, however, have no 
 doubt that the plaintiff is entitled to a verdict. If the defendants 
 Hankey and the defendant Puttick had all four personally dis- 
 trained on the Plaintiffs' goods for rent due only to the defendant 
 Puttick, it is clear that the defendants Hankey would have been 
 trespassers, and if the defendants Hankey and the defendant 
 Puttick jointly distrained for rent due to them jointly when there 
 was no rent due to them jointly (which is in the present case), I 
 think it is equally clear that all the defendants would have been 
 trespassers, and that in the latter case the distress would have 
 been wholly illegal ; and if a distress must have been illegal when 
 levied by the defendants themselves, it must be illegal when 
 levied by their agent. Supposing there had been two rent- 
 
 D 2 
 
 HYAMS 
 
 V. 
 
 HANKEY 
 AND 
 
 OTHEBS.
 
 36 
 
 REPORTS OF CASES. 
 
 HYAMS 
 
 v. 
 
 HANKEY 
 AND 
 
 OTHERS. 
 
 charges of 10L each, one limited to the defendants Hankey 
 jointly with the defendant Puttick, and the other limited to the 
 defendant Puttick alone, with powers of distress, and a joint dis- 
 tress was put in, and a demand made for the joint rentcharge 
 when it was not in arrear, such distress, surely, could not be 
 justified because the second rentcharge was in arrear to the 
 defendant Puttick. It appears to me essential to a lawful dis- 
 tress that the warrant and demand for rent should state with 
 precision and accuracy what rent is claimed, and for whom 
 (although not the time when it became due Moss v. Gallimore, 
 Doug. 279), and this certainly was not done in the present case, 
 for the warrant authorised a distress in the joint names of the 
 defendants Hankey and the defendant Puttick for a rent jointly 
 due to them, and a distress was made accordingly ; but no such 
 rent was due nor existed, and therefore, in my opinion the defen- 
 dant Harding was a trespasser, the distress was illegal, and all 
 the defendants liable in respect of it. The statute 11 Geo. 2, 
 c. 19, s. 19, to which 1 have been referred by Mr. Mansel Jones, 
 applies only to irregularities or unlawful acts alone (t after a dis- 
 tress shall have been made for rent justly due." The irregularity 
 here was not after the distress, but in the distress itself, which 
 was made for a rent which was non-existent, and therefore not 
 justly due. I have also been referred by the defendants' counsel 
 to the case of Johnson v. Lawson (2 Bing. 243) ; Robinson v. 
 Hoffman (4 Bing. 562) ; Whitley v. Roberts ; and McGlellan v. 
 Young (107) ; but I do not think they affect the present case. 
 The last case is indeed an authority that a tenant in common 
 should distrain separately, which, if anything, supports the view 
 I have taken of the present case. The plaintiff replevied the 
 goods, and claims in this action Firstly, 10/. for his expenses 
 therein ; secondly, 10. damages for the taking of certain goods 
 and chattels which, he contended, were privileged ; and, thirdly, 
 20Z. damages for loss of trade and inconvenience. I find for the 
 plaintiff on the first count with 21. damages, and also on the 
 third count with 81. damages ; but I find for the defendants on 
 the second count. There will, therefore, be a verdict for the 
 plaintiff for 10Z., with costs on the higher scale." 
 
 An application on the defendants' behalf for liberty to appeal 
 within one month was granted. 
 
 Wright for plaintiff. 
 
 Mansel Jones for defendant.
 
 REPORTS OF CASES. 
 
 37 
 
 Hyams v. Hankey and others. As regards the question of which of the 
 defendants in the above case could legally distrain (which it was unnecessary 
 for the County Court judge to consider), it would seem that, as the plaintiff 
 never attorned to Puttick, the demise to the latter did not pass the reversion, 
 but only an interesse termini (Edwards v. Wickwar, L. Rep. 1 Eq. 403 ; 
 Bacon's Abridgment Leases, N. ; contra, Harmer v. Bean, 3 C. & K. 307), 
 notwithstanding the Statute 4 & 5 Anne, c. 16 ; and that, therefore, the 
 reversion, together with the incidental right of distress, remained vested in 
 the plaintiff's lessors, the defendants Hankey : (Smith v. Day, 2 M. & W. 
 684.) It is, however, very doubtful whether the above case of Edwards v. 
 Wickwar (ubi sup.) would be followed: (Wood/ 'all's Landlord and Tenant, 
 12th ed., p. 198, 246.) 
 
 HYAMS 
 
 v. 
 HANKEY 
 
 AND 
 OTHERS. 
 
 CEOYDON COUNTY COURT. 
 
 Monday, May 10, 1875. 
 
 (Before H. J. STONOR, Esq., Judge.) 
 
 BRAILSFORD v. WILSON, (a) 
 
 Sect. 4, Statute of Frauds. 
 
 THE plaintiff claimed 16s. 8d. from the defendant, a domestic 
 servant, for breach, of contract. 
 
 Parry appeared for the defendant. 
 
 The plaintiff's case was, that the defendant on the 3rd of April, 
 agreed to enter his service on the 16th April, at 10Z. per annum, 
 if her character suited. He applied for her character, and wrote 
 to her telling her that his wife expected her on the 16th April. 
 She sent him a reply intimating that she had heard a bad account 
 of the situation and should decline it. He wrote back to the 
 defendant reminding her of the terms of her engagement, and 
 informing her that he should hold her responsible for breach of 
 contract. The plaintiff said there was no doubt that had the 
 breach been on his side he should have been summoned, he, 
 therefore, on principle, claimed from the defendant what she 
 would otherwise have claimed from him. 
 
 Parry contended that as the defendant did not enter the 
 service when the agreement was made, there should have been a 
 written contract, and 
 
 His HONOUR held that this was an agreement for a year's 
 service (although determinable by a month's notice) to commence 
 on a day subsequent to the contract, which would extend beyond 
 a year from the time of making such contract, and that as it was 
 
 (a) County Courts Chronicle, vol. v., p. 132.
 
 38 REPORTS OF CASES. 
 
 BRAILS- not in writing, nor executed by the servant having entered into 
 
 FORD k^g S] ft ua tion, no action could be brought upon it by either party 
 
 WILSON, under the 4th section of the Statute of Frauds; and briefly 
 
 referred to the authorities on the subject : viz., Addison on 
 
 Contracts, chap. 1, s. 2 ; and the cases cited in the note to the 
 
 case of Peter v. Compton (Sm. L. C. vol. 1. 
 
 Verdict for defendant. 
 
 Brailsford v. Wilson. The above decision is in accordance with Brace- 
 girdle v. Heald (1 B. & Aid. 722), where it was held that no action can be 
 maintained for the breach of a verbal contract made on the 27th May for a 
 year's service to commence on the 30th June following, and with the recent 
 case of Banks v. Grassland (L. Rep. 10 Q. B. 97), where it was held that 
 a verbal agreement of hiring and service for one year, to commence on a 
 subsequent day, was incapable of being enforced by criminal process under 
 the Master and Servant Act, 1867 (since repealed). See also Snelling v. 
 Huntingfield (1 Cr. M. & R. 20) and Dobson v. Collis (1 H. & N. 84), in 
 which latter case it was held that the Statute of Frauds applies, where the 
 contract is not to be performed within a year, even though it be defeasible 
 within that time. The statute does not, however, apply where the con- 
 sideration has been executed : (Knowlman v. Bluett, L. Rep. 9 Ex. 307.) 
 
 CROYDON COUNTY COURT. 
 
 Monday, Feb. 7, 1876. 
 
 (Before H. J. STONOR, Esq., Judge.) 
 
 THE CRYSTAL PALACE GAS COMPANY v. SMITH, (a) 
 
 To create a guarantee there must not only be a third party liable, 
 
 but the contracting parties must contemplate and intend such 
 
 liability as the foundation of their contract. 
 
 Statute of Frauds, sect. 4, Mountstephen v. Lakeman considered. 
 His HONOUR delivered judgment as follows : In this case the 
 plaintiffs sue the defendant, for that the defendant in consi- 
 deration of the plaintiffs not cutting off the gas from the Alma 
 Tavern, which the defendant was then about taking possession 
 of, as tenant, agreed with the plaintiffs to pay to them the 
 amount due to them from Edward Piper, the then tenant of the 
 Alma Tavern aforesaid, being 201. Os. 6d., and in consideration 
 of such promise so made as aforesaid the plaintiffs did not cut off 
 the gas. And, for a second count, the plaintiffs seek to recover 
 
 (a) County Courts Chronicle, vol. v., p. 302.
 
 REPORTS OF CASES. 39 
 
 the said sum of 20Z. Os. 6d. from the defendant for money THE 
 received or retained by the defendant for the use of the plaintiffs. CRYSTAL 
 And, for a third count, the plaintiffs seek to recover from the COMPANY 
 defendant the said sum of 20Z. Os. 6d. by reason of an arrange- v - 
 
 ment made by and between the said Edward Piper and the 
 
 defendant, that defendant should retain the said sum of 20Z. Os. 6d. 
 out of the moneys payable by the defendant to the said Edward 
 Piper, and which the defendant agreed to do, but has not done. 
 And, for a further count, the plaintiffs seek to recover the said 
 sum of 20Z. Os. Qd. arrears for gas supplied by the plaintiffs to 
 the said Edward Piper by reason of the defendant having under- 
 taken with the said Edward Piper, the prior tenant of the 
 premises to which the gas owing for was supplied by the plaintiffs, 
 to pay or exonerate him from payment of such arrears. The 
 facts of the case are as follows : Edward Piper, the tenant of the 
 Alma Tavern, at Norwood, was indebted to the plaintiffs at the 
 beginning of August last in the sum of 14Z. 16s. 5d. for one 
 quarter's supply of gas up to the 6th July, and also in a further 
 sum for the current quarter. The plaintiff's collector and agent, 
 Hunter, called on Piper for payment of the quarter actually due, 
 which Piper did not pay him, but made a statement to him as 
 to the same, and as to a proposed change and transfer of the 
 house. In consequence of such statement Hunter called at the 
 tavern on the llth August, which he understood was the day 
 appointed for the transfer, between the hours of eleven and one, 
 and found the defendant's wife there, and returned about half- 
 past three, when he found the defendant there, and the defendant 
 stated that the house was about to be transferred that day to him 
 at four o'clock. According to Hunter's evidence he then said to 
 the defendant, " I must cut off the gas, as Piper said he could 
 not pay it." The defendant replied, " Do not cut it off, it will 
 injure my business." Hunter said, " My instructions are to cut 
 it off unless I obtain payment." The defendant said, " I will 
 see you paid, I have got the money ; I will see it paid when the 
 business is transferred." I said, " If you will promise me that 
 the gas shall be paid I will leave it on," and I left it on. I was 
 there when the house was changed. The defendant and Piper 
 were there, and Mr. Tighe, who represented the brewers. The 
 defendant's agent, Mr. Lebram, was there reading out of the 
 inventory, and when he arrived at the rates the solicitor to 
 Messrs. Holland, the distillers, said, "Fll allow the rates
 
 REPORTS OF CASES. 
 
 but 
 Mr. 
 
 not the gas, 
 Smith said 
 
 ' I 
 he 
 
 THE 
 
 CRYSTAL 
 PALACE GAS 
 COMPANY said ' ' It ought to be paid. 
 
 v. 
 SMITH. 
 
 said, " I have left the gas on because 
 would see it paid." The defendant 
 I remained waiting for the money 
 
 till seven, and then they refused to pay me the money. We 
 cannot cut the gas off after four o'clock. Hunter was accom- 
 panied by Robert Bocock, another servant of the plaintiffs. His 
 evidence is important. He says, " I went with Hunter at half- 
 past eleven and again at half -past three ; I was prepared to cut 
 off the gas if the rates were not paid ; 1 saw defendant at twenty 
 minutes to four ; I told him I had taken the register ; he asked 
 me what it amounted to; I replied that I made it 19L 19s. 6d. 
 altogether ; he said, ' That is a tidy sum/ Hunter was there 
 and he talked to the defendant. I heard the defendant say, ' Do 
 not cut off the gas and I will see you paid, I have got the money 
 in my pocket.' Hunter said to him, ' If you will see I am paid I 
 will not cut off the gas/ and the gas was not cut off. I after- 
 wards found I had not charged enough for the meter rent. It 
 was 201. Os. 6d." The plaintiffs then called the defendant, who 
 generally denied the truth of Hunter's evidence as to the inter- 
 view on the llth, and also deposed that three weeks before the 
 transfer he called at the plaintiffs' office and told Hunter that he 
 hoped he would get the arrears of gas from Piper before the 
 change. He admitted, however, that he saw Hunter on the day 
 of the change, that he told Hunter that he had the money to pay 
 for the house, and that he supposed Hunter would get paid out 
 of it, and that he told him not to cut the gas off. He also 
 deposed that he had paid Piper 2001. as deposit on the purchase, 
 and that there remained 700Z. or 8001. for him to pay, out of 
 which eventually the brewers were paid a claim on a bill of sale 
 which they held in full ; 201. Os. 6d. was paid to Tighe, the 
 brewers' agent, to meet the gas rate, as afterwards more fully 
 explained in the evidence of Mr. Lebram, the defendant's agent, 
 and the balance was paid to Messrs. Holland the distillers, in part 
 discharge of their claim under a second bill of sale. The defendant 
 further deposed that the sum of 20L Os. 6d. was so paid to 
 Tighe, in order that he might pay a portion only of the gas rate, 
 but in this, it will hereafter be seen, his evidence is at variance with 
 that of his agent, Mr. Lebram. Hunter was then recalled, and 
 deposed that the defendant, two or three days after the change, 
 told him that Tighe had the money in his pocket to pay the gas 
 company ; also that at the time of the alleged agreement he knew
 
 REPORTS OF CASES. 
 
 the defendant to be a man of substance, and that as a rule the gas 
 rate was paid on a transfer by the incoming tenant, and this 
 evidence was not contradicted. Mr. Lebram was then called, 
 and deposed as follows : " On the llth August I was present at 
 the transfer of the tavern, as agent between vendor and pur- 
 chaser. The collector of the brewery, Mr. Tighe, was there ; 
 Mr. Hunter was there, and Mr. Piper. The arrears of gas rent 
 were mentioned. I made up the account, it was an insolvent 
 estate. Mr. Holland's agent and solicitor objected to the gas 
 company being paid in full; he thought that the debt ought to be 
 compounded as well as their own. They talked about the gas 
 being cut off. The brewers were satisfied in full. I placed the sum 
 of 201. Os. 6d., the gas rate, in the hands of a third party, Mr. 
 Tighe, whom I considered a disinterested party proper to hold 
 the money. I heard no promise to pay." On cross examination 
 this witness said : " I made up the account, and gave one to the 
 vendor and one to the purchaser. The brewers received their 
 claim in full, about 600Z. The brewers and distillers divided all 
 the money besides the 201. The distillers received about 200Z. 
 The money was handed to me to divide. I gave the 201. Os. 6d. 
 to Mr. Tighe. Messrs. Holland's solicitor had protested against 
 the payment of the rate, and the gas company had threatened to 
 cut the gas off. The 20Z. Os. 6d. was paid to Mr. Tighe to pay 
 the gas company, or compound with them. The balance was 
 paid to Messrs. Holland. " Mr. Tighe, the collector to the 
 brewers was then called, and said, "I was present during the 
 whole of the transfer. My firm was satisfied in full. I heard the 
 discussion as to the arrears of gas rate. Mr. Hunter wanted it 
 to be paid, and Messrs. Holland's solicitor objected. There was 
 a long discussion, and Mr. Lebram suggested that a deposit 
 should be paid into my hands until a composition could be made, 
 and the 201. Os. Qd. was paid to me. Previously to the meeting 
 ending Mr. Holland's solicitor served Piper with a notice in 
 bankruptcy, thus prohibiting me parting with the money. I 
 called at Mr. Hunter's and told him I could not part with the 
 money until I had a proper authority to do so. Nothing was 
 then said about a composition. A garnishee summons in the 
 Queen's Bench was subsequently served on me by Messrs. 
 Holland, in respect of a debt due from Piper. I did not 
 appear, and an order was made on me to pay the 201. Os. 6d. 
 to Messrs. Holland, and I paid it over to them." Mr. Layton, 
 
 THE 
 
 COMPANY 
 
 v. 
 SMITH.
 
 42 REPORTS OF CASES. 
 
 THE the solicitor for the defendant, was then called, and deposed that 
 Ai^aJcrls ^ e ^ a ^ ac ^ e< ^ as solicitor for the defendant once before, and that 
 COMPANY he was Messrs. Holland's solicitor, and acted for them at 
 c, v ' the transfer. That he remembered Mr. Lebram's statement, 
 and the discussion as to the gas rates, and then said that 
 he did not see why the gas should be paid in full more than 
 Messrs. Holland. That there was considerable discussion, and 
 it was threatened to cut the gas off, and the money was paid to 
 Mr. Tighe, to offer the gas company some money, and not to pay 
 them in full. The witness served Piper with a notice in bank- 
 ruptcy, and also obtained a garnishee order, as already stated by 
 Mr. Tighe. On cross-examination he said, "I do not think I 
 ever saw Tighe after the transfer. I took proceedings as to the 
 attachment without knowing or inquiring whether a compromise 
 had been come to." Piper was not called as a witness, and it 
 was stated that he had absconded. Upon the first count and 
 this evidence the following questions arose : First, did the 
 defendant Smith agree with the witness Hunter to pay the sum 
 of 201. Os. 6d., now sued for, or any part thereof, in respect of the 
 gas rates due to the plaintiffs on the llth August last ? Secondly, 
 if so, was such agreement a guarantee for the payment of the 
 same by Piper, or was it an original substantive contract by the 
 defendant irrespective of Piper's liability ? If there was no 
 agreement at all, or if such agreement was a guarantee, and 
 therefore void, because not in writing, by the 4th section of the 
 Statute of Frauds, the defendant is entitled to a verdict on this 
 count; but if there was an agreement, and it was an original 
 substantive contract by the defendant to pay the above sum or 
 any part thereof, not as a guarantee for Piper, but irrespectively 
 of his liability, then I think the plaintiffs are entitled to a verdict 
 on this count. I do not think it necessary to go into the question 
 of consideration further than to say that the continuance of the 
 supply of gas by the plaintiffs under the circumstances of this 
 case appears to me clearly to have been a valuable consideration 
 sufficient to support this agreement, if entered into, whatever 
 may have been its nature. On the first question, I am of opinion 
 that the defendant did agree with Hunter to pay the sum of 
 19Z. 19s. 6d. (which within half an hour after the transfer was 
 stated to be due for gas rates) in consideration of the plaintiff's 
 agent not cutting off the gas, as he was entitled to do (10 Viet. 
 c. 15, s. 16) ; and further, that the defendant promised to pay
 
 REPORTS OF CASES. 
 
 the same out of the balance of purchase moneys (800Z.) which at 
 the time of the agreement was still in his hands ; and I therefore 
 do not believe that the defendant only held out to Hunter the 
 expectation of being paid out of such moneys on the transfer, as 
 he deposed, and with which I am convinced Hunter would not 
 have been satisfied. The second question remains to be con- 
 sidered, viz., whether the defendant entered into such agreement 
 as a surety for Piper by way of guarantee, or whether it was a 
 distinct original substantive contract by the defendant to pay 
 the same irrespective of Piper's liability. From the remarkable 
 case of Mountstephen v. Lakeman, in which the unanimous deci- 
 sion of the Queen's Bench was unanimously reversed by the 
 Exchequer Chamber, and also by the House of Lords, and 
 especially from the judgment of the late Mr. Justice Willes 
 (L. Rep. 7 Q. B. 97), I think it may be fairly gathered (although 
 not directly decided in the above case) that in order to create a 
 guarantee the liability of a third party, as a principal debtor, 
 must not only exist, but must also be contemplated and intended 
 by the contracting parties at the time of entering into the con- 
 tract, as the foundation of the same. Indeed, if the liability of a 
 third party, and the contingency of his paying the amount 
 involved be not contemplated by the parties to a contract, how 
 can the promiser possibly be said to guarantee or promise in the 
 words of the 4th section of the Statute of Frauds, ft to answer 
 for the debt, default, or miscarriage of another ? " " That 
 statute," as Mr. Justice Blackburn observes, in the case I have 
 cited, on the original hearing in the Queen's Bench, "must 
 be taken to apply to any contract of suretyship where there is an 
 intention of guaranteeing the payment of a debt of another, and 
 to require writing wherever the contract, according to the inten- 
 tion of the parties, is a contract of suretyship " (L. Rep. 5 Q. B. 
 619). Now, in the present case, considering that Piper was 
 known to the plaintiff's agent, Hunter, and to the defendant and 
 his agent, Lebram, to be insolvent, that the defendant at the 
 time of the contract made no reference to Piper's liability or the 
 possibility of his paying the sum in question, but after ascer- 
 taining the exact amount due, promised to pay the same upon 
 the transfer (which was to take place in half an hour) out of 
 moneys still in his possession, and eventually caused a portion of 
 such moneys equal to the subsequently corrected amount of 
 the rate, to be appropriated out of such moneys to meet 
 
 THE 
 
 COMPANY 
 
 v. 
 SMITH.
 
 44 
 
 REPORTS OF CASES. 
 
 THE the same I can feel no doubt that the parties to this 
 CRYSTAL agreement viz., the defendant and the plaintiffs by their 
 COMPANY agent Hunter in entering into it did not " contemplate " 
 or " intend," but in 
 
 V. 
 
 SMITH. 
 
 " intend," but in fact wholly disregarded the liability of 
 Piper and the contingency of his paying the amount in 
 question ; that such liability was not the " foundation " of 
 their contract, and that such contract was not " according to the 
 intention of the parties a contract of suretyship," but was a 
 distinct original substantive contract by the defendant to pay the 
 sum of 19Z. 19s. Qd. (or perhaps the correct amount of the gas, 
 whatever it may be) on the transfer, out of the moneys remaining 
 in his hands ; and consequently that the present is not the case 
 of a guarantee, and does not fall within the 4th section of the 
 Statute of Frauds. The conclusion to which I have arrived is, 
 of course, based rather on the consideration of all the facts and 
 circumstances of the case, than upon the equivocal expressions 
 which have been sworn to by Hunter and Bocock ; but I think it 
 right to say that there are many cases which show that those 
 expressions are amply sufficient to suggest an original agreement 
 if the facts of the case demand it. In addition to the case to 
 which I have already referred, I beg also to refer to the cases of 
 Williams v. Leper (2 Wilson, 308), Ardern v. Rowney (5 Bsp. 
 254), and the cases cited in note a, p. 97, of Mr. De Collyar's 
 learned "Treatise on Guarantees," which has been of great 
 service to me in the consideration of this case. I therefore find 
 for the plaintiff on the first count for the sum of 191. 19s. 6d. 
 On the second and third counts I find for the defendant, as it 
 is clear that the sum of 20Z. Os. 6d. was not paid to or retained 
 by the defendant for the use of the plaintiff, nor was there any 
 agreement in that behalf, as alleged, but was paid over by the 
 defendant with the consent of Piper and Messrs. Holland to a 
 third party, Tighe, to meet plaintiff's claim; and indeed the 
 money ought at the present moment to be in Tighe's hands, as I 
 shall presently show. On the fourth count I feel some doubt. 
 It involves two points first, whether there was any express or 
 implied agreement by the defendant with Piper "to pay or 
 exonerate him from payment of the arrears of gas," and upon 
 the evidence I think, with some doubt, that a jury could not 
 properly find that there was such an agreement ; and secondly, 
 whether, if such an agreement existed, it would, under the 39th 
 section of the Gas Works Clauses Amendment Act, 1871, confer
 
 REPORTS OF CASES. 
 
 45 
 
 a right of action on the plaintiffs against the defendant. The 
 clause is as follows : " 39. In case any consumer of gas supplied 
 by the undertakers leaves the premises where such gas has been 
 supplied to him without paying the gas rent or- meter rent due from 
 him, the undertakers shall not be entitled to require from the next 
 tenant of such premises the payment of arrears left by the former 
 tenant, unless such incoming tenant has undertaken with the 
 former tenant to pay or exonerate him from the payment of such 
 arrears." The inclination of my opinion is that a right of action 
 would arise by implication to the undertakers, the plaintiffs in 
 this case, if the incoming tenant, the defendant in this case, had 
 given such an undertaking to the previous tenant; but as I 
 think although with some doubt that the defendant cannot 
 properly be held to have given any such undertaking to Piper, 
 this point becomes immaterial for the present, and I have not 
 fully considered it. I therefore find for the defendant also upon 
 this count. 
 
 Verdict for plaintiffs for 19Z. 19s. 6d., with costs on the higher 
 scale. 
 
 THE 
 
 COMPANY 
 
 v. 
 SMITH. 
 
 The Crystal Palace Gas Company v. Smith. The above judgment lays 
 down, for the first time, that a guarantee is not within sect. 4 of the 
 Statute of Frauds, unless the liability of some third person be contemplated 
 by the contracting parties, even though, as a matter of fact, such liability 
 may exist. This view is certainly countenanced by expressions which fell 
 from the judges in Mountstephen v. Lakeman (L. Rep. 7 Q. B. 197 ; 
 s. c. L. Rep. 7 H. of L. 17). Moreover, it seems to be a reasonable view, as 
 the nature of every contract depends upon the intention of the contracting 
 parties. If, therefore, it should not appear that the parties did intend that 
 the liability of a principal debtor should be the foundation of their contract, 
 it is difficult to conceive on what principle their contract can be treated as 
 being one " to answer for the debt, default, or miscarriage of another person," 
 even though they knew of tfae existence of such liability. And, on the other 
 hand, certainly if the liability of a third person be contemplated by the 
 parties, and suretyship be founded in respect thereof, " if such liability 
 should fail, or was by mistake assumed to exist, the lex contractus will make 
 an end of the contract, as the foundation for it has been taken away :" 
 (per WILLIS, J., in Mountstephen v. Lakeman, L. Rep. 7 Q. B. 196, 202.) 
 It is, however, right to mention that, in some cases, the Statute of Frauds 
 has been held to apply, where the liability of a third person existed in fact, 
 without considering the question whether or not the parties contemplated such 
 liability as the foundation of their contract : (see De Colyar on Guarantees, 
 p. 54 et seq., where the authorities are collected.)
 
 46 REPORTS OF CASES. 
 
 NEWBURY COUNTY COURT. 
 
 Thursday, April 20, 1876. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 JOHNSTON v. EATON, (a) 
 A contract by a trustee of a liquidation to value property belonging 
 
 to the estate on the part of the purchaser held to be void. 
 THE plaintiff, who is an auctioner and valuer of Newbury, sued 
 the defendant, who resides at Wantage, for 61. 10s., for 
 professional services. The affairs of Lovell, grocer and carrier, 
 of Peasemore, being referred to liquidation, Thomas Fidler was 
 appointed trustee, and J. A. Johnston, the plaintiff, the receiver. 
 The defendant, learning the business was to let, went to Lovell, 
 and both came into Newbury to see Fidler, and an agreement 
 was drawn up, omitting an omnibus and furniture, which Eaton 
 signed. Subsequently they went to Johnston's, and Johnston 
 stated that Eaton distinctly gave instructions for him to make a 
 valuation, which defendant denied. Subsequently the arrange- 
 ments fell through, and the plaintiff now sued for the amount of 
 the valuation. 
 
 His HONOUE said that as a matter of fact he was of opinion 
 that the defendant agreed that the plaintiff should value the 
 stock-in-trade, horses and van, except the furniture and the 
 omnibus, but that he did so contingently on the landlord 
 accepting him as tenant, and as the landlord would not do so, 
 the plaintiff was premature in making a valuation. But 
 independently of that, the plaintiff, as trustee of the bankrupt's 
 estate, had no right to enter into a contract which put him in a 
 position where his duty as trustee and vendor conflicted with his 
 duty as agent for the purchaser, and he could not recover upon 
 such a contract. Being against the plaintiff in matter of fact 
 and law his Honour directed a nonsuit, and allowed the defendant 
 the fee of his solicitor, but refused any further expenses, as he 
 considered the defendant was to blame in entering into the 
 agreement with the plaintiff. Nonsuit. 
 
 Johnston v. Eaton. It may be well to mention that the Bankruptcy 
 Rules, 1870, expressly provide that " where the trustee is an auctioneer he 
 shall not, by himself or any partner, act as such in the sale of any of the 
 
 (a) County Courts Chronicle, vol. v., p. 347,
 
 REPORTS OF CASES. 47 
 
 property vested in him, except with the consent of the committee of JOHNSTON 
 inspection, and upon such terms as it may think fit " (rule 119). Moreover, it v. 
 
 has been recently held that the bankrupt's property must not be sold to a EATON. 
 relation of the trustee, as such a sale is contrary to the policy of the law : 
 (Ex parte Forder, in re Sparks, 16 Weekly Notes, 117.) 
 
 NEWBURY COUNTY COURT. 
 
 Monday, May 22, 1876. 
 (Before H. G. STONOR, Esq., Judge.) 
 
 EARN v. GRANGER, (a) 
 
 In the administration under the 1st sub-section of the 25th section 
 of the Judicature Act, 1873, of the insolvent estate of an intestate 
 who died before the 1st Nov. 1875, the executor's retainer 
 allowed. 
 
 Qucere, Whether under the Ilth sub-section, which came into 
 effect at the above date, the executor's right of retainer and the 
 distinction between legal and equitable assets are not abrogated. 
 His HONOUR, Mrs. Granger having obtained letters of adminis- 
 tration to her husband's estate, is entitled to claim against the 
 estate of Mrs. Farn, whose administratrix she also is, the sum of 
 250Z. due to her husband's estate in respect of the implied 
 contract of indemnity entered into with her husband by Mrs. 
 Earn; but the question remains whether she is intitled to retain 
 it out of Mrs. Farn's estate, which is admittedly insolvent, in 
 preference to other creditors. It was argued before me that 
 Mrs. Granger was not so entitled, because the debt in question 
 was not recoverable at law or legal assets ? but I am of opinion 
 that such debt was recoverable at law and legal assets, and more- 
 over, that it is quite immaterial whether it was so or not, as an 
 executor has always been entitled to retain an equitable debt out of 
 legal assets (Franks v. Cooper, 4 Ves. 763), and the only question 
 as to retainer, before the Judicature Act, 1873, would have been 
 whether Mrs. Farn's estate consisted of legal or equitable assets. 
 Now, her estate consisted (as far as appears) solely of dividends, 
 or a proportionate part of dividends amounting to 771., which 
 was paid to Mrs. Granger, as her administratrix, and was clearly 
 legal assets (Marriott v. Thompson, Wills, 186), and see the other 
 cases cited in the notes in the case of Silk v. Prime (White & 
 
 (or) County Courts Chronicle, vol. v., p. 375.
 
 48 REPORTS OF CASES. 
 
 FARN Tudor' s Leading Cases in Equity, vol. II.), and, therefore, primd 
 GRANGER f ac ^ e > s ^ e ^ 8 c l ear lj entitled to retain the whole amount of 771., 
 and any further legal assets of the testatrix, until the debt of 250Z., 
 and interest, are satisfied, unless she is deprived of this right by 
 the operation of sub-sections 1 and 11 of sect. 25 of the Judi- 
 cature Act, 1873, or either of them. The date of Mrs. Farn's 
 death was the 12th March, 1875. 
 
 The commencement of the Judicature Act of 18 73, and its coming 
 into operation, was fixed for the 2nd Nov., 1874 (sect. 2), but some 
 provisions in the Act were, nevertheless, to come into effect 
 after the passing of this Act, which was on the fifth day of August, 
 1873. The first sub-section of the 25th section provides, " that 
 in the administration of the assets of any person who may die 
 after the passing of this Act, and whose estate may prove to be 
 insufficient for the payment in full of his debts and liabilities," 
 the rules of bankruptcy shall prevail, and therefore, I think, 
 although the point is not quite clear, that this sub-section came 
 into effect on the passing of the Act, viz., the 5th day of August, 
 1873. The llth sub-section of the same section provides that 
 " in cases of conflict or variance between the rules of equity and 
 the rules in common law, the rules of equity shall prevail," but 
 it was left to take effect at the commencement of the Act, viz., 
 the 2nd day of November, 1874. By the Judicature (Commence- 
 ment) Act, 1874, sect. 2, it is provided, "that the Judicature Act 
 1873, except any provision thereof directed to take effect on the 
 passing of the said Act, shall commence and come into operation 
 on the 1st November, 1875, and the said day shall be taken to 
 be the time appointed for the commencement of the said Act." 
 Assuming that " on the passing of the Act " has the same 
 significance as "after the passing of the Act," and that I am 
 right in my construction of the 1st sub- section, the same was 
 excepted in the Act of 1874, and therefore continued to remain 
 in operation, but the operation of the llth sub-section was, of 
 course, postponed by the last-mentioned Act. It, therefore, 
 follows that in the administration of Mrs. Farn's estate, the 
 1st sub-section applies, and the Rules of Bankruptcy must 
 prevail, but that the llth sub-section does not apply. I am 
 aware that the Judicature (Amendment) Act, 1875, sect. 10, 
 subsequently repealed the 1st sub-section altogether, and 
 substituted another of somewhat larger operation to take effect 
 from the 1st November, 1875, but I do not think that it has a
 
 REPORTS OF CASES. 
 
 49 
 
 retrospective effect, especially as the present action was instituted 
 before the Act of 1875 came into operation, for, as the Master 
 of the Rolls observed in Re Joseph (L. Rep. 1 Ch. Div. 50), 
 "it is a general rule that when the Legislature alters the rights 
 of parties by taking away or conferring any right of action, 
 its enactments, unless in express terms they apply to pending 
 actions, do not affect them." The single question then remains, 
 whether in the administration of assets according to the Rules 
 of Bankruptcy under the 1st sub-section the executor's right of 
 retainer would prevail. No doubt the general rule, as argued 
 before me, is to divide a bankrupt's estate equally amongst his 
 creditors, but this is without prejudice to all just and lawful 
 charges, liens, and rights whatsoever which may affect the same, 
 and I think that previously to the Judicature Act, 1873, the 
 executor's right of retainer out of legal assets would clearly 
 have been regarded by the Court of Bankruptcy as his just and 
 lawful right. Suppose a bankrupt executor, his trustee would 
 undoubtedly have claimed the benefit of this right. And again, 
 the executor of a debtor to a bankrupt's estate would have been 
 allowed this right, and I can see no reason why the right of 
 retainer should be respected in those cases and disregarded in 
 the present. Of course, I refer to the law before the 
 1st November, 1875, when the llth sub-section came into 
 operation, upon which the very difficult question arises mentioned 
 in my former judgment, viz., whether that section does not 
 abrogate altogether the distinction between legal and equitable 
 assets, and consequently the executor's right of retainer, as to 
 which it is unnecessary for me now to express an opinion. I 
 therefore think that Mrs. Granger is entitled to retain the sum 
 of 77/., and any other legal assets coming to her hands as 
 administratrix of Mrs. Farn, towards satisfaction of the debt 
 of 250Z. and interest until the same are satisfied. I must express 
 my regret that in a case of such novelty and difficulty as the 
 present the court has not had the assistance of some of the 
 many able counsel whom I have constantly the pleasure of seeing 
 on this circuit. Claim allowed. 
 
 FAUN 
 
 v. 
 GBANGER. 
 
 Farn v. Granger. The doubt expressed by the learned judge in the 
 above case as to whether the executor's right of retainer be not abrogated by 
 sect. 25, sub-sect. 11, of the Judicature Act, 1873, has never actually been 
 solved or even considered. It has, however, lieen held that as an executor's right
 
 50 REPORTS OF CASES. 
 
 FARN to retain a debt due to himself does not make him a secured creditor, within 
 v. the meaning of the Judicature Act, 1875, s. 10, his right of retainer, if such 
 
 GRANGER, there be, is not affected by that section : (Lee v. Nuttall, 12 Ch. Div. 61.) 
 Moreover, such right is not affected by the Act abolishing specialty and 
 simple contracts : (Crowder v. Stewart, 16 Ch. Div. 368.) It, however, only 
 applies to legal assets, and, as real estate, is, by the statute 3 & 4 Will. 4, 
 c. 104, made assets for the payment of debts only in equity, an executor has no 
 right of retainer against it : (Walters v. Walters, 18 Ch. Div. 182.) It is 
 likewise necessary, as a rule, that the legal assets out of which the retainer is 
 claimed should actually come into the executor's hands. However, it has 
 been recently held that an executor may be entitled to a right of retainer out 
 of funds paid into court with his consent : (Richmond v. White, 12 Ch. Div. 
 361.) 
 
 It is to be observed that in all the cases just cited it has been assumed 
 that the executor's right of retainer remains unaffected by sect. 25, sub- 
 sect. 11, of the Judicature Act, 1875, though the bearing of this enactment 
 upon such right does not appear to have been considered in any of them. 
 But it seems difficult, in principle, to understand why law should not follow 
 equity in this matter, just as it has been held in cases determined prior to 
 the new Bills of Sale Act, that under the same enactment after-acquired 
 property passes at law under bills of sale, following the rules of equity on 
 this subject : (per LUSH, J., Weekly Notes, 1875, p. 203 ; and ARCHBOLD, J., 
 ib., 1876, p. 32.) Moreover, it may well be doubted whether the fusion of 
 law and equity has not the effect of abrogating the distinction between 
 legal and equitable assets : (but see Walters v. Walters, 18 Ch. Div. 182.) 
 If such were the case the executor would also, as a necessary consequence, 
 be deprived of his right of retainer. 
 
 KINGSTON COUNTY COUET. 
 
 Friday, May 12, 1876. 
 
 (Before H. J. STONOR, Esq., Judge.) 
 
 WOODHOUSE v. MAYOR AND CORPORATION OF KINGSTON, (a) 
 
 Mistake Statute of Limitations When time begins to run 
 
 Judgment on motion for nonsuit. 
 
 Action for money obtained by fraud or mistake, or paid in mistake 
 and ignorance of fact, lies against a local board for moneys 
 overcharged by them and paid by owner. 
 
 Under, the Judicature Act, 1873, the rule of equity prevails in com- 
 puting time under Statute of Limitations, from the discovery of 
 fraud or mistake, and not from its commission or occurrence. 
 Public Health Act, 1848, ss. 69, 120, and 139; Local Government 
 
 (a) County Courts Chronicle, vol. v., p. 378.
 
 REPORTS OF CASES. 51 
 
 Act, 1858,s. 63; Public Health Act, 1875, ss. 264 and 344; WOOD- 
 
 and Judicature Act, 1873, s. 25, sub-s. 11. HOUSE 
 
 v. 
 Pugh for the plaintiff. MAYOR AND 
 
 Lilley for the defendants. CORPORA- 
 
 TION OF 
 
 His HONOUR this day delivered judgment as follows : This KINGSTON. 
 action is brought to recover the sum of 13Z. 15s., the amount 
 overpaid by the plaintiff to the defendant board, that is to say, 
 the defendants as the Kingston Local Board of Health, in respect 
 of his proportion of the expenses alleged to have been incurred 
 by the said defendant board in and about sewering and levelling, 
 and paving of a certain road called Clifton-road, Norbiton, in 
 the county of Surrey, and for money had and received by the 
 defendant board to and for the use of the said plaintiff, and for 
 a return of money paid by the said plaintiff to the said defendant 
 board obtained by them by fraud, and for a return of money paid 
 by the plaintiff to the said defendant board by mistake. It was 
 stated at the bar by the plaintiff's counsel that the alleged fraud 
 and mistake were not discovered, or discoverable, by the plaintiff 
 until within six months of the issue of the summons, and I 
 thought that the particulars should be amended by the addition 
 of words to that effect (the case of the Southsea Company v. 
 Wymondsell, 3 P. Wms. 143), and this has accordingly been 
 done. The defendants took certain preliminary objections to this 
 action, founded on the statutes 11 & 12 Viet. c. 63, entitled " The 
 Public Health Act, 1848," ss. 64, 120, and 139 ; the 21 & 22 Yict. 
 c. 198, entitled "The Local Government Act, 1858," s. 63 ; and 
 38 & 39 Viet. c. 55, entitled "The Public Health Act, 1875," ss. 
 264 and 343 ; which objections were in the nature of pleas in bar, 
 and I was requested to consider and give my judgment upon the 
 same without hearing the evidence. After attentively con- 
 sidering the provisions of the statutes referred to, I entertained 
 very great doubt as to their operation in the present case, and 
 having regard to the novelty and importance of the points 
 involved, and the probability of an appeal, I thought that it 
 would be better for me to suspend my judgment until I had 
 heard the plaintiff's case, leaving the defendant to move for a 
 nonsuit at the conclusion of it. Evidence was then given on 
 behalf of the plaintiff, according to which the facts of the case 
 are as follows : The defendant board gave notice, dated the 16th 
 February, 1874, under the Public Health Act, 1848, to the 
 plaintiff and other owners to execute certain works in Clifton- 
 
 E 2
 
 52 REPORTS OF CASES. 
 
 WOOD- road, and the plaintiff and other owners having made default, 
 HOUSE f-kg board di<j the work themselves. The board gave a notice 
 
 V. . . 
 
 MAYOR AND dated the 1st October, 1874, under the above Act, to the plaintiff, 
 CORPORA- stating that the expenses incurred amounted to the sum of 
 
 TION OF 
 
 KINGSTON. 262Z. 14s. IQd., and the surveyor of the board, in pursuance of 
 the 69th section of the above Act, in and by such notice, appor- 
 tioned the sum of 34Z. 17s. lid. as the proportion to be paid by 
 the plaintiff. On the 28th December, 1874, the plaintiff wrote 
 a letter of that date objecting to pay for the sewer, part of the 
 above works, on the ground that he derived no benefit from it, 
 as his house drained elsewhere. To this letter the defendants' 
 officer, the town clerk, by a letter dated 7th January, 1875, 
 replied that as the plaintiff's property abutted on the road he 
 was liable to contribute, and requesting a cheque for the 
 34Z. 17s. lid., and subsequently, during the month of January, 
 the plaintiff went before the works committee of the board, and 
 made the same objection and received the same answer, and 
 thereupon gave his cheque for the above amount. The plaintiff 
 made no other objection, and was aware of no other objection, 
 to the entire charge of 262Z. 14s. I0d., or the apportionment of 
 34Z. 17s. lid., at that time nor subsequently until he instructed 
 Mr. Berriman to apply to the board on his behalf, which was 
 about the middle of September, 1875 (more than six months 
 after payment of the cheque, but within six months of this 
 action being brought), when Mr. Berriman informed him of 
 certain facts which have now been proved before me, and on 
 which the plaintiff claims the above sum of 13/. 15s., in respect 
 of the following items (which together compose the above charge 
 of 2621. 14s. Wd.) : In respect of 12in. sewer pipes laid down 
 instead of 9in. sewer pipes previously laid in the year 1869, 
 under the direction of the board, by or at the expense of the 
 former owners, amounting to 95 1. 6s. ; and, secondly, in respect 
 of gravelling and repair of roads previously formed in like 
 manner, amounting to 132Z. 16s. 2d., including an overcharge in 
 respect of kerbing unsupplied (which is very trifling) and a 
 surplus sum of 5Z. retained by the defendants for future repairs 
 9Z. 3s. 6d. ; thirdly, in respect of fees charged by the town 
 clerk, who is also clerk to the local board (161. 10s.) say 21. 2s. ; 
 fourthly, in respect of commission to the surveyor to the corpo- 
 ration, who is also surveyor to the local board (19Z. 2s. 8d.), 
 21. 10s., total 13Z. 15s. The overcharge for kerbing is very
 
 REPORTS OF CASES. 53 
 
 trifling, and is scarcely distinguishable from the rest of the WOOD- 
 
 item of 9Z. 3s. 6d., and therefore I shall venture to take H U SE 
 
 v. 
 no further notice of it, but with regard to the surplus MAYOR AND 
 
 sum of 5Z. I shall refer to it particularly hereafter. As CORPORA- 
 
 TTON OT? 
 
 to the two first items the evidence shows clearly that the KINGSTON. 
 charges in question, or at all events a very large proportion 
 of them, were improper, inasmuch as such charges were made in 
 respect of altering and repairing sewers and roads, which had 
 previously been constructed under the direction of the defen- 
 dants' surveyor, by or at the expense of the former owners, and 
 which the defendants were clearly bound to take to and repair for 
 the future, and the alteration and repairs in question were in 
 fact occasioned through an act of ownership by the defendants 
 in having connected another sewer with the 9in. sewer, which 
 proved inadequate for its purpose, and if the plaintiff had 
 appealed within seven days to the Local Government Board, 
 under the 21 & 22 Yict. c. 98, ss. 65 and 34 & 35 Viet. c. 70, 
 s. 1, his proportion of these charges, whatever the precise 
 amount may be, would certainly have been deducted. It appears 
 indeed doubtful whether the whole of the proportionate sums 
 charged to the plaintiff in respect of the first two items ought 
 not to be deducted, for there is no evidence before me that any 
 portion of it relates to any other works than those occasioned by 
 the alteration of the sewers and the roads previously constructed. 
 However this may be, I think I may fairly assume that the sum 
 of 91. 3s. 6d., claimed by the plaintiff, is charged to the plaintiff 
 in respect of works rendered necessary solely by the alteration in 
 the sewers, and in respect of the 5L cash in hand retained as 
 above, and the plaintiff's proportion of the sum of 5Z. can be at 
 once fixed at 14s., part, of course, of the 91. 3s. 6d. claimed as 
 above. The sum of 5Z., and the proportionate sum of 14s., are 
 in my opinion clearly illegal charges without reference to the 
 nature of the works in question, because the board have no 
 authority to charge any moneys except those actually expended 
 previously to the charge and apportionment. With regard to 
 the two last items, viz., the fees to the clerk and the commission 
 to the surveyor, I also think there can be no doubt as to their 
 illegality. The salaries, wages, and allowances to the clerk, 
 surveyor, and officers of the local board are payable out of the 
 general district rates by the 11 & 12 Viet. c. 63, s. 37, and the 
 lo cal board have no right to make any charge to the owners of
 
 54 REPORTS Otf CASES. 
 
 WOOD- streets for the services of such officers, but only for the actual 
 
 rsE expenses of executing the works in such streets. The case of 
 
 MAYOR AND The Poplar Board of Works v. Love (29 L. T. Eep. N. S. 915), 
 
 CORPORA- wn i cn was no t cited before me. would seem at first sight to be 
 TION OF . . , , , 
 
 KINGSTON, an authority the other way, and to decide that such payments 
 
 would be charged by a local board, but on examining the case it 
 will be seen that the Poplar Board of Works had a private Act, 
 authorising them to recover not only the expenses incurred in 
 the works, but " all other incidental costs and charges," that the 
 persons employed by them were not officers or clerks of the 
 board, and that the board had no other means to remunerate 
 their officers, which circumstances distinguished it from the 
 present case. I can conceive cases in which payments to a 
 surveyor, not being an officer of the board of health, as clerk of 
 works superintending the construction of sewers or roads, might 
 be properly charged, but the charge made in the present case is 
 certainly not of that description. I therefore think that the 
 item of 14&-. in respect of the surplus cash, and the items of 
 21. 2s., and 21. 10s. to the officers of the defendants, are abso- 
 lutely illegal, and would clearly have been deducted if the 
 plaintiff had appealed within seven days as above. The ques- 
 tions remaining for me to decide are, first, whether the plaintiff, 
 having paid the apportionment, has any right of action against 
 the defendants to recover back the sums in question at law or 
 in equity ; secondly, whether such right is taken away by 
 sect. 120 of 11 & 12 Viet. c. 63, and sect. 1 of 34 & 35 Viet. 
 c. 70, giving the plaintiff an appeal to the Local Government 
 Board within seven days, and his neglect to bring such appeal ; 
 and, thirdly, whether such right of action is taken away by the 
 139th section of 11 & 12 Viet. c. 63, which enacts that every 
 action against a local board of health should be brought or com- 
 menced within six months next after the accrual of the cause of 
 action, and not afterwards. On the first point I think with some 
 doubt that the plaintiff, being apparently ignorant of the facts of 
 the case at the time of the payment of the sum of 34L 17s. lid. 
 apportioned to him, is entitled to recover back the sum of 
 91. 3s. 6d. (or whatever the amount may be) charged to him in 
 respect of the alteration and repair of the sewers and roads 
 rendered necessary by the substitution of the 12in. sewer pipes 
 for the 9in. sewer pipes; and with regard to the sum of 14s. 
 cash, part of such charge, and with regard to the sums of 21. 2s .,
 
 &EPORTS OF CASES. 55 
 
 and 21. 10s., fees and commission to the town clerk and sur- WOOD- 
 veyor of the local board, I think without doubt that the plaintiff, HOUSE 
 being necessarily ignorant of the facts of the case is entitled to MAYOR AND 
 recover back these amounts at law, or at all events in equitv, CORPORA- 
 
 TION OF 
 
 which by the 25th section of the Judicature Act, 1873, sub- KINGSTON. 
 
 sect. 11, must now prevail : (see the cases of Marriott v. Hampton, 
 
 2 Smith's Leading Cases, 6th edit. 375 and cases cited in note, 
 Udell v. Atherton, 7 Hurlston & Norman, 172; Storey's Equity 
 Jurisprudence, sect. 1, 521 ; Sonthsea Company v. Wymondsell, 3 
 P. Wms. 143 ; BrooJcsbank v. Smith, 2 Young & Collyer, Exch. 
 58) . On the second point I cannot see why a right of appeal as 
 to the propriety or amount of a charge authorised by an Act of 
 Parliament should take away a plaintiff's common law or equit- 
 able right to recover sums included by the defendants in such 
 charge in fraud or mistake, and paid by the plaintiff in mistake 
 arising from ignorance of fact. And certainly if such had been 
 the intention of the Legislature it ought to have been expressly 
 declared, and not left to inference, and a longer period than 
 seven days would surely have been granted for such appeal. 
 On the third point I would refer to the same enactment of the 
 Judicature Act, and to the same authorities as I have referred to 
 on the first point, and whilst I feel great doubt whether the 
 139th section of the 11 & 12 Viet. c. 63 (although by no means 
 so stringently worded as the Act for the Protection of Justices 
 of the Peace (11 & 12 Viet. c. 44, s. 8, and similar Acts), is not, 
 or, to speak more accurately, would not have been a bar to the 
 action at common law before that wise enactment to which I have 
 just referred, I cannot but think that under that enactment, and 
 according to the principle of equity which declares that the period 
 of limitation as to fraud or mistake runs not from its commission 
 or occurrence, but from its discovery, except in cases of neglect, 
 this action is brought within due time, viz., within six months 
 from the time when the plaintiff became aware of the facts which 
 show that he was wrongfully charged with all the sums in ques- 
 tion, or, at all events, so far as regards the three sums of 14s., 
 21. 2s. , and 21. 10s., which I have specially mentioned. The 
 case of Cook v. The Ipswich Board of Health (L. Rep. 2 C. P. 
 451), cited before me, does not appear to me to apply to the 
 present case ; it only decides that the justices of the peace or 
 arbitrators, in inquiring into the validity or fairness of an 
 apportionment, have no jurisdiction to go into the validity or
 
 56 REPORTS OF CASES. 
 
 WOOD- propriety of the charge itself, and nowise affects the question 
 
 >TJSE whether money charged and paid in fraud or mistake can be 
 
 MAYOR AND recovered back by the parties paying the same at common law or 
 
 CORPORA- j n equity. I therefore refuse the motion for a nonsuit, and unless 
 
 TIOW OB 1 
 
 KINGSTON, the defendants call evidence, find for the plaintiff for the full 
 amount, with costs of three days, and liberty to appeal. 
 
 Lilley stated he would call evidence, and asked for a special 
 day, and 
 
 His HONOUR appointed the 17th June for that purpose, but the 
 case was not again tried. 
 
 CROYDON COUNTY COURT. 
 
 Monday, Dec. 18, 1876. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 BATCHELOE v. KEITH, (a) 
 
 Secondary evidence of unstamped agreement to a lease purposely 
 destroyed by defendant cannot be given in an action for rent, 
 but may be given in an action of trespass for the destruction of 
 the document or for specific performance in equity. 
 Frith for plaintiff. 
 Parry for defendant. 
 
 His HONOUE. In this case some difficult points as to the 
 admission of evidence and of common law and equity have 
 arisen, as also a serious conflict of testimony. The plaintiff, who 
 is a builder, and the defendant and his wife, in or about May 
 last, entered into a negotiation for the letting, for three years, of 
 a house newly erected by the plaintiff. In the course of such 
 negotiation the defendant's wife asked the plaintiff whether they 
 might continue in occupation if they felt disposed after the three 
 years had expired, and he told her that they might, and that he 
 would give them a note to that effect. The defendant, however, 
 said nothing about it. The plaintiff furnished the defendant with 
 a lithographed form of letting, and said that there would be 
 some trifling additions which he would make to it. On the llth 
 May last the defendant called by appointment, with his wife, on 
 the plaintiff, who produced a similar lithographed form, signed 
 
 (a) County Courts Chronicle, vol. vi., p. 16.
 
 REPORTS OF CASES. 57 
 
 by the plaintiff, and in which the blanks were filled up, being an BATCHELOE 
 agreement for the letting of the premises by the plaintiff to the K v ' 
 defendant, for three years from the 24th June then next, at 261. 
 a year, payable quarterly. There was a trifling addition in it as 
 to fixtures, and an additional clause enabling the lessor to enter 
 at reasonable times for the purpose of repairing and cleaning the 
 water pipes and cistern, and prohibiting the defendant from using 
 the water otherwise than for domestic purposes. The plaintiff 
 deposes that he read the whole document to the defendant. The 
 defendant and his wife depose that he only read a few words of 
 it and explained the rest, but that he drew attention to the clause 
 at the end of it as to the water pipes and cistern. The evidence 
 of the defendant and his wife was somewhat contradictory as to 
 these details. The plaintiff and defendant are agreed that at the 
 conclusion of the interview the defendant signed the agreement 
 in the presence of the plaintiff's daughter, who attested her sig- 
 nature, but was not present previously, and therefore could not 
 depose as to what had passed. The plaintiff handed the agree- 
 ment to the defendant as soon as he had signed it, together with 
 another form for him to fill up as a copy or counterpart, and 
 requested him to return the former in two or three days. The 
 defendant took them home, and two days afterwards called on 
 the plaintiff and said " that he would not be bound by the agree- 
 ment/' and, as he deposes, gave two reasons for the same 
 firstly, that the agreement did not contain a provision for a 
 further lease ; and secondly, that it contained the power of entry 
 to repair the water pipes. The plaintiff, however, deposes that 
 the defendant only made the latter objection, and the plaintiff's 
 evidence is confirmed by a subsequent letter from the defendant 
 to him, dated the 18th May, in which the defendant makes the 
 latter objection only. The defendant further alleges that he 
 regarded the agreement only as a draft, or, in his own words, 
 " as a preliminary affair," which appears to me to be quite at 
 variance with all the facts in the case. Shortly after the defen- 
 dants' interview with the plaintiff, the defendant purposely 
 destroyed the agreement, which was unstamped, but apparently 
 within the fourteen days allowed for stamping agreements. Sub- 
 sequently the plaintiff put the house in complete order, and on 
 the 12th June wrote to the defendant that he could enter on the 
 24th June, but the defendant has never entered. The plaintiff 
 now sues the defendant for 61. 10s., one quarter's rent alleged to
 
 58 REPORTS OF CASES. 
 
 BATCHELOB have become due on the 29th September last. The first ques- 
 - v ~ tion is as to the admissibility of secondary evidence of the con- 
 
 tents of the unstamped agreement which was destroyed by the 
 
 defendant, and I regret to say that although it is an evident 
 hardship that the defendant should be able to take advantage of 
 his own wrong, the case of Rippiner v. Wright (21 B. & A. 478) 
 is a direct authority that such evidence is not admissible in the 
 present action, which is for rent, or rather for a sum of money 
 payable by the defendant to the plaintiff in the nature of rent 
 under the agreement in question. I, however, think that in an 
 action for trespass for the wilful destruction of this agreement by 
 the defendant secondary evidence of its contents might be given, 
 and that the amount now sued for could be recovered as damages 
 in such an action. And I feel no doubt that such evidence would 
 be admissible in equity upon a claim that the defendant should 
 be decreed to sign another agreement in place of the one which 
 he fraudulently destroyed, or to execute a lease in conformity 
 therewith, and to pay the amount now claimed. It has long ago 
 been said that the Statute of Frauds " was not intended to create 
 or protect fraud " (Sugden's Vendors and Purchasers), and the 
 same may certainly be said of the Stamp Act. I also think, but 
 with some doubt, that this court has jurisdiction in equity to 
 grant relief in the present case, under the County Courts Acts 
 1865 and 1867. Being of opinion, on the merits of the case, that 
 the defendant undoubtedly signed the agreement in question with 
 a full knowledge of its contents, and subsequently endeavoured 
 to free himself from it by subterfuge and fraud, I shall, if the 
 plaintiff desire it, give him liberty to amend by inserting a count 
 for trespass, and a claim in equity, as I have suggested, or either 
 of them, and adjourn the further hearing of the case to next 
 court, when it may be re-argued, if necessary ; and otherwise I 
 shall direct a nonsuit, with liberty to the plaintiff to appeal in the 
 usual manner, or to bring another action. 
 
 The plaintiff's counsel elected to have the case adjourned, with 
 liberty to amend. 
 
 Adjourned accordingly.
 
 REPORTS OF CASES. 59 
 
 COUNTY COURT OF SOUTHWARK. 
 
 Thursday, Dec. 5, 1877. 
 
 (Before H. J. STONOR, Esq., Judge.) 
 
 IZOD v. LAYMAN, (a) 
 
 Pawn Interest. 
 In the computation of interest under the loth section and 4>th 
 
 schedule to the Pawnbrokers Acts (35 fy 36 Viet, c 35) the day of 
 
 pawning is to be excluded. 
 
 His HONOUR this day delivered judgment as follows : The 
 plaintiff in this case sues the defendant, a pawnbroker, for 10s. 
 damages in respect of the detention of a pledge for one day after 
 the tender of principal and interest due thereon, and for loss of 
 time incidental to such detention. The plaintiff, on the 30th 
 August pledged certain goods for a sum under 40s., and on the 
 30th October called to redeem them, and tendered the principal 
 and two months interest, but the defendant claimed, under the 
 provisions of the Pawnbrokers Act (35 & 36 Viet. c. 98) 
 (which I shall presently consider), half of the amount to which 
 he would have been entitled for the third month, on the ground 
 that the pledge had remained one day more than two months, 
 and he detained it for one day. The plaintiff took out a 
 summons under the Pawnbrokers Act before a metropolitan 
 police magistrate (Mr. Benson), upon whose recommendation the 
 defendant abandoned his claim, and gave up the pledge. The 
 plaintiff has now brought the present action, in which the 
 damages are agreed on, and both parties ask my decision on the 
 point of law involved in it. I should observe that it was proved 
 that the goods were pawned at 6.50 p.m. on the 30th August, 
 and the principal and interest tendered before 6 p.m. on the 30th 
 October, but the exact hours of the pawning and tender are not, 
 according to my view of the case, material. The 15th section of 
 Pawnbrokers Act provides that a pawnbroker may take profit 
 on a loan at a rate not exceeding that specified in the 4th 
 schedule of the Act ; and the 4th schedule contains the following 
 provisions as to profit on loans : " A. On a loan of 40s. or 
 under : For any time during which the pledge remains in pawn 
 not exceeding one month for every 2s. or fraction of 2s. lent, one 
 halfpenny. For every month after the first, including the 
 current month in which the pledge is redeemed, although that 
 (o) County Courts Chronicle, vol. vi., p. 248.
 
 60 REPORTS OF CASES. 
 
 IZOD month is not expired, for every 2s. or fraction of 2s. lent, one 
 LAYMAN halfpenny. Provisos : 1. If the pledge is redeemed before the 
 end of the first fourteen days after the expiration of any month, 
 the pawnbroker shall in respect of those fourteen days be entitled 
 to take half of the amount which he would be entitled to take for 
 the whole month. B. On a loan of above 40s. : For every month 
 or part of a month for every sum of 2s. 6d. or fraction of a sum 
 of 2s. 6d., one halfpenny." By the 4th section of the 13 & 14 
 Viet. c. 21 (as to the construction of statutes) the month in 
 question must be held to be a calendar month, and it is so treated 
 in the forms contained in the 3rd schedule of the Pawnbrokers 
 Act ; and the only question is whether, in the computation of 
 such calendar month, the day of pawning is to be excluded or 
 mcluded. I have been referred to a decision of another metro- 
 politan police magistrate (Mr. Hannay), who, upon a summons for 
 penalties under this Act, held that the day of pawning was to be 
 included in such computation, and also to a report from a 
 newspaper of his observations on that occasion, which is 
 evidently imperfect and inaccurate. I have, however, considered 
 those observations and the arguments of the defendant with 
 great attention, and regret that after doing so I cannot concur 
 in the decision or reasoning of the learned magistrate, at least so 
 far as the civil rights and remedies of the parties are concerned. 
 The rule was indeed formerly, that where the computation of time 
 was to be made from an act done on a certain day (which it is in 
 the present case, viz., from the act of pawning) or from a certain 
 day, the day of doing of such act or such day ought to be mcluded ; 
 but this rule has been abrogated by later authorities, which have 
 established as the general rule of computation that, whether the 
 time be counted from an act done on a certain day, as in the 
 present case, or from a certain day, such day shall be excluded, 
 or, as it has been otherwise expressed, ' that time shall be com- 
 puted from midnight of that day," and apparently upon the principle 
 that the law takes no cognisance of the fraction of a day : (see the 
 cases on the point collected in Chitty's Statutes, vol. 4, p. 666.) 
 Now, are there any grounds upon which the computation of 
 time should be made in the present case, otherwise than according 
 to the general rule ? The only possible ground which I can 
 discover is that the 16th section of the Pawnbrokers Act, which 
 provides ' ' that every pledge shall be redeemable within twelve 
 months from the day of pawning," superadds the words, " ex-
 
 REPORTS OF CASES. 61 
 
 elusive of that day ; " and it certainly may be contended that, as IZOD 
 those words are not contained in the 4th schedule to the Act as to T v - 
 
 profit on loans, the Legislature did not intend that the day of 
 
 pawning should be excluded (according to the general rule of 
 computation) in computing such profit. I do not, however, 
 think that such is the right inference, but rather that the words 
 " exclusive of the day of pawning " were inserted by the Legis- 
 lature in the 16th section ex dbundantid cautelce ; and it is to be 
 observed that the insertion of those words actually affords an 
 argument in favour of the application of the general rule of com- 
 putation to the provisions as to profit on loan, because it is clearly 
 desirable that the liability to pay interest and the liberty to 
 redeem should be co-extensive, as pointed out by the learned 
 magistrate himself. The objection that, by the mode of compu- 
 tation according to the general rule, two-thirtieths are included 
 in one month, is based on a fallacy, namely, that the computation 
 is made from the beginning or any portion of the day of pawning, 
 instead of from the end of it. The argument that such day 
 ought to be included because otherwise interest could not be 
 demanded for the first month in the case of a pledge redeemed on 
 the day of pawning, is likewise erroneous, for, by the 25th and 
 31st sections of the Act, the pawnbroker is clearly bound to 
 deliver up the pledge at any time to the person giving up the 
 pawn ticket, and if the argument were good for anthing, it would 
 show that no interest could be demanded on the day of pawning ; 
 but I feel no doubt that under the provisions of the Act the first 
 month's interest is due on the day of pawning, immediately after 
 the act of pawning is completed, although the time from which it 
 is to be computed is the end of that day. Lastly, the argument 
 that, because this is in some respects a penal statute, the separate 
 substantive enactment restricting the profits on loans is to receive 
 an exceptional construction contrary to that which the courts of law 
 put upon other enactments and upon contracts generally, also 
 appears to me to be erroneous. Rather than this, a court of law 
 would put a different construction on the Act, according to the 
 nature of the suit or prosecution before it, as in the case of Bones 
 v. Booth (2 Black. Reps. 1226), upon the construction of the Act 
 of 9 Anne, c. 14, against gaming. I therefore can see no reason 
 why time should not be computed in the present case according 
 to the general rule, and there will consequently be a verdict for 
 the plaintiff with costs ; but if the defendant desires, for his own
 
 62 REPORTS OF CASES. 
 
 IZOD sake and that of his fellow tradesmen, to obtain the opinion of 
 
 j v ' the Court of Appeal, I will give him leave to appeal by case 
 
 upon paying the plaintiff his costs up to the present time, and 
 
 foregoing any costs of the appeal against the plaintiff in any 
 
 event. 
 
 Verdict for the plaintiff with costs of two days, payable in one 
 week; the damages (10s.) to remain in court till 8th January, to 
 enable the defendant to appeal. 
 
 Izod v. Layman. The above decision appears to be the only one upon the 
 point involved. No appeal was brought. 
 
 COUNTY COURT OF SOUTHWARK. 
 
 Monday, Jan. 7, 1878. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 NESBITTS v. WEBB, (a) 
 
 Warranty Contract of sale. 
 
 On the sale of specific goods by a wholesale to a retail dealer by 
 
 sample taken by purchaser, there is an implied warranty that 
 
 the whole of the goods are merchantable. 
 Biron for the plaintiffs. 
 
 Washington for the defendant. 
 
 His HONOUR this day delivered judgment as follows : The 
 plaintiffs, who are wholesale dealers in the Borough, sued the 
 defendant, who is a retail dealer at Kensington, for 381. 2s. 3d. 
 in respect of thirteen casks of Normandy butter, marked T. B., 
 weighing 6cwt. 2qrs. 81b., at 5Z. 16s. per cwt., sold and delivered 
 by them to the defendant, and the defendant has pleaded a set- 
 off or counter claim of 4Z. for loss and damage on eight of such 
 firkins (being 4 cwt. at 20s. per cwt.), and has paid the balance 
 into court. The circumstances of the case are as follows : On 
 the 27th August last the plaintiffs' broker, Charles Webb, who 
 is a relative of the defendant, told the defendant that he had 
 sold some of the butter in question for the plaintiffs, and that 
 it was of very good quality, and he recommended the defendant 
 to purchase the remainder, being fifteen firkins. The defendant 
 consequently called at the plaintiffs' warehouse and asked to see 
 
 (a) County Courts Chronicle, vol. vi., p. 273.
 
 REPORTS OF CASES. 63 
 
 and sample the butter in question, and he was occordingly shown NESBITTS 
 it, and a firkin was selected at random and opened for the __ r - 
 
 defendant's inspection and examination, and proved to be 
 
 perfectly good. The defendant offered 112s. per cwt. for the 
 fifteen firkins, which was declined by the plaintiffs, who stated 
 that the lowest price they would take would be 116s. The 
 defendant left without concluding the purchase, but in the 
 evening wrote to Charles Webb that if the fifteen firkins 
 remained unsold he would take them at the latter price. This 
 order was communicated to the plaintiffs, and they immediately 
 sent to the defendant by carrier thirteen firkins, being the 
 residue of the butter in question, two firkins having been sold in 
 the interim. The thirteen firkins arrived at the defendant's in 
 due course, and one or more of them were opened the next 
 morning and found to be what is technically called ' ' sidey," that 
 is to say, bad and mouldy round the sides of the casks. The 
 defendant immediately communicated with the plaintiffs and 
 Charles Webb, claiming an allowance in respect of the damaged 
 butter, and inviting the former to come and inspect the same. 
 The plaintiffs repudiated the defendant's claim, and did not go 
 to inspect the butter. The defendant then caused a careful 
 examination to be made of all the thirteen firkins of butter, and 
 found that eight of them were more or less damaged, and that 
 the total consequent loss to him would, on a fair estimate, amount 
 to the sum now claimed by the defendant, viz. 41. On the part 
 of the plaintiffs it was contended that the rule of caveat emptor 
 applied ; whilst on the part of the defendant it was contended 
 that the rule did not apply, and that there was an implied 
 warranty on the part of the plaintiffs that the butter was 
 merchantable on its arrival at the defendant's premises and for 
 a reasonable time afterwards. I confess that at first sight it 
 appeared to me that the defendant having purchased by sample 
 taken by himself, or under his personal direction, a specific 
 quantity of a particular kind of butter bearing a particular 
 brand, and the plaintiffs having no more knowledge of the 
 contents of the several firkins than the defendant had, the rule 
 of caveat emptor ought to apply ; but after referring to the 
 authorities cited by Mr. Washington in his able argument, I have 
 come to the contrary conclusion, but not without some doubt. 
 It has long been held, that on the sale of goods by a wholesale 
 dealer to a retail dealer, as in the present case, there is an implied
 
 64i REPORTS OP CASES. 
 
 NESBITTS warranty that the goods are merchantable in retail, and that 
 such implied warranty is not negatived by any express warranty 
 which may be given. The question here, however, is not 
 whether it is negatived by any express warranty, but whether 
 it is negatived by the circumstances attendant on the sale, and 
 especially by the purchaser having bought specific goods after 
 sampling them himself. In the case of Jones v. Just (37 L. J. 
 '89, Q. B.), it was held, that on the sale, not by sample, of a 
 specified number of bales of Manilla hemp, with a particular 
 mark, there was still an implied warranty that the hemp should 
 be merchantable ; and being damaged to the extent of 25 per cent. 
 through negligent packing, the vendors, although they had no 
 knowledge of the damage, were held liable for such damage. 
 And in the case of Mody and others v. Gregson (28 L. J. 12, Ex.), 
 it was held that on a sale of goods by the seller's sample there 
 was still an implied warranty that the same were merchantable 
 in respect of all such matters as could not be judged of by the 
 sample ; and the observations of Mr. Justice Willes in the last 
 case as to the intention and object of using samples, and as to 
 such intention and object being the test of their negativing 
 implied warranties, appear to me to bear equally on samples 
 taken by a purchaser as on samples taken by a sellor. His 
 Lordship says : " Did the fact of the sale being by sample 
 negative the implied warranty that the goods should be 
 merchantable ? That must depend upon the object and intention 
 of the parties in using a sample ; and the object and use of 
 either inspection of bulk or sample alike are to give information 
 disclosing directly through the senses what any amount of 
 circumlocution might fail to express. It seems difficult, therefore, 
 to ascribe any greater effect to a sample in excluding implication 
 than would be ascribed to express words in the contract, giving, 
 so far as words could give, the same amount of information ; and 
 as to such words the doctrine that an express provision excludes 
 implication, expressum facit cessare taciturn, does not affect cases 
 in which the express provision appears upon the true construction 
 of the contract to have been superadded for the benefit of the 
 buyer, as in Bigge v. Parkinson (3 L. J. 301, Ex.), where a 
 warranty that the provisions sold should pass the inspection of 
 the East India Company was held not to exclude the implied 
 warranty of merchantableness." Now, to apply in the present 
 case the test laid down by the learned judge, could the sample
 
 REPORTS OF CASES. 
 
 65 
 
 taken by the defendant do more than convey to him the 
 information that the butter in one firkin, and presumably in the 
 others, was of the kind he wanted, viz., Normandy butter, 
 whether a portion in that firkin and the remaining firkins were 
 or were not bad and unmerchantable ? Clearly not ; and 
 therefore the information derived from the sample was at most 
 the same as if the seller had given an express warranty that the 
 butter was Normandy butter, which would clearly not negative 
 the implied warranty that it was merchantable butter, according 
 to the case of Sigge v. Parkinson. There is indeed a case of 
 Parkinson v. Lee (2 East, 314), which is certainly somewhat 
 opposed to this view, as it was there held that on a sale of hops 
 the vendor was not liable for a deterioration of the hops after the 
 sale, in consequence of their having been previously watered 
 without his knowledge ; but this case is distinguishable from the 
 cases I have already cited and the present case, by the fact that 
 the hops were not deteriorated at the time of the sale and 
 delivery, nor indeed for a considerable time afterwards. It was 
 contended on the part of the plaintiffs that the damage to the 
 butter in the present case might have resulted from exposure to 
 the sun or other neglect in its carriage from the plaintiffs to the 
 defendant; but no evidence was offered in support of the 
 hypothesis, which must therefore be disregarded ; and the recent 
 case of Beer v. Walker (46 L. J. 677, C.P.), where it was held, 
 on a contract by a wholesale dealer in London with a retail 
 tradesman at Brighton for the sale of rabbits, that there was an 
 implied warranty that the same should be fit for human food, not 
 only when delivered at the railway station in London, but when 
 in the ordinary course of transit they should reach Brighton, and 
 until there was a reasonable opportunity of dealing with them in 
 the usual course of business, appears in this respect to govern 
 the present case. Relying therefore on the cases of Jones v. Just 
 and Mody v. Greagson, and the dicta of Mr. Justice Willes in the 
 latter case, and also on the case I have just cited, I find for the 
 defendant on his counter-claim, and as he has paid the balance 
 into court, the verdict will be for the defendant with costs. 
 
 NESBITTS 
 
 v. 
 WEBB.
 
 66 REPORTS OF CASES. 
 
 SOUTHWARK COUNTY COURT. 
 
 Monday, March 8, 1878. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 WAGSTAFF and WARMAN v. MC!LROY; CHILLINGWORTH, 
 
 Garnishee. (a) 
 Garnishee summons A balance of purchase money due in respect 
 
 of a contract for sale not yet performed, is not attachable. 
 His HONOUR this day delivered judgment as follows : This is an 
 application by the plaintiff to attach a debt of 50L sworn to be 
 due from the garnishee to the defendant, in respect of the 
 balance of the purchase money of a leasehold house sold to the 
 former by the latter. There is no doubt that this is an equitable 
 debt which will become due from the garnishee to the defendant, 
 upon the defendant's duly assigning the leaseholds to him, and 
 that, speaking generally, equitable debts are liable to be attached. 
 In the words of the late Quain, J., in the case of Wilson v. 
 Dundas ; Stevenson, garnishee (Weekly Notes, 1875, p. 232) : 
 " There is no distinction now between a legal and an equitable 
 debt, and I should be contravening the very object of the 
 Judicature Acts if I held otherwise ;" but in order to make any 
 debt, whether legal or equitable, attachable, I think that it must 
 be a debt which is actually due at the date of the order, or which 
 will become due at or within a certain time or period, either 
 absolutely or contingently, upon some event. Now as far as 
 the evidence before me goes, the debt in the present case is 
 certainly not at present due, nor can it be said that it will 
 become due at or within any certain time or period, either 
 absolutely or contingently. It is wholly dependent and con- 
 tingent upon an event which may never happen, viz., the vendor, 
 or his representatives being able and willing duly to assign the 
 leasehold house in question, in pursuance of his contract, and 
 which involves another contingency, viz., the vendor and pur- 
 chaser not rescinding the present contract. In the case of 
 Richardson v. Elmit ; Metropolitan Board of Works, garnishee 
 (L. Rep. 2 C. P. Div. 9), a mere notice to treat under the Lands 
 Clauses Consolidation Act, 1845, although amounting to a 
 contract in equity between the parties creating the relation of 
 vendor and purchaser, and from which the purchaser could not 
 
 (a) County Courts Chronicle, vol. vi., p. 313,
 
 REPORTS OF CASES. 6? 
 
 withdraw, was not held not to constitute a " debt owing or WAGSTAPF 
 
 accruing," which could be attached, because it might turn out that 
 
 the party to whom the notice had been given, the quasi vendor, J. 
 
 had no interest in the premises in respect to which he could be MC!LBOY. 
 
 entitled to compensation so here the vendor may have no interest 
 
 in respect to which he can become entitled to the balance of the 
 
 purchase money ; and moreover, the vendor and the purchaser 
 
 may rescind the contract. There will therefore be no order for 
 
 attachment, but an order for the applicant to pay the costs of 
 
 the garnishee and his solicitor. 
 
 SOUTHWARK COUNTY COURT. 
 
 Monday, July 8, 1878. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 ABMFIELD v. ARMFiELD.(a) 
 Loan Promise to repay <( in the course of time " held to be 
 
 absolute. 
 
 Wright, counsel for plaintiff. 
 Ford, counsel for defendant. 
 
 His HONOUR. In this case the plaintiff, a leather dresser in 
 Bermondsey, sues the defendant, his son, for 46Z. 6s. as follows : 
 
 s. d. 
 
 1876 May Money lent 35 
 
 June 22 do 500 
 
 do 200 
 
 do 4 16 
 
 46 16 
 Contra 1878 By cash 10 
 
 46 6 
 
 It appears that the defendant was in the employment of the 
 plaintiff in the year 1869, but, in consequence of circumstances 
 of a disagreeable character, left this country and settled in 
 America, where he remained till the year 1876 without corre- 
 sponding with his family. In February of that year a correspon- 
 dence took place between the defendant and a married sister, and 
 on the 9th April, 1876, the defendant wrote to her saying that he 
 was willing to return home, and then proceeds as follows : " The 
 following are my propositions, viz. : 1. That I should be paid 
 
 (a) County Courts Chronicle, vol. vi., p. 386. 
 F 2
 
 68 REPORTS OF CASES. 
 
 ARMFIELD weekly a certain sum enough to live upon comfortably. 2. 
 
 ARMFIELD " snou ^ require sufficient money to bring my family home, which 
 I should propose to pay back in course of time. 3. That, if the 
 business prospered, I should have an interest in it as should be 
 agreed upon mutually." And in a P.S. he adds : " The cheapest 
 possible way I could come would cost 35Z." The defendant's 
 sister communicated to the plaintiff the defendant's willingness 
 to return and his request for 35Z. and for employment, but she 
 did not mention to her father what the defendant had said about 
 his having an interest in the business, which, however, is imma- 
 terial, as the defendant had left that for mutual agreement there- 
 after. The plaintiff reluctantly complied with his daughter's 
 request to send 35L, and on the 10th May, 1876, the defendant's 
 brother wrote to the defendant as follows : " My dear Brother, 
 I have much pleasure in inclosing you a letter of credit for 35Z. 
 according to your request. Please acknowledge the receipt of it, 
 and let us know when we may expect to see you here. Yours, 
 &c., Alfred Armfield. P.S. I think you had better write to 
 father direct." And on the 23rd May, 1876, the defendant 
 wrote the plaintiff as follows : " Dear Father, Brother's letter, 
 with letter of credit, came to hand yesterday. I began to feel 
 anxious at the delay, as I had made all my arrangements ; how- 
 soever, it has come in good time. Your affectionate son, 
 F. G. Armfield." The defendant immediately afterwards 
 returned to England, and his father received him into his 
 employment at a salary of 31. a week, in which employment he 
 continued for nearly two years. Shortly after his arrival he 
 applied to his brother for the sums of 5Z. and 2Z. mentioned in the 
 particulars, to enable him to purchase furniture, and afterwards, in 
 October, he applied for the further sum of 4Z. 16s., also men- 
 tioned in the particulars. The defendant admits the receipt of 
 these three sums, but says that the last-named sum only was a 
 loan, and that the sum of 10s. credited to him in the particulars 
 was a repayment on account of it ; but that the sums of 5Z. and 
 2Z. were not loans, but gifts from his father. His father and 
 brother contradict this statement, and, on the evidence before me, 
 I find that these two sums, as well as the 4Z. 16s., were loans, and 
 not gifts. There therefore remains only the first item of 35Z. to 
 be considered, for which the plaintiff now sues as being a loan by 
 him to the defendant, but which the defendant asserts was a gift, 
 or at most a debt of honour, to be repaid at his pleasure ; and
 
 REPORTS OF CASES. 69 
 
 the question is, what is the right construction of the expression AEMFIELD 
 contained in the defendant's letter in respect of the sum required 
 by him for his travelling expenses viz., that he would " pay it 
 back in the course of time." It is obvious that this is a very 
 inaccurate and vague expression, and open to various construc- 
 tions. It may be contended, first, that it is perfectly indefinite, 
 leaving it practically to the defendant to repay the sum .or not, as 
 he pleases ; or, secondly, it may be regarded as a conditional 
 promise to pay whenever he may be able to do so ; or, thirdly, it 
 may be regarded as an unconditional promise to pay. I have 
 been unable to find any direct authority on the construction of 
 the expression in question, but the cases as to forbearance of 
 proceedings for a certain or reasonable time amounting to a con- 
 sideration for a promise or agreement, and likewise the cases as 
 to acknowledgments of debts excluding the operation of the 
 Statute of Limitations, have, I think, considerable bearing upon 
 it, although unfortunately they appear to lead to different con- 
 clusions. For a promise in consideration of the stay of an action 
 " for a little time " or " for some time " has been held not to be 
 binding either, it is said, on the ground of uncertainty or because 
 of the absence of detriment to the creditor or advantage to the 
 debtor (1 Roll. Abr. 23, pi. 5 ; Baker v. Jacob, 1 Bulstr. 41 ; 
 Seckford's case, Cro. Eliz. 455 ; Tollnerct v. Brickenden, Cro. 
 Jac. 250), although in Baker v. Jacob the declaration laid the 
 consideration to be a forbearance " for some little time, to wit, a 
 fortnight, or thereabouts," and was held good after the verdict 
 in respect of the videlicet : (Chitty on Contracts, c. 1, s. 1.) On 
 the other hand, in the case of Chasemore v. Turner (L. Rep. 10 
 Q. B. 500, Ex. Ch.) it was decided, after much consideration, 
 that a promise to pay " as soon as we get our affairs arranged " 
 was an unconditional promise to pay ; and in the earlier case of 
 Lee v. Wilmot (L. Rep. 1 Ch. Ex. 364) the words, " I will try 
 and pay you a little at a time, if you will let me," were also held 
 to be an unqualified acknowledgment of debt and promise of 
 payment. The principle of law, that a promise is always to be 
 taken most strongly against the person making it, is also in 
 favour of holding the present promise to be either unconditional, 
 or at all events conditional on the defendant's being able to pay. 
 The real questions at issue are whether the words " in course of 
 time " totally nullify the defendant's promise to pay, by leaving 
 it to his option to pay whenever he pleases ; or whether they
 
 70 REPORTS OF CASES. 
 
 ABMFIELD import a condition that the defendant is not to be called upon for 
 ABMFIELD P avmen t un til he has the means ; or, lastly, whether they are a 
 mere expression of the defendant's inability to pay immediately 
 or on demand without affecting his legal obligation to do so. 
 Upon, the whole, I think that the last is the natural and true 
 meaning of the defendant's letter; that it was so understood 
 both by the defendant and the plaintiff ; and that such meaning, 
 in the absence of any direct authority as to the construction of 
 the expressions used, ought to govern my decision. I am there- 
 fore of opinion that the third and last of the several constructions 
 above suggested is the correct one, and that the promise con- 
 tained in the letter is in law absolute and unconditional ; but, in 
 case the second construction should prevail elsewhere, I find, as 
 a fact, that the defendant has had the means to repay this loan. 
 There will be a verdict for the plaintiff for the full amount, with 
 costs. 
 
 COUNTY COUET OF SOUTHWAEK. 
 
 Monday, Sept. 22, 1878. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 HEAKN v. MECHAN. (a) 
 
 An auctioneer, on the revocation of his authority to sell, is 
 entitled, in the absence of special custom or agreement, to a 
 reasonable remuneration for his services, but not to a com- 
 mission on a subsequent sale. The case of Eainy v. Yernon 
 considered. 
 
 His HONOUE this day delivered judgment as follows : In this 
 case the plaintiff, on the 3rd of May, 1877, agreed with the 
 defendant to sell by auction a public-house called the Crown 
 and Sceptre upon the terms which appear in the following 
 
 letter : 
 
 May 3rd, 1877. 
 
 Dear Madam, As agreed I will charge you only 1 per cent, on the sale, 
 if sold before the day fixed ; 2J if sold on or after the day of sale ; if not 
 sold, only the costs out of pocket. You will see the preliminary advertise- 
 ment in to-morrow's Morning Advertiser. Tours faithfully, 
 
 CHARLES HEABN. 
 To Mrs. Mechan. 
 
 The plaintiff sent instructions at once to the Morning Advertiser 
 (a) County Courts Chronicle, vol. vi., p. 225.
 
 REPORTS OF CASES. 
 
 71 
 
 newspaper to insert three preliminary advertisements, and which 
 were accordingly inserted. The plaintiff had an arrangement 
 with certain other newspapers to copy and insert any advertise- 
 ments which were inserted by him in the Morning Advertiser, and 
 the above advertisements appear to have been subsequently 
 copied and inserted accordingly ; but there was no evidence of 
 the dates of such insertions, and the presumption is, I think, 
 that such advertisements were not inserted till after the plaintiff 
 had received the letter of the 6th May, which I shall presently 
 read. The plaintiff also gave instructions for the preparation of 
 a placard of sale, of which he produced a copy at the trial ; but 
 as the day of sale was inserted in it, and as it appears from his 
 evidence that the day of sale is never fixed until a week or two 
 after the insertion of the preliminary advertisement, the placard 
 could not have been printed till after he had received the last- 
 mentioned letters ; and I think the presumption is that it was 
 not even prepared till then. On the 6th May the plaintiff received 
 
 the following letter from the defendant : 
 
 May 6th, 1877. 
 
 Dear Sir, Please not to advertise my house any more in the papers, as I 
 have had an offer for it from a gentleman in the neighbourhood, and very 
 likely 1 will take it. If I do you shall broker me out. If you are this way 
 call early. Yours respectfully, M. A. MECHAN. 
 
 To Mr. Hearn. 
 
 To this letter the plaintiff returned no answer, but he saw the 
 defendant shortly after its receipt, and was informed by her that 
 she had sold the premises, and fixed the 29th May for the 
 change or transfer of the property to the purchaser, and it was 
 arranged that the plaintiff should attend the change on the part 
 of the defendant, and he issued immediately certain notices of 
 the change from his office. On the 28th May the defendant sent 
 
 the following letter to the plaintiff : 
 
 May 28th, 1877. 
 
 Dear Sir, I am very sorry to write to let you know Mr. Monk will not 
 meet you to-morrow, not on any account. I should like you to see the letter 
 he sent me on Saturday. So I will send your expenses to you the day after 
 the change. I am very sorry this affair has happened. Hope to go off 
 better next time. I remain, yours respectfully, M. A. MECHAN. 
 
 To Mr. Hearn. 
 
 On the evening of the 28th May the plaintiff called on the 
 defendant, previously, as he states, to the receipt by him of the 
 last letter, when the defendant informed him of its contents, but 
 after some conversation, as he alleges, gave him fresh instructions 
 
 HEARN 
 
 v. 
 MECHAN.
 
 72 REPORTS OF CASES. 
 
 HEAEN to attend at the change on the following day to protect her 
 v - interests. The defendant denies this ; but on the following day 
 EOHA1T ' the plaintiff and his clerk did attend at the change, and they 
 were handed certain books and documents by the defendant or her 
 servants, and a list or inventory was made or examined and 
 verified by them, but no valuation was made, as the sale was at 
 a gross sum to include the stock and fixtures as well as the 
 business. The defendant or her clerk, however, objected to a 
 particular article being included in the list, and it was struck 
 out. The plaintiff and defendant had afterwards an accidental 
 interview in a railway station, at which something was said about 
 the plaintiff's expenses out of pocket, and at such interview the 
 defendant alleges that the plaintiff stated that such expenses 
 amounted to about 4L, and this amount corresponds with what 
 the plaintiff deposed he had incurred in advertising and in pre- 
 paring the placard of sale. The plaintiff, however, now sues the 
 defendant under their agreement for 22 1. 10s., being the com- 
 mission at 1^ per cent, on the price for which the public house 
 sold, in consequence of the defendant, by her letter of 6th May, 
 having revoked the authority to the plaintiff to sell the same. 
 An attempt was also made on his part to claim in the alternative 
 expenses for all the advertisements, for the placard of the sale, 
 and for the attendance at the change,- but no such claim was 
 made in the particulars; and, except as to the preliminary 
 advertisements in the Morning Advertiser, there is no evidence 
 of the plaintiff having incurred any expense before the 6th May. 
 The sum of 4Z. had, however, been paid into court by the defen- 
 dant, and this is, I think, sufficient to cover the preliminary 
 advertisements, and also the attendance of the plaintiff with his 
 clerk on the day of the change ; and therefore the claim for 
 expenses out of pocket need not be considered. The simple 
 question remains whether the plaintiff is entitled to the com- 
 mission on this sale, and in support of his claim his counsel 
 relied on the case of Rainy v. Vernon (9 C. & P. 539). That 
 case, which I observe is not in Fisher's Digest, was one at Nisi 
 Prius, in which Lord Denman left it to the jury to say whether 
 upon the evidence before them it was a custom in the trade for 
 the auctioneer to receive his full commission on the sale of 
 ground rents, which he had advertised for sale by auction, but 
 which were sold by his employer before the day of auction by 
 private contract, and whether such custom was so notorious that
 
 REPORTS OF CASES. 73 
 
 the defendant must have known it ; and the jury, upon the HEAEN 
 evidence before them, answered these questions in the affirmative, ,.- v ' 
 and found for the plaintiff. This certainly appears at first sight 
 to be a strong authority in favour of the plaintiff's claim, and 
 especially as there are obviously more reasons for admitting such 
 a claim in respect of the sale of a special class of property such 
 as public houses than in respect of a sale of ground rents, which 
 have apparently no particular feature ; still it must be borne in 
 mind that a jury can only find according to the evidence before 
 them, and in the case of Rainy v. Vernon the plaintiff produced 
 remarkably strong evidence of the custom from brother auc- 
 tioneers, whilst there appears to have been little or no evidence 
 on the part of the defendant, whose mouth was then closed by 
 the old rule of law. In the present case the evidence on the 
 part of the plaintiff in support of the custom consists of his own 
 and that of his clerk, and the defendant was examined, and posi- 
 tively denied any knowledge of such a custom, as well as having 
 entered into any agreement to the like effect. The conduct of 
 the parties also appears to me clearly to show that no such 
 custom or agreement was even present to the mind of the 
 plaintiff; for, if the plaintiff conceived he was entitled to a 
 commission on account of the withdrawal of the sale from him, 
 he would scarcely have acquiesced in its withdrawal, and offered 
 to attend the change without at the same time asserting his 
 claim; and, at all events, when the defendant distinctly drew 
 his attention to the question of remuneration in her letter of 
 the 28th May, and at the subsequent accidental interview 
 between her and the plaintiff, he would certainly have told her 
 that he was entitled to his commission, and therefore did not 
 claim his expenses out of pocket ; and I must say that I think 
 the defendant's version as to the last-mentioned interview is the 
 right one, and that the plaintiff then stated the full amount of 
 his expenses out of pocket to be 4Z., with the view of obtaining 
 payment of that sum in full of his remuneration. Upon the 
 evidence before me, therefore, I hold that the custom for which 
 the plaintiff contends has not been proved, and that, if such a 
 custom exists, it was not present to the minds of the contracting 
 parties in the present case. I may add that in general I shall 
 be disposed, in cases like the present, and in the absence of any 
 express agreement, to hold that if trouble and expense have been 
 incurred by an auctioneer in endeavouring to carry into effect
 
 74 REPORTS Of CASES. 
 
 HEARN the instructions of his employer, and the latter revokes the 
 
 v - authority, the employer is bound to remunerate the auctioneer 
 
 MECHAN. J n . , ,-, i 
 
 for his trouble and expense, as to which there are several 
 
 authorities ; and, secondly, that, being entitled to such expenses, 
 the auctioneer is not entitled to a commission, which I think is a 
 necessary corollary from the last proposition, and is therefore 
 supported by the same authorities : (See the cases of Simpson v. 
 Lamb, 25 L. J. 113, C. P. ; and Prickett v. Badger, 26 L. J. 23, 
 C.P.) There will be a verdict for the defendant, but under the 
 circumstances of this case I shall not allow the defendant her 
 full costs, as I think, in the various changes of her mind in this 
 matter, she has exceeded even the proverbial privileges of her 
 sex ; and I shall allow her only the attendance of counsel and 
 solicitor. 
 
 Hearn v. Mechan. The precise point involved in the above case does not 
 appear to have ever been actually determined in the Superior Courts. But 
 the decision of the learned County Court judge is in accordance with the 
 view expressed in works of authority. Thus, in Addison on Contracts, 
 8th ed., p. 390, the law on the subject under consideration is stated in the 
 following terms : " If an agent is employed to sell property on commission, 
 it is competent to the employer, at any time before a sale has been actually 
 effected, to revoke the authority, and deprive the agent of the expected com- 
 mission ; but, if expenses have been incurred by the agent in executing the 
 authority intrusted to him, he will be entitled to recover such expenses from 
 the employer, and also a reasonable compensation for any labour or trouble he 
 may have undertaken in endeavouring to execute his commission, unless it 
 appears to have been the understanding of the parties that nothing was to be 
 paid unless the act authorised to be done was fully accomplished :" (see also 
 Simpson v. Lamb, 17 C. B. 603; Moffatt v. Laurie, 15 C. B. 583; Campa- 
 nari v. Woodburn, 15 C. B. 400 ; Prickett v. Badger, I C. B. N. S. 296 ; 
 Story on Agency, 8th ed., par. 329 ; and see judgment of HAWKINS, J., in 
 Read v. Anderson (10 Q. B. Div. 100, 107), where the effect and right of 
 revocation by a principal of the authority of his agent are fully considered ; 
 but see Leake on Contracts, pp. 66-67.) It is, moreover, to be noticed that 
 the decision of the learned County Court judge, while agreeing with the 
 dicta of JERVIS, C.J., in Campanari v. Woodward (15 C. B. 407) ; and 
 in Simpson v. Lamb (17 C. B. 615-616), is not in the least degree at variance 
 with the dictum of WILLIAMS, J., in Prickett v. Badger (1 C. B. N. S. 296, 
 305), namely, that where the agent's authority is revoked, before anything has 
 been done under it, he cannot recover on a quantum meruit. 
 
 It may be useful to mention that, by the custom of merchants, an agent 
 who has the business taken out of his hands before completion is entitled to 
 half the commission which he would have earned by completing it : (Spain, 
 Queen of, v. Parr, 39 L. J. 73, Ch.)
 
 HEPORTS OF CASES. 76 
 
 SOUTHWARK COUNTY COURT. 
 
 Friday, Sept. 26, 1878. 
 (Before H. J. STONOR, Esq., Judge). 
 
 SANDELL v. DAVIS, (a) 
 Principal and Agent Determination of Relationship 
 
 Commission. 
 
 His HONOUR gave judgment as follows : The plaintiff claimed of 
 the defendant 107. for rent of a house to 25th December, 1877, 
 which claim was admitted. The defendant made a counterclaim 
 for 261. 5s., being commission on the sale of the same house and 
 another to a purchaser for 1050?., at the rate of 2| per cent., as 
 agreed, leaving a balance due to the defendant of 161. 5s. The 
 defendant deposed that in November, 1876, a Mr. Bremridge 
 spoke to him about purchasing the two houses in question, and 
 on his communicating this to the plaintiff, the latter said he was 
 willing to sell the houses, and to allow a commission as follows : 
 If defendant obtained 12501. , at the rate of 2^ ; if he got 15007. 
 or over, at the rate of 5. And on the 16th November, 1876, the 
 plaintiff wrote to the defendant as follows : " The two houses 
 are held in one lease for ninety-eight years from Christmas, 
 1862, at a ground rent of 10?. for the two. The lowest I can 
 take for the pair is 12507., subject to a commission of 2f . If 
 you can obtain 13007. or over, I would increase the commission 
 to 5." Bremridge, in the course of the following year, offered 
 10007. for the two houses, which offer was communicated to the 
 plaintiff, who thereupon wrote to the defendant as follows : 
 " 27th October, 1877. In reply to your offer of 10007. for the 
 two houses, that is an absurd one. In my letter of the 16th 
 November last my price was 1250?., but as the property is rather 
 too far away for my personal supervision, I will make a reduction 
 of 1507., and will sell them for 11007. net, say eleven hundred 
 pounds. This is the very lowest I can take." Subsequently to 
 the date of the last letter Bremridge made a further offer, which 
 was communicated by the defendant to the plaintiff. This offer 
 the defendant deposes to have been 10507. ; but it appears from 
 the evidence of Bremridge and the plaintiff to have been in 
 reality only 10257. With reference to this offer, whatever it may 
 have been, the plaintiff's firm wrote to the defendant on the 28th 
 
 (a) County Courts Chronicle, vol. vi., p. 4ol.
 
 76 REPORTS OF CASES. 
 
 SANDELL November, 1877, as follows : "Herewith we return your letter. 
 n v ' Our Mr. Sandell begs to convey his best thanks for the trouble 
 
 you have taken in the matter of his houses. With regard to 
 
 price, he wishes us to state that he will not take any fraction less 
 than his last offer (1100Z.), and this is final, and so closes this 
 matter." Mr. Wale, a builder, deposed that, having received a 
 letter of the 3rd December, 1877, from Bremridge stating the 
 failure of the previous negotiation (which letter was produced), 
 he arranged a meeting between the plaintiff, the defendant, and 
 himself, and that the purchase of the two houses by Bremridge 
 was then agreed on at 1050L Wale at first stated that this 
 meeting took place on the 13th December; but at the conclusion 
 of the case it appeared that the meeting took place on the 27th 
 December. Ultimately an assignment by the plaintiff to Brem- 
 ridge of the two houses was executed early in January, 1878; 
 the plaintiff therefore remaining entitled to the Christmas rent, 
 for which he sued. Upon these facts three questions were 
 raised : First, whether the commission of 2^ per cent, was 
 conditional on 1250Z. being obtained by the defendant as the 
 minimum price for the houses, or whether such minimum being 
 reduced to 1100Z., the commission would attach to that sum or to 
 any lesser sum which the plaintiff might accept from a purchaser 
 found by the defendant, and in the absence of any intimation to 
 the contrary on the part of the plaintiff, and considering that he 
 continued to avail himself of the defendant's services after the 
 reduction of the purchase money to 1WOL I feel no doubt on 
 this point, and am of opinion that the commission would so 
 attach. Secondly, whether the relation of principal and agent 
 and the agreement as to commission between the plaintiff and 
 the defendant were determined by the letter of the 28th 
 November, 1877 ; and on this point I think with some doubt 
 that they were not so determined, and that only the offer of 
 Bremridge for 1025L and the negotiation with him were closed by 
 that letter. Thirdly, which is the main question, whether the 
 negotiation with Bremridge being so closed and being again 
 opened through Wale, and resulting in a sale to Bremridge for 
 1050Z., the defendant's right to commission would attach. Upon 
 this point I also feel some doubt ; but on the whole, having 
 regard to the cases of Green v. Bartlett (14 C. B. N. S. 865 ; 32 
 L. J. 261, C. P.) and Monclc v. Clements (L. Rep. 9 C. P. 139), I 
 think that I ought to hold that the defendant's right to commis-
 
 REPORTS OF CASES. 77 
 
 sion did attach, inasmuch as the relation of principal and agent SANDELL 
 and the agreement as to commission were, in my view of the -^ v ' 
 
 case, still subsisting between the plaintiff and the defendant, 
 
 and the purchaser was undoubtedly first introduced by the latter 
 to the former. There will therefore be a verdict for the defen- 
 dant for 1QL 5s., with costs. 
 
 SOUTHWARK COUNTY COURT. 
 
 Monday, Nov. 18, 1878. 
 (Before H. J. STONOK, Esq., Judge.) 
 
 BLOYD v. HUNT, (a) 
 
 Possession of tenements summons Qucere, whether County Courts 
 have jurisdiction in cases above 20L annual rent or value when 
 the duration of the tenancy at its inception is in question ? 
 19 20 Viet. c. 108, s. 50; 9 ^ 10 Viet. c. 95, s. 58; 30 8f 31 
 Viet. c. 142, s. 12. 
 
 His HONOUE this day delivered judgment as follows : This is a 
 summons for the recovery of the possession of certain premises 
 let at 12Z. a quarter, and therefore at the rate of 48Z. per annum. 
 Under the 50th section of the 19 & 20 Viet. c. 108, which 
 provides that " where the term and interest of any tenant of any 
 corporeal hereditament, where neither the value of the premises 
 nor the rent payable in respect of the premises, nor the rent 
 payable in respect of the tenancy, shall have exceeded 50Z. by the 
 year, and on which no fine or premium has been paid, has 
 expired, or has been duly determined by a legal notice to quit, 
 the landlord may enter a plaint for the recovery of the same, and 
 a summons shall issue thereupon, and the judge may order the 
 possession of the premises mentioned in the plaint to be given by 
 the defendant to the plaintiff," and which provision is subject to 
 the provisions of the 9 & 10 Viet. c. 95, s. 58, as modified by the 
 30 & 31 Viet. c. 142, s. 12, prohibiting the court from 
 entertaining a question of title if either the value of the rent of 
 the premises exceeds 20Z. yearly. The circumstances of the 
 present case are peculiar. The premises had formerly been let 
 by the plaintiff to a Mr. Thompson, at the above rent, for three 
 
 (o) County Courts Chronicle, vol. vi, p. 476.
 
 78 REPORTS OF CASES. 
 
 BLOTD years, which term expired on the 25th March, 1877 ; and then 
 v - a Mr. Probert came in as a yearly tenant at the same rent, and 
 
 IT TINT 
 
 ' gave notice to quit, expiring 25th March, 1878, which was 
 
 accepted by the plaintiff. Previously to the last-named date 
 Mr. Probert introduced the defendant to the plaintiff, and the 
 defendant asked the plaintiff for a three years' tenancy similar 
 to that held by Mr. Thompson, which the plaintiff agreed to give, 
 subject to the defendant's references proving satisfactory. On 
 the 16th March, 1878, the plaintiff wrote to Mr. Probert, stating 
 that the defendant's references had not proved satisfactory, and 
 that he would not give the defendant a three years' lease, but 
 there was no evidence that this letter was communicated by 
 Mr. Probert to the defendant, who was let into possession by 
 Mr. Probert on the 28th March, as from the 25th March. The 
 rent of the premises had always been payable in advance, but on 
 the 25th March two quarters' rent were in arrear. On the 
 2nd April the defendant paid these two quarters' rent to the 
 plaintiff 011 behalf of Mr. Probert, having deducted the amount 
 from a larger sum he had paid to Mr. Probert for the goodwill 
 of the business of an auctioneer and public-houlse broker, which 
 had been carried on by Mr. Probert upon the premises, and the 
 defendant then took from the plaintiff a receipt in Mr. Probert's 
 name for the same. The parties are agreed that on that occasion 
 some conversation took place as to the defendant's proposed 
 future tenancy, and that the plaintiff promised to send the 
 defendant the draft of an agreement for his approval. The 
 plaintiff, however, states that on such conversation he referred 
 to the letter he had written to Mr. Probert, and said that he 
 should abide by its terms, and that the tenancy should be a 
 quarterly one, or to that effect, and that the defendant made no 
 reply. The defendant denies this statement, and says that all 
 that passed was that he said to the plaintiff, " You must let me 
 have a three years' agreement ; " and the plaintiff replied that 
 "he would let me have a draft of an agreement," and said 
 nothing about a quarterly tenancy. I may as well state here 
 that I believe the plaintiff's version of the interview. On the 
 6th April, 1878, a draft agreement which had previously been 
 sent by the plaintiff to the defendant (but when does not exactly 
 appear) was returned by the defendant to the plaintiff through 
 a witness, who was called, and deposed that the defendant told 
 him that he had looked through the draft agreement and signed
 
 REPORTS OF CASES. 79 
 
 an approval of it at the foot, subject to an alteration which he BLOYD 
 had made in the last clause making the power of distress for ,, v ~ 
 non-payment of the rent, which was received quarterly, 
 exercisable after fourteen days' arrear instead of seven days. 
 The draft agreement was put in, and at its foot was written this 
 memorandum : " Read over and approved, as witness our hands 
 this 6th April, 1878," which was signed by the plaintiff and the 
 defendant. The plaintiff agreed to the alteration above 
 mentioned, and the draft agreement, so altered, proved to be for 
 a quarterly tenancy, at the quarterly rent of 121. payable in 
 advance. The defendant stated that, although he looked 
 through the draft cursorily before signing the approval 
 of it, he did not notice what the proposed term was ; 
 but, considering the previous negotiations and all the circum- 
 stances attendant upon them, I cannot believe that such was the 
 case. After the 6th April an application was made to the 
 defendant for payment in advance of the rent for the quarter 
 ending the 24th June, and on the 23rd April the defendant wrote 
 to the plaintiff expressing his regret that it might be three 
 weeks before he could make that payment, adding the words, 
 " I shall not inconvenience you after this quarter/' Subsequent 
 applications were made to the defendant for payment of this 
 rent, and also for the execution of an agreement according to the 
 draft. Eventually the defendant paid the rent on the 8th June, 
 and a receipt was forwarded to him, in his name, by the plaintiff 
 (which miscarried), but the defendant declined to execute the 
 agreement, and the plaintiff on the 18th June gave him notice to 
 quit the premises on the 29th September. The draft agreement, 
 although the memorandum of approval is signed by both parties, 
 clearly does not import an agreement, but is merely evidence of 
 something the parties intended or contemplated agreeing to, and 
 therefore I received it in evidence without a stamp, according to 
 the case of Doe d. Lambourne v. Pedgriph (4 Carrington and 
 Payne, 312 ; and Sugden's V. & P. vol. 1, p. 185, 10th edit.) 
 The question, therefore, remains whether, from the payment by the 
 defendant on the 8th June of the quarter's rent due on the 24th 
 June, and its acceptance by the plaintiff with the other circum- 
 stances of the case, a quarterly or a yearly tenancy ought to be 
 presumed. The fact of the quarterly payment per se is of course 
 not decisive and scarcely material on the point ; but, taking it 
 in conjunction with the other circumstances of the case, I feel
 
 80 REPORTS OF CASES. 
 
 BLOYD bound to find that the defendant knew that the plaintiff con- 
 v - templated a quarterly tenancy, and a quarterly tenancy only, and 
 
 ' therefore that he must be held to have paid the quarter's rent, as 
 
 the plaintiff clearly accepted it, upon that footing. I, therefore, 
 am of opinion that the defendant's tenancy was a quarterly and 
 not a yearly tenancy, and that it has been duly determined by 
 the notice given by the plaintiff. I, however, feel some doubt 
 whether in the present case the title to the premises is not in 
 question so as to bring it within the prohibition of the 9 & 10 
 Viet. c. 98, s. 58, as modified by the 30 & 31 Viet. c. 142, s. 12. 
 It is, indeed, laid down in Pollock and Nicols' valuable book of 
 practice (which has contributed so much to the success of the 
 County Courts system) that in cases where the limit of rent or 
 value is exceeded, the judge may nevertheless " decide questions 
 of title as to whether the landlord has a rightful title to the 
 possession; that is, such questions as arise from a dispute 
 whether the lease was determined or the like" (8th edit. p. 268) ; 
 but I know of no decision that the judge can decide, in the case 
 supposed, as to the nature of duration of the tenancy in its 
 inception, if that is disputed bond fide; and it appears to me 
 very difficult to distinguish between the case of the tenant 
 claiming bond fide the freehold, which clearly ousts the jurisdic- 
 tion of the court, in the supposed case (Pearson v. GlazebrooJc, 
 L. Rep. 3 Ex. 27), and his claiming bond fide a longer term than 
 that which the landlord admits, and, although I have come to 
 a conclusion adverse to the defendant upon the conflicting 
 evidence before me, I am not prepared to say that his defence 
 ought not to be regarded as bond fide for the present purpose. 
 On the whole, however, considering that the objection to juris- 
 diction was not taken by the defendant at the hearing, that, as 
 far as I know, there is no decision in point ; and, that I feel no 
 doubt as to the merits of the case, I shall make an order for 
 possession in one month, with arrears of rent and costs at the 
 same time. And the defendant can appeal, or apply for a prohi- 
 bition in the meanwhile, if so advised. 
 
 Bloyd v. Hunt .In KerUn v. KerUn (3 E . & B. 399, 401), which was decided, 
 however, on a repealed section of 9 & 10 Viet. c. 95, CBOMPTON, J., said : 
 " The Legislature contemplates that the County Court is to decide on questions 
 of title as to whether the landlord has a lawful right to the possession ; that is,
 
 REPORTS OF CASES. 81 
 
 such questions as arise from a dispute as to whether the lease was determined, BLOTD 
 or the like. But it does not contemplate that he is to decide questions as to v. 
 
 whether the claimant has title as landlord." And in accordance with this HUNT. 
 " dictum " the County Court judge would have jurisdiction to try, under the 
 circumstances of the case. 
 
 SOUTHWARK COUNTY COURT. 
 
 Thursday, May 29. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 COLE v. WOOD.(O) 
 
 Action on lost bill of exchange. 
 
 County Court has no power to order that the loss shall not be set 
 
 up by defendant, under Common Law Procedure Act, 1854, sect. 
 
 87, the section not having been extended by Order in Council to 
 
 County Courts. 
 
 THIS was an action for 131. 10s. on a bill of exchange, which 
 the plaintiff admitted to have been lost. 
 
 Arnold, for the defendant, submitted that the action could not 
 be maintained. 
 
 Glyn, for the plaintiff, contended that, under the 87th section 
 of the Common Law Procedure Act, 1854 (17 & 18 Viet. c. 125), 
 a County Court has the power " to order that the loss of such an 
 instrument should not be set up, provided an indemnity to the 
 defendant was given to the satisfaction of the court against the 
 claim of any other person." 
 
 His HONOUR said, that the section in question had not been 
 extended by Order in Council to County Courts, as the previous 
 sections with respect to attachment of debts and equitable 
 defences had been, and held that the defence must prevail ; and 
 directed a nonsuit with costs, but with liberty to the plaintiff to 
 bring another action. His Honour added, that it was a great 
 hardship on the plaintiff, who could not recover in the County 
 Court, and was deprived of his costs in the superior court in 
 cases below 20Z. by the County Court Act, 1867, unless possibly 
 the superior court could order costs under the Judicature Act, 
 1875, and the 55th Order of the Rules of Court thereunder. 
 
 Nonsuit accordingly. 
 
 Cole \. Wood. The Bills of Exchange Act, 1882, provides, with regard to 
 
 (a) County Courts Chronicle, vol. vi., p. 419. 
 G
 
 82 REPORTS OF CASES. 
 
 COLE 1 st bills, lhat the holder shall^ upon giving security, be entitled to a 
 v. duplicate of a bill lost before it is overdue (sect. 69), and that the court or 
 
 WOOD. jirlgc may, on indemnity being given, order that the loss of a bill shall not 
 be set np (sect. 70). 
 
 WANDSWORTH COUNTY COURT. 
 
 Tuesday, Nov. 11, 1879. 
 
 (Before H. J. STONOR, Esq., Judge.) 
 
 SALTER v. BROOKS ; MONTAGUE, Claimant. 
 
 A receipt by a bailiff, on the sale of goods of an execution debtor, 
 to a purchaser who takes possession of them, does not require 
 registration under the Silts of Sale Act, 1878, ss. 4 and 8. 
 His HONOUR delivered judgment as follows : The points 
 involved in this case are of great importance, not only to high 
 bailiffs and officers of County Courts, but also to sheriffs and 
 officers executing the processes of other courts, and to pur- 
 chases of goods under such executions. The circumstances of 
 the case are as follows : The plaintiff early in the month of 
 August last obtained execution against the defendant's goods for 
 debt and costs amounting to 83Z. Is. 8d., and the bailiff of this 
 court took possession of all the goods in the plaintiff's house, 
 No. 227, Battersea Park-road, and on the 15th August they were 
 appraised and valued at the sum of 181. 18s. 8d. } and on the same 
 day they were sold for that sum to the claimant. The claimant 
 was the only witness called, and he deposed that on the 15th 
 August he proceeded to the house of the defendant, and there saw 
 the bailiff and also the goods, and agreed with the bailiff for the 
 purchase of the whole of the goods at the sum at which they had 
 been appraised, and thereupon the claimant paid that amount to 
 the bailiff, and the bailiff delivered the goods to the claimant, 
 and quitted possession. The claimant took the bailiff's receipt 
 (which was dated the following day, viz., 16th August) for " the 
 sum of 181. 18s. 8d. } as per appraisement and inventory annexed." 
 but no appraisement or inventory was then annexed to the 
 receipt, or delivered to the claimant, and there is no actual men- 
 tion of the goods in the receipt. Two or three days afterwards, 
 however, an inventory was sent to the claimant by the bailiff, 
 headed " Salter v. Brooks. Inventory of the goods and chattels 
 
 (a) County Courts Chronicle, vol. vii., p. 234.
 
 REPORTS OF CASES. 83 
 
 sold to Mr. W. Montague, of No. 227, Batter-sea Park-road (the SALTER 
 defendant's residence), under execution in the above action, as '" 
 per appraisement. Front bedroom : Chest of drawers, &c. (and 
 concluding with the words), for the sum of eighteen pounds, 
 eighteen shillings, and eightpence (18?. 18.-?. 8d.)," The claimant 
 immediately on purchasing and getting possession of the goods 
 gave the execution debtor permission to use them until he (the 
 claimant) otherwise disposed of them, and left the execution 
 debtor in possession of them. Neither the receipt or inventory 
 was registered under the Bills of Sale Act, 1878. Early in 
 September the plaintiff, the execution creditor, took out another 
 execution against the goods of the defendant, and called upon 
 the bailiff to seize again the same goods which had been pur- 
 chased and paid for by the claimant, and the purchase money for 
 which the plaintiff had received through the court, the plaintiff 
 alleging that under the 4th and 8th section of the above Act the 
 receipt and inventory, or one of them, ought to have been 
 registered within seven days, and that at the expiration of the 
 seven days, the goods being in the apparent possession of the 
 defendant, the bailiff was bound to seize them again as the pro- 
 perty of the defendant. The bailiff accordingly seized the goods 
 again, and appraised them at the sum of 17Z. 2s. 6d., and the 
 claimant again claimed the goods, and paid into court that sum, 
 which is the subject of the present interpleader. Shortly after 
 regaining possession of the goods, the claimant sold them to one 
 Gillet, who also purchased the defendant's interest in his house, 
 and the goodwill of his business, and went into possession of the 
 house and business, as well as of the goods, and retained the 
 defendant as foreman of the business at a salary of 30s. a week, 
 but the execution creditor actually took out another execution, 
 and required the bailiff to seize the goods for a third time, on the 
 same grounds as the second, which the bailiff accordingly did. 
 Gillet then put in a claim to the goods, which was the subject of 
 a second interpleader summons, and in which he recovered, as 
 there was clearly no apparent possession by the execution debtor. 
 The first question on the present claim is whether the bailiff's 
 receipt of the ICth August, and the inventory sent to the 
 claimant afterwards, or either of them, are or is required to be 
 registered under the Bills of Sale Act, 1878. The terms 
 employed by the Act in sect. 4, defining what instruments shall 
 be bills of sale for the purposes of the Act, and which require
 
 84 REPORTS OF CASES. 
 
 SALTER registration under sect. 8, are very wide, and include all 
 B v - ., "receipts for the purchase of goods," but only such "inven- 
 tories" as are "attached to receipts/' and therefore in the 
 present case the receipt is primd facie within the Act, but the 
 inventory is not. There are, however, in the 4th section savings 
 of "transfers of goods in the ordinary course of business of 
 any trade or calling," and also of " documents used in the ordi- 
 nary course of business as proof of the possession or control of 
 goods," and I am inclined to think that the document now in 
 question, viz., the receipt, would come under one and perhaps 
 both of these savings. For although a bailiff has no "trade," he 
 certainly has a " calling," and the receipt being a bill of sale 
 under and for the purpose of the Act is, I think, also a "transfer" 
 for the purposes of the Act, though not otherwise. On the other 
 hand it is certainly " a document used in the ordinary course of 
 business as proof of the possession or control of goods," although 
 it is in truth no legal evidence of a sale, but only a memorandum to 
 refresh the memory of a witness as pointed out by Mr., afterwards 
 Lord Justice, Mellish, in the case of Alsopp v. Day (31 L. J. 105, 
 Ex.). Assuming, however, that the receipt is a bill of sale, and 
 a transfer within the interpretation clause, and for the purposes 
 of the Act, it clearly does not become a transfer further or other- 
 wise, and therefore, according to the last-mentioned case, which, 
 although it has been much questioned, has never been reversed, 
 and also the recent case of Woodgate v. Godfrey (L. Rep. 4 Ex. 
 Div. 59), which I shall consider fully hereafter, neither the pro- 
 perty nor possession passed by it. In the present case the facts 
 show that the claimant contracted for the purchase of the whole 
 of the goods, without reference to the receipt or inventory, for a 
 certain sum, and on payment of that sum, the goods were 
 delivered to him and left in his possession, and I think the pro- 
 perty and possession thereby passed to him, and that the contract 
 of sale was not controlled by the receipt given immediately after, 
 or by the inventory sent some days after. Of course I rely 
 mainly on the presence of the claimant at the place where the 
 goods were, and his then and there paying the purchase money 
 for them, and taking possession of them. If the contract had 
 been entered into, and the purchase money paid, elsewhere, and 
 he had not received or taken possession of the goods, the con- 
 tract might have been controlled by the receipt and inventory ; 
 but in that case it appears to me to be doubtful whether,
 
 REPORTS OF CASES. 85 
 
 under the circumstances of this case, the property in the goods SALTKR 
 would not still remain in the plaintiff, and whether he might not R v " 
 be properly regarded as a trustee of the goods for the purchaser 
 until he delivered possession of them to him, at all events as 
 against the execution creditor, whose agent the bailiff was. I rely, 
 however, also very strongly on the absence of any description 
 or mention of the goods in the receipt, which could only be 
 supplied by parol evidence, without which indeed the receipt, 
 whether registered or not, would give no information whatever to 
 persons searching the register, and I think cannot therefore be 
 regarded as a bill of sale even for the purposes of the Act, as it 
 did not contain the terms of the contract. The concluding 
 words of the 8th section, referring, as they clearly do, to bills 
 of sale executed by a sheriff or bailiff of the goods of an 
 execution debtor, have not escaped me ; but I think they extend 
 only to sales in which the purchasers have neglected to take 
 possession, and where the contract is in writing containing all 
 its terms, and therefore capable of registration. On these 
 grounds I think I may safely find for the claimant at law. Tf I 
 cannot do so I fear that he cannot obtain relief in equity on the 
 ground of notice, which the plaintiff undoubtedly had, as it has 
 been decided in the case of Edwards v. Edwards (L. Eep. 2 Ch. 
 Div. 291), that the doctrine of notice by which the Court of 
 Chancery protected innocent purchasers who had not registered 
 their conveyances under the Acts for the registration of con- 
 veyances does not apply to the Bills of Sale Act or other modern 
 Acts. The case of Brantonv. Griffith (L. Rep. 10 Ch. Div. 349), 
 cited by the counsel for the execution creditor, and the more recent 
 cases of Ex parte Odell, Re Watson (10 Ch. Div. 76), and Ex parte 
 Cooper, Re Baum (10 Ch. Div. 313), to which I have also referred, 
 do not appear to ine to govern the present case, as in all of them 
 the written documents in question were signed by the parties at the 
 time of the contract, and contained all the terms of the contract, 
 and in the two last-named cases, where inventories were given, 
 they were on the same paper, and were signed at the same time 
 as the receipts, none of which circumstances exist in the present 
 case. The recent case of Woodgate v. Godfrey, already referred 
 to by me, although upon the former Bills of Sale Act, 1854 (17 & 
 18 Viet. c. 36, s. 1), is clearly an authority in favour of the 
 claimant, and indeed goes much farther than is required for this 
 case. The Lord Chief Justice of the Queen's Bench and Mr. Baron
 
 86 
 
 REPORTS OF CASES. 
 
 SALTER 
 
 v. 
 BROOKS. 
 
 Pollock there held that the former Act did not apply to " out and 
 out sales " by the sheriff, and I can see no distinction in this 
 respect between the two Bills of Sale Act of 1875 and 1878, except 
 the introduction of the word "receipt" in the latter (sect. 1), the 
 effect of which I have already considered. It is to be observed 
 that in the last-named case, and indeed in all the cases to which 
 I have referred, except the case of Ex parte Odell, lie Watson, 
 the purchaser never actually took possession of the goods as the 
 present claimant did, and that case, as also the case of JEc parte 
 Oooper, Re Baum, being in bankruptcy, are easily distinguishable 
 from the present case. In conclusion I will add, that it is a 
 matter of particular importance to the humbler suitors of this 
 court that the sale of goods by a bailiff should be perfected by 
 payment of the purchase money and delivery to the purchaser, 
 although receipts or inventories may be given. In very many 
 cases the sales are of very poor furniture belonging to the 
 execution debtors for sums not exceeding- II, A neighbour or a 
 friend comes and pays the money and gives the use of the 
 furniture to the execution creditor until he is able to re-purchase 
 or the purchaser otherwise disposes of it. In all such cases, if 
 the execution creditor in the present iuterpleaded succeed, it will 
 be necessary hereafter to have the bailiff's receipt, if taken, 
 attested by a solicitor, and registered at a cost of more than one 
 pound which is paid for the furniture, and it will be practically 
 impossible for anyone so to assist the execution debtor, and 
 would, in the words of the Lord Chief Justice in Woodgate v. 
 Godfrey, " impose an intolerable burden." Surely the bailiff in 
 the exercise of his calling ought to be able to hand over the 
 articles sold to him by the purchaser, and give a valid receipt for 
 the purchase money without this formality and expense. The 
 only alternative will be for him to give no receipt whatever 
 to the purchaser, for it must be remembered that, according to 
 the case of Hernaman v. Bowlter (25 L. J. 09, Ex.), a sheriff or 
 bailiff is not restricted in the manner of sale, and no bill of sale, 
 receipt, or writing is necessary : sale and delivery are sufficient 
 title. There will be a verdict for the claimant with costs, and 
 liberty to the prosecution creditor to appeal by case within one 
 month.
 
 REPORTS OF CASES. 87 
 
 S U T H W A R K COUNTY COURT. 
 
 Monday, March ], 1880. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 HARRIS v. TARGETT ; CHARLES DICKINSON, Claimant iii Inter- 
 pleader, (a) 
 Construction of Bills of Sale Act, 1878, ss. 9 and 4 Davies v. 
 
 Goodman considered. 
 
 Little, counsel (instructed by A. 11. Steele, solicitor), for 
 claimant. 
 
 McColl, counsel (instructed by Finch, solicitor), for execution 
 creditor. 
 
 His HONOUR this day delivered judgment as follows : This 
 claim involves the validity of a bill of sale, dated 23rd December, 
 1879, made between the execution debtor Targett of the one 
 part, and the claimant Dickenson of the other part, whereby 
 after reciting that, "by an agreement dated 3rd July, 1879, 
 made between the same parties, the said execution debtor paid 
 to the said claimant the sum of one hundred pounds for and on 
 account of certain goods, chattels, and effects in and upon the 
 premises known as the Queen's Head Inn, in the borough of 
 Soutlnvark, and thereby further agreed to execute a bill of sale, 
 when called upon, in favour of the said claimant, to secure to 
 him a further sum of 140L, being the amount in which the said 
 execution debtor was justly and truly indebted to the said 
 claimant for such goods, chattels, and effects, of which a schedule 
 was thereto annexed/' it was witnessed that the said execution 
 debtor assigned to the said claimant the goods, chattels, and 
 effects in or about the premises known as the Queen's Head Inn 
 aforesaid, and all and every the book and other debts, sum and 
 sums of money due and owing to the said execution debtor from 
 any person or persons whomsoever, subject to redemption on 
 payment of 140Z. with interest as therein mentioned, and with 
 the usual powers to take possession and sell the premises for 
 default. This deed was duly executed and attested, having been 
 explained to the grantor by a solicitor, and was duly registered 
 in conformity with the 10th section of the Bills of Sale Act, 
 1878; but it is contended on the part of the execution creditor 
 that it is absolutely void under the 9th section of the same Act, 
 
 (a} County Courts Chronicle, vol. vii., p. 320.
 
 88 BEPORTS OF CASES. 
 
 HARRIS which provides " that where a subsequent bill of sale is executed 
 T v - within or on the expiration of seven days after the execution of 
 
 ' a prior unregistered bill of sale, and comprises all or any part of 
 
 the personal chattels comprised in such prior bill of sale, then, if 
 such subsequent bill of sale is given as a security for the same 
 debt as is secured by the prior bill of sale, or for any part of such 
 debt, it shall, to the extent to which it is a security for the same 
 debt, or part thereof, and so far as respects personal chattels, or 
 part thereof, comprised in the prior bill, be absolutely void/' 
 except in certain cases which it is unnecessary for me to consider 
 on the present occasion. At the trial an agreement of the 3rd 
 July, 1879, stated to be to the effect of the instrument recited in 
 the bill of sale of 23rd December, 1879, was tendered in 
 evidence, but rejected for want of a proper stamp. The execu- 
 tion creditor's solicitor was then examined, and deposed that the 
 claimant's agent had also produced to him a letter, which was 
 not now forthcoming, stamped with a sixpenny stamp, and 
 containing the following passage, of which he took a note : 
 " You having allowed a part of the purchase money to remain 
 unpaid, I hereby undertake to execute a bill of sale ;" and also 
 stated to him that this was the agreement referred to in the bill 
 of sale. The agent of the claimant in question (who was the 
 claimant's father) was examined, and stated that "he did not 
 remember " these circumstances, but did not deny them 
 positively, and on the balance of evidence I feel bound to give 
 credence to the execution creditor's solicitor. In the agreement 
 of 3rd July, 1879, as recited in the bill of sale, no mention is 
 made of what chattels were to be comprised in the bill of sale to 
 be executed in pursuance of it, and the execution creditor's 
 solicitor could not say that in the letter produced to him any 
 specific mention of such chattels was contained. Parol evidence 
 was, however, tendered by the execution creditor, and received 
 by me with some doubt, and subject to an objection taken on 
 the part of the claimant, that the agreement in question referred 
 to the chattels comprised in the bill of sale of the 23rd December, 
 1879. Upon this state of facts the execution creditor contended 
 that the bill of sale was void under the 9th section of the Bills 
 of Sale Act, 1878, being a bill of sale executed "on the expira- 
 tion," which, he contended, was the same as ' ' after the expira- 
 tion" of seven days from the execution of a previous bill of 
 sale, viz., the agreement of the 3rd July, 1879, recited in it, and
 
 REPORTS OF CASES. 
 
 89 
 
 which he was bound to admit, "being estopped by the recital from 
 denying it, or of the agreement contained in the letter of the 
 same date, which was proved by the execution creditor's solicitor. 
 It is obvious that this contention rests on two propositions ; first, 
 that the word "on" preceding the words "the expiration" 
 should be read as "after;" and, secondly, that the agreement of 
 the 3rd July, 1879, was a bill of sale within the meaning of the 
 Bills of Sale Act, 1878. Now, on the first point, it is quite clear 
 that the literal meaning of the word " on " is not ( ' after," but 
 " above, in contact, or in continuance with ; " nor is it, I think, 
 the meaning of the Legislature in using the word in this section, 
 for the intention of the Legislature seems to me to have been 
 merely the prevention of a subsequent bill of sale being regis- 
 tered in respect of another bill of sale which is still capable of 
 registration so as to gain repeated periods of seven days for 
 registration ; and the only argument that I can see in favour of 
 construing " on " as " after " is, that otherwise the words " on 
 the expiration " are surplusage ; but this, I think, is not sufficient 
 to control the literal and, as I think, actual meaning of the 
 words employed ; and, moreover, the argument is suicidal, as, if 
 the word "on" be read as "after," the whole qualification 
 viz., "within or after the expiration of seven days" becomes 
 surplusage. The second proposition which the execution 
 creditor has to establish is, that the agreement was a bill of sale 
 within the Bills of Sale Act, 1878, and, upon the whole, I am 
 inclined to think that it is (apart from the case of Davies v. 
 Goodman, which I shall presently consider), because I think that 
 it is f ' an instrument by which a right in equity " was conferred 
 on the claimant to the chattels (see interpretation clause, Bills of 
 Sale Act, s. 4), which it is proved by parol evidence were the 
 subjects of such agreement, and which agreement was supported 
 by valuable consideration. The case of Davies v. Goodman 
 (5 C. P. Div. 20), however, if supported by the court of Appeal 
 (which I can hardly anticipate), would go far to cut this ground 
 from under the execution creditor, as it decides that all bills of 
 sale are absolutely void, even as between grantors and grantees, 
 unless they are attested and explained by a solicitor, and regis- 
 tered in conformity with the 10th section of the Bills of Sale Act, 
 1878, which clearly was not the case with regard to the agree- 
 ment now in question. As, however, I am against the execution 
 creditor on the first poiut, it is not necessary for me to express 
 
 HARRIS 
 
 v. 
 TARGETT.
 
 90 
 
 HE PORTS OF CASES. 
 
 HARRIS 
 
 v. 
 TARGETT. 
 
 an opinion upon the second. If it were, I should hesitate very 
 much to follow the case of Davies v. Goodman pending the 
 appeal, especially after the comments made upon it by the Lords 
 Justices of Appeal in the case of Hill v. KirTewood, heard on the 
 13th February, and reported in the Weekly Notes, 21st February, 
 1880, and I should in any case endeavour, if possible, to distin- 
 guish the present case from it. 
 
 Verdict for claimant ivithont costs. 
 
 His HONOUR said that the execution creditor could of course 
 appeal ; but McColl said he should not advise an appeal, as lie 
 acquiesced in his Honour's decision on the points raised. 
 
 Harris \. Taryett ; Charles Dickenson, Claimant in Interpleader. The 
 case of Davies \. Goodman, cited in the above judgment, -was. as anticipated 
 by the learned County Court judge, reversed on appeal : (see Davis v. Good- 
 man, 5 C. P. Div. 128; 49 L. J. 344, C. P. ; 42 L. T. 288 ; 28 W. R. 559.) 
 
 " The Bills of Sale Act, 1882 " (sect, 10), repeals so much of " The Bills 
 of Sale Act, 1878," as requires that the execution of every bill of sale shall 
 be attested by a solicitor of the Supreme Court, and that the attestation 
 shall state that before the execution of the bill of sale the effect thereof has 
 been explained to the grantor by the attesting Avitness. In lieu of these 
 requirements it is provided that '' the execution of every bill of sale by the 
 grantor, shall be attested by one or more credible witness or witnesses, not 
 being a party or parties thereto " (sect. 10). 
 
 COUNTY COURT OF S OUT 11 WAR K. 
 
 Friday, March 5, 1880. 
 
 (Before H. J. STONOI;, Esq., Judge.) 
 
 BAKER r. MEIKLK AND ANOTHER. () 
 
 Indorsement and presentation of a cheque : "Pay A. B. salary 
 and commission to date" l>y plaintiff, held, to be accord and 
 satisfaction notwithstanding letter from plaintiff to defendant 
 refusing to accept the same in satisfaction. 
 
 IN this case the defendants by an agreement in writing engaged 
 the plaintiff as a commercial traveller at a weekly payment of 10?., 
 to include salary and travelling expenses, payable in advance. 
 The defendants deposed that in point of fact the travelling 
 expenses would amount to 77. per week, leaving only 37. a week 
 
 (a) County Courts Chronicle, vol. vii.. p. 320.
 
 REPORTS OF CASES. 
 
 91 
 
 for salary, which was neither admitted nor denied by the plaintiff. 
 The plaintiff performed his duties during one week, was not after- 
 wards actively employed by the defendants, and was ultimately 
 dismissed by them at the end of the second week, when it was 
 admitted that the defendants were indebted to the plaintiff for 
 one week in respect of his services, and for another week in lieu 
 of notice. The defendants shortly afterwards sent the plaintiff 
 a cheque as follows : " 19th October, 1879. The Imperial 
 Bank Limited. Pay Mr. G. Baker (salary and commission 
 to date of discharge), or order, nine pounds ten shillings. 
 (Signed) Meikle and Passniore." On the 21st Nov. the plaintiff's 
 solicitors, at his request, wrote to the defendants stating that 
 the terms of the plaintiff's employment were, that he should 
 receive a weekly remuneration of 10/., and that there was there- 
 fore due from the defendants a sum of 101. in respect of the 
 second week's employment, and a like sum in lieu of notice, in 
 all '201. , adding "the cheque inclosed in your letter of the 19th is 
 accordingly insufficient, but the amount is retained on account of 
 our client's claim." On the 22ud November the cheque indorsed 
 by the plaintiff was paid by him or his solicitors into a Bristol 
 bank, and on the 24th was presented to and paid by the Imperial 
 Bank on the defendant's account. Two questions have been 
 raised : 1 . Whether any deduction ought to be made in respect 
 of the plaintiff's travelling expenses during the last two weeks. 
 2. And whether the indorsement and presentation of the cheque, 
 containing the words which it did, was an accord and satisfactiou 
 of the debt. On the first point, I am of opinion that some 
 deduction ought to be made in respect of the travelling expenses, 
 and that the plaintiff can only recover the damages which he 
 has actually suffered by the breach of contract on the. part of the 
 defendants. Now, as to a large part of the travelling expenses, 
 viz., the railway or coach fares, he can have incurred no damage, 
 since he did not take any journeys ; but I have no sufficient data 
 upon which I can ascertain what such deduction ought to be. 
 This, however, is of little consequence, as, on the second point, 
 I am of opinion that the plaintiff's indorsement of the cheque in 
 question, containing the words which it did, and the payment of 
 which cheque he could not have obtained if he had effaced those 
 words, operated as an accord and satisfaction. A case of Miller 
 and Davies in the Court of Appeal, 10th November, 1879, of 
 which there is a short report in the SoUoifar 1 * Journnl of the 
 
 BAKER 
 
 r. 
 
 MEIKLE 
 AND 
 
 ANOTHER.
 
 92 
 
 REPORTS OF CASES. 
 
 BAKER 
 
 v, 
 
 MEIKLE 
 AND 
 
 ANOTHER. 
 
 15th Nov. 1879, and which has been cited before me, somewhat 
 resembles the present, but is distinguishable from it, inasmuch 
 as the words above referred to do not appear to have been con- 
 tained in the cheque in the former case. A person having once 
 signed either a receipt or a cheque containing words which per se 
 amount to an accord and satisfaction, whether before or after he 
 attempts to repudiate it, must, I think, be held to be bound by 
 them (see the case of Hardmanv. Belhouse, 9 M. & W. 600). 
 There will, therefore, be a verdict for defendants, with costs of 
 two^days, with liberty to plaintiff to appeal upon terms. 
 
 Verdict for defendants with costs. 
 
 SOUTHWARK COUNTY COURT. 
 
 Monday, April 19, 1880. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 NEIL v. RENNIE. (a) 
 Bill of sale, fraudulent, or release presumed National Mercantile 
 
 Bank v. Hampson considered. 
 M'Coll for plaintiff. 
 
 Thomas, for defendant. 
 
 His HONOUR. The plaintiff in this case is the holder of a bill 
 of sale dated 9th July, 1879, duly registered, by which Alfred 
 Scott assigned to the plaintiff (amongst other effects) a pianoforte 
 to secure 2507. Subsequently to the execution of the bill of 
 sale Scott sold the pianoforte to the defendant, and the plaintiff 
 has brought the present action against the latter to recover the 
 same. The defendant has put in secondary evidence of an earlier 
 bill of sale, dated 1st June, 1877, by which all the effects in 
 question were assigned by Scott to Hannah Baker, his mother- 
 in-law, to secure 100/. ; and Hannah Baker deposed that she 
 had left the bill of sale in Scott's possession; that he had 
 disposed of some of the effects and paid her 60Z., and given her 
 the bill of sale, but that she had subsequently let him have it 
 again, and he had gone abroad and taken it with him. Under 
 these circumstances I have no hesitation in holding the earlier 
 bill of sale (supposing it to be properly in evidence) to be 
 fraudulent, or, at all events, in presuming its satisfaction and 
 release. A recent case of The National Mercantile Sank Limited v. 
 (a) County Courts Chronicle, vol. vii., p. 339.
 
 REPORTS OF CASES. 93 
 
 Hampson (5 Q. B. Div. 177), was cited as an authority that Scott NEIL 
 had an implied authority to dispose of goods left in his -p ' 
 
 t* i T n i i i XvENNIE. 
 
 possession ; but, on reference to the report, I find that the 
 grantor in that case was a farmer, who was left in possession of 
 his farm and stock, and was held to have an implied licence or 
 authority to dispose of certain goods in the way of his business, 
 so as to give a valid title to the purchaser. In the present case 
 the grantor was permitted to retain the effects for his own 
 personal use, and not in order to enable him to carry on any 
 business; and if a grantor could sell goods under such 
 circumstances, it would render bills of sale, unless accompanied 
 by possession of the goods, perfectly nugatory. There will, 
 therefore, be a verdict for the plaintiff for 36?., to be reduced to 
 a Id. on delivery of the goods in fourteen days. 
 
 Verdict accordingly, with costs. 
 
 SOUTHWARK COUNTY COURT. 
 
 Monday, July 12, 1880. 
 (Before H. J. STONOR, Esq., Judge.) 
 MARSHALL v. MAETIN ; MILTON v. MARTIN, (a) 
 Agreement Breach Damages Liquidated or penalty. 
 By an agreement in writing A. agreed to sell to B. a public-house 
 for 2001. on the 17th March, 1880, and to pay half the expenses 
 of sale, and "if he should fail to fulfil part of the agreement, 
 the deposit money (15Z.) should be forfeited in part of the 
 following damages" viz., "the sum of 501., the damages 
 ascertained and fixed for the breach of the agreement" 
 Held, that the sum of 501. was not recoverable on breach of the 
 agreement as liquidated damages, but only as a penalty to the 
 extent of damages actually incurred, although the deposit was 
 absolutely forfeited. 
 J. Bottomley Firth for plaintiffs. 
 Witt for defendants. 
 
 His HONOUR. These are two actions remitted to this court for 
 trial by the Common Pleas Division of the High Court of 
 Justice. In the first action the plaintiff claims the sum of 35/., 
 
 (a) County Courts Chronicle, vol. viii., p. 387.
 
 94 REPORTS OF CASES. 
 
 MARSHALL being the balance of a sum of 507. payable in certain events 
 under an agreement for the sale by the plaintiff to the defendant 
 of a public-house after deducting 15/. deposit in the hands of 
 v - the plaintiff. In the second action the plaintiff (a broker) claims 
 1 ARTIN - Ql 6s. due to him from the defendant for commission upon the 
 same sale. In the first action the defendant has filed a statement 
 of defence alleging fraudulent misrepresentation by the plaintiff, 
 and also a counter-claim for the return on that ground of the 
 deposit of 157. To the second action there is no defence. The 
 agreement in question is dated the 27th February, 1880, and 
 made between the plaintiff and the defendant, whereby the 
 plaintiff agreed to sell and the defendant to buy the interest of 
 the plaintiff in a public-house called " The Shipwright's Arms," 
 situated in Northfleet, Kent, together with certain fixtures, 
 stock-in-trade, &c., for the sum of 2007., 011 or before the 
 17th March, 1880, one moiety of the whole expense to be paid 
 by each party, and the agreement contains the following 
 stipulations ; " As earnest of this agreement, the said purchaser 
 has paid into the hands of the said vendor the sum of 157., which 
 is to be allowed in part payment on the completion of this 
 agreement, but if the said vendor should not fulfil the same on 
 his part, he shall return the deposit, in addition to the damages 
 hereinafter stated. And if the said purchaser should fail to 
 fulfil his part of the agreement, then the deposit money shall 
 become forfeited in part of the following damages ; and if either 
 of the said parties should neglect to perform or refuse to comply 
 with any part of this agreement, the party so refusing or 
 neglecting shall pay to the other of them, on demand, the sum 
 of 507., hereby mutually agreed upon to be the damages 
 ascertained and fixed on breach thereof. This agreement is 
 entered into subject to the brewers lending the purchaser 507. 
 Mr. John C. Milton to act as broker between the parties." 
 Shortly after the signature of the agreement the brewers 
 consented to lend the defendant 507., but, being dissatisfied with 
 his bargain, he subsequently refused to complete, whereupon the 
 plaintiffs brought the present actions. In the first action the 
 defendant has failed in proving fraud on the part of the plaintiff 
 as alleged, and the plaintiff has failed in proving any damages 
 actually incurred by him ; and the only question to be decided 
 is whether the plaintiff is entitled to recover the whole sum of 
 507., as liquidated damages, after deducting the 157. deposit, or
 
 REPORTS OF CASES. 
 
 95 
 
 MILTON 
 
 r. 
 MARTIN. 
 
 whether that sum is a penalty only, and the plaintiff therefore MARSHALL 
 
 entitled to recover only nominal damages. This question of ,, r * 
 
 course depends primarily upon the terms of the agreement 
 
 entered into between the parties, which, it is to be observed, are 
 
 identical with the terms of the agreement before the Conrt of 
 
 Common Pleas in the case of Hinton v. Sparks (37 L. T. Rep. 
 
 81, C. P. ; L. Rep. 3 C. P. 101), which was mainly relied on by 
 
 defendant's counsel, except that the fixed damages in that case 
 
 were the same amount as the deposit, " probably," as suggested 
 
 by "Willes, J., "because it was at one time intended to fix a 
 
 larger amount," whilst in the present case the fixed damages are 
 
 a lai'ger amount than the deposit. Now, the case of Hinton v. 
 
 Sparks decided that the deposit was absolutely forfeited, and so 
 
 far applies to the present case ; but it did not of course decide 
 
 whether fixed damages beyond such deposit w6re forfeited, as 
 
 none were in question, but the opinion of the court clearly 
 
 appears to have been that such excess would not be forfeited 
 
 unless and so far as actual damages were proved. In the previous 
 
 case of Boys v. Ancell (7 Scott 364 ; 8 L. T. Rep. C. P. 267), 
 
 however, it had been decided that under an agreement, 1st, to 
 
 grant a lease ; 2nd, to execute a counterpart ; and 3rd, to pay 
 
 the expenses of both subject to payment of a " sum of 500/. to 
 
 be recovered as liquidated damages," such sum was to be 
 
 considered a penalty only inasmuch as it was applicable to 
 
 different acts or neglects of different degrees of importance, and 
 
 upon that ground the actual damages proved ought only to be 
 
 recovered, and in the present case there is also an agreement : 
 
 1st, for the sale of a public-house; 2nd, for its completion at a 
 
 certain time ; 3rd, for the payment of the expenses in moieties, 
 
 besides other stipulations; and therefore, according to the 
 
 decisions in the case of Soys v. Ancell, and in the latter case of 
 
 Beits v. Burch (28 L. T. Rep. Ex. 267 ; 4 H. & M. 506), in which 
 
 the agreement was substantially the same as in the present case, 
 
 so far as regards damages, and the opinion of the court in the 
 
 case of Hinton v. Sparks, the sum of 507. now in question ought 
 
 to be regarded as a penalty only, and the damages actually 
 
 incurred ought only to be recovered in respect of it. On the 
 
 other hand, the earlier case of Reilly v. Jones (I Bing. 302), 
 
 which is spoken of with approval in the case of Lea v. Whittaker 
 
 (L. Rep. 8 C. P. 70), cited by the counsel for the plaintiff, is a 
 
 direct authority in favour of the contrary conclusion, and is
 
 96 
 
 BEPORTS OF CASES. 
 
 v. 
 
 MARTIN ; 
 MILTON 
 
 v. 
 MARTIN. 
 
 MARSHALL supported by the dicta of all the judges in the latter case, and 
 goes to establish the view which I was inclined to take at the 
 trial, viz., that the real and substantial object of an agreement 
 like the present (the sale or transfer of a public-house) ought 
 only to be regarded, and that the real intention of the parties 
 was to fix a sum as liquidated damages, to be paid, in the words 
 of Mr. Justice Grove, " for the breach of that agreement, and 
 not for a failure to perform some of the minor stipulations," and 
 which damages it would be very difficult for a jury to determine. 
 The later case of Hagee v. Lovell (42 L. J. 131, C. P. ; L. Rep. 
 9 C. P. 107), which was not cited in argument before me, however, 
 qualifies very much the decisions of the court, and the dicta of 
 the judges, in the cases of Reilly v. Jones and Lea v. WhittaJcer, 
 and, upon the whole, the balance of the authorities appears to me 
 to be decidedly in favour of the defendant's contention, that the 
 sum of 50. now in question is a penalty only, and that the 
 plaintiff, having proved no actual damages, can only recover a 
 nominal amount in respect of it, both under the 8 & 9 Will. 3, 
 c. 11, s. 8, which (as Bramwell, B. observed in Betts v. Burch, 
 was strangely lost sight of in all the earlier cases, and 
 according to the rules of equity, which (as the learned judge 
 also observed, were apparently followed by the courts of common 
 law in all those cases, and which are now binding upon them 
 by the Judicature Act, and perhaps supersede the 8th section 
 of the statute of Will. 3 altogether. In the first action there 
 will be a verdict for the plaintiff by claim for Is. without 
 costs, and a verdict for the defendant by counter-claim with 
 costs. And in the second case there will be a verdict for the 
 plaintiff with costs. 
 
 Judgments accordingly. 
 
 SOUTHWARK COUNTY COURT. 
 
 Monday, July 12, 1880. 
 (Before H. J. STONOE, Esq., Judge. 
 
 HATTON v. WiLKiNS.(a) 
 
 Implied warranty on sale of goods for human consumption. 
 His HONOUR delivered judgment as follows : This is a claim for 
 
 (a) County Courts Chronicle, vol. viii., p. 388.
 
 TIE PORTS OF CASES. 
 
 07 
 
 II. 12s. paid to the defendant by the plaintiff for eleven large 
 baskets of cherries, which, together with four others, were sold 
 by the defendant to the plaintiff, in the Borough Market, on 
 a Saturday afternoon, for 3*. each, and which were taken away 
 by the plaintiff, and on examination proved unfit for human food, 
 and were taken by him to the sanitary inspector, and condemned 
 and destroyed by the latter the same evening. At the top of 
 each basket there was sound fruit, and the defendant did not 
 sample them by turning out one or more of them, but even if he 
 had it would not have excluded the implied warranty that the 
 goods were merchantable : (see the judgment of Willes, J. in 
 Mody v. Gregson, 28 L. J. 12, Ex.) The defendant states that 
 he never himself examined the baskets, which were sent to him 
 from a distance that morning ; but this is immaterial, and nowise 
 affects the implied warranty by him : (see the case of Jones v. Just, 
 37 L. J. 89, Q. B.) The present case therefore resolves itself 
 into two questions of fact, viz., were the cherries which the 
 plaintiff took to the inspector the same which he purchased from 
 the defendant ? and were they in an unfit state for human food ? 
 Upon the evidence before me I must answer both questions in the 
 affirmative, but it is evident that salesmen (who as in the Borough 
 market act as principals) are very much exposed to fraud by the 
 purchasers disposing of the fruit which they have bought, and 
 afterwards asserting that it had proved unfit for human food, and 
 perhaps submitting other fruit to the inspector; and it would 
 certainly be proper for every purchaser to examine the fruit pur- 
 chased by him at the time of the purchase, or as soon after as 
 possible, and to give notice to the salesman of the unwholesome 
 condition of the fruit the moment it is discovered, so that the 
 latter might have an opportunity of inspecting the same, and in 
 every case where this course has not been taken I shall refuse all 
 costs. It might be a proper precaution for salesmen in such 
 cases as the present to have printed notices handed to purchasers 
 stating that they should sample or examine the goods at the time 
 of the sale, and that the salesman would not warrant them in any 
 manner, and which, I think, would protect them except in cases 
 of actual knowledge and fraud. In this case there will be a 
 verdict for plaintiff for 17. 12s. without costs. 
 
 HATTON 
 
 v. 
 
 WlLKINS.
 
 98 REPORTS or CASES. 
 
 EXCHEQUER DIVISION. 
 
 Friday, Dec. 3, 1880. 
 (Before POLLOCK, B. and STEVENS, J.) 
 
 SCARD r, BAILEY, (a) 
 
 APPEAL FROM THE SOUTHWARK COUNTY COURT. 
 Sufficiency of notice of dishonour of bill of exchange. 
 THIS was an issue from the Exchequer at the Southwark County 
 Court on the 14th October, 1880. 
 
 The judge's notes of evidence were as follows : 
 " Plaintiff examined : I produce bill for 25Z, at three months, 
 dated 6th August, 1879, drawn by defendant and accepted by 
 Burgess and endorsed by both. It was presented and dis- 
 honoured on Saturday, 8th November. I caused a letter with 
 notice of dishonour to be posted to the defendant on the 12th 
 November, and produce the letter-book, with press copy. I had 
 seen defendant on Tuesday, llth November, and told him that 
 the bill was dishonoured, and asked him what he was going to 
 do with it. He said he would see Burgess, the acceptor, 
 and bring him up the next day. I offered to renew the bill ; he 
 afterwards promised to pay. I have since done business for him. 
 "Cross-examined: I saw defendant on Tuesday, llth 
 November, on other business money-lending and selling 
 property. I told him that the bill was dishonoured. There is 
 an entry in my call-book. 
 
 " Defendant examined : " I remember Lord Mayor's day, 1879. 
 The 9th November, 1879, was a Sunday. Monday was cele- 
 brated instead as Lord Mayor's day. I cannot say when or 
 where I saw plaintiff afterwards. I never had any notice of 
 dishonour of this bill. 
 
 Adjourned. 
 
 "Oct. 21. The plaintiff re-examined. The bill fell due on 
 9th November, and that being a Sunday, it was really due on the 
 8th. On llth November defendant called. I had the interview 
 with him to which I deposed last week. On the following day, 
 Wednesday, the 12th, the letter was sent, which would be 
 delivered by post on the 13th. I am sure that the defendant 
 called on Tuesday. I produce my call-book, with entry. 
 
 (a) County Courts Chronicle, vol. viii., p. 16.
 
 REPORTS OF CASES. 99 
 
 " Objection on the part of defendant that notice of dishonour SCAED 
 
 was insufficient was overruled. BAILEY 
 
 Judgment for plaintiff. 
 
 "HENRY J. STONOR, 
 
 " Judge of the County Court of Southwark." 
 "25th October, 1880." 
 
 The Court affirmed the judgment, with costs. 
 
 Scard v. Bailey. The subject of notice of dishonour of bills of exchange 
 is now regulated by the Bills of Exchange Act, 1882 (45 & 46 Viet, c. 61), 
 which codifies the law relating to bills of exchange, cheques, and promissory 
 notes (see sects. 48-52). 
 
 SOUTHWARK COUNTY COURT. 
 
 Monday, Jan. 10, 1881. 
 (Before H. J. STONOR, Esq., Judge, and a Jury.) 
 
 NOYE v. WISEMAN, (a) 
 Fraudulent misrepresentations on letting premises Unstamped 
 
 agreements admitted as evidence of fraud. 
 McJntyre for plaintiff. 
 
 Washington for defendant. 
 
 His HONOUR delivered judgment as follows : In this action 
 plaintiff claimed of the defendant 25Z. damages t( for false and 
 fraudulent misrepresentations made by the defendant to the 
 plaintiff in respect of premises in Bermondsey, which were sub- 
 sequently let by defendant to plaintiff/* According to the 
 plaintiff's evidence, early in September of the past year he applied 
 to the defendant for a lease of the premises for the purpose of 
 carrying on a trade in fried fish, and that the plaintiff stated 
 that he could grant a lease of the premises for three years, being 
 the same as he held from his superior landlord, and that they 
 might be used for the sale of fried fish; and it was verbally 
 agreed that the defendant should grant the plaintiff a lease for that 
 term at a weekly rent of 12s. on payment of a premium of 5Z. On 
 the 16th September the plaintiff paid him 21. on account of the 
 premium, and the defendant signed the following paper: "41, 
 
 (a) County Courts Chronicle, vol. viii., p. 36.' 
 H 2
 
 100 REPORTS OF CASES. 
 
 NOTE St. James's-road, Bermondsey. Agreement between Mr. Noye 
 w v ' and Mr. Wiseman for shop and two rooms for 5Z. premium, and 
 
 ' at a weekly rental of 12s. per week. Paid on account 21. 
 
 Received, H. WISEMAN, September 16, 1880." On the 23rd 
 September the plaintiff paid the defendant 3Z., the remainder 
 of the deposit, and the defendant and plaintiff then signed the 
 following paper : " Copy of agreement between Mr. George 
 Noye and Mr. Henry Wiseman of shop and two rooms at a 
 monthly rental of 21. 8s. for a term of three years or longer as 
 we may agree hereafter. 51. to be paid as a premium ; the same 
 to be returned, as also fixture expenses, on leaving. (Signed) H. 
 WISEMAN, GEORGE NOYE, September 23, 1880." Neither of these 
 papers was stamped, and I therefore held that they could not 
 be received as evidence of an agreement, but that they might 
 be received as evidence of fraud, according to several decided 
 cases. The plaintiff went into possession on the 23rd September, 
 and remained in possession for nine weeks, and at the hearing 
 still retained the key. During the first month he employed 
 himself in moving his effects and fitting up the shop in a suit- 
 able manner for the sale of fried fish, in which he incurred 
 expenses amounting to 71. 15s. On the 25th Oct. the superior 
 landlord of defendant, a Mr. Rayner, called at the premises, and 
 gave plaintiff notice that the premises were let to defendant as a 
 monthly tenant only, and that he had told him that he could 
 not allow it to be used as a fried fish shop. The plaintiff 
 thereupon went to defendant, who admitted his landlord's 
 statements to be true, and the plaintiff then demanded the 
 return of the deposit, and payment of the expenses incurred by 
 him, but the defendant refused to comply with the demand, and 
 asserted that he had never agreed to let the premises for three 
 years, but only for the same term he held them, and he gave the 
 plaintiff one month's notice to quit on the 25th November, which 
 the plaintiff accepted, and quitted before that date, but retained 
 the key until the hearing, " because/' as he said, "his 
 fixtures were there." The plaintiff's average earnings as a 
 corn porter are about 21. 10s. a week. The plaintiff now 
 claimed Deposit, 51. ; money expended, 7/. 15s.; and 21. 10s. 
 per week for earnings and loss of time (four weeks), 10L; 
 total, 22 1. 15s. At the conclusion of the plaintiff's case, 
 Mr. Washington, on behalf of the defendant, submitted that the 
 plaintiff ought to be non-suited on the following grounds : First,
 
 REPORTS OF CASES. 101 
 
 that the plaintiffs only remedy was by an action for specific per- NOTE 
 forruance, and that on such an action he could only get back his 
 deposit, which I may observe is not true in cases of fraud like the 
 present (see the case of Hopkins v. Grazebroofc, 6 B. & C. 81) ; 
 secondly, that the plaintiff had left the shop, and foreborne to 
 carry on the trade in fried fish without any compulsion ', and 
 thirdly, that the plaintiff was still in possession of the premises 
 by retaining the key. I thought it best to reserve these points, 
 and take the verdict of the jury upon the facts and the amount 
 of damages. The defendant was then examined, and denied 
 that he had ever said that the plaintiff could carry on a trade in 
 fried fish on the premises, or that he agreed to let the same 
 for a term of three years, but he admitted that he told the 
 plaintiff that the premises " would do for a fried fish shop," 
 and that " he would get him the same lease he held from his 
 landlord, and that there would be no difficulty in getting him a 
 three years' agreement." A counter-claim for rent was filed, but 
 I ruled that it could not be proceeded with, as the agreements 
 were unstamped. I left the following questions to the jury : 
 First, Did the defendant represent to the plaintiff that he had 
 power to let the premises in question to the plaintiff for a term 
 of three years to be used as a fried fish shop ? Secondly, Was 
 that representation false ? Thirdly, Did the defendant know 
 that such representation was false at the time he made it ? The 
 jury found in the affirmative on all three questions, and assessed 
 the damages at the full amount, 221. 15s. With regard to the 
 reserved points, I am of opinion that this action is well brought 
 for the deposit, and for the money and time expended by the 
 plaintiff on the premises in consequence of representations which 
 the jury have found the defendant knew to be false when he 
 made them. The only answer to the action, according to the 
 .findings, would have been, that the plaintiff had been informed 
 before or at the time of the subsequently written agreements, 
 that such representations were untrue. This might no doubt 
 have possibly appeared by the written agreements themselves, 
 and fortunately the plaintiff has put the agreements before the 
 court as evidence of fraud, although the defendant himself could 
 not have put them in evidence at all, and they fully confirm the 
 evidence of the plaintiff as to the term of three years, and do 
 not contradict him as to the trade to be carried on in the 
 premises. With regard to the plaintiff's voluntarily forbearing
 
 102 REPORTS OF CASES. 
 
 NOTE to sell fried fish and quitting the premises, I think that, after the 
 w v - admission of the defendant at their interview, and the notice 
 
 ' which the defendant gave the plaintiff to quit, and which the 
 
 plaintiff accepted, he was fully justified in both, and did not 
 thereby prejudice his right to damages; and with regard to his 
 still retaining the key, I am inclined to think that from the 
 expiration of the notice, he thereby became a trespasser or tenant 
 at sufferance, and is liable to the defendants for mesne profits or 
 use and occupation, but I do not think that he thereby prejudiced 
 his right to damages. I shall thereby enter judgment for the 
 plaintiff with costs, payable in fourteen clays. 
 
 Judgment accordingly. 
 
 SOUTHWARK COUNTY COURT. 
 
 Monday, April 11, 1881. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 STRINGEE v. CARPENTEE.() 
 
 Sale of goods "as owner" Implied warranty of title. 
 THE following judgment was delivered in this case : 
 
 His HONOUE. The facts of this case are as follows : The 
 defendant purchased, early in February last, at a sale by auction 
 at a horse repository in the Kent-road, a pony for eight guineas, 
 and removed it to his stable. On the same day the plaintiff, 
 knowing of the sale of the pony to the defendant at the auction, 
 agreed to purchase it of him for nine guineas, and paid him a 
 deposit of II. On the next day the plaintiff paid the balance to 
 the defendant, and the defendant delivered the pony to the 
 plaintiff. On the following day the real owner of the pony, 
 from whom it had been stolen previously to the auction, accom- 
 panied by a policeman, went to the defendant's house, and claimed 
 it. The plaintiff thereupon delivered it to the owner with the 
 knowledge, but without the consent, of the defendant. It was, 
 however, admitted at the trial that the pony had been stolen from 
 the person who so claimed it, and that the plaintiff was conse- 
 quently justified in giving up the pony at once, it not having 
 been sold in market overt. The plaintiff has now sued the 
 
 (a) County Courts Chronicle, vol. viii., p. 97.
 
 REPORTS OF CASES. 103 
 
 defendant for the purchase money paid by him. The question STRINGER 
 of law which arises upon these facts appears to me to be whether, CARPENTER 
 on the sale of a chattel, there is an implied warranty of title on 
 the part of the vendor independently of any special circum- 
 stances, such as the sale being made in a shop in the defendant's 
 ordinary course of business, from which it has already been held 
 that a court ought to presume such warranty. Now, it is laid 
 down in 2 Bl. Com. p. 451, and in Addisoii on Contracts, 7th 
 edit., p. 489, that whenever a man sells goods " as owner," he 
 impliedly undertakes and promises that the goods are his own 
 goods, and that he has a right to sell them. But in the case of 
 Morley v. Attenborough (18 L. J. 148, Ex.). Parke, B. dissented 
 from this proposition, and held that there was no such general 
 implied warranty of title, and that a vendor was not liable for a 
 bad title unless there be fraud on his part, an express warranty, 
 or an implied warranty arising from special circumstances or 
 conduct, and accordingly it was held in that case that a pawn- 
 broker selling forfeited pledges did not warrant his title to them 
 further than that he was not cognisant of any defect of title. 
 So in the case of Chapman v. Speller (14 Q. B. 624; 19 L. J. 
 239, Q. B.), where the defendant had bought a chattel at a 
 sheriff's sale, upon which there could be no warranty, and resold 
 it to the plaintiff, who knew that it had been so purchased, it was 
 held that there was no implied warranty of title by the defendant, 
 and so also in the case of Baguley v. Hawley (L. Rep. 2 C. P. 
 625 ; 36 L. J. 328, C. P.), where defendant had bought fixtures 
 at a sale under a distress upon which again there could be no 
 warranty, and resold them to the plaintiff, who knew that they 
 had been so purchased, it was held that there was no implied 
 warranty of title by the defendant. In all these cases, however, 
 it must be observed that there were circumstances which not 
 only did not favour a warranty, but actually militated against it. 
 On the other hand, in the case of Eicholz v. Bannister (17 C. B. 
 N. S. 709 ; 34 L. J. 105, C. P.), where goods were sold by the 
 vendor in his shop, it was held that the vendor thereby affirmed 
 that he was the owner of the goods and warranted the title ; and 
 Erie, C. J. and Byles, J. apparently questioned the correctness of 
 Baron Parkes's observations in Morley v. Attenborough, with 
 reference to the dicta in Blackstone and Addison, of which they 
 seemed to approve ; and in the later case of Baguley v. Hawley, 
 already cited, Willes, J. dissented from the judgment of the
 
 104 REPORTS OF CASES. 
 
 STRINGER court notwithstanding the strong circumstances of the case, and 
 r ; evidently also approved of the dicta in Blackstone and Addison, 
 
 ' observing pointedly that the purchaser of the chattel then in 
 
 question contracted to purchase " a boiler and not a lawsuit." 
 The case of Mcltolz v. Bannister, however, clearly leaves still 
 undecided the general question whether on the sale of goods a 
 warranty of title is implied, inasmuch as the special circumstances 
 in that case were held to give rise to such warranty. A preli- 
 minary question in the present case, therefore, appears to be 
 whether there are any circumstances in it from which a warranty 
 can be implied or negatived, and which would render it unneces- 
 sary to consider the general question whether a warranty ought 
 to be implied in the absence of any such circumstances. Now, 
 I can discover no such circumstances in the present case, 
 although the circumstance that the person who instructed 
 the auctioneer is liable to the defendant, if defendant is liable 
 to the plaintiff at least in respect of fraud on his part, 
 in any case is perhaps favourable to the plaintiff, and at all 
 events distinguishes it from the cases of sales under legal process, 
 as in the cases of Chapman v. Speller and Baguley v. Hawley, 
 already cited; and I am consequently bound to consider the 
 more difficult question, whether, in the absence of any such 
 circumstances, a warranty is to be implied from the mere sale of 
 the chattel in question by the defendant "as owner" (which I 
 take to mean as contra- distinguished from a sale by him as a 
 mortgagee, auctioneer, or agent) according to the rule laid down 
 by Blackstone and Addison, following the case of Medina v. 
 tttoughton (1 Salk. 210). That rule, although questioned by 
 Parke, B. in Morley v. Attenlorough and other judges, appears to 
 have been approved of by Erie, C.J. and Byles and Willes, JJ., 
 is in conformity with the civil and American law as stated by 
 Addison, and I will venture to say is most consonant with justice 
 and common sense. For what is the true nature of the contract 
 in question ? The vendor agrees to sell, and the purchaser to 
 buy, a chattel, undoubtedly upon the understanding that it 
 belongs to the vendor. That understanding appears to me to be 
 one of the terms and conditions of the contract, and, if it prove 
 to be erroneous the purchaser ought, I think, to recover his 
 purchase money, either for breach of contract or failure of con- 
 sideration. In conclusion, I would observe that the practice of 
 conveyancers to insert an absolute covenant of title in an assign-
 
 REPORTS OF CASES. 105 
 
 nient of personal chattels may at first sight be considered an STRINGER 
 argument that in the absence of such a covenant no warranty of 
 title is implied ; but in a conveyance of real estate, although no 
 warranty of title is implied, the word " grant " is almost always 
 used, and this formerly implied a warranty. Yet conveyancers 
 always added covenants for title absolute or qualified in such 
 conveyance. In both cases conveyancers only acted with the 
 abundance of caution which they always observed. There is, 
 however, an important and marked distinction between the sale 
 of real estate and that of personal chattels which appears to me 
 to afford a strong argument in favour of the implied warranty 
 on the latter, which undoubtedly does not exist on the former. 
 On the former the vendor is bound to show the title to the same 
 for a considerable period, formerly sixty, now forty years, and 
 has the means of doing so by documentary evidence. On the 
 latter he is under no obligation to show a title, and has no means 
 of doing it, and generally speaking can show nothing but pos- 
 session, and sometimes not even that. In the former a warranty 
 of title is perhaps scarcely required, whilst in the latter it appears 
 to me almost necessary. Upon the whole, after careful examina- 
 tion of the authorities and much consideration, I find, although 
 of course with great diffidence and doubt, in favour of the 
 plaintiff, with liberty to the defendant to appeal within one 
 month. 
 
 Judgment accordingly. 
 
 SOUTHWARK COUNTY COURT. 
 
 Friday, May 27, 1881. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 GlBSON AND ANOTHER V. HoLMES.(a) 
 
 lit, ike absence of any stipulation a purchaser's deposit is abso- 
 lutely forfeited in the event of his failing to perform his 
 contract. 
 
 Caisson v. Roberts and Ex parte Burrell, lie Parnell considered. 
 His HONOUR. The plaintiffs in this case, two young men intend- 
 ing to commence business in partnership, entered into a contract 
 with the defendant in March last for the purchase of the lease, 
 tenant's fixtures, and goodwill of the business of a tobacconist 
 
 (a) County Courts Chronicle, vol. viii., p. 131.
 
 106 HE PORTS OF CASES. 
 
 GIBSON AND for the sum of 175Z., and also of the stock-in-trade of the same at 
 
 ANOTHER a yaiuation, which was expected to amount to about 150Z., and 
 
 HOLMES, they thereupon paid 25L to the defendant as a deposit, for which 
 
 the defendant gave the plaintiffs his receipt, dated the 15th 
 
 March, 1881. On the negotiation for the sale the plaintiffs 
 
 inquired of the defendant what were the average profits on the 
 
 business, and were informed by him that they amounted to about 
 
 61. a week, as appeared by his books, which he produced to them, 
 
 but which they unfortunately did not take the trouble to examine. 
 
 Such profits appeared to be the gross profits, but the plaintiffs 
 
 allege that they believed the same to have been the nett profits 
 
 after the payment, not only of the rent (which was known 
 
 to them), but also of a reasonable remuneration for the personal 
 
 service of the proprietor and an assistant in the shop, which was 
 
 estimated by them at about 150?. a year; and on discovering 
 
 their mistake they refused to complete the contract, and 
 
 demanded back their deposit, less the defendant's expenses of 
 
 the sale, which were admitted to be under 21, The defendant 
 
 appears to have been not unwilling to rescind the contract, but 
 
 positively refused to return the deposit, and, having demanded a 
 
 categorical statement as to the plaintiffs' intention to complete 
 
 or not, received from them the following memorandum, which 
 
 was written in his presence and handed to him by one of the 
 
 plai 11 tiffs, with a renewed verbal request for the repayment of the 
 
 deposit, which was again met with a positive refusal : " I, Alfred 
 
 Gibson, and I, AVilliam Henry Taylor, find we must decline to 
 
 complete the purchase of Mr. Holmes' tobacco business at 31, 
 
 Blackmail-street, Borough, as intended. (Signed) Alfred 
 
 Gibson. William Henry Taylor. 6th March, 1881." The 
 
 defendant, on the receipt of this document, forthwith sold 
 
 the business to another person, with whom he had been 
 
 previously in treaty, for the same price and on the same 
 
 terms as he had sold it to the plaintiffs. The plaintiffs in 
 
 this action have now sued the defendants for the return of the 
 
 whole deposit, on the ground of misrepresentation on his part ; 
 
 but on the evidence before me I found that there had been no 
 
 such misrepresentation. I, however, allowed the plaintiffs to 
 
 amend by adding a count for money had and received, so 
 
 as to raise the question whether, in the absence of any 
 
 stipulation for the forfeiture of the deposit, the plaintiffs are not 
 
 entitled to recover the deposit less the defendant's expenses of the
 
 REPORTS OF CASES. 107 
 
 sale, or whether the same is absolutely forfeited to the defendant. GIBSON AND 
 With regard to the lease and goodwill, and also with regard to ANOTHER 
 executory contracts of undefined chattels, I apprehend the case HOLMES. 
 is precisely the same as that of real estate, in respect of which, 
 in Sugden's Vendors and Purchasers, 14th ed. p. 40, after 
 referring the cases of Palmer v. Temple (0 Ad. & El. 508), and 
 Ockenden v. Henly (1 El. Ma. & El. 485), the learned writer 
 states that " the general question whether one contracting for 
 the purchase of landed property who refuses to complete his 
 contract may recover his deposit from the vendor on his after- 
 wards selling the property to another, was not decided in the 
 above cases ; but the impression of the court seems to have been 
 that the deposit would not be forfeited by a breach of the 
 contract on the part of the purchaser unless there is a clause to 
 that effect in the contract." And in the subsequent case of 
 Casson v. Roberts (32 L. J. 105, Ch.), the Master of the Rolls, 
 Sir John Romilly, was clearly of the same opinion, and observed 
 that <f an agreement certainly might be made that a deposit 
 should be forfeited in case the purchase should not be completed ; 
 but this must be expressed in or clearly implied from the contract 
 itself;" and I believe the opinion of conveyancers to have 
 always been to the same effect, as evidenced by their practice of 
 inserting in all conditions of sale a stipulation for the forfeiture 
 of the deposit which would have been wholly unnecessary if it 
 were forfeited at common law. During the many years I have 
 now presided in these courts I have always followed the same 
 view, and I was much surprised to find that there was a case in 
 bankruptcy decided so long ago as 1875, by the Lords Justices 
 on an appeal from Mr. Registrar Hazlitt (Ex parte Barrell ; 
 Re Parnell, 44 L. J. 138, Ch.), in which James and Mellish, 
 L.JJ. held, that in the absence of any stipulation a purchaser's 
 deposit is forfeited if he fails to complete the contract ; and that, 
 in the words of James, L.J., he has " no legal or equitable 
 claim " to his return. Now in that case there was no doubt 
 a very strong circumstance which does not exist in the present, 
 viz., that the vendor was barred of his right of specific per- 
 formance by the disclaimer of the trustee under the Bankruptcy 
 Act, and had therefore not assented to the rescission of the con- 
 tract as in the present case, but I can hardly think that this dis- 
 tinction is material for the present purpose, and the above cir- 
 cumstance is certainly not the ground of the decision in question.
 
 108 REPORTS OF CASES. 
 
 GIBSON AND I shall, therefore, follow that decision with great respect, and I 
 ANOTHER w -jj ven ^ ure t take this opportunity of expressing my sense of 
 HOLMES, the invariable courteous attention and consideration given by the 
 two eminent judges whom I have named (one, unhappily, now 
 no more), to the humble judgments of the body to which I have 
 the honour to belong, and the decisions of Avhich have been so 
 frequently restored by the Appellate Court, after being reversed 
 by intermediate tribunals ; and I am truly glad to find that in the 
 new Bankruptcy Bill it is proposed to give a direct appeal from 
 the County Courts to the Appellate Court. With regard to the 
 tenant's fixtures included in the present contract a question 
 might have arisen whether the property did not vest in the pur- 
 chasers on the sale, and that it was consequently necessary 
 to obtain their authority for the re- sale; but I am of opinion 
 that such an authority would be implied under the circumstances 
 of this case. There will be a verdict for the defendant. 
 
 SOUTHWARK COUNTY COURT. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 Dec. 8 and 15, 1881. 
 EATON v. WESTERN AND SONS, (a) 
 
 Master and Servant. 
 
 The business of a firm which had been dissolved was not carried on 
 in its entirety by either of two new firms constituted by the 
 fanner partners of the old firm. 
 
 Held, that neither of the two new firms ivas the successor of the 
 original firm, or entitled to the services of an apprentice to the 
 old firm. 
 
 Qua-re, whether, in the case of an outdoor apprentice, there is 
 not an implied stipulation that the contract is to be performed 
 at the place where the master is carrying on the business at the 
 date of the articles, or within a reasonable distance. 
 Royce v. Charlton (L. Rep. 8 Q. B. Dw. 1) distinguished. 
 Ribton for plaintiff. 
 Verney for defendant. 
 
 The plaintiff was living with his father at Lambeth, and was 
 bound to the defendants, mechanical engineers, carrying on 
 business under the firm of Western and Co., in Belvidere-road, 
 (a) County Courts Chronicle, vol. viii., pp. 268, 381.
 
 REPORTS OF CASES. 109 
 
 Lambetbj and to their successors in business. The indentures EATON 
 contained the usual covenants for faithful service and obedience w v ' 
 on the part of the apprentice, and for teaching the business on AND SONS. 
 the part of the masters ; but there was no stipulation as to the 
 place at which the business was to be carried on. The father of 
 the apprentice covenanted to supply his son with board and 
 lodging during the terra. 
 
 Before the completion of the term the defendants dissolved 
 partnership and two new firms were constituted, two of the 
 defendants forming one firm, and carrying on business at 
 Lambeth, and the other defendant, in conjunction with a new 
 partner, forming another firm, and carrying on business at 
 Derby. The London firm was principally confined to repairs 
 and agency business, the manufacturing part of the business 
 being conducted at Derby. No notice was given to the appren- 
 tice of the dissolution of the partnership, but notice was given 
 to him to remove to the factory at Derby. The plaintiff refused 
 to comply with this notice, and the defendants refused to continue 
 to instruct him at Lambeth. The plaintiff brought an action in 
 the County Court for breach of the covenants in the indenture. 
 
 Ribton, for the plaintiff, contended that the plaintiff was not 
 bound to obey the order to remove to Derby; first, because of 
 the distance of Derby from the plaintiff's home ; secondly, 
 because the Derby firm were not the successors of the old firm, 
 the business being divided and neither of the new firms carrying 
 on the whole business. 
 
 Verney, for the defendants, relied on the case of Eoyce v. 
 Charlton (ubi sup.}, in which Grove and Bowen, JJ. held that an 
 outdoor apprentice was bound to continue his service at Mans- 
 field, having been apprenticed at Leicester. 
 
 His HONOUR expressed some doubt as to that case, which had 
 not been then fully reported, but ultimately held that the case 
 before him was distinguishable from it on the ground that the 
 plaintiff had no notice of the dissolution of the old firm, and 
 that neither of the two new firms were the successors of the firm 
 which carried on business at Lambeth at the date of the inden- 
 ture, and therefore were not entitled to command the services of 
 the apprentice, and found for the plaintiff, with 50?. damages. 
 
 Judgment accordingly. 
 
 Eaton v. Western and Sows. From the above judgment the defendants 
 appealed to the Queen's Beneh Division, where MATHEW and CAVE, JJ.,
 
 110 REPORTS OF CASES. 
 
 EATON held that there was 110 foundation for the distinction taken by the learned 
 v. County Court judge, and that he ought to have followed the case of Boyce v. 
 
 WESTERN Charlton, and entered judgment for the defendants. The plaintiff appealed to 
 AND SONS. the Court of Appeal, where JESSEL, M.E., and Sir J. HANNEN and LINDLEY, 
 L.J., held that the distinction taken by the learned County Court judge 
 between the case before the court and Boyce v. Charlton was well-founded, 
 and reversed the decision of the Queen's Bench Division in the above case, 
 and also in the case of Boyce v. Charlton. The Master of the Rolls, in 
 giving judgment, said : " I must say I think the case of Boyce v. Charlton 
 was not rightly decided, and we decide this appeal with the understanding 
 that our decision overrules that case ;" and he concluded with the following 
 observations : " The original firm was dissolved and split into two firms, 
 one carrying on business at Derby and the other in London the manu- 
 facturing part of the business being carried on by the Derby firm, and the 
 repairing and agency part of the business by the London firm ; neither firm, 
 therefore, can be said to carry on the original business which was carried on 
 at Lambeth at the date of the apprenticeship deed;" and HANNEN, L.J., 
 observed " neither of the new firms represent the original firm, or is 
 entitled to reqtiire the services of the apprentice :" (Eaton v. Western, 
 9 Q. B. Div. 636, 641 ; and L. T. Rep., vol. lii. ; Q. B. Div. 41.) 
 
 SOUTHWARK COUNTY COURT. 
 
 (Before H. J. STONOR, Esq., Judge.) 
 
 Thursday, Jan. 12, 1882. 
 
 GODDARD AND ANOTHER V. O'BRIEN., (a) 
 
 Accord and satisfaction. 
 The acceptance of a cheque, like the acceptance of a promissory 
 
 note, for a smaller amount in full of a debt, is a good accord and 
 
 satisfaction of the same. 
 
 His HONOUR delivered judgment this day as follows : The 
 plaintiffs in this action, remitted by the High Court, sued the 
 defendant for a sum of 42 1. 2s. 9d., for goods sold and delivered. 
 The amount claimed was composed of the following items : first, 
 25Z. 7s. 9d., a balance left unpaid for goods sold and delivered ; 
 second, 5s., which proved to be, not for goods sold and delivered, 
 but for work done, viz., the second delivery of some goods in 
 consequence of the defendant not having been at the place of 
 delivery when the goods were first sent, and which goods have 
 long since been paid for ; and third, 18Z. 10,9. for goods agreed 
 by the plaintiffs to be made by them in London, and to be 
 delivered to the defendant at Manchester, carriage paid, and 
 (a) County Courts Chronicle, vol. viii., p. 264.
 
 REPORTS OF CASES. 
 
 Ill 
 
 which the plaintiffs made, but refused to send to Manchester 
 unless previously paid for. It is clear that the plaintiffs cannot 
 recover for the second and third items, but difficult questions of 
 fact and law arise on the first item. The circumstances are as 
 follows : On the 16th August, 1880, the defendant was indebted 
 to the plaintiffs in 125Z. Is. Sd. for slates for billiard tables sold 
 and delivered by them at Manchester, carriage paid, at various 
 times, subject to a discount of 5 per cent, for cash, to which he 
 was not entitled, and on the day above mentioned Mr. Newett, 
 one of the plaintiffs' firm, happened to be at Aldershot on duty as 
 a volunteer, when the defendant accosted him, and a conversa- 
 tion took place between them as to this debt, of which different 
 versions were given at the trial by the plaintiffs and the 
 defendant. The plaintiff deposed, that the defendant on that 
 occasion told him that he was sorry that he could not pay the 
 debt, and that unless the plaintiffs made an abatement he must 
 present his petition for liquidation, and that many of his creditors 
 had made abatements. The defendant, on the other hand, 
 deposed, that he stated to the plaintiff that he had great diffi- 
 culty in getting the accounts due to him, and that he was not 
 prepared to pay the account at that time unless an abatement 
 was made to him, but he denied that he said that he could not 
 pay the debt, or that if the plaintiff did not make an abatement 
 he must present a petition for liquidation. The defendant also 
 deposed, that at the interview in question he told the plaintiff 
 that he should require more goods shortly, and that he was 
 going to open a place of business in London, and that he com- 
 plained of the quality of the goods forwarded by the plaintiffs, 
 and also that he had done so previously verbally and in writing. 
 The plaintiff Newett, who was recalled to contradict the defen- 
 dant, denied that the defendant at any time made any such 
 statements or complaints to the plaintiffs. Ultimately at the 
 above interview the plaintiff agreed to accept the defendant's 
 cheque for 1001. in settlement of the account, allowing the 
 defendant the considerable abatement of 25Z. 7s. 9d., and gave 
 the following receipt for the same : " Received the sum of 100/. 
 by cheque, which is to be in settlement of account of 125Z. 7s. 9d. 
 on said cheque being honoured. August 16, 1880. Goddard 
 and Son." The cheque for 100Z. was duly honoured, and until 
 the 20th July, 1881, there appeared to have been no business 
 transactions between the plaintiffs and defendant. On that day 
 
 GODDARD 
 AXD 
 
 ANOTHER 
 V, 
 
 O'BRIEN.
 
 112 
 
 REPORTS OF CASES. 
 
 GrODDARD 
 
 AND 
 ANOTHER 
 
 V. 
 O'BRIEN. 
 
 the defendant wrote to the plaintiffs the following letter : " Globe 
 Billiard Works, 42, Lower King-street, Manchester, July 20, 
 1881. Memorandum from John O'Brien to Messrs. Goddard and 
 Co. Gentlemen, I having taken a place of business in the west 
 end of London, I wish to know if you can supply me with 
 Welsh slate billiard tops finished complete and perfect, and at 
 what price and on what conditions and terms. To prevent any 
 misunderstanding or mistake I would prefer to pay monthly or 
 weekly if you like. An answer by return of post will oblige. 
 If your reply is satisfactory, say how soon you can supply Hin, 
 tops. Yours truly, JOHN O'BRIEN." The plaintiffs replied as 
 follows: "Mr. John O'Brien. Manchester, July 22, 1881. In 
 reply to yours of 20th inst., we can supply l^in. tops at 81. 10s. 
 per set, with 5 per cent, for cash. Carriage by rail extra. We 
 are, Sir, yours truly, GODDARD and SON." Subsequently on the 
 30th July the plaintiffs sold and delivered at the Agricultural 
 Hall, London, two billiard tables of the value of 171., for which 
 the defendant paid 161. 3s., receiving the discount of 5 per cent., 
 and for which the receipt was produced. It was in respect of 
 these goods that the trifling sum of 5s. for carriage was claimed. 
 On the 19th July the defendant had written the following letter 
 to the plaintiffs : " Globe Billiard Works, 42, Lower King-street, 
 Manchester, 19th July, 1881. Memorandum from John O'Brien. 
 To Messrs. Goddard and Co., London. Gentlemen, You can 
 send to me, at the above address, two bagatelle tops, l^in. or 
 Ijin. thick, lift, long, 4ft. 7^in. wide, square at both ends, 
 pocket hole at each corner, one at each side, 4ft. Gin. from top 
 end to centre of pocket; also two 10ft. long, 4ft. wide, square 
 at both ends and pockets at the corners, side pockets, 3ft. lO^in. 
 from top to centre of side pockets ; these will do either in lin. or 
 Hin. thick, finished without cushion, bolt screws, but board for 
 tocking slips. Your attention will oblige. Yours truly, JOHN 
 O'BRIEN." Onthe 3rd August and the 7th September, the plaintiffs 
 had ready the goods ordered by the defendant in the last letter 
 to the value of 13L 10s., and which are the third item in the 
 particulars, but refused to send them to Manchester unless 
 previously paid for. No further transactions appear to have 
 taken place between the plaintiffs and the defendant until the 
 1st March, 1881, when the solicitors of the former wrote to the 
 defendant the following letter: " 1st March, 1881. Sir, On 
 the 19th August last Messrs. Goddard and Son accepted your
 
 REPORTS OF CASES. 
 
 113 
 
 cheque for 100L in settlement of their account against you for 
 125Z. 7s. 9d. This large reduction was made in consequence of 
 representations at that time made by you to Mr. Newitt, that you 
 were insolvent, and that unless your offer was accepted you 
 should be compelled to institute proceedings for the liquidation 
 of your affairs. Messrs. Goddard and Son have now received 
 information that the representation so made by you was false, 
 and we are therefore instructed to apply to you for the immediate 
 payment of the said balance of 25Z. 7s. 9d., and we beg to give 
 you notice that unless we receive the same, together with 6s. 8d., 
 our charge, by return of post, proceedings for the recovery 
 thereof will be commenced against you. Yours obediently, 
 WILLS and WATTS. Mr. John O'Brien." The demand made by 
 this letter not having been complied with the writ in this action 
 was taken out on the 14th October, 1881, and the action came 
 on for trial in this court on the 2nd December. In addition to 
 the defendant's evidence, a witness was called on his behalf to 
 prove that slates supplied by the plaintiff to the defendant were 
 of inferior quality and warped, but on cross-examination, the 
 witness could not say whether they were the goods in question 
 in this action or not ; and he also said that the precaution of 
 placing wood between the slates had not been taken at the 
 defendant's warehouse. The plaintiff, on the other hand, on his 
 re-examination, deposed that the goods were of superior quality, 
 as ordered, and that, if they warped, it must have been because 
 they were improperly stored without wood between them. I 
 will first give my findings on the questions of fact involved in 
 this case. Upon one question, viz., whether the defendant made 
 any representation to the plaintiff to the effect that he was 
 insolvent, and that unless the plaintiffs made an abatement he 
 must present a petition for liquidation, I find in the negative, 
 and therefore in favour of the defendant ; and, as to the 
 remaining questions, viz., whether the defendant mentioned to 
 the plaintiff at Aldershot that he intended shortly to give further 
 orders, and to open a place of business in London, and 'whether 
 the defendant made at Aldershot, or previously, any complaint 
 to the plaintiffs as to the quality of the goods in question, and 
 whether there were any substantial defects in such goods, I also 
 find in the negative, and consequently in favour of the plaintiff. 
 I also find that there is no evidence that the plaintiffs had at 
 the time of such interview any expectation of further orders 
 
 GrODDARD 
 
 AND 
 
 ANOTHEB 
 V. 
 
 O'BRIEN.
 
 114 REPORTS OF CASES. 
 
 GODDAKD from the defendant which influenced the plaintiff Newitt in 
 AND making the abatement and giving the receipt in question. There 
 
 ANOTHER . 111 i 
 
 v. remains, therefore, the simple question of law, whether such 
 O'BRIEN. rece ip^ O r rather the acceptance of the cheque of 100L in full 
 for the debt of 125Z. 7s. 9d., was a satisfaction of the same. The 
 plaintiffs contend that there was no consideration for the parol 
 agreement between the parties, evidenced as it is by the receipt, 
 and that it was consequently nudum padum, and void. The 
 defendant, on the other hand, contended, in the first place, that 
 the plaintiffs could not avoid such agreement on the plea of 
 nudum padum, inasmuch as the agreement in question was void 
 for fraud under the Bankruptcy Act, 1869, and that consequently 
 the plaintiffs could not bring this action ; but this appears to me 
 to be rather an argument in the plaintiffs' favour, inasmuch as 
 they do not sue under or in consequence of the agreement, but in 
 contravention of it. The remaining contention on the part of 
 the defendant, viz., that the prospect of future business and the 
 waiver of complaints on the part of the defendant constituted a 
 good consideration for the abatement, it is unnecessary for me 
 to consider, on account of my findings against the defendant as 
 to the facts involved in it. The only argument which it appears 
 to me can be raised in favour of the defendant, so as to deprive 
 the plaintiff at law of the benefit of his plea of nudum padum, is, 
 that the payment of the 100L in question was not made in money, 
 but by a cheque, which is a negotiable instrument, and so far 
 resembling a promissory note, the acceptance of which has been 
 held to be a satisfaction of a larger debt in the case of Sibree v. 
 Tripp (15 M. & W. 23, 36). It is true that a cheque differs 
 from a promissory note like that in Sibree v. Ohipp in being 
 payable immediately instead of being payable at three months, 
 but this does not appear to me to be material in the present case. 
 I therefore, although with some doubt, find for the defendant 
 also as to the first item upon the ground that the acceptance of a 
 cheque, like the acceptance of a promissory note for a lesser 
 amount, or of a chattel of lesser value, in full for a larger debt, 
 is a satisfaction of the same, and I shall be very glad if the 
 opinion of the Appeal Court is taken on the point, as the view 
 I have taken, if right, goes some way to remedy the anomaly, 
 not to say absurdity, in English law that a receipt for a lesser 
 amount than a debt, although given, and expressed to be given, 
 in full satisfaction of the debt, is no discharge for the balance
 
 REPORTS OF CASES. 
 
 115 
 
 V. 
 O'BEIEN. 
 
 unless there is affixed to it the magic seal which turns it into a GODDARD 
 deed and which may be a drop of unstamped wax, a wafer, or a 
 
 A.N OTHER 
 
 bit of paper. I am also inclined to think that the present case 
 may be brought within the doctrine laid down in Yeomans v. 
 Williams (L. Rep. 1 Eq. 184) and String v. Bird (L. Rep. 18 Eq. 
 315), and also in Ongley v. Ongley (4 Ch. Div. 73), viz., that a 
 creditor who has declared his intention to release a debtor under 
 certain circumstances is bound to make good such release. 
 
 Verdict for the defendant with costs. 
 
 Goddard and another v. O'Brien. The plaintiffs appealed from the above 
 decision, but the Divisional Court upheld it with costs : (Goddard v. O'Brien, 
 L. Rep. 9 Q. B. Div. 37 ; and see report in the Times, 27th March, 1882.) 
 GEOVE, J., in his judgment, says : " I am of opinion that the decision of 
 the learned County Court judge was right. The difficulty arose from the 
 rule laid down in Cumber v. Wane (Str. 426). But that doctrine has been 
 much qualified, and I am not sure that it has not been overruled. In Sibree 
 v. Tripp (15 M. & W. 23), the judgments of Parke and Alderson, BB., 
 are strong expressions of a contrary opinion. That case, in which it was held 
 that the acceptance of a negotiable security for a smaller amount may be in 
 law the satisfaction of a debt of a greater amount, is a direct authority that 
 the giving of a negotiable security is not within the rule of Cumber v. Wane 
 (Str. 426). That was a just and proper decision, and must govern this case." 
 HUDDLESTON, B., thus expressed himself : " I am of the same opinion, and 
 upon the ground upon which the County Court judge decided this case, viz., 
 that there was a good accord and satisfaction by reason of the cheque being 
 a negotiable security." 
 
 SOUTHWARK COUNTY COURT. 
 
 Thursday, June 15, 1882. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 MONTAGU v. SINCLAIR, (a) 
 
 Assignment of debt to a solicitor on account of fees and costs, to be 
 paid or incurred by him not an absolute assignment within the 
 2bth section o/36 fy 37 Viet. c. 66 (Judicature Act, 1873). 
 Wildy Wright for plaintiff. 
 Grain for defendant. 
 
 An assignment dated the 2nd August, 1881, between Lewis of 
 the one part and plaintiff of the other part, whereby Lewis 
 assigned to the plaintiff a debt due to Lewis from the defendant 
 
 (a) County Courts Chronicle, vol. viii., p. 354. 
 i 2
 
 116 REPORTS OF CASES. 
 
 MONTAGU to apply the same on account of counsel's fees and costs to be 
 
 e v ' paid or incurred by the plaintiff, a solicitor, on account of Lewis in 
 
 an action of Lewis at the suit of Hands, was put in and admitted, 
 
 also a notice of such assignment by plaintiff to defendant of same 
 
 date. The plaintiff now sued the defendant for the debt. 
 
 George Pitt, articled clerk to the plaintiff, was examined and 
 deposed that, in an action of Lewis at the suit of Hands, plaintiff 
 paid the following fees after the 2nd August, 1881, viz. : Mr. 
 Lawrence, Q.C., eight guineas and two guineas for consultation, 
 and Mr. Harris, junior counsel, six guineas and one guinea 
 for consultation, that before the 2nd August, 1881, there were 
 costs due to the plaintiff in the above action exceeding 21 1. 7s. 3d., 
 but no bills of costs had been delivered in respect of the same ; 
 and that after the 2nd August, 1881, further costs became due to 
 the plaintiff in the above action beyond the amount of 21 1. 7s. 3d., 
 but no bill of costs had been delivered in respect of the same. 
 
 His HONOUR held that the assignment was not an absolute, but 
 a conditional assignment, and " a charge only," and therefore 
 did not come within the 6th sub-section of the 25th section of 
 36 & 37 Viet. c. 66 (Judicature Act, 1873), and nonsuited the 
 plaintiff. 
 
 Judgment accordingly. 
 
 SOUTHWAKK COUNTY COUET. 
 
 Monday, October 9, 1882. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 PARK v. DRURY. (a) 
 
 A tenant cannot, in the absence of fraud or extortion on the part of 
 the landlord, recover the property tax paid by him and not 
 claimed and deducted out of the first subsequent rent. 
 His HONOUR this day delivered judgment as follows : The 
 plaintiff, William Park, was the tenant of William Drury, and in 
 the year 1877 the defendant, Henry Drury, as the agent of 
 William Drury, applied for a half year's rent due to the latter, 
 and the plaintiff claimed a deduction therefrom of 4s. 8d. for 
 property tax which had been paid by him. The defendant 
 refused to allow such deduction, on the ground that the rent 
 
 (a) County Courts Chronicle, vol. viii., p. 430.
 
 REPORTS OF CASES. 117 
 
 had been reserved by the lease " free of all deductions ; " and, PARK 
 therefore, the plaintiff, apparently acquiescing in this view -^ v ' 
 (which was erroneous), paid the whole rent without any distress 
 or threat of distress by the defendant. In subsequent years up 
 to April last year the plaintiff paid the rent in full to the 
 defendant without claiming any deduction, although he had 
 paid the gradually increasing property tax in each year, and in 
 the present year 16s. 6cL, and the aggregate sum so paid by him 
 was, as he alleges, 31. 7s. 2d. Upon these facts I am clearly 
 of opinion that the plaintiff cannot recover from the defendant, 
 or his principal, the landlord, the amount of the several sums 
 paid by him since 1877, for none of which he ever claimed a 
 deduction on payment of his rent, nor (as I think with little 
 doubt) the amount of the sum of 4s. 8d. paid by him in 1877 for 
 which he made a claim, inasmuch as he waived such claim 
 through a mistake of law and not of fact, and without fraud or 
 pressure on the part of the defendant. The law on the subject 
 seems to be clear, viz., that when a tenant fails to deduct the 
 property tax from the first rent which becomes due after its 
 payment according to the Act, he cannot recover it from the 
 landlord, except in cases of fraud or extortion : (see the cases of 
 Denby v. Moore, 1 B. & A. 614; and Gumming v. Bedborough, 15 
 M. & W. 438.) There will therefore be a verdict for the 
 defendant. 
 
 Judgment accordingly. 
 
 Park v. Drury. See note to TOMKINS v. HEWITT, ante, p. 29. 
 
 WANDSWORTH COUNTY COURT. 
 
 Tuesday, Nov. 14, 1882. 
 
 (Before H. J. STONOE, Esq., Judge.) 
 
 PEICE v. BOYCE AND BAYLISS, Churchwardens, (a) 
 
 Action by Vicar against Churchwardens Counter-claim. 
 
 Mclntyre, Q.C. and Ouiry, for plaintiff. 
 
 Digby Seymour, Q.C., and Gould, for defendants. 
 His HONOUR this day delivered judgment as follows : At the 
 trial of this action several difficult questions of law and fact were 
 
 (a) County Courts Chronicle, vol. viii., p. 447.
 
 118 EEPORTS OF CASES. 
 
 PBICE discussed, and others have presented themselves to my mind on 
 v - perusal of the trust deed of 5th November, 1829, which was put 
 BAYLISS. in evidence. That deed regulated the management of the chapel 
 of St. James, Clapham, generally, and particularly as to the 
 application of pew rents, until the conversion of the chapel into 
 a district parish church some years since, and it was assumed by 
 counsel on both sides that its provisions still regulate the 
 management of the church, at all events as far as the application 
 of the pew rents is concerned. The circumstances of the present 
 case are as follows : The plaintiff was vicar of St. James's 
 Church, Clapham, during the year 1881, and several previous 
 years, and resigned that benefice early in 1882. The defendants 
 are the churchwardens of St. James for the year 1882, and the 
 plaintiff now sues them for money had and received to his use, and 
 on an account stated in respect of the sum of 81. 10s. 8^., moneys 
 paid to them for his use in respect of certain specified pew rents 
 which became due to their predecessors during the year 1881, 
 but being in arrear were paid to the defendants in the present 
 year, as was clearly admitted by the defendants in two letters of 
 the 25th and 31st July, 1882, addressed by them to the plaintiff, 
 and in the latter of which a cheque for that amount was inclosed, 
 but which cheque was never presented by the plaintiff. The 
 defendants, on the other hand have filed a counter-claim for a 
 balance or sum of 446 Z., which they allege is due to them from 
 the plaintiff (after crediting him for the above sum of 81. 10s. 8d.) 
 on account of moneys received by their predecessors in respect 
 of certain additional or quasi pew rents during several years for 
 a special purpose, viz., providing church fittings, or repaying 
 advances for the same, and which moneys they allege were paid 
 by their predecessors to the plaintiff in error. At the trial the 
 defendants also contended that, notwithstanding the admissions 
 contained in their letter, and the credit given by their counter- claim, 
 they were at liberty to show that such admissions were made and 
 credit given in error, and in the absence of any pleadings I felt 
 bound to assent to such contention, and the trial took the 
 following course : The plaintiff established a primd facie case by 
 the defendants' letters of 25th and 31st July, 1882, and their 
 counter-claim, and the defendants thereupon opened their case, 
 both as to the counter-claim and defence. As to the counter- 
 claim, I had no hesitation in disallowing it. The additional or 
 quasi pew rents in question appear to have been voluntary
 
 REPORTS OF CASES. 119 
 
 payments not sanctioned as pew rents by the bishop, whose PRICE 
 sanction is required by the trust deed, and were entrusted to the r> OYC !!' AND 
 churchwardens for the time being, either in their official or BATLISS. 
 private capacities, for a charitable purpose (which the provision 
 of church fittings undoubtedly is), and the churchwardens for 
 the time being, who actually received these funds as trustees, and 
 the present plaintiff as a wrongful recipient (if such he were), 
 may be made liable to the Court of Chancery for the misapplica- 
 tion of these moneys, but the defendants, as the present church- 
 wardens, can, I think, have no claim in respect of them, and 
 their counter-claim must therefore be disallowed. The defence 
 to this action, apart from the counter-claim, was multiform, and 
 certainly, after the admissions contained in the letters of the 
 25th and 31st July, 1882, was a great surprise on the plaintiff. 
 It was first contended by the defendants that the sum of 
 8Z. 10s. 8d. claimed was not due to the plaintiff, because he had 
 resigned in the middle of the year ending July, 1882, in respect of 
 which the pew rents had become due, and had no right to have the 
 same apportioned. It, however, turned out that the pew rents were 
 payable in advance, and the plaintiff was therefore entitled to the 
 same, and to all other pew rents payable in advance during 1881, 
 subject only to a prior charge of 175Z. under the trust deed which I 
 shall presently notice ; there was therefore no question of appor- 
 tionment, and this ground of defence was wholly untenable. The 
 next ground of defence was, that sums of money were actually 
 due from the defendants and their predecessors for repairs of 
 the church, and that such repairs were the first charge on all the 
 pew rents, and it became necessary to examine the provisions of 
 the trust deed as to repairs. On so doing it appeared that a 
 special provision was contained in the deed limiting the amount 
 to be set apart for repairs and other expenses in each year to 
 125L, or in case such annual sum should be insufficient the annual 
 sum of 1 75Z. " to be applied by them as a fund for defraying the 
 current charges of repairing, cleansing, and beautifying of the 
 said chapel and premises, and of insuring the same from loss or 
 damage by fire, and of paying the salaries, wages, and allow- 
 ances of the appointed officers and servants of the said chapel, 
 and all other outgoings and expenses ;" and the defendant, Mr. 
 Wyke Bayliss, gave evidence that no less than 253Z. was paid 
 and applied by the churchwardens for repairs and expenses in 
 the year-1881, but that this sum was raised by voluntary con-
 
 120 REPORTS OF CASES. 
 
 PRICE tributions of the congregation in relief (if I may so say) of the 
 v ; 125Z. or 175Z. chargeable on the pew rents, and subject to which 
 BAYLISS. they belonged to the vicar, and I think that, under these cir- 
 cumstances, this ground of defence was also untenable. Lastly, 
 it was contended on the part of the defendants, that in con- 
 sequence of the churchwardens not having reserved 350 free 
 seats, as required by the trust deed, the pew rents and the sur- 
 plus payable to the vicar in 1881 were improperly augmented to 
 a considerable amount, and that the plaintiff" had therefore 
 already received more than was due to him. Upon this point the 
 defendant, Mr. Wyke Bayliss, gave the following evidence : He 
 said that he had only been able on the day before the trial to see 
 the trust deed, and that he had thereby learnt for the first time 
 the deficiency in the free seats ; that he had then proceeded to 
 the church to count their number, and that it was as near as 
 could be 166, leaving a deficiency of 184, and that there were 
 besides 112 flaps or occasional seats not rented. Since the trial, 
 however, he has, with laudable anxiety, corrected his evidence, 
 and it now appears that the total number of free seats is 218, and 
 the total number of flaps or occasional seats is 136, which, if they 
 may be classed together, would make 354. At the hearing I had 
 some doubt whether, assuming that there was a substantial defi- 
 ciency in free seats in the year 1881, this defence ought not to 
 prevail. But on consideration I think that, although such 
 deficiency would be ground for an application to the Court of 
 Chancery, or possibly to the Ecclesiastical Court, it would not 
 form any ground of defence to an action by the vicar against the 
 churchwardens for any specified pew rents actually received by 
 them as in the present case, and to which he was prima facie 
 entitled subject to the charge of 125Z. or 175Z., already referred 
 to, and I therefore think that this ground of defence also failed. 
 There is, however, some difficulty in my mind as to a singular 
 clause in the trust deed directing the application of the annual 
 sum of 125Z., or the increased annual sum of 175Z., to the repairs 
 and expenses of the church, and which directs the appropriation 
 of 25L, part of it, " at the least for the sole purpose of defraying 
 the current expenses of repairing, cleansing, and beautifying the 
 said chapel," as contradistinguished from other expenses, and 
 provides " that in case it shall happen in any year that either the 
 annual sum of 125L, or such increased sum of 175/., or the said 
 annual sum of 25Z., shall exceed the respective expenses in
 
 REPORTS OF CASES. 121 
 
 the current year," the surplus shall be invested, and the invest- PRICE 
 
 nients applied ' ' for the sole purpose of repairing, cleansing, and Boyc g' AND 
 
 beautifying the said chapel ; " and further directs that all such BAYLISS. 
 
 sums are to be paid by the chapel wardens to, and applied and 
 
 invested by, the trustees of the deed. Now I assume that such 
 
 trustees were superseded by the churchwardens on the conversion 
 
 of the chapel into a district parish church, and as no evidence 
 
 was adduced that the provisions to which I have just referred 
 
 were not duly complied with in the application of the sums 
 
 in question, or rather of the sum of 253Z., which took their place 
 
 in 1881, 1 also assume that, in respect of the last sum, due regard 
 
 was paid by the churchwardens to these provisions, and upon 
 
 these assumptions, and especially the latter, I think that no 
 
 defence to the plaintiff's claim arises upon such provisions in the 
 
 present case. I therefore find for the plaintiff for the amount 
 
 claimed by him, and there only remains the question of costs, 
 
 and before I give my decision as to these I wish to make 
 
 one observation. It was alleged by the defendants' counsel that 
 
 the plaintiff had brought this action in order that, if he were 
 
 successful, it might go forth that all questions between him and 
 
 the churchwardens and parishioners were discussed and decided 
 
 in this action in his favour; and on the plaintiff's part it was 
 
 asserted that the counter-claim was put in not as a bond fide 
 
 defence, but with a view of prejudicing and disparaging the 
 
 plaintiff ; and I think it right to state that my decision to-day is 
 
 nothing more than that the plaintiff is legally entitled to the 
 
 trifling arrears of pew rents which he claims, and which the 
 
 defendants in the first instance properly admitted ; that the 
 
 question as to the additional or quasi pew rents is one which the 
 
 defendants, as the present churchwardens, are not entitled 
 
 to raise in this action, and that their other defences have failed 
 
 for the reasons which I have given, but I give no opinion on the 
 
 merits as to the question with regard to the additional or quasi 
 
 pew rents, nor of course as to any other disputed matters. With 
 
 regard to the costs, I shall give the plaintiff no costs on his 
 
 claim, because in my opinion he most injudiciously refused to 
 
 accept the cheque sent to him, which was a substantial if not a 
 
 legal tender, and was clogged with no conditions whatever, 
 
 although the defendants thought it right to add that it was made 
 
 without prejudice ; but in regard to the counter-claim, as it has 
 
 raised questions which the defendants had no right to raise in
 
 122 REPORTS OF CASES. 
 
 PRICE this action, and which may be the subject of future litigation, I 
 _ v - think that the plaintiff is entitled to his costs. There will, there- 
 BAYLISS. fore, be a verdict on the claim for the plaintiff for 81. 10s. 8d. 
 without costs, and a verdict on the counter-claim for the defen- 
 dant by counter-claim, that is to say, the plaintiff, with costs. 
 
 Judgment accordingly. 
 
 Prycev. Boyce and Bayliss, Churchwardens. It is to be noticed that, since 
 a limited jurisdiction over charitable trusts was given to the County Courts 
 by the Charitable Trusts Acts of 1853 and 1860, viz., where the gross yearly 
 income of the charity does not exceed SOL, the County Courts Act, 1865, 
 has been passed. The last-named Act confers upon County Courts "all 
 the power and authority of the High Court of Chancery (now the Chancery 
 Division) in all suits for the execution of trusts in which the trust estate or 
 fund shall not exceed in amount or value the sum of 500Z." (sect. 1, sub- 
 sect. (2). Now a question arises as to whether charitable trusts are not 
 within this enactment. If so, it would enable the County Courts to entertain 
 actions relating to such trusts, where the trust estate does not exceed in 
 amount 5001., and thus would materially increase their jurisdiction over 
 charitable trusts, which at present extends only, as just stated, over 
 charities not possessing a larger gross yearly income than 501. (23 & 24 Viet, 
 c. 136, s. 11), and moreover does not enable them "to try or determine the 
 title at law or in equity to any real or personal property, or any term or 
 interest therein, as between any charity or the trustee thereof, and any person 
 holding or claiming such real or personal property, term, or interest adversely 
 to such charity, or to try or determine any question as to the existence or 
 extent of any charge or trust " (16 & 17 Yict. c. 137, s. 41). The decision of 
 the late Yice-Chancellor STUAKT, in Clayton v. Eenton (L. Rep. 4 Eq. 
 159, 161), would seein rather to favour the suggested construction of the 
 enactment in question. For, in his judgment, he thus expresses himself as 
 to its interpretation : " The language of the statute is general, and by the 
 second clause of the first section gives jurisdiction in all cases of trusts, but 
 however peculiar the jurisdiction exercised by this court in constructive 
 trusts, such a trust is as much a trust as any other. On what principle can 
 this court hold that, when the statute declares that the County Courts shall 
 have jurisdiction in all cases of trust, they have no jurisdiction in one 
 description of trusts." On the other hand, it must not be forgotten that, in 
 construing statutes which confer a new jurisdiction, it is a rule of interpre- 
 tation that an inferior court shall not be construed into a jurisdiction : 
 (Pierce v. Hopper, 1 Str. p. 260 ; Maxwell on the Interpretation of Statutes, 
 p. 110.) Still the court will not overrule or control the plain meaning 
 of an Act of Parliament. Thus in the very recent case of The Alina 
 (5 Ex. Div. 227), where the Court of Appeal had to consider the conflicting 
 decisions which had been given as to whether the second section of the 
 County Courts Admiralty Jurisdiction Amendment Act, 1869, confers upon 
 County Courts a jurisdiction in some respects different in kind from that 
 possessed by the Admiralty Court, they held that the general words made use 
 of by the Legislature did confer such a jurisdiction upon them. 
 Assuming that the County Courts Act, 1865, does apply to charitable
 
 REPORTS OF CASES. 123 
 
 trusts, the further question then arises as to whether the practice and pro- PRICE 
 ceedings in actions relating to such trusts would in all cases be regulated by v. 
 
 the Charitable Trusts Acts and the Orders of 1854. The silence of the BOYCB AND 
 Legislature on this subject renders it hazardous to express any opinion upon -PAYLISS. 
 this question, and would seem rather to indicate that it was not their 
 intention, by the County Courts Act, 1865, to increase the limit of the 
 jurisdiction of the County Courts over charitable trusts. 
 
 SOUTHWARK COUNTY COURT. 
 
 Thursday, Dec. 21, 1882. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 MAKCUSSEN v. LAYMAN. (a) 
 Sale by auctioneer without the authority of the assignee, of goods 
 
 assigned by a bill of sale, and delivered to auctioneer by the 
 
 grantor of such bill. 
 Sims for plaintiff. 
 
 Attenborough for defendant. 
 
 His HONOUR. The plaintiff in this action claimed 12L for the 
 wrongful conversion, by the defendants, of a picture, " The Last 
 Supper/' assigned by a pawnbroker of the name of Burgess to 
 the plaintiff by a bill of sale, dated 30th June, 1881. Burgess, 
 in April, 1882, delivered the picture to the defendants, who are 
 auctioneers generally, and specially for the sale of unredeemed 
 pledges, with a memorandum giving a date and number of the 
 same as a pledge in the manner required by the Pawnbrokers 
 Act, 1872, and the defendants accordingly sold it as an unre- 
 deemed pledge belonging to Burgess, by auction, for 10Z. On 
 reference, however, to Burgess's books, which were regularly 
 kept, no such pledge appeared, and the picture at the date of the 
 assignment was not kept with any pledges, but was hanging on 
 the wall of the parlour in Burgess's private house, adjoining to 
 and opening into his shop. Burgess was not forthcoming at the 
 trial. It was contended on the part of the defendants that they 
 were not liable : first, because the present was a sale of trade 
 goods within the case of the National Mercantile Company v. 
 Hampson (5 Q. B. Div. 177) ; secondly, because the defendants 
 were acting only as agents who had disclosed principal ; and 
 thirdly, because they are protected by the 55th section of the 
 Pawnbrokers Act, 1872, inasmuch as they had sold the goods in 
 
 (a) County Courts Chronicle, vol. ix., p. 18.
 
 124 REPORTS OF CASES. 
 
 MAECUSSEN question according to the regulations for the sale of unredeemed 
 LAYMAN P^g 68 contained in the schedule to the Act. The first question 
 is one of fact, and I am of opinion that there is no sufficient 
 evidence that the picture was an unredeemed pledge, and con- 
 sequently I must hold that it was not " trade goods. " On the 
 second point, I think that there is no authority for restricting 
 the liability of auctioneers on the ground which has been sug- 
 gested (although some doubt has been expressed as to the liability 
 of brokers upon the same ground, see Hollins v. Fowler, 7 H. of L. 
 757, and particularly the judgment of Lord O'Hagan in that 
 case at p. 798), and, in the absence of any such authority, I am 
 not prepared to say that it is so restricted. The rule appears 
 to be that every person, whether a principal, an agent, or even a 
 servant, who deals with the goods of another without his autho- 
 rity, is guilty of wrongful conversion wherever he effects or 
 intends to effect an alteration in the property of the goods in 
 question ; and the only exception at common law appears to be 
 that of a purchaser in market overt, and the only exceptions by 
 statute factors, sheriffs, and assignees or trustees in bankruptcy. 
 It is contended that brokers do not fall within the rule, because 
 it is said that, like warehousemen, carriers, and packers, they do 
 effect or attempt to effect an alteration in the property of goods ; 
 but this appears to be very doubtful, and certainly cannot be 
 predicated of auctioneers (see the case of Hollins v. Fowler, 41 
 L. J. 277, Q.B. ; 44 16. 169, Q. B. ; L. Eep. 7 H. of L. 757 ; and 
 the numerous authorities there cited). . On the third point, I 
 think that sect. 55 of the Act in question does not meet the 
 present case even if this were the sale of an unredeemed pledge ; 
 but, as I have found it not to be such a pledge, I think that the 
 point becomes immaterial ; I therefore find for the plaintiff for 
 the sum of 10Z., the admitted value of the picture, with costs of 
 counsel and solicitor. 
 
 Judgment accordingly. 
 
 Marcussen v. Layman. The above reported decision is of importance, as 
 it indicates the circumstances under which auctioneers may be held liable for 
 conversion of goods delivered to them for sale in the ordinary course of their 
 business. The ratio decidendi is clearly expressed in the judgment to be 
 that the defendants had been guilty of a conversion, because what they did 
 effected an alteration in the property of the goods without the authority of 
 the plaintiff, to whom they had been assigned by bill of sale. This decision 
 harmonises with the doctrines laid down in Hollins v. Fowler (L. Eep. 7
 
 REPORTS OF CASES. 125 
 
 H. of L. 757), where the legal principles governing cases of wrongful con- MARCUSSEN 
 version were fully discussed and considered by the judges and the House of v. 
 
 Lords. Lord O'Hagau, in his lucid judgment in that case, lays down that LAYMAN. 
 the action of trover " rests on a right of property, wrongfully interfered with 
 at the peril of the person interfering with it, and whether the interference be 
 for his own use or that of anybody else." He, however, suggest a distinction, 
 in regard to liability for conversion, between acts committed by a person who 
 is in no sense principal, but who, like a carrier or a packer, acts as a medium 
 between two principals. And Baron Cleasby, who was one of the judges 
 consulted by the House of Lords in Hollins v. Fowler, in considering the 
 liability of a broker for conversion, expresses the opinion, or rather suggests 
 that it might depend " upon the extent to which the broker in each case 
 could be regarded as having an independent possession of the goods, and 
 delivering them for the purpose of passing the property." He, however, is 
 very careful to point out that an auctioneer is in a very different position 
 from a mere broker, and adds : " For example, an auctioneer delivers 
 possession for the purpose of passing the property, and it would not be dis- 
 puted that he would be liable, as upon a conversion, to the real owner " 
 (L. Rep. 7 H. of L. 787). The learned County Court judge's decision in the 
 above case is in conformity with this opinion. 
 
 SOUTHWAEK COUNTY COUKT. 
 
 Monday, February 5, 1883. 
 
 (Before H. J. STONOR, Esq., Judge.) 
 
 THE SCHOOL BOARD FOR LONDON v. HALL, (a) 
 
 Elementary Education Act, 1870 No implied contract between 
 
 school board and parent to pay fees Inequality of fees in same 
 
 district authorized. 
 THE facts appear in the following judgment : 
 
 His HONOUR. The defendant has three children who attend 
 at the Monnow-road Board School within the district of this 
 court. The fees of the two elder children under a former scale 
 are by arrangement paid by the defendant quarterly in advance, 
 and there is no difficulty about them ; the third child, who 
 appears to have been sent to school only recently, was provided 
 by the defendant with, and paid to the master of the school, the 
 full fee of 6d. a week according to the scale now in force at the 
 school for three weeks, twopence a week for four subsequent 
 weeks (for a reason which will presently appear), and nothing 
 
 (a) County Courtt Chronicle, vol. ix., p. 55.
 
 126 REPORTS OF CASES. 
 
 THE during the remainder of seventeen weeks. At the commence- 
 SCHOOL men t of this action 6s. 4d. would have been due as arrears of 
 
 BOABD FOB . , TCI T 
 
 LONDON fees at the rate of 6d. a week for such seventeen weeks, assum- 
 v - ing 6d. a week to have been the proper rate), and the plaintiffs 
 
 ' now sue the defendant for that sum as such arrears. The defendant 
 
 contends, in the first place, that he is not liable to the school 
 board under any implied contract for the payment of the fees 
 in question, although he admits that he is bound to provide his 
 child with the proper fee in the same manner he is bound to 
 provide his child with proper clothing, to enable it to attend the 
 school, and that he is liable to a penalty for neglecting to do so 
 under the Elementary Education Act, 1870, according to the case 
 of Sanders v. Richardson (7 Q. B. Div. 388). The defendant 
 contends, in the second place that even if he be liable to the 
 school board in respect of such fees he ought to pay the same at 
 the rate of 2d. a week only, because that is the rate in force at a 
 neighbouring school in a poorer locality under the same school 
 board ; in other words, that a school board has no power to fix 
 different scales of fees for different schools in the same district, and 
 that, if a school board does fix different scales, such scales, or at 
 all events the higher one, although sanctioned by the Council of 
 Education under the Education Act, 1870, are ultra vires and void. 
 The first objection on the part of the defendant has already been 
 the subject of numerous cases in County Courts, in which the 
 judges have come to diverse conclusions, and it seems very strange 
 that it has not long since been brought before the High Court and 
 Appellate Court, or been dealt with by an amendment Act in 
 Parliament. One of the earliest cases came in June, 1879, before 
 Mr. Pitt Taylor, the learned judge of the Lambeth County 
 Court, who delivered an elaborate and exhaustive judgment upon 
 the point now in question. A copy of that judgment has been 
 handed to me, and no doubt will be available and of great 
 assistance upon any appeal which may be brought from my 
 present decision. For my part I can add nothing to it, and shall 
 therefore only express my concurrence with it, and confine 
 myself to stating clearly the grounds of my present decision 
 upon this point, in favour of the defendant, viz., that in my 
 opinion there is no implied contract between the plaintiffs and 
 the defendant under the Elementary Education Act, 1870, or at 
 common law, upon which the plaintiffs can ground their present 
 action. The second objection taken by the defendant remains to
 
 REPORTS OF CASES. 127 
 
 be considered, and is, I believe, perfectly novel. It is of THE 
 importance in the present action only in the event of a Court of BQABDFO 
 Appeal taking a different view of the first point to that to which LONDON 
 the judge of the Lambeth County Court and other judges of TT^' 
 County Courts and I have arrived ; but I think it right to state 
 the conclusion to which I have arrived upon it, and the grounds 
 of such conclusion. The 17th section of the Elementary 
 Education Act, 1870, enacts : " That every child attending a 
 school shall pay such weekly fee as may be prescribed by the 
 school board of the district." Primd facie this clause would 
 certainly authorise the fixing of different scales of fees for 
 different schools by the same school board, and there is 
 nothing in the Act that seems to me to restrict or qualify 
 the terms employed in this clause. On the contrary the 
 26th section of the Act empowering the school board of the district 
 to establish free schools on the ground of the poverty of the 
 inhabitants of any place in their district I think clearly shows that 
 the Act does not contemplate a uniform rate of fees, and that, as a 
 free school might be established as well as a fee-paying school in 
 the same district, a school with a lower rate of fees might, a 
 fortiori, be established if the school board so thought fit. On 
 the part of the defendant an argument was founded on the 
 parents' absolute power of selection of schools recognised by the 
 llth section of the Elementary Education Act, 1876, and it was 
 argued that different scales of fees might fetter the parents in 
 the exercise of such power ; but it appears to me that the 
 preceding section of the same Act, and other sections of the 
 Elementary Education Act, 1870, which give power to the school 
 board to remit fees, and to boards of guardians to pay them in 
 case of poverty, afford a complete answer to the argument. If 
 the parent on his absolute discretion selects the more expensive 
 school, and is unable to pay the fees, it will be equally the duty 
 of the school board or the guardians to assist him in providing 
 the child with them. I, therefore, on this point, decide in 
 favour of the plaintiffs, on the ground that the terms employed 
 in the 1 7th section are wide enough to authorise different scales 
 of fees at different schools under the same school board, and that 
 there is no clause in the Act which restricts or qualifies the 
 17th section in this respect. As, however, I have decided in 
 favour of the defendant upon the first and main point, judgment 
 will be for the defendant ; but I shall give the plaintiffs leave to
 
 128 REPORTS OF CASES. 
 
 THE appeal upon certain terms by case to be settled by me, and in 
 
 SCHOOL w hich the grounds of my personal decision will appear. I take 
 
 LONDON this opportunity of observing how desirable it is that the precise 
 
 v - grounds of the decisions of County Court judges should be 
 
 ' stated, not only in cases on appeal, but also in all reports of such 
 
 appeals where of late they have been often omitted ; it would 
 add very little to the reports in any case, and in many it would 
 actually shorten them by rendering subsequent portions of the 
 report unnecessary. The names of the County Court judges 
 ought to be contained in the reports of such cases, in the same 
 manner as the names of the judges of the different divisions of 
 the High Court on appeals from these courts. Formerly such 
 was the general if not invariable practice : see the case of Le 
 Blanche v. Great Western Railway Company (1 C. P. Div. 286), 
 where indeed the judgment of the late Mr. Lake Russell is given 
 in extenso, and many other cases, and it is still the practice of the 
 Law Journal and Law Times. There will be judgment for the 
 defendant with costs on the higher scale above 20/., on the 
 ground that this is a case of general and public interest (County 
 Court Act, 1882). The plaintiffs will have liberty to appeal by 
 case to be delivered within one month, and on the terms that 
 the defendant be at liberty to pay into court alternatively in one 
 week such a sum as will be equal to 2d. a week during the unpaid 
 portion of the seventeen weeks, and such payment to be admitted 
 to have been paid in due time before the hearing ; and the 
 defendant in no case to pay the costs of the appeal in the High 
 Court. 
 
 London School Board v. Hall. The above reported judgment was the 
 subject of considerable notice in the daily and legal Press. The Law 
 Times of 10th Feb. 1883, thus notices the concluding observations of the 
 learned judge : " In delivering judgment in the above case, Mr. STONOB 
 made some useful observations as to the manner in which judgments should 
 be delivered by County Court judges, and how they should be reported. He 
 considers that the precise grounds of their decisions should always be stated 
 not only in appeals, but also in all reports of such appeals. The desirability 
 of this suggestion being carried into effect seems to us to be unquestionable. 
 It would add very little to the reports in any case, while, in many cases, it 
 would probably actually shorten them by rendering subsequent portions of the 
 report unnecessary. In the same way Mr. STONOR thinks that the names of 
 County Court judges should appear in all reported appeals in the same way 
 as the names of judges of the High Court appealed against. Formerly this 
 was almost always done. Thus, in the case of Le Blanche v. The Great
 
 REPORTS OF CASES. 129 
 
 Western Railway Company (1 C. P. Div. 286), the judgment of the late THE SCHOOL 
 Mr. LAKE RUSSELL is given in extenso. In all reports of County Coiirt BOARD FOB 
 appeals appearing in our Reports this course has been invariably adopted." LONDON 
 
 A similar notice appeared in the Law Journal of the same date. TT t; ' 
 
 MALL. 
 
 WANDSWORTH COUNTY COURT. 
 
 Tuesday, April 16, 1877. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 EVANS AND SALMON v. SMITH, (a) 
 
 A post-office order is a negotiable instrument. 
 
 An innocent transferee for value who has obtained payment of a 
 
 stolen post-office order is not liable to refund to the payee. 
 Maloney for plaintiffs. ^^ 
 
 Haynes for defendants. 
 
 His HONOUR. In this case the plaintiffs, who are solicitors and 
 partners, sue the defendant for the sum of 21. 19s. 2d. in respect 
 of a post-office order belonging to the plaintiffs, "which was 
 stolen by the plaintiffs' clerk, the plaintiffs' signatures forged 
 thereto, and the said order negotiated and assigned to the 
 defendant, who subsequently obtained its value." One of the 
 plaintiffs proved substantially the facts as alleged in the claim. 
 A clerk from the General Post-office produced the post-office 
 order in question, which, however, appeared to have been signed 
 " Evans and Co.," and not " Evans and Salmon/' the plaintiffs' 
 names in which the order had been issued, and he also proved 
 that when a post-office order was crossed and paid through a 
 bank, the post-office authorities would not pay it except through 
 such bank, and took no notice of the signature, and would even 
 pay it without a signature. The defendant proved that she 
 cashed the post-office order in question at the request of the 
 plaintiffs' clerk, who had been known to her for some time, 
 and paid it into her bank, which obtained payment of it 
 from the post-office. The principal question is whether a 
 post-office order is a negotiable instrument as, or in the 
 nature of, a bill of exchange or not. If it is, the defendant 
 was justified and safe in cashing this order, being an innocent 
 holder for value. Now, a bill of exchange is defined to be 
 "an unconditional written order from A. the drawer, to B. 
 
 (a) County Courts Chronicle, vol. vi., p. 354. 
 K
 
 130 REPORTS OF CASES. 
 
 EVANS AND the drawee, directing him to pay to C. the payee, a sum 
 SALMON cer t a in of money." It is not necessary that the drawee's name 
 SMITH, should be mentioned in the bill if there is a place of payment 
 fixed, nor that the payee's name should be mentioned if he is a 
 person capable of being ascertained (Byles on Bills, llth edit, 
 pp. 1, 80, 89), and a post-office order on the face of it appears to 
 me to fulfil all the above conditions. The instructions on the 
 back of it, however, especially as to the necessity of the presenta- 
 tion of it within one year, and the determination of liability of 
 the post-office to pay it at the end of one year, and also after 
 once paying it to any person whomsoever, are certainly in the 
 nature of conditions, or at all events restrictions, and so far mili- 
 tate against its being " an unconditional order." Such conditions 
 or restrictions, however, are of a very exceptional character, 
 being imposed under the powers of an Act of Parliament con- 
 trolling and overriding as it were the instrument itself, and it 
 may well be doubted whether they can deprive the instrument of 
 the character of negotiability which it otherwise might have. 
 Supposing similar conditions or restrictions were imposed by 
 Parliament on bills of exchange generally, would it destroy their 
 character of negotiability ? Again, bankers are by the 16 & 17 
 Viet. c. 39, released from responsibility as to the genuineness of 
 indorsements on cheques payable to order in the same manner as 
 the post-office authorities are released for the like responsibilities 
 as to post-office orders, but such cheques are nevertheless negoti- 
 able. The interpretation of the term a " bill of exchange " in the 
 Stamp Act, 1870, would, I think, clearly include a post-office 
 order. It is as follows : " The term bill of exchange for 
 the purposes of this Act includes also draft order, cheque, and 
 letter of credit, and every document or writing except bank note, 
 entitling or purporting to entitle any person, whether named 
 therein or not, to payment to any other person of or to draw 
 upon any other person for any sum of money therein mentioned;" 
 and it would seem that, unless post-office orders are exempted by 
 any other Act of Parliament, they are liable to stamp duty, and 
 the plaintiffs could not put the present post-office order in 
 evidence for want of a stamp, or consequently recover in the 
 present action. No evidence was offered as to the custom of 
 merchants, bankers, or others to treat post-office orders as 
 negotiable ; but on the somewhat meagre state of facts before 
 me, and especially considering the practice of the post-office 
 authorities with regard to post-offices orders generally, and more
 
 REPORTS OF CASES. 
 
 131 
 
 especially those which are crossed and paid through bankers, I 
 think there is sufficient evidence to warrant the conclusion that 
 these instruments are negotiable ; and I think that such 
 conclusion is the most beneficial for the public, and especially 
 for the trading or poorer classes of the community, who 
 must often find it convenient to get post-office orders cashed 
 by third parties, instead of applying themselves at the 
 post-office, possibly very distant, where they are payable. 
 A cheque on a banker is, of course, a negotiable instru- 
 ment, and so is a promissory note by statute, and why not 
 an order on the post-office ? The exact circumstances under 
 which this post-office order was stolen were not proved before 
 me ; but if the plaintiffs had, immediately on its receipt, crossed 
 it with their banker's name, the fraud which was committed 
 could not have succeeded. Their negligence in this, and perhaps 
 in other respects might possibly in any case estop them from 
 bringing the present action. On the whole I find for the defen- 
 dant, but with much doubt, and I shall give the plaintiffs liberty 
 to appeal, if they desire it, in the following terms : The appeal to 
 be by case to be delivered to the defendant within one month, 
 and to be settled by me if the parties differ, and the plaintiffs, if 
 successful, to forego the costs of appeal. I would add that the 
 cases of Crouch v. Credit Fonder of England (L. Rep. 8 Q. B. 374), 
 and Goodwin v. Eoberts (L. Rep. 1 Ap. Cas. 476, H. of L.), 
 appear to me to have a strong bearing upon the principal point 
 in this case. I allow the defendant's expenses, and in the event 
 of my judgment being reversed the plaintiffs will be entitled to 
 the costs of the summons and two witnesses ; but neither plain- 
 tiffs nor defendant will be entitled to costs of counsel or solicitors, 
 as the case is under 5L 
 
 EVANS AKD 
 SALMON 
 
 v. 
 SMITH. 
 
 Evans and Salmon v. Smith. The Law Times (vol. Ixv., p. 52), in com- 
 menting upon the above decision, stated : " We have read his Honour's 
 judgment, and we agree with it without so much doubt as he entertained. 
 A post-office order is a draft issued by the post-office, payable to order. When 
 signed by the party to whom it is made payable, it is payable to the holder, 
 and passes from hand to hand by mere delivery." With reference to the 
 concluding observation of the learned judge, it should be noticed that under 
 the County Court Act, 1882, sect. 5, the present case would certainly be one 
 of " public interest," in which costs of counsel and solicitor could be 
 awarded,
 
 132 KEPOKTS OF CASES. 
 
 PART II. 
 TORTS 
 
 FARNHAM COUNTY COURT. 
 
 Wednesday, Dec. 9, 1868. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 GROVER v. ROUSELL. (a) 
 
 Liability of a private soldier to be committed on a judgment sum- 
 mons for non-payment of damages recovered in the County Court. 
 IN this case the County Court Judge had to consider whether 
 the 40th section of the Mutiny Act (31 Viet. c. 14), which 
 exempted soldiers from arrest "for any original debt not amount- 
 ing to 30 Z.," relieved a private soldier from liability for non- 
 payment of " damages " recovered in the County Court. After a 
 careful examination of all the provisions of the Act bearing upon 
 the point, the learned judge concluded as follows : "It appears 
 to me quite clear that trespasses, or damages recovered in 
 respect of them, are not provided for by the 40th section, as the 
 latter are not included in the term ' debt/ which is by the con- 
 text manifestly confined to its strict primary sense. I therefore 
 think that damages for trespass are nowhere provided for by 
 the 40th section of the Mutiny Act, which, as exceptionally 
 restraining the civil rights and remedies of Her Majesty's sub- 
 jects, ought to be construed with strictness, and, I may observe, 
 is open to annual amendment. I am consequently of opinion 
 that the defendant in this case is liable to committal for non- 
 payment of the damages and costs recovered, if it can be shown 
 that he is able to pay them according to the order of the court as 
 they become due." 
 
 Grover v. Rousell. A copy of this judgment was, at the request of the 
 military authorities, furnished to the War Office, and duly acknowledged. 
 It is now provided, by the Army Act, 1881 (44 & 45 Viet. c. 58, s. 144), 
 
 (a) Austin's County Court Cases, p. 26. Butterworth's, 1869.
 
 REPORTS OF CASES. 
 
 133 
 
 " that a soldier of Her Majesty's Regular Forces shall not be liable to be 
 taken out of Her Majesty's service by any process, execution, or order of any 
 court of law, or to be compelled to appear in person before any court of law 
 except in respect of the following matters, or one of them ; that is to say 
 " (a) on account of a charge of or conviction for crime ; or 
 " (&) on account of any debt, damages, or sum of money when the 
 amount exceeds thirty pounds over and above all costs of suit." 
 The point involved in the above reported case could not, therefore, now 
 arise, as the above section expressly provides that the liability to arrest by 
 civil process shall only include cases in which the claim against a soldier is 
 for damages exceeding in amount 301. As the above enactment also excepts 
 cases of arrest " on account of a charge or conviction for crime," it is con- 
 ceived that a soldier may still be committed for disobeying an order of 
 justices to pay a weekly allowance for a child : (E. v. Bowen, 5 T. R. 156.) 
 
 GROVER 
 
 v. 
 ROUSELL. 
 
 WANDSWORTH COUNTY COURT. 
 
 Tuesday, Jan. 19, 1869. 
 
 (Before H. J. STONOE, Esq., Judge.) 
 
 BEAMAN v. PBITCHAED AND SHAELAND. (a) 
 
 Action against high bailiff and bailiff of Oounty Court Evidence 
 
 of special damages inadmissible without notice Non- joinder of 
 
 registrar 13 fy 14 Viet, c. 61, s. 19. 
 
 THE plaintiff is a contractor, and resides at 153, Hill-street, 
 Peckham. He sought to recover from the defendants, who are 
 respectively the high bailiff and under bailiff of the Lambeth 
 County Court, the sum of 50Z., <( for trespass and special 
 damages " and an alleged illegal distress. 
 
 Wood, instructed by Morris, of 49, Leicester-square, was for 
 the plaintiff. 
 
 Hicklin, 1, Trinity-street, Borough, conducted the case on the 
 part of the defendants. 
 
 This case was referred by the Court of Queen's Bench to the 
 judge of the Wandsworth County Court, and the facts were as 
 follows : The plaintiff was sued in the Lambeth County Court 
 for 71. 6s. 3d., by a Mr. Green, for corn supplied, and an order 
 was made for payment of the debt and costs by two monthly 
 instalments. The plaintiff paid the first instalment, but failed in 
 payment of the second, and execution was issued. The defen- 
 dant Sharland held the warrant, and meeting the plaintiff on the 
 25th August, informed him of it. The plaintiff promised to pay 
 
 (a) County Courts Chronicle, vol. i., p. 339.
 
 134 REPORTS OF CASES. 
 
 BEAMAN the next day (the 26th), at the office, and did so at two p.m. on 
 
 p v - the following day (27th). At about the same time the defendant 
 
 AND Sharland, not having inquired whether payment had been made 
 
 SHARLAND. a ^ fae office, went to the defendant's house, and not finding him 
 
 or his wife at home, seized a cart belonging to the plaintiff in an 
 
 adjacent stable yard, belonging to another person, and detained 
 
 it for twenty-four hours. Notice of action had been given, and 
 
 a tender of 5L had been made and refused. 
 
 The plaintiff offered evidence of special damage, but as there 
 was no claim of such in the notice of action, His HONOUR ruled it 
 to be inadmissible. 
 
 At the conclusion of the plaintiff's case, Hicklin submitted 
 that there was no case against the defendant Pritchard the high 
 bailiff, as the defendant Sharland was not acting in obedience to 
 the warrant, which was superseded by payment ; and if he had 
 been, the registrar of the court ought to have been joined as 
 a defendant under the 13 & 14 Viet. c. 61, s. 19. 
 
 His HONOUE ruled accordingly, and directed a verdict in favour 
 of the defendant Pritchard. 
 
 After the examination of several witnesses on both sides, 
 Hicklin addressed the jury for the defendant Sharland. 
 
 Wood replied, commenting severely on the conduct of the 
 defendant Sharland, and the mode in which business was con- 
 ducted in the Lambeth County Court. 
 
 His HONOUE summed up, presuming that in his opinion that 
 there was no ground for imputing any malice or intentional 
 harshness to the defendant Sharland, or any general misconduct 
 of business to the officials of the Lambeth County Court, but 
 only considerable negligence in the present case in the defendant 
 Sharland not having inquired, and not being informed of the 
 payment in the office, before he seized the plaintiff's goods, 
 especially under all the circumstances appearing in the evidence. 
 He said it was a case for substantial but moderate damages, and 
 it was for the jury to say whether 5Z., which had been tendered, 
 was sufficient, and if not, what sum was sufficient. 
 
 The jury returned a verdict against the defendant Sharland 
 for 10L beyond the 5?. tendered. Verdict for 15Z. with costs. 
 
 Beaman v. Pritchard and Sharland. The point involved in this case is 
 of importance to the registrars and high bailiffs of county courts, and to 
 persons claiming damages against them for illegal acts, in the discharge of
 
 REPORTS OF CASES. 135 
 
 their official duties. The main point was, that, as the registrar had not been BEAMAN 
 joined as a defendant, the high bailiff was, under the circumstances, entitled v. 
 
 to a verdict. The statute, rendering the step indicated necessary, is the PBITCHABD 
 County Courts Act, 1850, which, on this subject, provides as follows : AND 
 
 " And be it enacted, that from and after the passing of this act no action 
 
 shall be brought against any high bailiff or bailiff, or against any person or 
 persons acting by the order and in aid of any high bailiff, for anything done 
 in obedience to any warrant under the hand of the cleric or clerks of the said 
 court and the seal of the said court, until demand hath been made or left at 
 the office of such high bailiff by the party or parties intending to bring such 
 action, or by his, her, or by their attorney or agent, in writing, signed by the 
 party [demanding the same, of the perusal and copy of such warrant, and 
 the same hath been refused or neglected by the space of six days after such 
 demand; and in case after such demand and compliance therewith, by 
 showing the said warrant to and permitting a copy to be taken thereof by the 
 party demanding the same, any action shall be brought against such high 
 bailiff, bailiff, or other person or persons acting in his aid for any such cause 
 as aforesaid, without making the clerk or clerks of the said court who signed 
 or sealed the said warrant defendant or defendants, that on producing or 
 proving such warrant at the trial of such action, the jury shall give their 
 verdict for the defendant or defendants, notwithstanding any defect of 
 jurisdiction or other irregularity in the said warrant ; and if such action be 
 brought jointly against such cleric or clerics, and also against such high 
 bailiff or bailiff, or person or persons acting in his or their aid as aforesaid, 
 then, on proof of such warrant, the jury shall find for such high bailiff or 
 bailiff and for such person or persons so acting as aforesaid, notwithstanding 
 such defect or irregularity as aforesaid ; and if the verdict shall be given 
 against the said clerk or clerks, that in such case the plaintiff or plaintiffs 
 shall recover his, her, or their costs against him or them, to be taxed in 
 such manner by the proper officer as to include such costs as such plaintiff 
 or plaintiffs are liable to pay to such defendant or defendants for whom such 
 verdict shall be found as aforesaid." (13 & 14 Viet. c. 61, s. 19.) 
 
 The precise meaning of the above section (which is printed as amended by 
 38 & 39 Viet. c. 66) is by no means clear, and it is certainly not at all easy to 
 determine at once under what circumstances it requires the registrar (or 
 cleric as he was formerly called) to be joined as a defendant together with the 
 high bailiff or his officer, nor what is the advantage obtained by the plaintiff 
 when this course has been adopted. There can, however, be no doubt that 
 the section applies only where the action is brought "for anything done in 
 obedience to any warrant under the hand of the clerk or clerics of the said 
 court and the seal of the said court." These words, it is evident, govern the 
 whole enactment, and must be carefully borne in mind in construing the 
 remaining portion of the section. And it is submitted that, whenever the 
 action is of the specified description, the registrar must be joined as defen- 
 dant, except where a demand for perusal and copy of a warrant has been 
 made and not complied with. Where the registrar is joined as a party, the 
 high bailiff or his officer will not be liable for " any defect of jurisdiction or 
 other irregularity in the said warrant" but, on the contrary, will, on mere 
 proof of the warrant, be entitled to a verdict. The advantage of making the 
 registrar a party is that, by so doing, in the event of the plaintiff 
 recovering a verdict against him, on account of " any defect of jurisdiction
 
 136 REPORTS OF CASES. 
 
 BEAMAN r other irregularity in the said warrant," the plaintiff cau also recover, as 
 
 v. part of his costs of the action, such costs as he may have had to pay to the 
 
 PRITCHAED high bailiff or his officer, in whose favour, on mere proof of the warrant, a 
 
 AND verdict may have been given. And the reason, on the other hand, for the 
 
 SHARLAND. j oin ^ er O f the high bailiff or his officer as defendant with the registrar is 
 
 lest the evidence should establish, as actually happened in the case above 
 
 reported, that the acts complained of by the plaintiff were not done in 
 
 obedience to the warrant, in which case the high bailiff or his officer, and 
 
 not the registrar, would be responsible in damages. It is, however, to be 
 
 noticed that, should a verdict be given against the high bailiff alone, the 
 
 enactment under consideration does not enable the plaintiff to recover from 
 
 him, as part of his costs of the action, such costs as he has been obliged to 
 
 pay to the registrar. This would seem to be an omission on the part of the 
 
 Legislature. 
 
 WANDSWORTH COUNTY COURT. 
 
 Tuesday, March 31, 1874. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 MADDISON v. BROWN, (a) 
 
 9 $ 10 Viet. G. 93 (Lord Campbell's Act) Measure of damages. 
 Groome for plaintiff. 
 
 Smytlie for defendant. 
 
 His HONOUR. The plaintiff in the present case (referred to 
 this court from the Court of Exchequer) is the father or 
 administrator of Sarah Maddison, who lost her life through the 
 neglect of the defendant in leaving an excavation or area for a 
 house in course of erection in a highway open and unprotected 
 by any railing or fence. He had sued the defendant under the 
 9 & 10 Viet. c. 93, commonly called "Lord Campbell's Act/' for 
 damages, such action being for the benefit of himself and wife, 
 as parents of the deceased. There was no defence to the action, 
 and the only question was as to the amount of damages. The 
 plaintiff in his particulars claimed 200Z. for loss of an allowance 
 made by deceased for support of her parents, for loss of goods 
 and wearing apparel (presents received by her parents from 
 time to time), and for funeral and other expenses. It appeared 
 by the evidence that the deceased was a domestic servant, and 
 out of her wages allowed her parents about 10s. a month, say Ql. 
 a year, and occasionally made them other presents of goods and 
 wearing apparel. With regard to the allowance it was admitted 
 that the plaintiff was entitled to damages for actual or probable 
 (a) County Courts Chronicle, vol. iv., p. 391.
 
 REPORTS OF CASES. 137 
 
 pecuniary loss, but not according to annuity tables, although, MADDISON 
 
 after all. such tables must form the only basis of calculation in 
 
 J BROWN. 
 
 the present and in most cases, subject to whatever deductions 
 ought to be made in respect of the circumstances of each case. 
 In the present case I think that the loss of the parents in respect 
 of the allowance may be fairly estimated at 30Z. There was little 
 evidence as to the nature or value of the presents made by the 
 deceased to her parents, but I think that there should be some 
 addition in respect of them, and I fix the sum at 5Z. The counsel 
 for the plaintiff also contended that in estimating the damages 
 the sufferings of the deceased ought also to be considered, and 
 that the plaintiff was entitled to recover the same damages as the 
 deceased herself could have done in this respect, and cited the 
 case of Armsworthv. The South-Western Railway Company (11 
 Jur. 758), but on reference to that case and the other numerous 
 cases collected in Fisher's Digest, 6089, tit. " Negligence," I 
 find no authority for such a proposition, and that it is, on the 
 contrary, clearly laid down, that compensation can be given to 
 the relatives na'med in the Act only for pecuniary losses, 
 including reasonable expectations of pecuniary advantage from 
 the relative remaining alive. As to the amount of damages 
 which I have given, I observe that in the case Franklin v. South- 
 Eastern Railway Company (3 H. & N. 211) it was held, that 761. 
 was excessive damages for the loss by a father, through the death 
 of his son, of 3s. 6d. a week, say 91. a year ; but the father 
 appears to have been an old man, and the parents of the 
 deceased in the present case are middle-aged. The claim for 
 funeral expenses was properly withdrawn. 
 
 Verdict for the plaintiff for 35 L, with costs. 
 
 GUILDFORD AND GODALMING COUNTY COURT. 
 
 Thursday, May 24, 1877. 
 (Before H. J. STONOB, Esq., Judge.) 
 
 NOJRMAN v. ELLIS, (a) 
 
 The owner of cattle straying from a common liable in trespass. 
 His HONOUR gave judgment as follows : This is an action com- 
 menced some time since, but adjourned for various reasons, and 
 especially to enable me to have a view of the premises, which I 
 
 (o) County Courts Chronicle, vol. vi., p. 118.
 
 138 REPORTS OF CASES. 
 
 NORMAN accordingly had previously to last court. The plaintiff sued the 
 -p v - defendant for 21. in consequence of two of defendant's horses 
 
 straying on to the plaintiff's land at night, and damaging a rick 
 
 of the plaintiff's. The defence was, firstly, that the rick stood 
 on a common on which the defendant's horses were rightfully 
 grazing; secondly, that it stood on land of the plaintiff's adja- 
 cent to the common, which land was inadequately fenced from 
 the common j and, thirdly, that it stood on land of the plain- 
 tiff's, which was fenced, but that a gate thereon was negli- 
 gently left open, through which the horses entered. After 
 hearing the evidence and viewing the premises, I find that the 
 rick did not stand on the common, but on an inclosure of the 
 plaintiff's, which was inadequately fenced, so as to be open to 
 trespass by cattle from the common along a road belonging to 
 the plaintiff, but over which there is a public right of way, and 
 through other inclosures of the plaintiff's adjacent to such road 
 and open to it at certain places, and that there is no evidence 
 that the gate which opens in the road and in question was left 
 open as alleged. During the many years that I have been judge 
 of this circuit I have had before me numerous cases of trespasses 
 by commoners exercising rights over the extensive commons in 
 this county upon property adjacent to such commons, and I have 
 had great difficulty in deciding many of them. On the one 
 hand, the adjacent proprietor always contends that he is not bound 
 to fence, and that the commoner is bound to use his rights 
 without injury to the adjacent proprietors. On the other hand, 
 the commoner contends, and I think with some force, that those 
 who live adjacent to a common ought to fence their property 
 against the animals depastured on it, as otherwise the commoners 
 would in many instances be wholly deprived of their rights ; for 
 instance, where a commoner depastures a single animal, and it 
 would be necessary for him not only to have a person watching 
 it to prevent its trespassing during the day, but also to have it 
 driven ;home at night. I have never been able to find any 
 authority exactly in point until very recently, when I came on a 
 case in the Year Books 20 of Edwd. I.,, folio 10, B. 4, cited by 
 Willes, J., in Read v. Edwardes (34 L. J. 32, C. P.). The last- 
 named case has little or no bearing on the present, but the case 
 reported in the Year Books is a great authority on the main 
 point which arises upon the present, viz., the obligation of com- 
 moners to keep their beasts from trespassing off the common.
 
 REPORTS OF CASES. 139 
 
 The plaintiff there sued the defendant in trespass for entering NORMAN 
 plaintiff's close and depasturing his herbage with beasts, and the - v ' 
 defendant pleaded a right of common, and that the beasts had 
 trespassed without the defendant's knowledge, and that imme- 
 diately the defendant knew it he drove them out. Brian, J. 
 held the plea " to be nought, for that when the defendant put 
 his beasts on the common he ought to use his common so 
 that they do no wrong to another man, and if the land in 
 which he ought to have the common is not inclosed, he 
 ought to keep his beasts in the common and out of the land of 
 another ;" and Littleton, J. said, " I think so too ; for I under- 
 stand that this is the law. If a common road lies over the land 
 of divers men, and if a drover comes with his beasts, and some 
 of them go out of the way, he shall be punished in an action of 
 trespass, and so here." The defendant then further pleaded, 
 " that the cattle were driven out of the common by wild beasts, 
 to wit, dogs/' Neal, J. exclaims, " Have you in your country 
 wild dogs ? This is wonderful ; " and Brian, J. held, " that 
 although the defendant might have an action against the dogs' 
 master, still the plaintiff might have an action against him." 
 The effect of this case is, that the commoner is bound to restrain 
 his animals from straying beyond the common where the common 
 is not inclosed or fenced, and clearly decides that the defendant 
 in the present case is liable to the plaintiff unless he can show 
 some act on the part of the plaintiff which relieves the defendant 
 from, his liability. The defendant has attempted to show this by 
 suggesting that the plaintiff must have left the gate to the 
 inclosure open, and so contributed to the trespass ; but I think 
 that there is no evidence that the gate was left open, and as the 
 inclosure in question was open to other inclosures, which again 
 were open to the common or to the public way in question over 
 which the animals strayed, there is no reason for saying that the 
 plaintiff contributed to this trespass by leaving the gate open. 
 I must, however, say that if a close adjacent to a common is 
 properly fenced in, and the owner or his servant or any person 
 entering with his licence leaves the gate open, I should be 
 strongly inclined to hold that he is guilty of contributory negli- 
 gence, and the dictum of Littleton, J. as to trespasses by beasts 
 when driven along the road must be somewhat qualified, as it has 
 been clearly decided thut " if a landowner neglects to fence the 
 land from the highway so that cattle stray from the highway and
 
 140 REPORTS OP CASES. 
 
 NORMAN injure his crops, lie cannot immediately distrain the beasts 
 . v ~ damage feasant or treat the owner of the beasts as a trespasser, 
 
 but must either drive them out himself or allow a reasonable 
 
 time to the drovers in charge of them to get them out of the 
 land : (Goodwin v. Cheeveley, 4 H. & N. 631 ; 28 L. J. 298, Ex.) 
 although if the beasts are not lawfully using the highway, and 
 they have strayed away from the owner or his servant, and are 
 trespassing upon the public thoroughfare, and pass from thence 
 on to the adjoining uninclosed lands, this is a trespass for which 
 the owner of the beast is responsible: (2 Eoll. Abr. 565, pi. 7; 
 Dovaston v. Payne, 2 H. Bl. 528.) In the present case, however, 
 there can be no doubt as to the trespass, inasmuch as the horses 
 must clearly have strayed from the common on to the highway, 
 and thence on the plaintiffs close, unattended by any person. 
 There will, therefore, be a verdict for the plaintiff with costs of 
 one day. 
 
 Norman v. Ellis. See the recent case of Tillett v. Ward (10 Q. B. Div. 17), 
 where an ox entered into a shop adjoining a street, without defendant's 
 being guilty of negligence. Held, defendant not liable. 
 
 SOUTHWARK COUNTY COURT. 
 
 Thursday, May 8, 1879. 
 
 (Before H. J. STONOE, Esq., Judge.) 
 
 THE SINGER MANUFACTURING COMPANY v. CLARKE, (a) 
 
 Wrongful conversion. 
 
 A pawnbroker is indemnified, under the 25th section of the Pawn- 
 brokers Act, 1872, for the delivery of a pledge to the holder of the 
 ticket after notice and demand by an alleged owner, who has not 
 made and delivered a declaration under the 29th section of the 
 Act. 
 
 Reversed on appeal (L. Rep. 5 Ex. Div. 37) (6). 
 Candy for plaintiffs. 
 Hollings for defendant. 
 
 His HONOUR delivered judgment this day in the above, which 
 was understood to be a representative case, as follows : There 
 are two questions in the present case : first, whether the owner's 
 common law right to recover property wrongfully pawned was 
 taken away by the Pawnbrokers Act, 1872 ? secondly, whether, 
 (a) County Courts Chronicle, vol. vii., p. 132. (fc) See note, p. 144, post.
 
 REPORTS OF CASES. 141 
 
 if it was not taken away by that Act, the plaintiffs are entitled to THE 
 recover under the circumstances of this case? On the first SINGER 
 point I have had the advantage of perusing an elaborate judg- FACTURING 
 ment of my colleague, Mr. Caillard, the learned judge of the COMPANY 
 Wiltshire County Courts, in the case of Moffat v. Adams, reported CLARKE. 
 
 in the Law Times of the 20th January, 1877, and County Courts 
 
 Chronicle, vol. 6, p. 34, in which, relying on the case of Peet v. 
 Baxter (1 Stark, 472), upon the former Pawnbrokers Act (39 & 
 40 Geo. 3, c. 99), he held, that the owner's common law right 
 still exists, notwithstanding the Pawnbrokers Act, 1872. With 
 great respect, however, for the learned judge, I entertain some 
 doubt as to the correctness of the conclusion at which he arrived. 
 There is one very broad distinction between the Pawnbrokers 
 Act of Geo. 3, and that of 1872, viz., that the Act of Geo. 3 
 recognises no right or claim of the pawnbroker to his loan or 
 profit as against the owner of goods wrongfully pawned, whilst 
 the Pawnbrokers Act, 1872, gives him an absolute right to 
 recover the whole of his loan and profit, if the owner proceed by 
 statutory declaration (sect. 29, sub-sect. 2), or by summary 
 proceeding (Ibid., sub-sect. 31), or whatever amount (generally 
 one-half) a court of summary jurisdiction may think just in the 
 special cases mentioned in sect. 30 ; and it seems to me very 
 doubtful whether upon the true construction of the Pawnbrokers 
 Act, 1872, taking into consideration the provisions I have cited, 
 and others bearing on the point, and especially the 25th section, 
 which I shall have occasion to consider fully hereafter, the 
 common law right is not taken away by that Act. The contrary 
 conclusion would, I think, reduce the 29th, 30th, and 31st sections 
 of the Act (which I apprehend are f< for the protection of pawn- 
 brokers " as well as owners, as observed by Bovill, C. J., with 
 reference to the provisions of the Act of Geo. 3, c. 94, in the case 
 of Burslem v. Attenborougli (42 L. J. 102, C. P.) to mere dead 
 letters in cases like the present. For, if the owner can get the 
 goods or their value at any time by action, with all his costs, 
 why should he ever proceed by declaration or summary proceed- 
 ing and pay the loan and profit, and the expenses ? Supposing, 
 however, the owner to be still entitled to bring his action, not- 
 withstanding the Pawnbrokers Act, 1872, I doubt very much 
 whether, under the Judicature Act, 1873, s. 25, sub-sect. 11, 
 which renders the rules of equity now binding on the High 
 Court, and this in all cases the owner of the pledge is ever
 
 142 REPORTS OP CASES. 
 
 THE entitled to recover without first tendering the loan and profit, a 
 SINGER pledge from a pawnbroker who has innocently advanced his 
 FACTURI'NG money on goods which the rightful owner has permitted to 
 COMPANY rema i n i n the absolute control and power of a third party without 
 CLARKE, any safeguard or protection. It is not, however, necessary for 
 me, on the present occasion, to dissent from the judgment of the 
 learned judge of the Wiltshire County Courts, on either of the 
 grounds I have mentioned, as there appears to me to be a most 
 important and material distinction between the circumstances of 
 the case of Moffatt v. Adams before him, and the case of Peet v. 
 Baxter on the one hand, and the present case on the other, viz., 
 that in the two former cases the goods were still in the pawn- 
 broker's possession, whilst in the present case the goods are not 
 in the pawnbroker's possession, having been delivered by him to 
 the holder of the ticket, in obedience to the 25th section of the 
 Pawnbrokers Act, 1872, before action brought, the owner having 
 neglected to obtain, make, and deliver the statutory declaration 
 required by the 29th section (which alone could free the pawn- 
 broker from his obligation to deliver up the pledge to the holder 
 of the ticket, under the 25th section, and indemnify him from 
 the consequences of refusing to do so), although he had, indeed, 
 previously given the pawnbroker an ordinary notice of his alleged 
 title, which might or might not be true. The 25th section of 
 the Pawnbrokers Act, 1872, and the delivery of the pledge to 
 the holder of the ticket by the pawnbroker in obedience to it, 
 appears to me to be a complete defence to the present action ; 
 and, as far as I can see, they would also have been a defence to 
 this action if the pledge had been delivered after action brought. 
 The words of the section are as follows : " The holder for the 
 time being of a pawn ticket shall be presumed to be the person 
 entitled to redeem the pledge, and, subject to the provisions of 
 this Act, the pawnbroker shall accordingly, on payment of the 
 loan and profit, deliver the pledge to the person producing 
 the pawn ticket, and he is hereby indemnified for so doing." 
 Now, I am quite aware that every presumption is liable 
 to be rebutted, and that the evidence in this case has 
 rebutted the presumption created by this section ; but at 
 the time that the ticket was produced, and the profit and 
 loan tendered to the pawnbroker, that evidence of course had 
 not been given, and the notice which was given, and which 
 might or might not have been true, was certainly no evidence
 
 REPORTS OF CASES. 143 
 
 whatever. The statutory presumption therefore remained, with THE 
 all its consequences, and subject only " to the provisions of the SINGER 
 Act," the pawnbroker was bound " accordingly (on payment of FACTORING 
 the loan and profit) to deliver the pledge to the person producing COMPANY 
 the ticket." Now, what are " the provisions of the Act " which CLARKE. 
 could affect this presumption ? Only the provisions contained in 
 the 29th and 31st sections, under which the owner is entitled to 
 regain his property, whether he proceed by statutory declaration 
 or summary proceeding, on payment of the whole profit and 
 loan ; and the 30th section, under which he is entitled to regain 
 it in the special case therein mentioned, subject to the payment 
 of the profit and loan, or so much thereof as the court of 
 summary jurisdiction would award (and which is generally one- 
 half) . In the present case the owner had not proceeded under 
 the 29th or 31st section, and the special cases for which provision 
 is made by the 30th section had not arisen, therefore these 
 provisions could have no operation, and the presumption 
 remained wholly unrebutted. The case of Burslem v. Atten- 
 borough, already cited, appears to me to be in point. It was 
 there held, that, under the statute 39 & 40 Geo. 3, c. 99, a 
 person who had lost a ticket, and had obtained, made, and 
 shown to the pawnbroker a statutory declaration or aifidavit 
 under that Act, similar to that required by an owner of property 
 wrongfully pawned, under the Pawnbrokers Act, 1872, was not 
 bound to deliver it to him or to redeem the goods at once, and 
 that the pawnbroker was not justified in delivering them to the 
 holder of the ticket ; but it is impossible to read the case without 
 seeing that the judges were unanimously of opinion that if the 
 declaration or affidavit had not been made and shown to the 
 pawnbroker, he would have been justified in so doing, and 
 indemnified against the consequences under the 15th section of 
 the Act of Geo. 3, which is practically the same as the 
 25th section of the Pawnbrokers Act, 1872. Lastly, if the owner 
 is not so debarred from bringing his action by the 25th section 
 of the statute, and the delivery of the pledge to the holder of 
 the ticket, he is, I am strongly inclined to think, debarred by 
 the rules of equity, which (as I have already observed,) are now 
 by the Judicature Act, 1873, s. 25, binding on the High Court 
 and this from bringing the present action on account of his 
 omission to take proceedings under the 29th, 30th, or 31st 
 sections of the Pawnbrokers Act, 1872, or to commence at once
 
 144 
 
 REPORTS OF CASES. 
 
 THE an action in trover against the pawnbroker, in which action the 
 
 SINGER d e f en( l an t could, have interpleaded or joined the pawnor as 
 
 FACTURING a co-defendant. By merely giving the pawnbroker a notice, 
 
 COMPANY fae fc ru th o f w hich he has no means of testing, the plaintiffs left 
 
 CLARKE, him subject to a penalty, and the loss of the subsequent profit, 
 
 and possibly of the whole of the loan and profit in case of his 
 
 refusal to deliver up the pledge, and his inability to prove the 
 
 adverse title of the claimant-owners, which might be wholly 
 
 groundless, and that without any remedy over against the latter. 
 
 These acts of omission and neglect on the part of the plaintiffs 
 
 appear to me to bring the case within those principles of equity 
 
 in which it has been held, that where an owner of property 
 
 permits another person to retain or deal with it, he will not be 
 
 allowed to assert his title to it to the detriment of innocent 
 
 parties ; and also within the rules that he who seeks equity must 
 
 do equity, and that a person must not sleep on his rights. There 
 
 will be a verdict for the defendant with costs, and liberty to the 
 
 plaintiffs to appeal by case. 
 
 Verdict for the defendant with costs. 
 
 The Singer Manufacturing Company v. Clarice. It is to be noticed that 
 the learned County Court judge' bases his decision in this case upon the 
 simple ground that the plaintiffs had not, as he considered they might have 
 done, taken the necessary steps to rebut the statutory presumption that "the 
 holder for the time being of a pawn ticket shall be presumed to be the person 
 entitled to redeem the pledge," and that, therefore, it was inequitable to 
 allow them to maintain trover against the defendant. There is, it is sub- 
 mitted, a great deal to be said in favour of this view. For certainly one 
 object of the Pawnbroker's Act, 1872, would appear to be to afford protection 
 to pawnbrokers in the exercise of their business, by enabling them, without 
 incurring any risks, to treat the holder of a pawn ticket in all cases as the 
 person entitled to redeem, excepting where certain steps, indicated by the 
 Act, and specified in the above judgment, have been taken to rebut such 
 presumption. Such a construction would seem to be dictated by convenience, 
 if not by actual necessity, and does not divest the real owner of his property 
 in the goods wrongfully pledged, but leaves him his remedy against the 
 holder of the pawn ticket who has redeemed the pledge, and also against the 
 person who wrongfully pawned it. The above decision of the County Court 
 judge was, however, the subject of an appeal which was argued at considerable 
 length. Eventually, the Divisional Court (HuDDLESTON, B., and HAWKINS, J.) 
 reversed the decision of the County Court judge in an elaborate and con- 
 sidered judgment, which concluded as follows : " After much consideration 
 we have arrived at the conclusion that the 25th section justifies the pawn- 
 broker only to this extent, viz., in treating the holder of a pawn ticket as the 
 person lawfully entitled to hold it, and that the indemnity given by that
 
 REPORTS OF CASES. 
 
 145 
 
 section is limited to and protects the pawnbroker only against the pawner, THE 
 
 the owner who has authorised the pledge, and all those who claim title under SINGER 
 
 them, and that none of the provisions of the statute were intended to affect, MANU- 
 
 nor do they affect, the common law right of an owner of property pledged FACTirRING 
 against his will who claims by title paramount to that of the pawner :" 
 
 (L. Rep. 5 Ex. Div. 37, 46; 14 L. T. Rep. N. S. County Court and CLARKE. 
 
 Bankruptcy Cases, 339.) Leave to appeal was given by the Divisional Court, 
 
 but it was not taken advantage of. 
 
 WANDSWORTH COUNTY COURT. 
 
 Tuesday, Nov. 11, 1879. 
 (Before H. J. STONOR, Esq., Judge). 
 
 LAW AND ANOTHER v. GOODING. (a) 
 Where a landlord has distrained on goods which the sheriff had 
 
 taken in execution, and was permitted by the sheriff to remove 
 
 them, the owners of such goods cannot maintain detinue. 
 Buck for the plaintiff. 
 
 Jones for the defendant. 
 
 The plaintiffs in this case had let some furniture, valued at 
 40Z., to one Maffiniades, who was the defendant's tenant. The 
 sheriff seized the same, amongst other goods, upon the demised 
 premises, and the defendant put in a claim for rent. 
 
 Shortly afterwards the defendant distrained on the furniture in 
 question for such rent, and the sheriff permitted him to remove 
 the same without making any objection. The sheriff afterwards 
 sold the remainder of the goods and returned the full amount of 
 the proceeds, not paying and deducting the rent for which a 
 claim had been put in as above. The plaintiffs applied to the 
 defendant to deliver up the furniture, which he refused to do, and 
 they now sued him for the sum of 40L in detinue. 
 
 His HONOUR held that the sheriff, by permitting the goods to 
 be removed without making any objection, had waived and with- 
 drawn the execution so far as such goods were concerned, and 
 that the defendant had therefore a right to distrain upon the 
 same, which otherwise he would not have had, and therefore non- 
 suited the plaintiffs, with costs. 
 
 Judgment accordingly. 
 
 (a) County Courts Chronicle, vol. vii., p. 235.
 
 146 REPORTS OF CASES. 
 
 SOUTHWARK COUNTY COURT. 
 
 Monday, April 13, 1880. 
 
 (Before H. J. STONOR, Esq., Judge.) 
 
 DANIELS AND WIPE v. JONES, DRAY, AND Co., AND JAMES 
 
 BLYTH. (a) 
 
 Negligence Master and servant. 
 A workman employed by defendant firm to execute repairs in a 
 
 public-house, left a trap-door near the bar open and unguarded. 
 
 The female plaintiff, entering to procure refreshment, fell down 
 
 the trap-door and was injured. 
 
 Held, that the defendants were liable for a misfeasance, inde- 
 pendent of contract, in respect of the negligence of their servant. 
 Walton for plaintiffs. 
 
 Bray for defendant firm Jones, Dray, and Co. 
 
 Glynn for defendant Blyth. 
 
 The plaintiffs in this case submitted to a non-suit as against 
 the defendant Blyth, and gave evidence of the following facts 
 as against the defendant firm. On the 7th June, 1879, the 
 plaintiffs, with a person of the name of Middleton, proceeded 
 to the public-house in Wardour-street, belonging to the defen- 
 dant Blyth. Middleton entered first, closely followed by the 
 female plaintiff, who was carrying a parcel containing glass. 
 Middleton turned sharp round to a luncheon bar, and the female 
 plaintiff proceeding two or three feet further, fell into a cellar, 
 the trap-door of which had been left open. This occurred about 
 three p.m., but the day was dull, and the place was dark, with a 
 borrowed light from the bar parlour, which cast a shadow over 
 it ; there was no gas light in the shop or in the cellar. The 
 female plaintiff was seriously injured, and rendered unable to 
 continue her usual employment for some time, and thereby 
 incurred a loss of wages, and her husband incurred medical and 
 other expenses and loss. Immediately after the accident a 
 workman of the name of Lomax, in the employment of the 
 defendant firm, came in, and, being asked if he had left the 
 trap- door open, said he believed he had, but he had left two stools 
 to prevent people passing ; no stools, however, were there at the 
 time of the accident. The defendant Blyth had employed the 
 
 (a) County Courts Chronicle, vol. vii., p. 340.
 
 REPORTS OF CASES. 
 
 147 
 
 defendant firm to fit a stove or range in his public-house. 
 Jordan, the manager of the defendant firm, had told the 
 defendant Blyth that there would be a quantity of bricks and 
 mortar and cement used, and suggested that they might be put 
 in the cellar till required ; there was a trap-door to the cellar in 
 the bar parlour, and another, which was not used, in the shop. 
 The defendant Blyth gave permission to Jordan to use the latter, 
 but said that he must be careful, and Jordan said that he would 
 be very caref ul, and that it should be guarded. On the morning 
 of the 7th June the defendant Blyth noticed that the trap-door 
 was left open, and called the attention of the workman Lomax to 
 the circumstance, who went back and closed it. After the 
 accident the defendant Blyth called upon Mr. Dray, one of the 
 defendant firm, who sent for Lomax and questioned him as to the 
 accident. Lomax said that at the time of the accident he had 
 gone to fetch a bit of iron, and that he was not away more than 
 half an hour. He also said that he had guarded the cellar by 
 putting two stools taken from the bar. 
 
 At the conclusion of the plaintiffs' case, Bray raised the 
 following question of law, videlicet, whether, on the facts in 
 evidence, the plaintiff ought to be nonsuited on the ground that 
 there was no privity of contract between the plaintiffs and the 
 defendant firm. 
 
 His HONOUE, relying on the cases of Corby v. Hall (27 
 L. J. 318, C. P.), and Parry v. Smith (48 L. J. 731, Q. B), held 
 that the plaintiffs ought not to be nonsuited on the above ground, 
 inasmuch as such privity was not required to support the action, 
 and that there was evidence to go to the jury that the defendant 
 firm, by their servant, had, under the circumstances, been guilty 
 of a misfeasance, independent of contract, which was sufficient to 
 support the action. 
 
 Evidence was then given on behalf of the defendant firm. 
 
 The jury returned a verdict for the plaintiffs for 44Z. against 
 the defendant firm. 
 
 Judgment accordingly, with costs. 
 
 DANIELS 
 
 v. 
 JONES. 
 
 Daniels and Wife v. Jones, Dray, and Co. and James Blyth. The above- 
 reported decision was confirmed on appeal with costs : (C. C. C., vol. viii., p. 19.) 
 The note furnished by the County Court judge in this case (in pursuance of sect. 
 6 of the County Courts Act, 1875, which regulates appeals by motion) was not a 
 
 L 2
 
 148 
 
 REPORTS OP CASES. 
 
 DANIELS mere copy of his notes of the evidence, as is commonly the case, but con- 
 
 v. tained a statement of the point of law raised at the trial, and then proceeded 
 
 JONES. to state such only of the facts in evidence as related thereto. This form of 
 
 note is, it is submitted, in strict accordance with the requirements of sect. 6 
 
 of the County Courts Act, 1875, which provides that " the judge, at the 
 
 request of either party, shall make a note of any question of law raised at 
 
 such trial or hearing, and of the facts in evidence in relation thereto." The 
 
 note in question may be such a useful precedent, and it has been thought 
 
 desirable to insert it in this place. It is as follows : 
 
 " This action came on for trial on the 19th April, 1880. A nonsuit was 
 then entered by consent, as against the co-defendant Blyth. Evidence was 
 given on behalf of the plaintiffs. 
 
 " The defendants' counsel, at the conclusion of the plaintiffs' case, raised 
 the following question of law, viz., whether, on the facts in evidence, the 
 plaintiffs ought not to be nonsuited on the ground that there was no privity 
 of contract between the plaintiffs and the defendants. 
 
 " The facts in evidence, in relation to the question of law so raised by the 
 defendants' counsel, were as follows : ' On the 7th of June, 1879, the plaintiffs, 
 with a person of the name of Middleton, proceeded to the public-house in 
 Wardoitr-street, belonging to the defendant Blyth. Middleton entered it 
 first, closely followed by the plaintiff's wife, who was carrying a parcel con- 
 taining glass, and the plaintiff John Daniels followed. Middleton turned 
 sharp round to a luncheon-bar, and the plaintiff's wife proceeding two or 
 three feet further, fell into a cellar, the trap-door of which had been left open. 
 This occurred about 3 p.m., but the day was dull and the place was dark, with 
 a borrowed light from the bar parlour, which cast a shade over the place. There 
 was no gas light in the shop or in the cellar. The plaintiff's wife was seriously 
 injured. Immediately after the accident, a workman, of the name of Lomax, 
 in the employment of the defendant firm, came in, and being asked if he had 
 left the trap door open, said he had, but he believed he had left two stools to 
 prevent people passing ; there were no stools there at the time of the 
 accident. The defendant Blyth had employed the defendants Jones, Dray, 
 and Co. to fit a stove or range in his public-house. Jordan, the manager of the 
 defendant firm Jones, Dray, and Co., had told the defendant Blyth that there 
 would be a quantity of bricks, mortar, and cement required, and suggested 
 that they might be put into the cellar until required. There was a trap-door 
 lo the cellar in the bar parlour and another which was not used in the shop. 
 The defendant Blyth gave permission to Jordan to use the latter, but said that 
 he must be very careful, and the latter said he would be very careful and that 
 it should be guarded. On the morning of the 7th June the defendant Blyth 
 noticed that the trap-door was left open, and called the attention of a 
 workman, Lomax, to the circumstance, who went back and closed it. After 
 the accident the defendant Blyth called upon Mr. Dray, one of the defendant 
 firm, who sent for Lomax and questioned him as to the accident. Lomax 
 said that at the time of the accident he had gone to fetch a bit of iron, and 
 that he was not away more than half an hour. He also said that he had 
 guarded the cellar by putting two stools taken from the bar. 
 
 " I held, first, that the plaintiffs ought not to be non-suited on the above 
 ground, inasmuch as privity of contract between the plaintiffs and the 
 defendants was not required to support the action ; and, secondly, that there 
 was evidence to go the jury that the defendants by their servant had been
 
 REPORTS OF CASES. 149 
 
 guilty of a misfeasance independent of contract which was sufficient to support DANIELS 
 the action. v - 
 
 " Evidence was then given on behalf of the defendant firm, and the jury JONES. 
 returned a verdict for the plaintiffs for 441. against the defendant firm, and I 
 entered judgment for the same, with costs." 
 
 "HENRY J. STONOE, 
 " Judge of the Southwark County Court, 
 
 " 23rd April, 1880." 
 See also note to Adams v. Nightingale, post, p. 158. 
 
 SOUTHWARK COUNTY COURT. 
 
 Thursday, May 13, 1880. 
 (Before H. J. STONOE, Esq., Judge. 
 
 MAETIN v. BAEWICK. (a) 
 
 Master and servant Scope of employment and authority. 
 His HONOUR. This is a peculiar case. In December last the 
 plaintiff purchased of the London and South-Western Railway 
 Company, for 40Z., six stacks of timber standing in a yard 
 belonging to the company, to be delivered on payment of the 
 purchase money. The defendant, who is a contractor with the 
 company for omnibuses and cabs, and holds stabling from the 
 company, was shortly afterwards told by the manager of the 
 company to send to the yard where the stacks of timber were for 
 timber which was required to repair or improve such stabling. 
 The defendant accordingly sent his servants to the yard, who 
 proceeded to take the timber required off one of the six stacks, 
 when they were told by one of the company's servants that the 
 six stacks had been sold to the plaintiff. There was at that time 
 other timber lying in the yard which the defendant's servants 
 might have taken, but they nevertheless persisted in taking the 
 timber which they required from two of the six stacks, and 
 removed it to the stabling, where it was at once used as required. 
 The plaintiff now sues the defendant for the value of the timber 
 so removed by his servants, which the plaintiff estimates at 10Z., 
 but which I intimated at the end of the case I should find to be 
 of the value of 5L On consideration, however, I am of opinion, 
 although with some doubt, that the defendant is not in anywise 
 liable for the wrongful act of his servants in the present case. 
 For the defendant only gave them directions and authority to 
 (a) County Courts Chronicle, vol. vii., p. 357.
 
 150 REPORTS OF CASES. 
 
 MARTIN fetch certain timber belonging to the company or which the 
 
 v - company's servants would authorise them to remove from the 
 BAR WICK. * , , ,, , , -,-, ,-, 
 yard in question, and when the company s servant told them 
 
 that the six stacks had been sold by the company to the plaintiff, 
 and there was at the same time other timber lying there belong- 
 ing to the company which they might and ought to have taken, 
 their wrongful act in removing the timber from the six stacks 
 was in my opinion not within the scope of their employment by 
 the defendant and of their authority from him. Upon the 
 evidence before me the defendant's servants would of course be 
 liable to the plaintiff ; and, as present advised, I think the 
 railway company would also be liable to him for having per- 
 mitted the removal of the timber in question, but in the present 
 case there must be a verdict for the defendant. 
 
 Verdict for defendant with costs of solicitor. 
 
 Martin v. Barwick. This case was confirmed on appeal, but the appeal was 
 not reported. 
 
 SOUTHWARK COUNTY COURT. 
 
 Monday, March 7, 1881. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 LEE v. TAiGEL.(a) 
 
 Damage by pigeons Owner not liable. 
 
 His HONOUR. In this case the plaintiff sues the defendant for 
 damages to the roof and ceilings of his house, occasioned by the 
 defendant's pigeons frequently alighting and picking out the 
 mortar between the slates or tiles, thereby loosening the same 
 and letting in the wet. At the hearing I was disposed to non- 
 suit the plaintiff, for, although there can be little doubt that as a 
 question of conduct, and I may say morality, the defendant 
 ought to compensate the plaintiff for damages done by animals 
 which he keeps, and from which he derives profit, I stated my 
 impression to have been that he was under no legal liability to do 
 so ; and on referring to the authorities I regret to find that my 
 impression was correct. Bailey, J. lays the law down in the 
 following words : " If pigeons come upon my land I may kill 
 
 (a) County Courts Chronicle, vol. viii., p. 76.
 
 REPORTS OF CASES. 151 
 
 them, but I have no remedy against anyone for breeding them:" LEE 
 (Hannam v. MocJcett, 5 B. & C. 939, following the opinion of the 
 majority of the judges in a very early case, Dewell v. Sanders, 
 Cro. Jac. 990.) It is much to be regretted that the plaintiff's 
 only remedy is therefore an act of violence, which is sure to 
 cause bad feeling and other evil consequences ; and I think that 
 it would be desirable for the Legislature to impose upon people 
 keeping animals the liability for any damage done by them, at 
 all events in circumstances like that of the present case. There 
 will be a nonsuit without costs. 
 
 SOUTHWARK COUNTY COURT. 
 
 Friday, April 22, 1881. 
 (Before H. J. STONOK, Esq., Judge.) 
 
 SULLIVAN v. CULLING, (a) 
 
 Liability of master for negligence of servant Qucere, whether a 
 lighterman employed by a barge owner under certain circum- 
 stances is a contractor or a servant. 
 Washington for plaintiff. 
 Farnfield for defendant. 
 
 His HONOUE. Defendant in this case is the owner of a wharf 
 at Rainham Creek, on the Thames, alongside of which the 
 plaintiffs barge, the Martha, was safely moored on Friday, the 
 llth Feb. last. On that day the defendant ordered Adams, a 
 licensed waterman, who worked for him regularly, but not exclu- 
 sively, on the terms of 6s. a day and 4s. a night when employed, 
 to shift a barge named the Calm, also moored alongside the 
 wharf, to another berth, at 12 p.m., with the tide. Adams, with- 
 out any necessity, employed Freebody, a labourer, and not a 
 licensed waterman, to shift the Calm. Freebody attempted, but 
 was unable to do so on account of the weather, and eventually he 
 moored the Calm against the wharf outside the Martha in so 
 unskilful a manner that on the fall of the tide the latter sustained 
 serious damage, and for such damage the plaintiff claims 181. It 
 seems to me very doubtful whether Adams ought to be regarded 
 as a contractor and bailee or as a workman and servant of 
 
 (a) County Courts Chronicle, vol. viii., p. 98.
 
 152 REPORTS OF CASES. 
 
 SULLIVAN the defendant. If he be the former, the defendant is clearly not 
 CULLING li^le, according to the case of Milligan v. Wedge (12 A. & E. 
 737), where it was held that a butcher having employed a 
 licensed drover to drive a bullock home, and the drover having 
 employed an inexperienced boy, through whose negligence 
 damage was done, the butcher was not liable. If he be the 
 latter, then the defendant, as his master, is only liable for the 
 negligence of Adams as his servant when acting within the 
 scope of his employment and authority, and the only question in 
 the present case would appear to be whether Adams had or had 
 not authority to employ another person to do his work, viz., to 
 shift the Calm on the night in question. At the first trial o 
 this action the defendant was not examined, and Adams, who was 
 examined, only deposed that he had left the Calm safely moored 
 on the morning of Friday, and did not state that he had been 
 instructed to remove the Calm at night, or that he had employed 
 Freebody to do so, and as the plaintiff was unprepared with any 
 evidence as to the person by whom the Calm was shifted, he was 
 consequently non-suited. On the present occasion (being a new 
 trial) both the defendant and Adams have been examined, 
 and they have admitted that the former had given instructions 
 to the latter to shift the Calm on the night in question, and 
 Adams further deposed as follows : " We are in the habit in 
 a place like this of employing other men to berth barges, 
 because we may get other employment. The defendant gives me 
 instructions to berth barges, and I do it or get it done. If this 
 had gone all right the defendant would have paid me, and 
 believed I had done it myself. He would not have asked me any 
 questions." Both the defendant and Adams, however, denied 
 that the defendant had ever given Adams any authority to 
 depute his work, or that the defendant knew of the practice on 
 the wharf of watermen deputing work to another. Freebody, 
 who shifted the Calm on the night in question, deposed that he 
 was paid for his work on the following Tuesday by another 
 licensed waterman of the name of Saunter, in the defendant's 
 employment, who told him that the defendant wished to see him, 
 but that he, Freebody, was ashamed to go to the defendant. 
 Saunter was called, and admitted paying the money, but said 
 that he did so of his own accord, to induce Freebody to give him 
 a cast in his boat, and denied that he had told him that the 
 defendant wished to see him. He further deposed that he had
 
 REPORTS OF CASES. 
 
 153 
 
 V. 
 
 CULLING. 
 
 applied to Adams to get the money from the defendant, and SULLIVAN 
 intended to charge the latter with it, and that he had paid 
 money for the defendant before, which had been repaid him. 
 Upon this evidence, and upon the assumption that Adams was a 
 servant, the case appears to me to resolve itself into the narrow 
 question of fact whether the practice proved to exist on this 
 wharf of watermen deputing their work to others was known 
 to the defendant or not. On the one hand the probability cer- 
 tainly appears to be that it was ; but on the other hand there is 
 the defendant's distinct denial, supported by the evidence of 
 Adams, and there is no direct contradictory evidence. On the 
 whole, I must find that it is not proved that the practice in 
 question was known to the defendant, and I must therefore 
 reluctantly nonsuit the plaintiff again, with liberty to bring 
 another action in case further evidence should be forthcoming 
 hereafter, but I shall not allow the defendant his costs on this 
 occasion. 
 
 Judgment accordingly. 
 
 Sullivan v. Culling. See HARBISON v. DAWSON and note, post, and 
 the cases there cited, and also the case of Charles v. Taylor, Walker, and Co. 
 (3 C. P. Div. 492). 
 
 SOUTHWARK COUNTY COUET. 
 
 Thursday, Oct. 6, 1881. 
 
 (Before H. J. STONOK, Esq., Judge.) 
 
 OWENS v. MAUDSLEY, SONS, AND FIELD, (a) 
 
 Employers' Liability Act, 1880, s. 6 County Court Act, k !846, 
 
 s. 90 Certiorari refused by High Court. 
 Sims for plaintiff. 
 
 This action, under the Employ ers' Liability Act, 1880, was 
 brought by Caroline Owens, as administratrix of her late 
 husband, William Owens, deceased, who was killed on the 
 5th March last, while in the employment of the defendants, the 
 well known engineers of Westminster Bridge-road, Lambeth, to 
 recover 225Z. as damages. 
 
 The action was commenced in this court in August last, and 
 was fixed for hearing on the 29th September. On the 
 
 (a) County Courts Chronicle, vol. viii., pp. 210, 234, and 280.
 
 REPORTS OF CASES. 
 
 OWENS 20th September the defendants obtained an order of Mr. Justice 
 v - Kay for issue of a writ of certiorari to remove the action to the 
 
 AUDSLE r. Q ueen , g B encn Division of the High Court of Justice, but such 
 order was discharged by his Lordship on the 29th September 
 with costs, and on motion made to-day in this court, his 
 Honour reinstated the action in the list of actions for trial on 
 the 31st inst. 
 
 SOUTHWARK COUNTY COUKT. 
 
 Wednesday, Nov. 2, 1881. 
 
 (Before H. J. STONOE, Esq., Judge, and a Jury.) 
 OWENS (Widow, and Administratrix of Owens, deceased) v. 
 
 MAUDSLEY and Co. (a) 
 
 Employers' Liability Act, 1880 Questions to be left to the Jury. 
 Sims for plaintiff. 
 
 Kingsford for defendant. 
 
 This action, under the Employers' Liability Act, 1880, was 
 brought by Caroline Owens, as administratrix of her late 
 husband, William Owens, deceased, who was killed on the 
 5th March last, while in the employment of the defendants, the 
 well-known engineers of Westminster Bridge-road, Lambeth, to 
 recover 225Z. as damages. 
 
 The action was commenced in this court in August last, and 
 was fixed for hearing on the 29th September. On the 20th 
 September the defendants obtained an order of Kay, J., for 
 issue of a writ of certiorari to remove the action to the Queen's 
 Bench Division of the High Court of Justice, but such order was 
 discharged by his Lordship on the 29th September with costs, 
 and the action came on for trial on the 31st October. The 
 original claim of 225Z. was by consent reduced to 193Z. Qs. Wd. 
 an amount admitted to be equal to the wages earned by the 
 deceased during the three years prior to his death, and agreed 
 to be taken as the limit of damages under the Act. The plaintiff 
 and two of the fellow- workmen of the deceased were examined 
 on the plaintiff's behalf, and on behalf of the defendants six of 
 their employes and the manager of another firm were called. The 
 chief witness for the plaintiff was James Smith, a labouring man 
 who was directing the operation of removing the boiler plate 
 
 (a) County Courts Chronicle, vol. viii., p. 234.
 
 REPORTS OF CASES. 155 
 
 from the boiler at the time of the accident. He deposed that OWENS 
 he had particularly called the attention of Musk, the defendant's M v ' 
 
 foreman, to the improper position of the boiler, and asked that 
 
 it might be turned so as to bring the plate in a safe position for 
 removal, but Musk refused to have the boiler turned. These 
 facts were substantially admitted by Musk in his evidence when 
 called for the defence. Smith further deposed that the deceased 
 himself affixed to the plate the " grab " by which the plate was 
 removed, but that, owing to the improper position of the boiler, 
 it was impossible to make the grab perfectly secure to the plate, 
 arid that when the plate was hoisted the grab slipped off the 
 plate, which fell on the deceased, who was under it at the time. 
 The evidence on behalf of the defendants went to show that the 
 grab in question, if properly secured, would lift seven tons 
 without slipping off, and that the deceased (who, it was admitted, 
 had for several years been engaged in fixing grabs and slinging 
 plates at the same works) had himself been guilty of negligence 
 in dressing the " grab " which caused his death, and that the 
 " grab " could have been securely attached to the plate without 
 altering the position of the boiler itself. At the conclusion of 
 the case the defendant's counsel took an objection that there was 
 a variance between the cause of injury stated in the particulars 
 and that proved in evidence by the plaintiff's witnesses, but his 
 Honour overruled the same. 
 
 His HONOUR then summed up at considerable length, and, after 
 explaining the provisions of the Act, and going through the 
 evidence, handed the following questions to the jury, upon their 
 answers to which their verdict would depend, and which they 
 returned with the following answers : 1 . Did Musk order the 
 plate to be removed in the manner in which it was removed so 
 far as regards the position of the plate ? Yes. 2. Was the 
 manner in which it was so removed unsafe and improper ? Yes. 
 3 (i.) Did the accident occur in consequence of its being so 
 removed ? Yes ; and this question of course involves another 
 (ii.) Did Owens fasten the grab negligently, and if so was 
 the accident wholly or partly attributable to such negligence ? 
 We consider he fastened the grab to the best of his ability, 
 considering the position of the boiler the accident was not 
 attributable to his negligence. 4. Did Owens know that the 
 intended manner of removal was unsafe and improper ? Yes. 
 5. Did Owens know that Musk knew of it ? Yes. 1 6. If Musk 
 gave the order and the manner of removal was unsafe and the
 
 156 
 
 REPORTS OF CASES. 
 
 OWENS 
 
 v. 
 MATTDSLEY. 
 
 accident happened in consequence of the removal, and Owens did 
 not know that the manner bf removal was unsafe and improper, 
 or knowing it also knew that Musk knew it, and if Owens did 
 not fasten the grab negligently, and the accident was not wholly 
 or partly attributable to such negligence, what damage is the 
 plaintiff entitled to? Seven years at 10s. per week amount 
 1822. 
 
 The jury accordingly returned a verdict for the above amount, 
 182Z. ', and judgment was entered for the same with costs. 
 
 Owens v. Maudsley, Sons, and Field. The defendants in the above case, 
 obtained a rule nisi in the High Court, calling upon the plaintiff to show 
 cause why the verdict and judgment for her should not be set aside, and a 
 verdict aud judgment entered for them, on the ground that there had been 
 no evidence to go to the jury, that the foreman, Musk, had at the time of the 
 accident, been exercising superintendence over Owens as required by the 
 act, and also on the ground that there had been no evidence to show the 
 the deceased had been aware that the employer or superintendent had known 
 of the negligence when he did the act made dangerous by that negligence. 
 FIELD, J. (HUDDLESTON, B. concurring) in giving judgment for the 
 plaintiff, said it was impossible for the court to hold that there had been no 
 evidence of negligence by Musk while superintending the removal of the 
 boiler plate by the deceased, or that the findings of the jury had not been 
 warranted by the evidence. (C. C. C. vol. viii., p. 280-381.) The verdict 
 obtained by the plaintiff in the county court therefore stood. 
 
 This case was one of the earliest under the Employer's Liability Act, and 
 was considered of such importance that the Iron Trades Employers' Associa- 
 tion had a report of the trial in the Southwark County Court printed from 
 the shorthand writer's notes, with explanatory diagrams for the use of counsel 
 and the Court of Appeal. 
 
 SOUTHWARK COUNTY COURT. 
 
 Monday, Nov. 28, 1881. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 ADAMS v. NIGHTINGALE, (a) 
 Employers' Liability Act, 1880, ss. 4 and 7. 
 Notice qt injury left after business hours under certain circum- 
 stances held to be insufficient. 
 Fitzgerald for plaintiff. 
 
 Kemp, Q.C. and Macdonell for defendant. 
 The following evidence was adduced for the plaintiff : 
 Valentine Livesey, clerk to the solicitor of plaintiff : I produce 
 (a) County Courts Chronicle, vol. viii., p. 252.
 
 REPORTS OF CASES. 
 
 157 
 
 copy letter of the 24th June, 1881, and copy notice of the 23rd 
 June, 1881. I posted letter and delivered notice at a little 
 building at defendant's place of business, at five minutes to six 
 on the days they bear date. I gave notice to a little boy ; I 
 believe the foreman' s little boy. I did not see any clerks there. 
 Cross-examined : The copy notice is not a " press copy." We 
 never keep press copies of notices. I left the notice in a small 
 office in the yard on the right hand going in. The clerks' office 
 was not open for business purposes, I should think, because the 
 little boy pushed me over to the other little office. The gas was 
 lighted. The boy appeared to be about seven. I cannot say 
 whether yard gates were shut or not. I went into the clerks' 
 office. There were no clerks there. The boy appeared to be 
 seven years of age. I left the notice on the desk. Re-examined : 
 On a subsequent day I served notice to produce documents at 
 5.30, after waiting there a good seven minutes. I left it with a 
 labourer in the clerks' office. The box where I first left notice 
 was a little wooden house for the foreman of the yard. It is not 
 movable. 
 
 The following evidence was adduced for the defendant : 
 Defendant examined : Mr. Hadland my head clerk and myself 
 open letters, no one else. I never received letter and notice of 
 the 23rd June and the 24th June. We close at five, our work 
 begins at six a.m. Labourers and clerks go away at five. The 
 little office or box spoken to is a portable office which two men 
 can lift. It has been used by the foreman to check the carmen's 
 tickets. The person who receives letters has nothing to do with 
 it. The foreman has a little boy ; I should say about five years 
 old. Cross-examined : I was informed that a man had been 
 injured, by the report of my foreman. In the ordinary course 
 the report of the foreman would come under my notice, it would 
 come by post. It was written on the day of the accident. 
 [Report produced.] A yard foreman is in charge of my works 
 when closed for the night. He resides there. He never gives 
 me letters. There is a large letter box locked up till the next 
 morning. I never heard of notice till the 30th July, when 
 plaintiff called at the office. That was the day when plaintiff 
 came out of St. Bartholomew's Hospital. I had received no 
 letter on the 24th June from his solicitor. I told him so. I 
 have no hesitation in saying I was at my office about ten to nine 
 on the 24th June, as I always go at that time ; but if I had my 
 
 ADAMS 
 
 v. 
 
 NIGHTIN- 
 GALE.
 
 158 REPORTS or CASES. 
 
 ADAMS diary here I could check positively. The cashier would be in 
 v ' the office with Hadland and about fifteen other clerks. They 
 
 ^IG-HTIN- 
 
 GALE. would certainly advise me if any such document had come. We 
 have searched and made inquiries all about the premises, but 
 cannot find any such documents. 
 
 John Hadland, head clerk to defendant, examined : All letters 
 come to my office ; I open letters and document. There is a 
 letter-box outside in the external wall, anybody can see the 
 letter-box. I have never seen any document in respect to this 
 action. I have searched everywhere. Cross-examined : I com- 
 menced search about three weeks ago. I have inquired of yard 
 foreman, and everyone else, whether any notice was left. Adams 
 called and asked me if we had a notice, and I searched for notice 
 and letter. All letters and documents wait till Mr. Nightingale 
 or I come. 
 
 Fitzgerald, for plaintiffs, submitted, first, that the fact of 
 leaving the notice at the place of business in the way deposed 
 to by the witness Livesey was sufficient within the meaning of 
 the Act ; secondly, and further, that the defendant was aware of 
 the injury having happened within the six weeks prescribed by 
 the Act by the report of his foreman, and therefore that any 
 informality with regard to the notice was thereby cured. 
 
 His HONOUR held the contrary, and that no sufficient service 
 of a notice pursuant to sects. 4 and 7 of the Act having been 
 proved, the plaintiff ought to be nonsuited. 
 
 Nonsuited accordingly, with costs. 
 
 Adams v. Nightingale. The decision of the County Court judge in the 
 above -reported case was confirmed on appeal with costs : (C. C. C., vol. viii., 
 p. 319.) The original note furnished by the County Court judge for the 
 appeal stated the two questions raised by counsel in the case verbatim, with 
 the evidence relating thereto, as required by sect. 6 of the County Courts 
 Act, 1875 : (see ante, DANIELS v. JONES, and notes.) The Divisional Court, 
 upon reading the notes and arguments, ordered that the notes be remitted to 
 the learned judge to state whether he decided upon fact or law, and, if law, 
 the particular point, and adjourned the hearing for his further statement. 
 The learned County Court judge thereupon made the following further state- 
 ment : 
 
 " Southwark County Court. 14th March, 1882. Adams v. Nightingale. 
 By an order of the High Court of Justice, Queen's Bench Division, made on 
 the 28th day of Feb. 1882, in the matter of this action, it was ordered that my 
 notes in this action be remitted to me to state whether I decided upon fact 
 or law, and, if law, the particular point. Now, in pursuance of such order, I 
 hereby state that the notes which I have already furnished to the High
 
 REPORTS OP CASES. 
 
 159 
 
 Court in this action contain verbatim the only questions raised at the trial, 
 and of which I was requested to take a note, the evidence relating thereto, 
 and of rny decision thereon, and of the cause, according to the 6th section of 
 the County Courts Acts, 1875. That the first of the questions so raised, 
 namely, whether the fact of leaving the notice at the place of business of the 
 defendant, as deposed to by the witness Livesey, was sufficient within the 
 meaning of the Act, was not, in my opinion, one of law or fact only, but was a 
 mixed question of both law and fact. That the matter of law involved in that 
 question was, in my opinion, whether the ' delivering a notice at the residence 
 or place of business of the person on whom it is to be served,' as required by 
 the 7th section of the Employers' Liability Act, 1880, means simply 
 delivering the notice to any person (whether an infant or not), or leaving the 
 same at such residence or place in any manner whatever, or whether it means 
 delivering it to some person, or leaving it at such residence or place in such 
 a manner that it might be reasonably presumed that it would come safely 
 into the hands of the person to whom it was addressed ; and upon such 
 matter of law I was of opinion that the meaning of the section was that the 
 notice should be delivered to some person, or left at such residence or place 
 in such a manner that it might be reasonably presumed that it would come 
 safely into the hands of the person to whom it was addressed. The matter of 
 fact involved in such first question was, in my opinion, whether the delivery 
 of the notice to a child, and the leaving of the notice at the defendant's 
 premises, as proved by the witness Livesey, was delivering or leaving it in 
 such a manner that it could be reasonaby presumed that it would come safely 
 to the hands of the defendant ; and I was of opinion that it was not, inasmuch 
 as the notice so delivered and left was liable to be removed and hidden or 
 destroyed intentionally or unintentionally by a human or brute being, or by 
 mere accident (as by a gust of wind), and so prevented from ever coming to 
 the defendant's knowledge ; and in point of fact there was no evidence that 
 the notice had come to the knowledge of the defendant, but strong evidence 
 to the contrary. That the second question raised by the plaintiff's counsel 
 at the trial, viz., whether the defendant's knowledge of the injury suffered by 
 the plaintiff within six weeks cured any informality with regard to the notice 
 required by the 7th section of the Employers' Liability Act, 1880, was, in my 
 opinion, one of law only, and I was of opinion that such knowledge did not 
 cure any informality with regard to the notice, or at all events that it did 
 not cure the insufficiency of the service of such notice in the present case, 
 inasmuch as there was no provision to that effect in the Employers' Liability 
 Act, 1880. H. J. STONOK, Judge of the Southwark County Court." 
 
 Upon this further statement the appeal, as already mentioned, was dis- 
 missed with costs. 
 
 The course adopted by the Divisional Court, in calling upon the County 
 Court judge to supply them with the above further statement, was thus 
 noticed in the Law Journal of April 15, 1882 : 
 
 " The Act allowing appeals by motion from County Court judges has thrown 
 much additional work on a body of men who are by no means paid by the 
 piece. When, however, a County Court judge sends to the High Court a full 
 note of all the evidence taken, and states the point on which he decided the 
 case, he might fairly be supposed to exhaust his duty. He has supplied the 
 High Court with the materials for overruling or supporting him, and the rest 
 of the work lies on the High Court judges. But these learned judges some- 
 
 ADAMS 
 
 v. 
 
 NIGHTIN- 
 GALE.
 
 ADAMS 
 
 v. 
 
 NIGHTIN- 
 GALE. 
 
 160 
 
 REPORTS OF CASES. 
 
 times wish to have the case still further sifted for their decision. They 
 desire to know what the County Court judge has decided as fact, and what 
 he has decided as law, not wishing to overrule his decision on fact, which, 
 indeed they have no jurisdiction to do. Occasionally, cases are remitted 
 rather unnecessarily as, for example, Adams v. Nightingale, a report of 
 one phase of which appears in this week's number. The learned judge, in 
 answer to the request of the High Court in sending the case back, entered 
 into an analytical disquisition which does him credit ; but the learned judges 
 of appeal should, we think, impose, as seldom as possible, on their brethren 
 below the ask of writing scholastic themes." 
 
 SOUTHWARK COUNTY COUET. 
 
 Thursday, Jan. 12, 1882. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 HATFIELD v. ENTHOVEN.(O,) 
 
 Employers' Liability Act, 1880, s. 1, sub-sect. 1. 
 
 Moving a hand crane within the scope of a labourer's employment ; 
 
 secus as to a steam crane. 
 Tatlock for the plaintiff. 
 
 G. Harrison for the defendant. 
 
 His HONOUE this day delivered judgment in the case reported 
 ante, p. 253 : This is an action under the Employers' Liability 
 Act, 1880, in which the plaintiff, a labourer, claims 100Z. as com- 
 pensation for personal injuries received by him on the 5th 
 August last while in the employment of the defendant, a builder. 
 It appears that on the day in question the plaintiff was ordered 
 by the defendant's foreman to get at once a barrowful of ballast 
 from a spot on the defendant's wharf beyond a hand crane 
 standing there on a platform or trolly, and to which spot he 
 could not go with a barrow without moving the crane, inasmuch 
 as the counterpoise of the crane blocked the way. The crane 
 had been fixed in its actual position by a wooden block, and in 
 order to free the crane, and enable the plaintiff to slew it round, 
 and so get the counterpoise out of the way of his barrow, the 
 plaintiff removed the block, and thereupon the crane immediately 
 swung round, and the counterpoise struck the plaintiff with great 
 violence, and jammed him against the wall of the wharf, and 
 rendered him insensible for a short time. On recovering his 
 senses he walked away holding his side, and met the foreman 
 (a) County Courts Chronicle, vol. viii., p. 253.
 
 REPORTS OF CASES. 161 
 
 and the defendant. The foreman asked him "what was the HATFIELD 
 matter ; " he replied, " that the crane had nearly killed him." E v ' 
 The defendant then said, " What is the matter with the crane ?" 
 and the foreman told him " that the crane did not stand level," 
 which was the fact, and no doubt had caused the accident. It is 
 to be observed that neither the defendant nor his foreman then 
 told the plaintiff that he ought not to have touched the crane, 
 and that he ought either to have removed the ballast without 
 moving the crane, by taking it spadeful by spadeful across the 
 platform on which the crane stood (which would have taken a 
 considerable time), or waited for the crane men, who were work- 
 ing a steam crane at the other end of the wharf, but were 
 temporarily absent, and asked them to move it, which was the 
 defence set up at the trial. On examination after the accident 
 it was found that two of the plaintiff's ribs were fractured and 
 his back injured, and since then he has been unfit for work, and 
 will in all probability be so for some weeks longer. The plaintiff 
 deposed that his wages averaged 27s. a week, and it was agreed that 
 they should be taken at 25s. a week, which, for twenty weeks, 
 would be 25Z. The doctors' bill was 4Z., and, the plaintiff's counsel 
 having offered to take a verdict for 30Z., I think it will be fair to 
 fix the total damages to the plaintiff for his injuries (including 
 his loss of time and doctor's bill) at the sum of 35 1., supposing 
 the defendant to be liable in respect of such injuries. This, 
 however, appears to me to be a point of great nicety, although 
 it depends upon the simple question whether the plaintiff was 
 justified in moving the hand crane or not. The only further 
 evidence bearing upon it beyond what I have already detailed is 
 the following : the foreman deposes that it was understood on the 
 wharf that no one except the crane man should meddle with the 
 crane, but he admits that there was no written notice to that 
 effect, and that no express notice of any such regulation was 
 given to the plaintiff, and he also admits that he was on the 
 wharf in sight of the crane at the time the order was given to 
 the plaintiff to get the ballast. The plaintiff denies that he 
 knew of any understanding or regulation as to meddling with 
 the crane, but he admitted that, if the crane men had been there, 
 he would have asked them to have assisted him, and he added, 
 "and they would have instructed him." At the hearing of the 
 case I felt very strongly the argument on the part of the defen- 
 dant, that the plaintiff had brought this accident upon himself 
 
 M
 
 162 REPORTS OF CASES. 
 
 HATFIELD by an act which was not within the scope of his employment, 
 
 v ~ but on further consideration I feel great doubt about it. It 
 ENTHOVEN. .,,-.., 
 
 certainly would have been within the scope or his employment to 
 
 have removed any ordinary obstacle in order to get the ballast 
 as expedition sly as possible, and the question is whether slewing 
 round a hand crane is the removal of an ordinary obstacle. 
 With regard to a steam crane it could not, I think, be regarded 
 as anj ordinary obstacle, and the moving it would probably 
 involve many latent risks against which only a skilled workman 
 could guard ; but with regard to a hand crane, as far as I know, 
 there are no such risks if it be in good order, and especially on a 
 level. At all events the point is too doubtful to justify me in 
 saying that a labourer who has not been prohibited from touching 
 the crane is not justified in moving it in order to proceed with 
 his work. It being admitted in this case that the crane was in 
 a defective and dangerous state to the knowledge of the foreman, 
 and that in sight of the crane he ordered the plaintiff to do 
 work which he could not do expeditiously, and therefore pro- 
 perly, and in the usual manner, without moving the crane, that 
 no crane men were there at the time, and that the plaintiff had 
 not been prohibited from meddling with the crane, and (which I 
 find as a fact) that the plaintiff did not know of any regulation 
 or understanding to that effect, I must hold, although with some 
 doubt, that the plaintiff was justified in moving the crane, and I 
 therefore find a verdict for the plaintiff for the amount I have 
 mentioned. 
 
 Verdict for the plaintiff for 35Z., with costs. 
 
 SOUTHWAEK COUNTY COURT. 
 
 Thursday, Feb. 16, 1882. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 PITMAN v. BENNETT AND SON. (a) 
 Employers' Liability Act, 1880, ss. 1 and 2 Contributory 
 
 negligence A defence except in special cases. 
 Humphreys for plaintiff. 
 Gtaskdl for defendants. 
 The plaintiff sued the defendants for personal injury caused 
 
 (a) County Courts Chronicle, vol. viii., p. 283.
 
 REPORTS OF CASES. 
 
 163 
 
 by the breaking of a rope used in the business of the employers, 
 and which rope was in a defective condition, and laid his 
 damages at 150Z. It appeared by the evidence that the 
 defendants were carriers, employing several carmen, and that 
 they kept a stock of ropes to be used by the carmen in fastening 
 loads of hay and corn on the vans ; that it was the duty of the 
 carmen to select and examine the ropes when they took out their 
 first loads in the morning; that subsequently, in the course of 
 the day, they frequently interchanged vans and ropes, and that 
 it was the duty of the carmen on such occasions to examine the 
 ropes before they fastened loads on the vans. On the present 
 occasion the plaintiff had not examined the rope, and in fastening 
 the load it broke, and occasioned the injuries which he had 
 sustained. It was also proved that on careful examination of the 
 rope he would have seen its defect, and that he could have 
 exchanged his rope, and even got a new one, by applying to the 
 yard foreman. 
 
 His HONOUR held that contributory negligence was a defence 
 to an action under sect. 1 of the Employers' Liability Act, 1880, 
 except in some special cases where the employer or his super- 
 intendent had notice of a defect in machinery, &c., within the 
 meaning of the third exception in sect. 2, and that, supposing 
 the defendants to have been guilty of negligence, the plaintiff 
 was guilty of contributory negligence in not examining the rope. 
 He added that he had great doubt whether the defendants were 
 guilty of negligence at all, but he thought it highly desirable 
 that some competent person should regularly examine the ropes 
 as well as the carmen, and he should allow no costs. 
 
 Nonsuit without costs. 
 
 PITMAN 
 
 v. 
 
 BENNETT 
 AND SON. 
 
 Pitman v. Bennett. The Employers' Liability Act, 1880, deprives the 
 employer in certain cases only of the common law defence known as 
 " contributory negligence." This defence was previously available whenever 
 the plaint iff continued to work for his employer with knowledge of the defect 
 or negligence which caused his injury (Senior v. Ward, 1 E. & E. 385 ; 
 Dynes v. Leach, 26 L. J. 221, Ex.; and Griffiths v. Gillow, 3 H. & N. 648), 
 unless he had complained of the same, and been promised to have it remedied 
 (Holmes v. Clark, 6 H. & N. 349). But under the Employers' Liability Act, 
 1880, by the joint operation of sects. 1 and 2, if the workman gives notice of 
 such defect or negligence to " the employer, or some person superior to him- 
 self in the service of the employer," or is aware that "the employer or such 
 superior " already knew of it, the defence of contributory negligence would 
 not be available. 
 
 M 2
 
 REPORTS OP CASES. 
 
 SOUTHWAEK COUNTY COURT. 
 
 July 10, 1882. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 SMITH v. LAFONE.(a) 
 Employers' Liability Act, 1880, s. 1, sub-sect. 1 Defect in plant 
 
 Sub-sect. 2 Negligence of person with superintendence. 
 H. Reed (instructed by Lewty and Bendle) for the plaintiff. 
 
 Ruegg (instructed by Watson, Sons, and Room] for the 
 defendants. 
 
 This was an action brought to recover the sum of 180Z. under 
 the provisions of the Employers' Liability Act 1880, by a work- 
 man against his employers, the proprietors of Butler's Wharf, 
 Shad Thames. The plaintiff was, on the 29th March last, 
 standing, in the course of his duty, upon a bridge belonging to 
 his employers, which spanned a public road, and whilst so 
 standing the bridge was knocked down by a loaded cart trying to 
 pass beneath it, and the plaintiff was caused the injury in respect 
 of which he sued. The bridge in question was supported by 
 resting upon the walls on either side, but was not attached to the 
 walls. There was much contradictory evidence as to the direc- 
 tions given to the driver of the cart by the defendants' police- 
 man, a man named Norman, who had the control of the traffic. 
 The driver's evidence was that Norman said to him, ( ' What are 
 you looking at ? Draw in on the near side ; the bridge is higher 
 on the near side." The driver also stated that he had no doubt 
 that the load would go under the bridge. According to Norman's 
 evidence, he stopped the driver and warned him of the bridge, 
 but said to him, " You will find the road lower on the near side." 
 Ruegg, for the defendants, submitted that, even though the 
 bridge was unsafe, the accident was not caused by this, but 
 solely through the negligence of the driver, who, not being 
 in defendant's employ, could not make him responsible. 
 
 His HONOUR held the defendant liable upon both counts: 
 (1) for defect in the " ways, works, machinery, or plant " 
 (sect. 1, sub-s. 1) ; and (2), with some doubt, for the negli- 
 gence of Norman, being " a person having superintendence 
 entrusted him, whilst in the exercise of such superintendence " 
 (sect. 1, sub-s. 2), and his Honour assessed the damages at 601. 
 
 Judgment accordingly. 
 (a) County Courts Chronicle, vol. viii., p. 382.
 
 REPORTS OF CASES. 165 
 
 SOUTHWARK COUNTY COUET. 
 
 (Before H. J. STONOE, Esq., Judge, and a Jury.) 
 
 Monday, Oct. 2, 1882. 
 
 HAEEISON v. DAW SON. (a) 
 
 Employers' Liability Act, 1880, s. 8. 
 
 A lighterman, under certain circumstances, held to be a contractor 
 
 and not a " workman " within the Act. 
 Lyon for plaintiff. 
 
 Bevan for defendant. 
 
 The plaintiff was employed by the defendant to take a barge 
 laden with gas refuse into a dock and to unload it. The plaintiff 
 in pushing the barge from its moorings, stepped on a carling or 
 beam supporting the stern sheets or boards at the stern, some of 
 which boards had previously been removed, and the remainder 
 of which were in a state of decay. The carling gave way and 
 the plaintiff fell some feet into the stern hold and broke his leg. 
 The plaintiff was to receive 21. 5s. for navigating and unload- 
 ing the barge, and was at liberty to do the whole work 
 himself or employ others to do it. He employed others to 
 assist him, to whom he paid 30s. He now brought his action 
 under the above Act for compensation for the injuries 
 sustained. 
 
 At the conclusion of the plaintiff's case, His HONOUE held that 
 the plaintiff was a contractor, and not a workman within the 
 Employers' Liability Act, 1880, s. 8, and ought, therefore, to 
 be nonsuited. 
 
 Judgment accordingly. 
 
 Harrison v. Dawson. The learned County Court judge appears to have 
 nonsuited the plaintiff in this case on the ground that the plaintiff, not being 
 bound to do any of the work specified himself, but being at liberty to employ 
 others to do it, was not a workman within the meaning of sect. 10 of the 
 Employers and "Workmen Act, 1875. On this ground the case is dis- 
 tinguishable from Grainger v. Aynsley (6 Q. B. Div. 182), in which the 
 appellant had engaged personally to do manual work for the respondents, 
 though he was at liberty to employ, and did in fact employ, a person to assist 
 him. That this distinction is a sound one appears from the case of Whiteley 
 v. Armitage (13 "W. B. 144), in which the court had to determine whether a 
 person working manually at weekly wages and a commission, and who 
 superintended other workmen, was an " artificer " within 4 Geo. 3, c. 4, s. 3. 
 It was there held that, as the appellant actually worked with his hands, and 
 
 (a) County Courts Chronicle, vol. viii., p. 431.
 
 166 
 
 REPORTS OF CASES. 
 
 v. 
 DA.WSON. 
 
 HARBISON at the same kind of work which the men under him were employed upon, he 
 was an artificer within the Act, and that the way in which he was paid did 
 not alter his position. It is submitted, therefore, that to constitute a 
 " workman " within the meaning of the Employers' Liability Act, the person 
 must have contracted personally to do some manual labour (Grainger v. 
 Aynsley, ubi sup. ; and Shaffers v. General Steam Navigation Company, 10 
 Q. B. Div. 356), and must not merely have the option of doing it himself, 
 coupled with the power to employ other persons to do the whole of it for 
 him. 
 
 It is to be observed, that, in this case, the plaintiff might, instead of 
 proceeding under the Employers' Liability Act, have relied upon his common 
 law right to recover damages from the defendant, basing his claim upon 
 the ground that the defendant having invited the plaintiff upon the barge, in 
 pursuance of a contract with the inviter, was bound to exercise more than 
 ordinary care, whilst, in fact, lie had been guilty of such negligence as would 
 have rendered him liable to a mere license or guest. (See Smith on the Law 
 of Negligence, p. 81, and cases there cited). For there can be no doubt that 
 the latent defective condition of the carling constituted in its nature a 
 " trap " for which the inviter would be held responsible, even to a bare 
 licensee who sustained injury therefrom. (See White v. France, 2 C. P. Div. 
 308; Corby v. Hill, 4 C. B. N. S. 656; Seymour v. Maddox, 16 Q. B. 326). 
 It is also submitted, that, when the plaintiff in the above case failed to 
 establish a claim under the Employers' Liability Act, he might have applied 
 to the learned County Court judge to convert the claim, by amendment, into 
 one of a common law nature. (As to this see note to PHILLIPS v. BURROWS, 
 ante, p. 5-6. 
 
 SOUTHWAKK COUNTY COURT. 
 
 Friday, Oct. 6, 1882. 
 
 (Before H. G. STONOR, Esq., Judge.) 
 
 SPINES v. ALEXANDER COWAN AND Co. (a) 
 
 Employers' Liability Act, 1880, s. I, sub-sect. 1 Defect in ways 
 and plant Negligence Sect. I, sub-sect. 2 Person with super- 
 intendence No general liability of employer as to fencing 
 machinery. 
 Ody for the plaintiff. 
 
 Ruegg (instructed by Watson, Sons, and Room) for the 
 defendants. 
 
 This was an action under the Employers' Liability Act, 1880, 
 for SQOL, brought by an infant workman suing by his next friend 
 against his employers. 
 
 The plaintiff, aged fourteen years, was in defendants' employ 
 as errand boy at 7s. a week, and on the 16th Feb. last, whilst 
 (a) County Courts Chronicle, vol. viii., p. 431.
 
 REPORTS OF CASES. 167 
 
 passing along a passage or gangway about three feet wide in the SPINES 
 defendants' workshop, fell, and in trying to save himself thrust . v ~ 
 out his hand beyond the passage into the cog-wheels of a machine COWAN 
 standing at the side of the passage, and at right angles with it, AND ^- 
 and his hand was so severely crushed that it had to be ampu- 
 tated. 
 
 The grounds upon which the claim was based were, first, that 
 the defendants were liable for the neglect of a manager named 
 Martin, who caused or permitted a ream or heap of paper to be 
 left in the passage along which the plaintiff had to pass, and over 
 which he alleged he fell ; second, that the said passage was not 
 sufficiently lighted ; and, third, that the defendants were guilty 
 of negligence in not having the machine in question fenced. 
 
 The plaintiff swore that he did not see the ream or heap of 
 paper before the accident, but that he saw it when he rose from 
 the ground with his hand crushed; and that the passage was 
 not dark, but " darkish." The plaintiff also called an engineer, 
 who stated that he had considered the machine ought to have 
 been fenced, but admitted in cross-examination that he had never 
 seen a machine of the kind before. For the defence evidence was 
 given that the workshops where the accident occurred had large 
 windows running round two sides of it, and all the workmen who 
 were in the shop at the time of the accident swore that there was 
 no ream or heap of paper whatever lying in the passage, and that 
 the cause of the boy's falling was " a mystery," and that it was 
 very difficult to understand how he could have got his hand into 
 the machinery. 
 
 His HONOUK, in delivering judgment, said that, after the 
 evidence which had been given on behalf of the defendants, it 
 was impossible for him to decide that the plaintiff's fall was in 
 any way due to the negligence of the defendants or their manager. 
 He observed that, as to the unfenced machine, there was no 
 common law liability generally to fence machinery. The Factory 
 Acts had, in certain specified cases, imposed this duty upon 
 employers, but these Acts did not govern the present case (see 
 7 Viet. c. 15), and gave a verdict for the defendants. 
 
 Judgment accordingly.
 
 168 REPORTS OF CASES. 
 
 SOUTHWARK COUNTY COURT. 
 
 Feb. 5 and 19, 1883. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 GEACE v. CAWTHOEN. (a) 
 
 Employers' liability Negligence 43 fy 44 Viet. c. 42, s. 1, sub- 
 sect. 2 " Seamen" Are they within the Act ? 
 A fireman on board a steamer not a seaman within the exception in 
 
 the Employers and Workmen Act, 1875, s. 10, and Employers' 
 
 Liability Act, 1880, s. 8. 
 Reversed on appeal (see note, p. 171, post). 
 Fillan for plaintiff. 
 
 F. 0. Crump (instructed by Lawless and Co.) for defendant. 
 
 The facts of the case as disclosed by the evidence are shortly 
 as follows : The plaintiff, a coal porter at the docks, was engaged 
 by defendant as a fireman on board defendant's steamship Ban- 
 some, and, on the 29th June, 1882, while at his work, was 
 requested by the chief engineer to go and bring him a spanner 
 out of the locker, and it was in execution of this order that 
 plaintiff fell into the unguarded crank pit, and received severe 
 injuries to his right thigh and knee, in respect of which he 
 brought the present action for 150Z. damages. The guard of the 
 crank pit had been removed to permit some repairs to be done, 
 and plaintiff was unaware of its removal. 
 
 Crump, for the defendant, argued that plaintiff was not within 
 the Employ ers' Liability Act of 1880. That Act, by sect. 8, 
 only applied to " Railway servants and those ' workmen ' to 
 whom the Employers and Workmen Act, 1875, applies/' And 
 sect. 10 of the Employers and Workmen Act, 1875, provides 
 that the expression " workmen " " does not include a domestic 
 or menial servant, but means any person who, being a labourer, 
 servant in husbandry, journeyman artificer, handicraftsman, 
 miner, or otherwise engaged in manual labour, whether under 
 the age of twenty-one years or above that age, has entered into 
 or works under a contract with an employer, whether the contract 
 has been made before or after the passing of this Act, be 
 expressed or implied, oral or in writing, and be a contract of 
 
 (a) County Courts Chronicle, vol. ix., p. 55.
 
 REPORTS OF CASES. 169 
 
 service or a contract personally to execute any work or labour." GRACE 
 
 And sect. 18 of the same Act provides that the Act "shall not ~ v ~ 
 
 CAWTHORN. 
 apply to seamen or to apprentices to the sea service." And by 
 
 the Merchant Shipping Act of 1854 the term "seaman" includes 
 "every person (except masters, pilots, and apprentices duly 
 articled) employed or engaged in any capacity on board any 
 ship." The plaintiff, acting as a fireman on board a steamer, 
 was clearly a seaman within the Merchant Shipping Act, 1854, 
 and, being so, was expressly excluded from the Employers and 
 Workmen Act of 1875, and also (by reference) from the 
 Employers' Liability Act of 1880, and therefore ought to be 
 nonsuited in the present action. 
 
 Fillan, contra. 
 
 His HONOUR adjourned the case to enable him to consider the 
 point raised by defendant, and, subject to his decision on that 
 point, assessed plaintiffs damages at 50/. 
 
 Feb. 19. His HONOUR. The question involved in this action, 
 viz., Whether the numerous persons engaged in the Mercantile 
 Marine (and possibly in the Royal Navy), who are not seamen in 
 the ordinary and natural signification of the term, are within the 
 operation of the Employers' Liability Act, 1880, is one of 
 importance and difficulty, and has been argued with great 
 ability by the learned counsel engaged for both parties. 
 According to the evidence the plaintiff was a fireman on board 
 a merchant steamer called the Ransome, belonging to the defen- 
 dant, and, through the negligence of the chief engineer, whose 
 duty it was to see that a passage by the side of the crank pit of 
 the engine was properly protected, fell (whilst executing the 
 chief engineer's orders) into the crank pit, and received serious 
 injuries for which he has recovered in this action 50Z. damages, 
 subject to leave reserved to enter a nonsuit on the grounds that 
 a " seaman " is not within the operation of the Employers' 
 Liability Act, 1880, and that the plaintiff is a " seaman." By 
 the 8th section of that Act it is provided that in the construction 
 of the Act the expression " workman " shall mean any person 
 to whom the Employers and Workmen Act, 1875, applies. By 
 the 10th section of the latter Act it is provided that the expres- 
 sion "workman" should not include "a domestic or menial 
 servant," but, save as aforesaid, should mean "any person 
 engaged in manual labour who should enter into or work under 
 a contract with an employer," but by the 13th section of the
 
 170 REPORTS OF CASES. 
 
 GEACE same Act it is provided that it should " not apply to seamen or 
 
 v - to apprentices to the sea service." There is nothing in the latter 
 CAWTHORN. , . J 
 
 Act to extend the ordinary and natural meaning of the expression 
 
 "seamen" used in the 13th section (nor, I may mention, to 
 exclude the Royal Navy), and it therefore follows that this 
 expression " seamen," when employed in either of those Acts, 
 has only its natural and ordinary signification. An argument 
 was raised on the part of the defendant, founded on the interpre- 
 tation clause of the Merchant Shipping Act, 1854, which enacts 
 " that in the construction and for the purposes of that Act the 
 word seaman shall include every person (except masters, pilots, 
 and apprentices) employed or engaged in any capacity on board 
 any ship ; " but it appears to me that the operation of this 
 section must clearly be restricted, according to its own terms, to 
 the construction and purposes of the Act in which it is contained, 
 and, further, that it affords a strong argument against the 
 extension of the expression ' ' seaman " to any other person than 
 those to whom it applies in its ordinary and natural signification, 
 inasmuch as it was thought necessary by the Legislature 
 expressly to include in such expression by this section the other 
 persons referred to. It therefore appears to me that the only 
 questions in the present case are, what is the ordinary and 
 natural signification of the word " seaman/' and is the plaintiff, 
 according to such signification, a " seaman ? " In Webster's 
 Dictionary the following definition is given of the word 
 " seaman : " (1) " A sailor, a mariner, a man whose occupation 
 is to assist in the management of ships at sea;" (2) " by way of 
 distinction a skilful mariner, one well versed in the art of navi- 
 gating ships at sea, in which sense it is applied both to officers 
 and to common seamen." Now, I take it to be clear that any 
 person employed or engaged in any capacity on board a ship who 
 does not fall within the first of the above definitions (upon the 
 true significance of which much light is thrown by the second) 
 is not a " seaman," and that a person who is not employed and 
 occupied in the management of the sails, the steering of the 
 vessel, or otherwise directly assisting in the management a. id 
 navigation of the ship, with skilled knowledge relating to the 
 same, is not a " seaman." This interpretation of the word 
 " seaman " is strengthened by evidence in this present action, as 
 both the plaintiff and the second engineer employed in the same 
 ship, who were the only skilled witnesses called, both deposed
 
 REl'ORTS OF CASES. 171 
 
 that they and others similarly employed were not considered or GRACE 
 termed (t seamen," and were not so in fact. The exact circum- ~ v ' 
 
 stances of the plaintiff's employment were as follows : He had 
 
 been a coal porter and corn porter ashore until about a year 
 previously to the 29th June last, during such year he had been 
 employed as a coal trimmer on board ship off and on under 
 written agreements; and on the 29th June last the chief 
 engineer of the ship Ransome engaged him as a fireman at 
 weekly wages of 30s. without any written agreement, and he 
 went on board at ten o' clock at night. He was at first employed 
 in passing word from the deck to the engine room, but about 
 eleven he was sent down to the engine room to attend to the 
 fires, when the accident in question happened. His duties appear 
 to have been simply to attend to the fires of the engine, to pass 
 the orders from deck to the engineer, and similar duties connected 
 with the engine, and which were evidently the same whether 
 performed on land or at sea, and certainly required no skilled 
 knowledge relating to the management or navigation of a ship. 
 Upon these facts I am of opinion that the plaintiff was not at 
 the time of the accident a " seaman " in the ordinary and 
 natural signification of the term, and that judgment ought to be 
 entered in his favour. The defendant is at liberty to appeal 
 either by motion or by case, and in the event of an appeal I 
 shall, under the County Court Act, 1882, allow costs on the 
 higher scale above 100Z., being of opinion that the question 
 involved is one of general and public interest ; but, in the event 
 of there being no appeal, I shall allow the costs only on the 
 amount recovered. 
 
 Judgment for plaintiff, with costs accordingly. 
 
 Grace v. Cawthorn. The Employers' Liability Act, 1880, defines "a 
 workman " to mean " a railway servant and any person to whom the 
 Employers and "Workmen Act, 1875, applies " (sect. 8). In order, therefore, 
 to determine what persons are within this definition, the provisions of the 
 latter Act have to be considered. The reasons given by the learned judge 
 for holding that a "fireman" on board a merchant steamer is not a "seaman" 
 within the provisions of either Act, appear in detail in the judgment above 
 reported. 
 
 Whilst the present work was going through the press, this decision has 
 been reversed on appeal, but, unfortunately, no legal report of the case on 
 appeal has appeared, nor has any notice of it been taken in the Weekly 
 Notes published by the Council of Law Reports, and it is feared that no
 
 172 BEPORTS OF CASES. 
 
 GBACE authorised or legal report of the case will be forthcoming. The following 
 
 v. short report appeared in the Times of Thursday, the 25th April last. 
 
 CAWTHOEN. 
 
 QUEEN'S BENCH DIVISION. 
 
 April 24, 1883. 
 GBACE v. CAWTHOBN. 
 
 THIS was a County Court appeal, under the Employers' Liability Act of 
 1880, being an argument against a rule to set aside a verdict obtained for the 
 plaintiff. Grace was a fireman on board a ship, and while obeying the 
 engineer's orders fell through an open grating, and was so injured. The 
 question was whether he was a workman as defined in the 7th section of the 
 Employers' Liability Act as " any person to whom the Employer and Work- 
 man Act, 1875, applied." The latter Act specially excludes " seamen " from 
 its provisions. The short point therefore, upon which the liability or non- 
 liability of the defendant here depended was, was Grace properly to be con- 
 sidered as a " seaman." 
 
 Mathews, Q.C., by the simple citation of the section of the Merchant 
 Shipping Act defining as seamen all except the master, pilot, and apprentices, 
 gave the court all the authority which they needed over and above the self- 
 evident meaning of the words for the construction which they accordingly 
 placed upon them viz., that plaintiff was a seaman none the less for that he 
 was also a fireman, and, consequently, excluded from a right to sue his 
 employer. 
 
 Verdict set aside. 
 
 Fillan appeared for the plaintiff. 
 
 It is difficult to believe that the appellate court proceeded upon the 
 ground indicated in this report, for the definition contained in the 
 Merchant Shipping Act is not of general application, but is merely 
 for the purposes of the Merchant Shipping Act, and therefore cannot 
 affect the interpretation of the Employers and Workmen Act and the 
 Employers' Liability Act ; and it would seem therefore to follow that, 
 except so far as the Merchant Shipping Act is concerned, the term 
 " seaman " must be interpreted according to its ordinary and natural 
 meaning, whatever that may be. The conclusion of the learned judge 
 of the County Court in this respect is given in the text, with his 
 reasons for the same. It appears to be based on the following pro- 
 positions : Previoiisly to the Merchant Shipping Act, neither a " fire- 
 man" nor any other persons employed on board ship besides skilled 
 sailors were " seamen." By the interpretation clause of that Act, "firemen " 
 and all persons so employed, with a few exceptions, were made " seamen " 
 " for the purposes of that Act," but not otherwise. Neither the Employers 
 and Workmen Act, the Employers' Liability Act, or any other Act has 
 since extended the meaning of the term. It may, therefore, be asked when 
 and how the meaning of the word became extended to " firemen," as decided 
 by the Court of Appeal. Probably the question will soon arise again as to 
 other persons employed on board ship, such as chaplains, doctors, stewards, 
 cooks, cabin servants, &c., when it is to be hoped that the case will be satis- 
 factorily argued and reported. 
 
 It may be even well to mention that the section of the Employers and 
 Workmen Act, 1875, which excludes from its operation seamen and appren- 
 tices to the sea service (sect. 13), is itself repealed by sect. 11 of the
 
 REPORTS OF CASES. 173 
 
 Merchant Seamen Payment of "Wages, &c. Act, 1880, but " such appeal," it GRACE 
 
 is provided, " shall not, in the absence of any enactment to the contrary, v. 
 
 extend to or affect any provision contained in any other Act of Parliament CAWTHORN. 
 
 passed, or to be passed, whereby workman is defined by reference to the 
 
 persons to whom the Employers and Workmen Act, 1875, applies " (43 & 44 
 
 Viet. c. 16, s. 11), as, therefore, the Employers' Liability Act, 1880, does not 
 
 contain any enactment to the contrary, it follows that " seamen," whatever 
 
 that term may be held to include, are excluded from its operation : (see Mac- 
 
 donnel's Master and Servant, p. 672, note (*), and that very useful and able 
 
 work, Roberts and Wallace's " Liability of Employers," 2nd edit., p. 83.) 
 
 WANDSWORTH COUNTY COURT. 
 
 Monday, April 23, 1883. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 RUNHAM V. RONCA. (a) 
 
 A householder is liable for negligence of even a competent person 
 
 employed by him in acts which are hazardous or attended with 
 
 risk to neighbouring premises. 
 Haynes for plaintiff. 
 
 Jones for defendant. 
 
 His HONOUR. In this action the plaintiff claims 5Z. "for 
 damage done to the roof of his house through the negligence of 
 the defendant in causing a seven-foot cowl or talboy to be fixed 
 in an improper and dangerous position on the top of the 
 defendant's chimney-pot, so that the said cowl or talboy was, on 
 the 30th day of January, 1883, blown down by the wind upon 
 the plaintiff's roof." The plaintiff has fully proved his case, and 
 the only defence is that the cowl or talboy was fixed at the 
 defendant's request by the defendant's landlord, who is a 
 builder, and therefore a competent person, and that the defendant 
 ought not to be held liable (1), because the cowl was fixed by 
 the landlord of the premises, and (2), because it was done by a 
 competent person. I am of opinion, although with some doubt, 
 that the defence fails. For the occupier of a house has the 
 absolute dominion over it, and is liable for the consequences of 
 any acts which are necessarily hazardous and attended with risk 
 to his neighbour's house, done at his request or with his 
 permission upon the premises, by any person whomsoever, and is 
 bound to see to the doing of any such acts in a proper manner, 
 
 (a) County Courts Chronicle, vol. ix., p. 91.
 
 174 
 
 REPORTS OP CASES. 
 
 RUNHAM 
 
 V. 
 RONCA. 
 
 and cannot relieve himself of his responsibility by employing a 
 third party, although such third party may also be liable for 
 negligence therein. See the case of Bower v. Peate (I Q. B. Div. 
 321), Dalton v. Angus (6 App. Gas. 740), and Percival v. Hughes 
 (9 Q. B. Div. 441); and I think, although with some doubt, that 
 the erection of a seven-foot cowl at the top of a chimney-pot 
 ought to be regarded as necessarily hazardous and attended 
 with risk to adjoining premises. I therefore think that the 
 defendant is liable for the damage claimed and the costs of .this 
 action, but I also think that the landlord, as he fixed the cowl in 
 question, is also clearly liable for such damage, and ought to be 
 made so primarily. See the case of Corby v. Hill (27 L. T. Rep. 
 N. S. 228), and Parry v. Smith (4 C. P. Div. 325), and a recent 
 case of Daniels and Wife v. Jones, decided by me in the County 
 Court of Southwark (County Court Chronicle, vol. vii. p. 340) and 
 confirmed on appeal by the Court of Exchequer (C.C.C. 
 vol. viii., p. 19) ; and if the plaintiff consent, I will, under 
 Order XVII., r. 12, add the landlord as a defendant, and direct 
 him to be served with the summons, on the terms that if he pays 
 the damages into court in due time there will be no costs against 
 him, but otherwise the action will proceed against him also in the 
 usual course. There will at all events be a verdict against the 
 present defendant for the damages claimed with costs. 
 
 Eunham v. Bonca. As regards the liability of a landlord qua landlord for 
 an injury to a stranger by the defective repair of demised premises, it has 
 been held that he is liable only when he has contracted with the tenant to 
 repair, or when he has been guilty of misfeasance, as, for instance, in letting 
 the premises in a ruinous condition : (Nelson v. Liverpool Brewery Company, 
 2 C. P. Div. 311.) The case of Percival v. Hughes (ubi sup.) relied on by 
 the second judge, was affirmed by the House of Lords, 4th June, 1883. 
 
 SOUTHWARK COUNTY COURT. 
 
 Monday, May 21, 1883. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 DUCK v. BATES, (a) 
 The exclusive right of performing a dramatic composition conferred 
 
 (a) County Courts Chronicle, vol. ix., p. 112.
 
 REPORTS OF CASES. 175 
 
 by 3 fy 4 Will. 4, c. 15, and 5 $ 6 Fic. c. 45, o?i /ie author or DUCK 
 
 /its assignee extends only to performances in public. v- 
 r j' i '** BATES. 
 Leonard tor plamtin. 
 
 Smithies for defendant. 
 
 The facts of this case lie in a nutshell. The plaintiff is the 
 assignee of the well-known dramatic piece called "Our Boys." 
 The defendant is a member of an amateur dramatic club, who, 
 in the month of January last, gave three representations of that 
 piece at Guy's Hospital, for the entertainment of the nurses, 
 attendants, and others connected with the hospital. The admis- 
 sion was free, and the expense of the seats and costumes was 
 defrayed by the governors of the hospital. A general invitation 
 was conveyed to the nurses, attendants, and others, through the 
 sisters who superintend that institution, and tickets were also 
 issued to the physicians, surgeons, and senior students of the 
 hospital ; but on the last occasion a lesser number of such 
 tickets was so given, and in lieu thereof tickets were given to 
 the members of the amateur club to distribute among their 
 friends. On each occasion there were about one hundred and 
 seventy people present. Tickets were sent to the editors of five 
 theatrical newspapers to obtain notices of the performance, but 
 only one reporter came to the last performance. The plaintiff 
 now sues the defendant for damages, or in the alternative for 
 penalties of 40s. for each representation, under 3 & 4 Will. 4, 
 c. 15, ss. 1, 2 ; and 5 & 6 Viet. c. 45, s. 20. Upon the facts 
 which are in evidence, and upon the authority of the cases of 
 Russell v. Smith (12 Q. B. 217) and Wall v. Taylor and Same v. 
 Martin (9 Q. B. Div. 727), confirmed by the Court of Appeal 
 (Weekly Notes, May 5, 1883), I am of opinion that the per- 
 formance in question must be held to have been the performance 
 of a dramatic piece at a place which was for the time being a 
 place of dramatic entertainment within those Acts, notwithstand- 
 ing that no payment was taken, and the only question is, whether 
 such performance was a public representation of this piece, to 
 the exclusive right of representing or performing which in public 
 the author or his assignee is entitled under those Acts, and which 
 right is thereby protected. And I am of opinion, as a matter of 
 law and fact, that the representation in question ought not to 
 be held to be a public representation, so as to expose the 
 defendant to the penalties in question or to damages, which, I 
 may observe, would in any case have been only nominal, as no
 
 176 REPORTS OF CASES. 
 
 DUCK special damage was proved. I may add that I feel some little 
 
 v- doubt on account of the invitations to the press, and the attend- 
 
 BATES. . r , . 
 
 ance of a reporter on one occasion ; but it appears to me that it 
 
 the performance in question was not public in its own nature, 
 such invitations and attendance would not make it public any 
 more than they would make any private meeting or party public. 
 There will therefore be a verdict for the defendant. 
 
 Judgment accordingly. 
 
 Duck v. Bates. This decision is in strict accordance with the view 
 expressed by the judges in the cases cited in the above reported judgment. 
 The construction of the enactments governing dramatic representations 
 which the Superior Courts have adopted, is very remarkable, having regard 
 to the actual words of the statutes. For, what the Legislature has pro- 
 hibited, in express terms, is a representation " at a place of dramatic 
 entertainment." But the court, in Wall v. Taylor (9 Q. B. Div. 727), while 
 holding that the epithet " dramatic," in 3 & 4 Will. 4, c. 15, has " no 
 particular signification," expresses the opinion, that, what the enactments 
 intend to prohibit is a representation or performance in " public." Accord- 
 ing to this construction, the Legislature has made use of an expression 
 which has no particular meaning in using the epithet " dramatic ; " whilst it 
 meant what it nowhere states, i.e., that the statutory prohibition should only 
 apply to a representation, &c., " in public." (See Mr. Justice Cave's judgment 
 in Wall v. Taylor, ubi sup., p. 731.)
 
 REPORTS OF CASES. 177 
 
 PART III. 
 RAILWAY CASES 
 
 READING COUNTY COURT. 
 
 Wednesday, July 16, 1873. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 FREEMAN v. GREAT WESTERN RAILWAY COMPANY ; SAME v. 
 
 SAME, (a) 
 
 Railway company Carriage of passengers Delay. 
 Railway company liable for delay occasioned by waiting for a train 
 
 of another company which was unpunctual. 
 
 IN these two cases the plaintiff sued the defendants for the sums 
 of 21. 2s. and IL Is. respectively as damages for expenses and 
 loss of time arising from delays in conveying the plaintiff from 
 Reading to Wycombe. On both occasions the plaintiff left 
 Reading by a train which, according to the train bill of defen- 
 dants, was to leave Reading at 8.35 and reach Maidenhead at 
 8.56, in order to catch the Wycornbe branch train which leaves 
 Maidenhead at 9. On both occasions the train was late, 
 and there was no other train till 12 o'clock. The plaintiff 
 admits that he had read the conditions placed at the head of the 
 train table, and therefore the contract between him and the 
 defendants for his passage to Wycombe which arose on the pur- 
 chase of his ticket is subject to those conditions. The following 
 conditions apply to the present cases : " The published train 
 bills of this company are only intended to fix the time at which 
 passengers may be certain to obtain their tickets for any journey 
 from the various stations, it being understood that the trains 
 shall not start from them before the appointed time. Every 
 attention will be paid to insure punctuality as far as it is prac- 
 ticable ; but the directors give notice that the company do not 
 undertake that the trains shall start or arrive at the time speci- 
 
 () County Courts Chronicle, vol. iv., p. 187. 
 
 N
 
 178 REPORTS OF CASES. 
 
 FREEMAN fied in the bills, nor will they be accountable for any loss, 
 
 v - inconvenience, or injury which may arise from delay or deten- 
 
 WESTERN tion." The remaining conditions apply only to the cases of the 
 
 RAILWAY defendants granting through tickets to other lines and passengers 
 
 ' booking at intermediate stations conditionally on there being 
 
 room in the train, and therefore do not affect the present cases. 
 The defendants admit the delays in question, and although at 
 first they attributed them to different causes, they ultimately 
 admitted that they were attributable to the same cause viz., the 
 delay of the train at Eeading for the arrival of another train of 
 the defendants from Basingstoke, which had been delayed at 
 Basingstoke waiting for the arrival of a train on another line 
 belonging to the South- Western Railway Company. Under the 
 circumstances, I think that the plaintiff is entitled to recover 
 under his contract, having regard to the conditions on the train 
 table. The words, "every attention will be paid to ensure 
 punctuality as far as it is practicable," appear to me to remove 
 all doubt on the subject. It is clear that the defendants have 
 not paid every attention to insure punctuality as far as practic- 
 able for the conveyance of passengers on their line, when they 
 deliberately and habitually delay their trains to accommodate 
 passengers on other lines. Independently, however, of the 
 express agreement as to punctuality which I have read, and if 
 the same had been omitted, I think that a similar agreement 
 would be implied in the present contract, and that the delay in 
 question would be considered as unreasonable, and therefore not 
 justified by the condition (Dentonv. Great Northern Railway Com- 
 pany, 4 W. R. 290, where the train bill was produced, and was 
 similar to the present ; and Hurst v. Great Western Railway Com- 
 pany, 19 C. B. N. S. 310, where the train bill was not produced; 
 and Hamlynv. Great Northern Railway Company, 1 H. & N. 408). 
 It was stated on the part of the defendants that the delay at 
 Basingstoke was in consequence of an agreement with the South- 
 western Company to wait for the passengers from that line. It 
 does not appear whether such agreement was legally binding or 
 not, but in any case I think that is no answer to the plaintiff in 
 these actions. It remains, therefore, only to say to what 
 damages the plaintiff is entitled in the two present cases, and I 
 think he is entitled only to the cost of a proper conveyance from 
 Maidenhead to Wycombe, and if he were delayed at Wycombe, 
 his hotel bill there, and to these expenses only if actually
 
 REPORTS OF CASES. 
 
 179 
 
 incurred by him (see the cases to which I have already referred). 
 If he incurred no such expenses he would, I think, be only 
 entitled to nominal damages. 
 
 Verdict for plaintiff in the first case for 18s. 3d., in the 
 second case for Id., and costs of three days, with liberty to 
 appeal on points of law. The defendants admitted the amount 
 of damages. 
 
 Freeman v. Great Western Raihvay Company; Same v. Same. It is to 
 be noticed that in the above case the County Court judge determined that, 
 as the damage alleged was caused by the delay of the defendants' train at 
 Reading, they were responsible, though this delay was apparently caused by 
 their having to wait for a train belonging to another company, which was 
 unpunctual. This decision is certainly correct, as the trains of one railway 
 company are clearly under no obligation to wait for the corresponding trains 
 of another railway company which do not keep their time : (see Le Blanc or 
 Le Blanch v. London and North-Western Railway Company, 34 L. T. Rep. 
 N. S. 25, 30. 667 ; s. c. 1 C. P. Div. 286 ; 45 L. J. 521, C. P. ; 24 W. R. 
 808.) 
 
 FKEEMAN 
 
 v. 
 
 GBEAT 
 WESTERN 
 RAILWAY 
 COMPANY. 
 
 READING COUNTY COURT. 
 
 Wednesday, Oct. 22, 1873. 
 (Before H. J. STONOR, Esq., Judge.) 
 FORSYTE v. GREAT WESTERN RAILWAY COMPANY, (a) 
 Railway company Carriage of passengers Punctuality. 
 A railway company having by its time table stated that a train 
 would arrive at a particular time, and that every attention would 
 be paid to insure punctualiti/ of the train, being late half an 
 hour. Held, that a prima facie breach of contract had been 
 committed. 
 
 Forsyth, Q.C. conducted his own case, W. F. Blandy acting as 
 his solicitor ; and Gledhill appeared for the defendants. 
 
 Forsyth deposed to the facts as follows : In the month of 
 August he was travelling from the Channel Islands to Mortimer, 
 where he resides. It happened to be rough weather at the time, 
 and he had written to his family and said he should be home 
 on Thursday, August 28th, at six o'clock, if the weather allowed. 
 The wind was high and the sea rough at the time. The time bills 
 showed that the train left Wey mouth at 12.30 p.m., and reached 
 
 (a) County Courts Chronicle, vol. iv., p. 244. 
 N 2
 
 180 REPORTS OF CASES. 
 
 FORSYTE Reading at 5.35, and there was a train to leave Beading for 
 
 r v ' Mortimer at six o'clock. He got into the train at Weymouth at 
 
 WESTERN 12.30. It was stopped at Trowbridge for some time, for some 
 
 RAILWAY unaccountable reason, and again at Didcot, where he was trans- 
 
 ' ferred to another train, and placed in a siding, and off went the 
 
 train in which he had taken his ticket. He was told he would 
 catch the Mortimer train. He reached Reading at 5.57, and the 
 train was stopped outside the station by the signal for five 
 minutes. He saw the Mortimer train at the Lower Station, and 
 told the guard it would go. The guard said " No." When he 
 got into the station he told a porter and an inspector he wanted 
 to catch the Mortimer train, but when he reached the lower plat- 
 form the train started, and he was left behind. He asked the 
 inspector why he did not stop the train, and he said he was not 
 looking. There was no train to Mortimer for an hour and a 
 quarter. He had ordered his carriage to meet him at Mortimer ; 
 he therefore took a carriage to Mortimer, for which he paid 10s., 
 and he now sued the company for that amount. The time table 
 of the defendant company, and the tickets taken by the plaintiff, 
 were put in. 
 
 No evidence was offered for the defendants. 
 His HONOUR held that a breach of contract had been proved, 
 and gave a verdict for the plaintiff, with costs, giving leave to 
 the defendant company to appeal, of which they did not avail 
 themselves. 
 
 Forsyth v. Great Western Railway Company. The responsbility of rail- 
 way companies for statements contained in their authorised time tables, which 
 is affirmed in the above case by the County Court judge, whose judgment is not, 
 however, fully reported, is well stated in " Addison on Contracts," 8th ed., 
 p. 528 ; where the law upon the subject is laid down in the following terms : 
 " A railway company by the publication of a time table represents that a train 
 will mu at or about the time specified, and the company will be responsible 
 in damages to all who tender themselves for conveyance at the appointed time, 
 and find that no train at all has been provided ; but railway companies do not 
 by their time tables guarantee the arrival of their trains at intermediate 
 stations, or their departure from them at the exact time fixed. All they 
 undertake to do is to carry the passenger without any unreasonable and 
 unnecessary delay : " (See Denton v. Great Northern Railway Company, 
 5 Ell. & Bl. 868, 25 L. J. 129, Q. B. ; Hurst v. Great Western Railway 
 Company, 19 C. B. N. S. 310 ; Oxlade v. North-Eastern Railway Company, 
 15 C. B. N. S. 680: and Le Blanc v. London and North-Western Railway 
 Company, L. J. E. 45 Q. B. 521, in the last of which cases it was 
 considered that fifteen minutes delay required explanation from the 
 defendant company). The mere issue of a ticket to a passenger, however,
 
 REPORTS OF CASES. 181 
 
 does not warrant punctuality in the time of starting a train (Hurst v. Great FORSYTH 
 
 Western Railway Company, ubi sup.). Therefore, in all cases where v. 
 
 damages are claimed from a railway company, for delay in their train GREAT 
 
 service, the plaintiff must produce the time tables containing the represeu- WESTERN 
 tations which have not been fulfilled, and also prove such non-fulfilment. See 
 the next case of BECKE v. GREAT WESTERN RAILWAY COMPANY. 
 
 READING COUNTY COURT, 
 
 Wednesdarj, Oct. 24, 1874. 
 
 (Before H. J. STONOR, Esq., Judge.) 
 
 BECKE v. GREAT WESTERN RAILWAY, (a) 
 
 Railway company Carriers of passengers Tin-punctuality Void 
 
 regulation. 
 THE plaintiff appeared in person. 
 
 Wightman Wood appeared for the defendants. 
 
 His HONOUR. This is an action tried by me at the July Court, 
 previously to the vacation in August, upon which I reserved my 
 judgment until the September Court, and, at the request of the 
 defendants' counsel, I further postponed it until the October 
 Court. The plaintiff, who is a solicitor, is treasurer of the County 
 Court of Henley and other places, sued the defendants for 6s. 6d., 
 the expense of a conveyance from Twyford to Henley, which the 
 plaintiff incurred in consequence of the defendants' non- 
 performance of a contract by them to carry him from Reading to 
 Henley by a certain train. The facts to which the plaintiff 
 deposed, or which were admitted, are as follows : On Tuesday, . 
 the 5th May, the plaintiff took a first-class return ticket from 
 Reading to Henley by the train timed by the defendants' tables 
 to arrive at Reading at 10.25; to leave Reading at 10.30; to 
 arrive at Twyford at 10.40, to leave Twyford at 10.45, and arrive 
 at Henley at 11 a.m. The train arrived at Reading punctually 
 at 10.25, but did not leave Reading till 10.39, so that it was 
 detained at Reading nine minutes beyond its proper time. On 
 arriving at Twyford, the plaintiff found that the train to Henley 
 had just left, and there was no other train for an hour. He took 
 a fly and got to Henley in about half an hour. The delay at 
 Reading was occasioned principally by the want of porters to put 
 luggage into the train. The train was a very light one, the 
 
 (a) County Courts Chronicle, vol. iv., pp. 465, 518.
 
 182 REPORTS OF CASES. 
 
 BECKE plaintiff being the only first-class passenger. The plaintiff had 
 
 v ; frequently witnessed delays at the Beading and other stations on 
 
 WESTERN the defendants' line occasioned by the same cause. The plaintiff 
 
 RAILWAY a( j m jtted that he was cognizant of a notice which the defendants 
 
 ' prefixed to their time-tables, and that he purchased his ticket 
 
 subject to such notice and to a regulation identical with such 
 notice contained in the general regulations of the company. 
 Such notice and regulation are in the following terms : " The 
 published train-bills of this company are only intended to fix the 
 time at which passengers may be certain to obtain their tickets 
 for any journey from the various stations, it being understood 
 that the trains shall not start from them before the appointed 
 time, but the directors give notice that the company do not 
 undertake that the trains shall start or arrive at the time specified 
 in the bills, nor will they be accountable for any loss, 
 inconvenience, or injury, which may arise from delays or 
 detention, unless upon proof that such loss, inconvenience, 
 injury, delay, or detention arose in consequence of the wilful 
 misconduct of the company's servants. The granting of through 
 tickets to places off the company's lines is an arrangement made 
 for the greater convenience of the public, but the company 
 will not hold themselves responsible for any delay, detention, or 
 other loss or injury whatsoever arising off their lines, or from 
 the acts or defaults of other parties, nor for the correctness of 
 the times over other lines or companies, nor for the arrival of 
 this company's own trains in time for the nominally 
 corresponding trains of any other company. Passengers booking 
 at intermediate stations can only do so conditionally upon there 
 being room in the train." The defendants declined to call any 
 evidence, and contended, first, that the contract in question was 
 not broken, inasmuch as it did not bind the defendants to 
 convey the plaintiff to Henley at any given time, but 
 only within a reasonable time, and that if the plaintiff had 
 waited and proceeded by the next train they would have 
 conveyed him there within a reasonable time; and, secondly, 
 that if the contract was broken, the defendants were not 
 liable, because, in order to render them liable, the plaintiff 
 was bound by the above regulation to show that the delay arose 
 from the wilful misconduct of the company's servants, and that 
 he had failed to do so. On both sides it was intimated that the 
 case was brought before me for the purpose of bringing it before
 
 REPORTS OF CASES. 
 
 183 
 
 the Court of Appeal, so as to settle the important question of BECKB 
 the liabilities of railway companies as carriers of passengers for p v ' 
 delays upon their lines, which has lately been so frequently WESTERN 
 raised in County Courts. It is now exactly a year since Mr. -& AILWAY 
 
 Forsyth brought his action against the present defendants the 
 
 Great Western Railway Company in this court, in which he 
 proved that a train in which he had travelled had been prevented 
 from arriving at Reading at the time specified in the table by 
 repeated and considerable delays, apparently without any 
 reasonable cause, and I then held that the defendants were 
 bound to show reasonable cause for such delays, which the 
 defendants failed to do, and I therefore gave judgment in favour 
 of the plaintiff, with liberty to the defendants to appeal; but, 
 unfortunately, they neglected to comply with the rules of the 
 court relating to appeals, and lost the opportunity which was 
 then afforded to them. Since then similar actions have been 
 brought in several of the County Courts, and I believe that all 
 my learned brethren before whom such cases have come, with 
 the exception of the learned judge of the Bath County Court, 
 Mr. Caillard, have taken the same view which I did, and that in 
 every case liberty of appeal has been given, but that no appeal 
 has been brought. The present case is certainly not nearly so 
 strong a case of delay and apparent neglect as Mr. Forsyth' s, 
 and there is also a distinction between the two cases, inasmuch 
 as Mr. Forsytes contract with the company was subject to a 
 different notice and regulation from that which is now contained 
 in the tables of the defendants, and, in point of fact, the notice 
 and regulation were altered by the defendants immediately after 
 the decision of Mr. Forsyth's case, with a view of further 
 restricting their liability. Such alteration consisted in omitting 
 the following words : " Every attention will be paid to insure 
 punctuality so far as practicable," which were prefixed to the 
 notice, and the addition to the stipulation that they will not be 
 responsible for delays or detentions of the following words : 
 "Unless upon proof that such delay or detention arose in 
 consequence of the wilful misconduct of the company's 
 servants." Reserving for the present the consideration of the 
 validity and operation of the notice and regulation as altered, I 
 will consider, first, the contention of the defendants that the 
 contract between them and the plaintiff was merely to convey 
 him to Henley in a reasonable time, and that the contract was
 
 184 REPORTS OF CASES. 
 
 BECKE not broken by the delay at Twyford, inasmuch as there was 
 
 r v ' another train to Henley at the expiration of an hour which 
 
 WESTERN would have conveyed him there within a reasonable time. Now, 
 
 RAILWAY j a ^ once concede that the contract between the defendants and 
 
 ' the plaintiff was to convey the latter to Henley in a reasonable 
 
 time. Such was the liability of carriers of passengers at common 
 law, and railway companies have only the same liabilities. This 
 is expressly declared by the 89th section of the Railway 
 Clauses Act 1845 (which, I presume, is incorporated in the Great 
 Western Railway Act : at all events, so far as the Henley 
 Branch Railway) ; but, independently of that clause, I do not 
 think that railway companies would be further liable than other 
 carriers of passengers at common law. What, then, is the 
 liability of passengers at common law ? Simply to use all 
 reasonable means to convey passengers to their destinations in 
 the reasonable times which they have expressly fixed on, which, 
 if not so fixed, juries may determine. Before the introduction 
 of railways there were frequently coach proprietors who agreed to 
 perform their journey in so many hours, and, therefore, to use every 
 reasonable means and diligence for that purpose; and if by reason 
 of their neglect of such means or want of such diligence they failed 
 to complete their contracts, there can be no doubt that actions 
 must have lain against them. Of course, the condition of the 
 roads which were not under their control and many other circum- 
 stances, and especially sudden accidents, would have been valid 
 defences to such actions, and therefore they were often very 
 difficult to try. Moreover, the proprietors seldom if ever entered 
 into these special contracts as to time, excepting when there was 
 great competition, and then they used their best endeavours, as 
 did also their servants (who were often stimulated by a system 
 of premiums or fines), to perform these contracts with the 
 greatest exactitude. Actions for the breach of such contracts 
 were consequently very rare, and I have not been able to find a 
 report of any case of the kind. In most cases, however, the coach 
 proprietors merely contracted to convey the passenger to a par- 
 ticular place without specifying any time, and were only bound to 
 perform their contract within a reasonable time, which, as I have 
 already said, was for a jury to determine, regard being had to all 
 the circumstances of the case. Railway companies, on the other 
 hand, have invariably fixed their own times of arrival, and 
 thereby fixed what are reasonable times, and if they fail, from
 
 REPORTS OF CASES. 185 
 
 want of due diligence, to perform their contracts, I think that BECKE 
 they are clearly liable in the same manner as coach proprietors G v< 
 under similar contracts. Having the absolute control of their WESTERN 
 lines, and their lines being less liable to be affected by the 
 weather than the roads, they have in these respects much less 
 difficulty in performing their express contracts than coach pro- 
 prietors. On the other hand, they are open probably to more 
 numerous and more serious accidents as to their engines and 
 carriages than the coach proprietors were as to their coaches and 
 horses. But, however this may be, the effect of weather on the 
 lines and accidents of many kinds will doubtless constitute valid 
 defences to actions brought against them, as they did against 
 actions brought against coach proprietors under similar circum- 
 stances. In the case of Denton v. The Great Northern Railway 
 (6 El. & El. 865), the Court of Queen's Bench decided that the 
 publication of time tables amounted to an express promise to run 
 trains to the places and at the times stated, and Mr. Serjeant 
 Wheeler, the learned judge of the Marylebone County Court, in 
 his elaborate judgment in the case of Turner v. The Great 
 Western Railway, last May (reported in the County Courts 
 Chronicle, 4 N. S. 387, and also in the Law Times and Law 
 Journal), observes, with regard to railway companies, "that 
 the question of reasonable time is no longer left at large, but is 
 in fact fixed by the companies themselves, subject of course to 
 accident which reasonable care could not provide against. " In 
 the present case it is quite clear that the absence of porters at 
 the Reading Station, which reasonable care might (as far as 
 appears) have prevented, caused the detention of the plaintiff at 
 Twyford, and as he was able to procure a conveyance by which 
 he got to Henley substantially 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 (subject to the 
 next question) he is entitled to recover its cost against the 
 defendants. The next question which remains for me to consider 
 is, whether the notice and regulation contained in the defendants' 
 tables deprive the plaintiff of his right to recover against the 
 defendants. Now, this notice and regulations as altered came 
 before the learned judge of the Marylebone County Court in the 
 case I have already referred to, and he there commented upon it 
 so fully and so ably that I cannot do better than quote his 
 remarks. Referring to the notice and regulation which came
 
 186 REPORTS OF CASES. 
 
 BECKE before in Mr. Forsytes case, lie observes : " Tlie company's notice 
 r v - of August commenced with these : e Every attention will be paid 
 
 \jrREA.T f . mi 11 * 11 
 
 WESTERN to insure punctuality as far as practicable. 1ms really is all 
 RAILWAY ^^ ^ e j aw re q u i re s. ( But/ continued the notice, ' the direc- 
 tors do not undertake that the trains shall arrive at the time 
 specified in the time table/ Here I may remark that, irrespective 
 of any notification by the company, the law does not imply any 
 such undertaking, its requisitions being simply that there shall 
 be no failure of punctuality for want of reasonable care or 
 diligence. The notice then adds, 'Nor will the directors be 
 accountable for any loss, inconvenience or injury which may arise 
 from delay or detention,' and subject to their paying every 
 reasonable attention, they would not be accountable for the 
 consequences of any delay or detention. Since August, however, 
 the notice has been materially changed. The passage about 
 paying every attention to insure punctuality is omitted, and the 
 company expressly promise nothing, but the omission is imma- 
 terial, because what they do not promise the law implies against 
 them. The next change is the addition to the stipulation that 
 they will not be responsible for delay in the words ' unless upon 
 proof that it arose from the wilful misconduct of their servants/ 
 Upon the faith of their present notice, the defendants contend 
 in effect that they are unfettered as to times of starting and 
 arrival, notwithstanding their time tables, in the absence of proof 
 of wilful misconduct on the part of their servants. To such a 
 proposition it is somewhat difficult to listen with patience. In 
 1870, in the case of Bnckmaster v. The Great Eastern Railway 
 Company (23 L. J. 471, Ex.), which was an action for damages 
 sustained by the plaintiff by reason of the company not starting 
 a train as advertised in their time bills, and in which the plaintiff 
 obtained a verdict, Martin, B., said that it was mere nonsense for 
 companies to say, as in effect the company in that case had said, 
 ' We will be guilty of any negligence we think fit, and we 
 will not be responsible/ " With respect to the notice in this 
 case, the learned judge of the Maryleboiie County Court thus 
 concludes : " I am of opinion that it is ultra vires so far as it pro- 
 fesses to attach to the right of travelling on their own line, the 
 condition that the company will not be responsible for any short- 
 comings of their servants not amounting to wilful misconduct, 
 whatever that term may mean." In this view as to the inva-
 
 REPORTS OF CASES. 187 
 
 lidity of the stipulation in question I fully concur. It seems to BECKB 
 me to be a monstrous proposition that the railway companies, ~ ^ 
 who are bound by their special Acts and the Railway Clauses WESTERN 
 Consolidation Act, 1845, s. 86, to carry passengers at rates fixed ^ AILWAY 
 within certain limits, should be able to affix to their contracts with 
 the passengers a stipulation which, if valid, would deprive the 
 passengers of their common law right to the performance with 
 due diligence of the company's contract with them, and might 
 hereafter be extended to the company's liability in respect of the 
 personal safety of passengers. There is one other remark I 
 would wish to add, viz., that the restriction as to the company's 
 liability for not corresponding with other trains contained in the 
 notice and regulation in question only extends to cases where 
 their trains fail to correspond with trains of other companies, and 
 not with other trains of their own, which is the present case. 
 Having stated my opinion as to the liability of the company at 
 common law to the defendant and of the invalidity of the above 
 notice and regulation so far as it restricts such liability in the 
 present case, it still remains for me to consider the last point 
 raised by the defendants, viz., whether, if the notice and regula- 
 tion were valid, and the plaintiff was bound by it to show wilful 
 misconduct on the part of the defendants' servants, he has 
 shown it in the present case ; in other words whether the 
 absence of the porters through their own fault, or by the orders 
 of superior servants of the company, was, under all the circum- 
 stances of the present case, in point of law, "wilful misconduct," 
 and I think with some doubt that it ought to be so held, and on 
 this point I beg to refer once more to the judgment of the 
 learned judge of the Marylebone County Court in Turner v. The 
 Great Western Railway Company, and the authorities therein 
 cited, as the legal interpretation of the words "wilful mis- 
 conduct." The only case that I am aware of that militates 
 against my view is that of Russell v. The Great Western Railway 
 Company (4 Co. Cts. Chron., N. S. 385), before the learned 
 judge of the Bath County Court, to which I have already 
 referred, in which he held that the altered notice or regulation 
 was valid and operative to restrict the defendants' liability in 
 cases of proved wilful misconduct on the part of their servants, 
 but from what I have said it will be seen that I cannot concur in 
 this view. Upon the whole I am in favour of the plaintiff on all
 
 188 REPORTS OF CASES. 
 
 BKCKE the points of law and fact involved in this case, and a verdict 
 
 r v - will therefore be entered for the plaintiff for the amount claimed 
 
 WESTERN with costs, and with liberty to the defendants to appeal within 
 
 RAILWAY Qne mon fa 
 
 COMPANY. 
 
 Becke v. Great Western Railway Company. The defendants did not 
 appeal from the decision of the learned County Court judge in the above 
 reported case. 
 
 See the cases of FREEMAN v. GREAT WESTERN RAILWAY COMPANY, 
 and FORSYTH v. GREAT WESTERN RAILWAY COMPANY, and notes to 
 same, ante, pp. 179 and 180-1. 
 
 NEWBURY COUNTY COURT. 
 
 Thursday, Nov. 16, 1876. 
 
 (Before H. J. STONOR, Esq., Judge.) 
 
 HOPSON v. THE GREAT WESTERN RAILWAY COMPANY. () 
 
 Liability of railway companies as carriers Special contract 
 
 11 Wilful misconduct" 17 fy 18 Viet. c. 31, s. 7. 
 JUDGMENT was to-day given in this case, which was heard before 
 his Honour at the last sitting of the court. 
 
 Charles Luca*, solicitor, appeared for the plaintiff, furniture 
 van proprietor, upholsterer, &c., Northbrook-street. 
 II. B. Goodwin, solicitor, for the defendant. 
 His HONOUR delivered judgment as follows : In this case the 
 defendants verbally agreed with the plaintiff to carry an empty 
 furniture van from Newbury to Huddersfield, and to carry it 
 back to Newbury loaded with furniture at a reduced rate, 
 " at the owner's risk." The plaintiff also signed a consignment 
 note for the conveyance of the van from Newbury to Hudders- 
 field as follows : 
 
 To the Great Western Raihvay Company. 
 
 Newbury Station to Huddersfield, 
 
 llth July, 1876. 
 
 Receive and forward the undermentioned goods to be carried at the 
 reduced rate, below the company's ordinary rate, in consideration whereof I 
 undertake to relieve the Great Western Railway Company, and all other 
 companies over whose lines the goods may pass, from all liability in case of 
 damage or delay, except upon proof that such loss, detention, or injury arose 
 
 (a) County Cqurts Chronicle, vol. v., p. 491.
 
 REPORTS OF CASES, 
 
 189 
 
 from wilful misconduct on the part of the company's servants. I also agree 
 to the conditions and regulations on the back of this note. 
 
 Signature of sender or his representative, 
 
 JOSEPH HOPSON. 
 Address Newbury. 
 
 The goods undermentioned were "a furniture van." The 
 plaintiff signed no note in respect of the return journey from 
 Huddersfield to Newbury. The van went to Huddersfield 
 safely, and was there loaded and returned to Newbury, but on 
 its arrival at Newbury it was found that what is termed the 
 carriage of the van had been broken and torn away from the 
 van, in consequence of the van having been improperly fastened 
 to the truck by cord attached to the carriage of the van and to 
 the buffers of the trucks in a manner which would render the 
 accident inevitable. The expense of the necessary repairs 
 amounted to upwards of 6Z., for which sum the plaintiff sued. 
 There is no dispute as to the facts of the case, and the simple 
 question is, whether the defendants are protected from liability 
 for injury to the van by the agreement between them and the 
 plaintiff. That agreement appears to have been, in the first 
 instance, verbal as regards both the journey to Huddersfield 
 and the return journey to Newbury, and to have been subse- 
 quently reduced into writing by the consignment note as to the 
 journey to Huddersfield, but not as to the return journey to 
 Newbury. The provision relieving the defendants from liability 
 as to injury arising otherwise than from wilful misconduct con- 
 tained in the consignment note, and which was chiefly relied on 
 by the defendants' counsel, does not, I think, apply to the 
 present case, inasmuch as that note did not refer to the return 
 journey, and the verbal contract that the goods were to be con- 
 veyed at the owner's risk on both journeys was void as to the 
 return journey under the 7th section of the 17 & 18 Viet. c. 31, 
 inasmuch as there was no writing signed by the party delivering 
 the goods in respect of that journey as required by that section ; 
 I therefore think that the agreement between the plaintiff 
 and the defendants does not protect the latter from liability 
 for the injury in respect of which the former now sues. Inde- 
 pendently of these considerations, I think the case one of great 
 doubt and difficulty. In the first place, I doubt very much 
 whether a condition relieving the carrier from any liability for 
 injury arising otherwise than from wilful misconduct, as in the 
 
 HOPSON 
 v. 
 
 GREAT 
 WESTERN 
 RAILWAY 
 COMPANY.
 
 190 REPORTS OF CASES. 
 
 HOPSON above consignment note, is " reasonable," as required by the 
 
 * 7th section of the 17 & 18 Viet. c. 31, and, if it be, I doubt 
 
 WESTERN whether it would protect the carriers from liability for such 
 
 RAILWAY i n -j ur y as that which has arisen in the present case, and the 
 
 n^-.T. A -r-D- i J ...,. . -, T , 
 
 inclination of my opinion is that it would not. In the case of 
 Gill v. The Manchester Railway Company (L. Rep. 8 Q. B. 196), 
 Mr. Justice Lush observes : " It is the duty of the carrier to do 
 what he can, by reasonable skill and care, to avoid all perils, 
 including excepted perils. If, notwithstanding such skill and 
 care, damage does occur from these perils, he is released from 
 liability ; but if his negligence has brought on the peril, the 
 damages are attributable to his breach of duty, and the excep- 
 tion does not aid him. And in the case of Martin v. The 
 Great Indian Peninsula Railway Company (Q. B. 3, Ex. 9) 
 it was held that a stipulation that the defendants " accepted 
 no responsibility" did not exempt them from liability for 
 a loss arising wholly from their own negligence a decision 
 which appears to me to be almost directly in point. 
 The cases of Robinson v. The Great Western Railway Com- 
 pany (19 C. B. N. S. 51), and D'Arc v. London and North- 
 Western Railway Company (L. Rep. 9 C. P. 325), also appear to 
 me to support the view which I have taken. The case of 
 McCawley v. The Furness Railway Company (L. Rep. 8 Q. B. 
 57), at first appears to be an authority to the contrary; but 
 on examination, it will, I think, be found distinguishable from 
 the present case, at all events on the ground that it was a case of 
 injury to a passenger and not to goods. The case of Glinister v. 
 The Great Western Railway Company (29 L. T. Rep. N. S. 422, 
 Q. B.), is, however, a case of injury to goods under the same 
 special agreement as that now in question, but the circumstances 
 of the case are different, and, I think, distinguishable. Lastly, 
 if the defendants be not liable for the injury arising in the 
 present case from the negligence of their servants, unless such 
 negligence come within the terms of " wilful misconduct," 
 employed in the consignment note, I think it doubtful whether 
 in the present case a jury would not properly find that the acts 
 complained of fall within those terms. In the case of McCawley 
 v. The Furness Railway Company, Blackburn and Mellor, JJ. 
 both expressed their inability to say what " wilful negligence " 
 meant, whilst Lord Cranworth once said that it was only 
 " negligence with an epithet," and I cannot see that it is much 
 easier to define what " wilful misconduct "is. In the case of
 
 KE PORTS OF CASES. 
 
 191 
 
 Glenister v. The Great Western Railway Company, already cited, HOPSON 
 where the terms "wilful misconduct" were under consideration, r v ' 
 Blackburn, J. gives no definition of these terms, although he WESTERN 
 observes " that there may be many cases of wilful misconduct R AILWAY 
 
 without malice." Having recourse to the civil law, I find that J 
 
 there can be no " culpa " (which I apprehend is the correct 
 translation of " misconduct " without intelligence, and therefore 
 will, and consequently " wilful misconduct " is only ' ' magna 
 culpa," or " magna negligentia," for " culpa " (misconduct) may 
 be either from commission or omission. In other words, " wilful 
 misconduct " is that arising from a man wilfully or recklessly 
 neglecting to use his sense in performing a duty which he has 
 undertaken, whereby damage is sustained by another, and 
 against this no man can contract. (See Colquhoun's Summary 
 of Civil Law, paragraphs 1530, 1532, 1533.) It is certainly most 
 desirable that an authoritative interpretation should be given 
 of these terms, which are now so frequently employed in agree- 
 ments of importance, and so frequently become the subject of 
 litigation. For the present, and in the absence of any 
 authoritative definition of the terms, "wilful misconduct," and 
 unless I can reject the word " wilful " as senseless through its 
 ambiguity, I am disposed to content myself with the primary 
 meaning affixed to the word " wilful " in modern dictionaries, 
 viz., " following the will without yielding to reason," and I 
 cannot say that the singularly unreasonable manner in which 
 this van was fastened to the truck was not " wilful " within the 
 above definition, and " misconduct on the part of the company's 
 servants," it, undoubtedly, was. As, however, I am of opinion 
 that there was no special contract in writing in the present case 
 within the 17 & 18 Yict. c. 31, s. 7, it is unnecessary for me to 
 decide the other difficult points arising in this case. There will 
 be a verdict for the plaintiff with costs, and liberty to the 
 defendants to appeal within one month by case in the usual 
 manner. 
 
 Hopson v. Great Western Railway Company. The learned judge's 
 definition of the term " wilful misconduct " appears to be quite in harmony 
 with that subsequently given by Lord Justice COTTON in Lewis v. Great 
 Western Railway Company (3 Q. B. Div. 105 ; 47 L. J. 131), viz., 
 " the doing of something which the personjdoing it knows will cause risk or 
 injury, or the doing of an unusual thing with reference to the matter in hand, 
 either in spite of warning or icithout care, regardless whether or no it will 
 cause injury."
 
 192 REPOKTS OF CASES. 
 
 NEWBURY COUNTY COURT. 
 
 Thursday, Feb. 15, 1877. 
 
 (Before H. J. STONOR, Esq., Judge.) 
 
 HOARE v. GREAT WESTERN RAILWAY COMPANY, (a) 
 
 Property in goods wrongly consigned New contract between 
 
 carriers as involuntary bailees and consignors Damages. 
 Goulter, solicitor for plaintiff. 
 
 Digby, counsel for defendants. 
 
 His HONOUR delivered judgment this day as follows : In this 
 case I give credit to the testimony of the last witness called by 
 the defendants, Mr. James Farmer, and therefore find that there 
 was only one contract between him and the plaintiff Hoare for 
 the purchase of seven tons of pollard, to be contained in 140 
 sacks; four tons contained in eighty sacks to be delivered at 
 Swindon, and three tons contained in sixty sacks to be delivered 
 at Pewsey to the order of Mr. James Farmer (which 140 sacks 
 were part of 1000 sacks in the plaintiff's possession), and that the 
 price of the goods was to be 5Z. 10s. per ton for the quantity 
 delivered at Swindon, and 5Z. 11s. per ton for the quantity 
 delivered at Pewsey. Upon this state of facts I think that the 
 property in the sixty sacks did not pass to Mr. James Farmer by 
 the delivery of the eighty sacks to him, and the payment for the 
 same as contended by the defendants' counsel, inasmuch as they 
 were both unascertained parts of the larger quantity in the 
 plaintiff's possession ; but I am inclined to think that such 
 property did pass to Mr. James Farmer by the delivery of the 
 sixty sacks to the defendants to carry the same to Pewsey, 
 notwithstanding the mistake in consigning them to Mr. Jeeve's 
 order instead of the plaintiff's: (Blackburn on Sales, p. 128; 
 Jenner v. Smith, L. Rep. 4 C. P. 270; and Re Wiltshire Iron 
 Company, L. Rep. 3 Ch. App. 443.) But whether the property 
 or the goods be in Mr. James Farmer or the plaintiff, I think that 
 on Mr Jeeves refusing to receive the goods a new contract for 
 the safe custody of these goods arose between the plaintiff and 
 the defendants as involuntary bailees : (See the cases of 
 Stevenson v. Hart, 4 Bing. 476; Du/v. Budd, 3 B. & B. 177; 
 Hugh v. London and North-Western Hailway Company, L. Rep. 
 5 Ex. 51 ; and McKean v. Mclvor, L. Rep. 6 Ex. 345.) And 
 that in respect of such new contract the plaintiff is entitled to 
 (a) County Courts Chronicle, vol. vi., p. 54.
 
 REPORTS OF CASES. 
 
 193 
 
 COMPANY. 
 
 bring the present action. I further find that upon Mr Jeeves HOABE 
 declining to receive the goods, defendants' servant, the station r v - 
 master at Pewsey, kept them a week or ten days without WESTERN 
 communicating with the station master at Thatcham, whence 
 the goods were consigned (which he admits to have been his 
 duty) and then delivered them to a Mr Jarvis on his statement 
 that he expected a similar consignment from a person of the 
 name of Farmer (which is a very common name in the county of 
 Berks), and I think that this was an act of gross negligence for 
 which the defendants, as involuntary bailees, are liable to 
 the plaintiff: (see the case of Coggs v. Bernard, I Sm. 
 L. C., and the numerous cases collected in the notes 
 thereto.) With regard to the condition in the consignment note 
 relieving the defendants from " all liability in case of damage 
 or delay, except upon proof that such loss, detention, or injury 
 arose from wilful misconduct," (a.) I must observe that it is very 
 inaccurately worded, and varies in a remarkable manner from 
 the notice which precedes it ; but it is not necessary for me to 
 examine it critically on the present occasion, as supposing it to 
 be reasonable and to extend to the acts of the defendants, as 
 involuntary bailees (as to which I express no opinion) the 
 wrongful act now complained of appears to me clearly to fall 
 within the terms of cf wilful misconduct." (a) In the recent 
 case of Hopson v. The Great Western Railway Company, reported 
 in the Law Times during the month of November last, and in the 
 County Courts Chronicle, 1st December, 1876, vol. 5, N. S. 491, I 
 fully considered this condition and the terms " wilful mis- 
 conduct " employed in it, as also the case of Glemster v. The Great 
 Western Railway Company (29 L. T. Rep. N. S. 422, Q.B.) 
 cited by counsel in the present case, and the numerous other 
 cases bearing on the subject, and I beg to refer to the observa- 
 tions which I then made in support of the conclusions to which I 
 have now arrived. The defendants' counsel also relied upon the 
 third condition indorsed on the consignment note, viz.: "That 
 no claim for loss or damage will be allowed unless the same 
 be made in writing within three days after the delivery of 
 the goods." Now, supposing this condition to be reasonable, and 
 
 (a) See, as to the term " wilful misconduct," the case of Lewis v. Great 
 Western Railway Company (L. Rep. 3 Q. B. Div. 195) ; and see also as to 
 condition being reasonable, Brown v. Manchester and Sheffield Railway 
 Company (9 Q. B. Div. 230), reversed on appeal (10 Q. B. Div. 250, and see 
 note, p. 191, ante. 
 

 
 REPORTS OF CASES. 
 
 HOARE to extend to the acts of the defendants as involuntary bailees (as 
 
 r Vf to which I express no opinion), it does not appear to me to have 
 
 WESTERN any possible application in the present case, inasmuch as the 
 
 RAILWAY wr0 ngful act of the defendants now complained of was done 
 
 ' more than a week after the delivery to Jeeves at Pewsey station, 
 
 and could not possibly have been complained of within the time 
 limited in the note. The plaintiff is therefore, in my opinion, 
 entitled to a verdict for the value of the goods which have been 
 wrongfully dealt with by the defendants at the price for which 
 he contracted to sell them, viz., 5?. 11*. per ton: but I have 
 great doubt whether I ought to calculate the amount upon the 
 quantity which the witness Jarvis deposes was actually contained 
 in the sixty sacks when weighed, viz., a little more than two tons 
 and a half, or on the quantity which the plaintiff contracted 
 to sell to Mr. James Farmer, viz., three tons contained in sixty 
 sacks more or less. Considering, however, that the witness 
 James Farmer paid the defendant for the other four tons 
 contained in eighty sacks in full, that the whole 140 sacks were 
 part of one lot of 1000 sacks, previously purchased by the 
 plaintiff, and that these sixty sacks were left wholly unprotected 
 during their detention at Pewsey, I think that I ought to calcu- 
 late the amount on the full quantity of three tons, which will be 
 16?. 13s. I find also for the value of sixty sacks at Is. each, 3Z., 
 to be reduced to Id. on the delivery to the plaintiff, or his order 
 of the sacks wrongfully dealt with by the defendants. The 
 verdict will, therefore, be for 19Z. 13s., to be reduced to 
 161. 13s. Id. on delivery of the sacks within a fortnight. As I 
 think the plaintiff's original claim of Qs. a sack for the pollard, 
 and 2s. each for the sacks was erroneous, I shall not give him 
 the costs of the adjournment which was necessary to answer this 
 part of his case ; but as the defendants have paid no money into 
 court, and raised so many technical objections, I think it right to 
 give him the previous costs on the higher scale; 
 
 Hoare v. Great Western Railway Ccnnpany.Thia decision was affirmed 
 on appeal, with costs, the court holding (1) that the property in the goods 
 had not passed from the plaintiff, and, therefore, he was the proper person to 
 bring the action ; (2) that the condition in the consignment note extended to 
 the defendants as involuntary bailees, under the circumstances ; and (3) that 
 the delivery of the goods to Jarvis amounted to " wilful misconduct : " 
 (Hoare v. Great Western Railway Company, 25 W. R. 631.)
 
 REPORTS OF CASES. 195 
 
 SOUTHWARK COUNTY COURT. 
 
 Monday, Nov. 19, 1877. 
 
 (Before H. J. STONOR, Esq., Judge.) 
 
 BARKATT v. THE LONDON, BRIGHTON, AND SOUTH COAST 
 
 RAILWAY COMPANY, (a) 
 
 Common carriers Exceptional damages in case of goods recover- 
 able where notice is given of destruction without express or 
 actual contract Hadley v. Baxendale, Home v. Midland 
 Railway Company, and Simpson r. London and North-Western 
 Railway Company considered. 
 
 His HONOUR. On the 5th August, 1875, the plaintiff delivered 
 to the defendants' receiving agent in London six boxes of pears, 
 two baskets of peaches, and one basket of greengages, which 
 the plaintiff had selected and purchased at a wholesale market 
 in London, and informed him that he (the plaintiff) wanted the 
 goods to be sent that day to Brighton, in order that he might 
 sell the fruit at the Brighton races on the following day. The 
 boxes and baskets were duly directed to the plaintiff at the 
 Brighton Station " to be called for." The receiving agent told 
 the plaintiff that the goods would be at Brighton the next 
 morning at an early hour, and the plaintiff paid 3s. 5d. for their 
 carriage. On the following morning the plaintiff applied at the 
 Brighton Station for the goods, and was informed that only one 
 box of pears had arrived, but that the remaining boxes and 
 baskets of fruit would no doubt be followed by other trains. The 
 plaintiff sent and called repeatedly during the day for the other 
 boxes and baskets, but they did not arrive ; and ultimately he 
 and his assistant stopped all night at Brighton in the hopes of 
 their arriving on the following morning in time for him to take 
 them to the Lewes races (which were the day after the Brighton 
 races), but they did not arrive, and therefore he and his assistant 
 returned to London. ' The original cost of the fruit and baskets 
 was 21. 5s., and shortly after his return'to London the plaintiff 
 applied to the defendants for payment of that amount, and for 
 15s. in respect of the carriage of the goods, and his expenses, 
 trouble, and loss of time at Brighton in all 3Z. A more proper 
 and moderate demand cannot be conceived, and it is to be 
 regretted that the officials of the company did not at once comply 
 
 (a) County Courts Chronicle, vol. iv., p. 224. 
 o 2
 
 196 REPORTS OF CASES. 
 
 BABBATT with it. After repeated applications the plaintiff put the matter 
 v ' into the hands of his solicitor, who wrote to the defendants for 
 
 BRIGHTON, the above amount, stating at the same time that in the event of 
 AND SOUTH ^ s non-payment an action would be brought for the same ; and 
 
 RAILWAY also for damages for the loss of profit on the sale of the goods. 
 
 COMPANY. The defendants were then so ill-advised as still to ignore the 
 plaintiffs claim, and on the 2nd October last the plaintiff brought 
 the present action, claiming the sum of 51. 2s. tid. in respect of 
 the fruit and the probable profit which he would have derived by 
 the sale thereof, and I/. 7s. 8cl. for the carriage and packing of 
 the goods, and the expense, trouble, and loss of time of the 
 plaintiff and his assistant, making a total of 6/. 10*. 2d., and 
 then the defendants paid the sum of 37. into court. The "case 
 came on for trial before a jury, and it was agreed that the 
 question of profit should be reserved for my decision, and that 
 the plaintiff's expenses (packing-, carriage, trouble, and loss of 
 time) for which he had originally claimed 15s., and now claimed 
 II. 7s. 8d., should be left to the jury, who assessed the same at 
 11. The questions for me to decide are, whether the plaintiff is 
 entitled to any damages in respect of the probable profit which 
 he would have realised by the sale of fruit at the races ; and if 
 so, whether they ought to be calculable at the ordinary rate of 
 profit on the sale of such fruit, or at an exceptional rate which 
 the plaintiff deposed could be obtained at races. As to damages 
 for the ordinary profits on the sale of fruit, I should have thought 
 that there could have been no doubt, but the defendants in their 
 most ungracious defence contended that the plaintiff was bound 
 to have purchased other fruit at Brighton, and they were 
 provided with evidence that the plaintiff could have purchased 
 of retail dealers at Brighton similar fruit to that he had pur- 
 chased at the wholesale market in London upon similar terms, 
 and the plaintiff was not prepared to contradict this evidence. 
 But, assuming this evidence to be true, and supposing the plaintiff 
 to have had money or credit to purchase fruit at Brighton, I 
 think it is quite a sufficient answer on his part to say that he did 
 not know of the existence of such a state of things as alleged by 
 the defendants, and that the defendants' servants did not acquaint 
 him of it, but told him that his own goods would come by a 
 subsequent train, for which he accordingly waited. I therefore 
 entertain no doubt that the plaintiff was entitled at the very least 
 to the ordinaiy profits on the sale of his goods. With regard to
 
 REPORTS OF CASES. 197 
 
 damages for the exceptional profits claimed by the plaintiff, his BAERATT 
 counsel relied on the rule as to damages on breaches of contracts ,- v ' 
 as laid down in the case of Hadley v. Batendale (9 Ex. 341), viz., BRIGHTON, 
 
 that " when two parties have made a contract which one of them 
 
 COAST 
 has broken, the damages which the other party ought to receive RAILWAY 
 
 in respect of such breach of contract should be such as may fairly COMPANY. 
 
 and reasonably be considered either arising naturally, i.e., 
 
 according to the usual course of things, from such breach of 
 
 contract itself, or such as may be reasonably supposed to have 
 
 been in the contemplation of both parties at the time they made 
 
 the contract as the probable result of the breach of it ; and if 
 
 the special circumstances under which the contract was actually 
 
 made were communicated by the plaintiff to the defendant, and 
 
 thus known to both parties, the damages resulting from such 
 
 breach of contract which they would reasonably contemplate 
 
 would be the a*mount of injury which would ordinarily follow 
 
 from the breach of contract under these special circumstances so 
 
 known and communicated." The defendants' counsel, on the 
 
 other hand, relied on the dictum of Mr. Justice Blackburn in the 
 
 case of Home v. The Midland Railway Company (L. Rep. 8 C. P. 
 
 131), in which he said: "The decision in Hadley v. Baxendale 
 
 has been adverted to in several subsequent decisions with more or 
 
 less assent, but it does not appear that there has been any case 
 
 in which it has been affirmatively held that in consequence of 
 
 such notice the plaintiff could recover exceptional damages. 
 
 Counsel could not refer to any such case, and I know of none. 
 
 If it were necessary to decide the point, I should be much 
 
 disposed to agree with my brother Martin that, in order that the 
 
 notice may have any effect it must be given under such 
 
 circumstances as that an actual contract arises on the part of the 
 
 defendant to bear the exceptional loss." Notwithstanding the 
 
 above observations of Mr. Justice Blackburn, there appears to 
 
 have been previously a case in the Court of Exchequer on appeal 
 
 from the County Court of Staffordshire, in which the defendants, 
 
 having failed to deliver certain implements of the plaintiffs in 
 
 time for an agricultural exhibition, with full knowledge of their 
 
 destination, and the plaintiff having calculated his damages by 
 
 the profits which he had made by the sale of similar implements 
 
 at previous exhibitions, the court held (contrary, as it would 
 
 appear, to the County Court Judge's direction) that the jury, 
 
 guided by this calculation, might give the plaintiff a fair amount
 
 198 REPOBTS OF CASES. 
 
 BARRATT of damages: (Cawley v. North Staffordshire Railway Company, 
 
 v - 26 L. T. 222.) And in the cases of Wilson v. The Newport Dock 
 LONDON 
 BRIGHTON, Company (L. Rep. 1 Ex. 184 and 186) ; Cory v. The Thames 
 
 AND SOUTH j ron Works Company (L. Rep. 3 Ex. 187, 191), both previous to the 
 RAILWAY case of Home v. The Midland Railway Company, the rule in Hadley 
 COMPANY. v . Baxendale appears to have been upheld in its integrity both 
 by Mr Baron Martin and Mr. Justice Blackburn. And in support 
 of this same view I would refer to the case of Re The Trent and 
 Number Company (L. Rep. 6 Eq. 396), and Bullen and Leake's 
 Precedents, 3rd edit., p. 124. The question, however, as to excep- 
 tional damages appears to me to have been completely set at rest 
 by the comparatively recent case of Simpson v. The London 
 and North-Western Railway Company (L. Rep. 1 Q. B. Div. 177), 
 which was not cited before me at the hearing. Chief Justice 
 Cockburn there said : " The law has fluctuated, but the principle 
 is now settled that whenever either the object of the sender is 
 specially brought to the notice of the earner, or circumstances 
 are known to the carrier from which the object ought in reason 
 to be inferred, so that the object may be taken to have been 
 within the contemplation of both parties, damages may be 
 recovered for the natural consequences of the failure of that 
 object." And the plaintiff accordingly recovered exceptional 
 damages under circumstances which resembled in a remarkable 
 manner those presented by the early case of Cawley v. The North 
 Staffordshire Raihvay Company) already referred to. The case 
 of Simpson v. The London and North-Western Railway Company, 
 therefore, appears to me firmly to establish the rule in Hadley v. 
 Baxendale as an authority to be followed in all cases within its 
 scope, and I will now proceed to apply it to the present case. 
 The plaintiff here has proved that he had distinctly told the 
 receiving agent of the defendants that he wanted the goods to 
 be taken to Brighton to sell at the races, and that the receiving 
 agent distinctly said that they would be delivered at the Brighton 
 Station early the next morning, and therefore the receiving agent 
 had full notice of " the object of the sender," and undertook to 
 send the goods in time for him to attain it. The plaintiff has 
 also proved the failure of that object, and that at the Brighton 
 races and similar meetings he was able to obtain exceptionally 
 high prices for such goods (which, according to the rule in 
 Hadley v. Baxendale and the case of Simpson v. London and 
 North-Western Raihvay Company he is entitled now to recover),
 
 REPORTS OF CASES. 199 
 
 and that taking the value of the goods at 27. 2*. he could BABBATT 
 probably have obtained at the Brighton races 57. 2s. for the same, -, v - 
 or a profit of 31. The plaintiff's evidence on all these points is BBIGHTON, 
 tmcontradicted, and I shall therefore allow the profits in question AN , SOUTH 
 at 37. , making with the 27. bs. } the cost of the goods and baskets, RAILWAY 
 and 17. for carriage expenses, &c., assessed by the jury, the sum COMPANY. 
 of 07. os., for which sum there will be a verdict with costs. 
 
 Barrett v. London, Brighton and South Coast Railway. An appeal from 
 the above decision of the County Court judge was dismissed, with costs, 
 Cleasby, B. observing that the question was, What was the value of the fruit 
 to the respondent at Brighton at the time when it ought to have been 
 delivered there, and Pollock, B., expressing his approval of the manner in 
 which the case was stated, and the reasons given by the learned judge of the 
 County Court for his judgment : (County Courts Chronicle, vol. vi. p. 292.) 
 
 SOUTHWARK COUNTY COURT. 
 
 Friday, July 12, 1878. 
 
 (Before H. J. STONOE, Esq., Judge.) 
 
 BISHOP y. THE LONDON AND SOUTH- WESTERN RAILWAY 
 
 COMPANY, (a) 
 
 A commercial traveller's account books and stationery ordinary 
 passenger's luggage Phelps v. The London and North- 
 Western Railway Company considered. Special condition as to 
 costs of appeal. 
 
 His HONOUR. In this case the plaintiff, a commercial traveller, 
 sues the defendants for three guineas, being his expenses for 
 three days during which he was detained on his journey by 
 reason of the non-delivery of a bag, containing certain account 
 books and stationery, used by him in his occupation of a com- 
 mercial traveller, which had been duly labelled as passenger's 
 luggage, and intrusted to the defendants' servants, and likewise 
 for 14. paid by him in endeavouring to recover or obtain infor- 
 mation concerning the same ; the latter item I disallowed at the 
 trial. With regard to the first item the amount was not dis- 
 puted, but the defendants' liability to pay the same was disputed 
 
 (a) County Courts Chronicle, vol. vi., p. 405.
 
 200 REPORTS OF CASES. 
 
 BISHOP on the ground that the bag in question did not contain " ordinary 
 v ' passenger's luggage," and the question for me to decide is 
 AND SOUTH- simply whether or not a commercial traveller's account books 
 WESTERN an( j stationery come within the term "ordinary passenger's 
 COMPANY, luggage. I confess that, if it were not for the case of Phelps v. 
 The London and North-Western Hallway Company (13 C. B. N. S. 
 818), in which it was decided that deeds and documents (pre- 
 sumably not title-deeds, or the case would have come under the 
 Carriers Act) which a solicitor was taking with him, and which 
 were required as evidence on a trial at a local court, were not 
 ordinary passenger's luggage, I should have little doubt on the 
 matter, and certainly have decided in favour of the plaintiff ; for 
 it appears to me that all portable articles accompanying a 
 traveller for his personal use, whether for necessity, comfort, 
 pleasure, study, or business, ought to be included in the term 
 "ordinary passenger's luggage," and if securely packed and 
 delivered to the carriers' servants as personal luggage the the 
 carrier ought to be liable for them, subject, of course, to the pro- 
 visions of the Carriers Act as to articles of value, and likewise to 
 the conditions of the company as to weight. It appears at first 
 sight to be rather difficult to distinguish between account books 
 taken for the purpose of business and deeds taken for the 
 purpose of a trial ; but I think there is one important distinc- 
 tion, viz., that the deeds are the property of the client and not of 
 the solicitor, and are used by the latter in the service of the 
 former, whilst the account books are the property of the com- 
 mercial traveller, and for his own use. In the case of Macrow v. 
 The Great Western Railway Company (L. Rep. 6 Q. B. 612), 
 Chief Justice Cockburn lays down the rule as follows : " We 
 hold the true rule to be that, whatever the passenger takes with 
 him for his personal use or convenience according to the habits 
 or wants of the particular class to which he belongs, either with 
 reference to his immediate necessities or the ultimate purpose of 
 his journey, must be considered as personal luggage ; this would 
 include not only all articles of apparel, whether for use or orna- 
 ment, but also the gun case or the fishing apparatus of the 
 sportsman, the easel of the artist on a sketching tour, or the 
 books for the student, or other articles of analogous character, 
 the use of which is personal to the traveller, and the taking of 
 which has arisen from the fact of his journeying. On the other 
 hand, what is carried for the purposes of business, such as mer-
 
 REPORTS OF CASES. 
 
 201 
 
 WESTERN 
 RAILWAY 
 COMPANY. 
 
 chaudise or the like, or for larger or ulterior purposes, such as BISHOP 
 articles of furniture or household goods, would not come within T v ~ 
 the description of ordinary luggage." It is obvious that these AND SOUTH 
 dicta of the Chief Justice point rather to the difference between 
 various articles in respect of bulk or quantity than what may be 
 termed their difference in character or quality, and such indeed 
 was the question raised by the facts before the court ; but they 
 seem also rather to point to the exclusion of articles carried by 
 a passenger for purposes of trade or business, and not for per- 
 sonal use or ornament or enjoyment. At the same time, if the 
 books of the student, and the easel, and a fortiori the sketches 
 of the artist, which may be of great value and importance, and 
 the detention of which might necessitate the owner remaining in 
 unprofitable idleness, are ordinary personal luggage, I cannot see 
 why the account books of the commercial traveller are not also 
 ordinary personal luggage. Upon the whole, distinguishing the 
 present from the case of Phelpsv. The London and North-Western 
 Railway Company on the ground I have mentioned, and relying 
 to some extent upon the dicta of Chief Justice Cockburn in the 
 case of Macrow v. The Great Western Railway Company, I find 
 for the plaintiff, but I shall give leave to the defendants to 
 appeal by case within one month. I do not think it proper to 
 impose the condition that the appellants should forego costs in 
 any event in the present case, as I have in others ; but I am glad 
 to see that that course was approved of, and indeed pursued in 
 respect of the ulterior appeal, by Chief Justice Coleridge in the 
 recent case of Watson v. The London, Brighton, and South 
 Coast Railway Company, on appeal from this court. There will 
 be a verdict for the plaintiff for 3/. 3s. with costs, payable in one 
 month, and liberty to the defendants to appeal by case within 
 the same period. 
 
 Bishop v. London and South-Western Raihvay Company. The above 
 decision is certainly iii harmony with the rule laid down in Macrow v. Great 
 Western Railway (L. Rep. 6 Q. B. 612, 622). It would be going beyond the 
 object of this work to enumerate all the decisions as to what articles constitute 
 " personal luggage." But it may be useful to mention that articles intended 
 for household \ise when permanently settled (Macrow v. Great Western 
 Railway Company, ubi sup.), a child's rocking-horse (Hudston v. Midland 
 Railway Company. L. Rep. 4 Q. B. 366 ; 38 L. J. 213, Q. B. ; 20 L. T. 526), 
 an artist's sketches (Mytton v. Midland Raihvay Company, 28 L. J. 385, 
 Ex.), title deeds carried by a solicitor in a bag for production at a trial in a
 
 202 REPORTS OP CASES. 
 
 BISHOP County Court (Phelps v. London and North-Western Railway Company, 
 v. 19 C. B. N. S. 321), and merchandise intended to be sold (Great Northern 
 
 LONDON Railway Company \. Shepherd, 8 Ex. 30 ; 21 L. J. 286, Ex.), have all been 
 ? SOUTH- jjgij t, ij e no t personal luggage." 
 WESTERN 
 RAILWAY 
 COMPANY. 
 
 SOUTHWARK COUNTY COURT. 
 
 Monday, Oct. 14, 1878. 
 
 (Before H. J. STONOR, Esq., Judge.) 
 
 M'GEDY v. THE LONDON AND SOUTH-WESTERN RAILWAY 
 
 COMPANY, (a) 
 Railway company's responsibility A special agreement signed by 
 
 a passenger relieves the company from liability. 
 His HONOUR this day delivered judgment as follows : The 
 plaintiff resides at Walfcoii-on- Thames, and is an actuary and 
 secretary to an insurance company carrying on business in 
 Chancery-lane, and he sues the defendants in the present case 
 for 17s. Gd. damages for " expenses of cab hire from Waterloo 
 station to plaintiff's office, 126, Chancery-lane, incurred by 
 plaintiff in consequence of delay in arrival at Waterloo station 
 of 9.35 a.m. train from Walton (a distance of seventeen miles) 
 on various days (twenty in number) in the months of June, July, 
 and August, 1878, as set forth in the particulars." It was 
 admitted that the train in question was late on the respective 
 days named several minutes, varying from six to twenty-two, 
 and giving an average of twelve. The plaintiff proved that his 
 regular attendance at his office was of great importance, and 
 that when the train was punctual he walked to his office, but 
 when it was late he was obliged to take a cab. The principal 
 defence was, that the plaintiff was debarred from suing the 
 company because he travelled as a season-ticket holder at a 
 reduced rate of fares under the following special agreement 
 printed on his ticket and signed by him : " The company is not 
 liable for any stoppage, hindrance, change, or delay in respect to 
 the starting or arrival of the trains, or arising from accident or 
 any other cause." This agreement is inaccurately worded. The 
 first clause clearly ought to have been, " the company shall not 
 be liable " instead of " the company is not liable; " but I think 
 
 (a) County Courts Chronicle, vol. vi., p. 474.
 
 REPORTS OF CASES. 203 
 
 that the words used sufficiently indicate the intention of the M'GEDT 
 parties to limit the future liability of the company under the L r> 
 actual contract. The insertion of the word "or" before the AND SOUTH- 
 word " arising " appears to me also to be an error, but I think it WKSTERN 
 immaterial in the present case. There is no doubt that the COMPANY. 
 liability of a railway company to their passengers at ordinary 
 fares, in the absence of any special agreement, is to use all 
 reasonable means and due diligence to convey them with 
 punctuality, and the words inserted in some of the bye-laws 
 and notices of the railway companies, that " every attention will 
 be paid to insure punctuality/' or any other words to that effect, 
 express only the duty which the law casts upon them. Any 
 substantial unpunctuality must therefore, in the absence of special 
 agreement to the contrary, impose on the railway company the 
 obligation of showing that the same arose from unavoidable 
 causes, such as bad weather or inevitable accident ; and in the 
 case of Le Blanch v. The Great Western Railway Company (1 L. 
 Rep. C. P.) Mr. Justice Brett (p. 302) and Lord Justice James 
 (p. 312) considered that fifteen minutes' delay in a long journey 
 was " sufficient to require explanation." Attempts have con- 
 stantly been made by railway companies to rid themselves of 
 their liability in this respect by means of notices and conditions 
 in their time-bills and elsewhere, but such attempts have always 
 proved unsuccessful (see the cases of Forsyth v. The Great 
 Western Bail-way Company, at Reading; Turner v. The Great 
 Western Railway Company ,at Marylebone ; and Becke v. The Great 
 Western Railway Company, at Reading ; reported in the fourth 
 volume of the County Court* Chronicle, pp. 244, 367, and 598, 
 and in the Law Times ; and the case of Le Blanch v. The Great 
 Western Railway Company, an appeal from the Bloomsbury 
 County Court, already cited). The question, however, remains 
 whether a passenger can, by a special agreement signed by him, 
 iu consideration of being carried at a reduced fare, or for any 
 other reason, relieve a railway company from the liability in 
 question. Now, it has long since been decided with regard to 
 the conveyance of goods that a consignor can, in consideration 
 of a reduced rate of carriage by special agreement signed by 
 him, relieve a railway company from any liability for injury, and 
 even for the destruction or loss of goods through the negligence 
 of the company's servants (Carr v. The Lancashire and Yorkshire 
 Railway Company, 21 L. J. 261, Ex.) ; and in the case of
 
 201 REPORTS OF CASES. 
 
 M'GEDY H'Cawley v. The Fur ness Railway Company (L. Rep. 9 Q. B.) 
 T l '~ it was held that a drover accompanying cattle, who received a 
 AND SOUTH- free pass and signed an agreement that he should travel " at his 
 WESTERN own r j s i^ was debarred from suing for damages in respect of 
 COMPANY, injuries suffered by him through a collision caused by the negli- 
 gence of the company's servants ; and I think it follows that a 
 passenger can, by special agreement signed by him in considera- 
 tion of his being carried at a reduced fare, or, indeed, for any 
 other reason, relieve the company from any liability in respect 
 of personal injury to him, and a> fortiori in respect of mere delay 
 or loss of time, as in present case. The only ground for ques- 
 tioning the power of the traveller to enter into such an agreement 
 appears to me to be that it might tend to general or frequent 
 uupunctuality and carelessness by the company and their servants 
 in the management of their trains, and therefore to risk and 
 danger, not only to the passengers so contracting, but likewise to 
 the public. This objection, however, would also apply to agree- 
 ments restricting the liability of the company for damage or loss 
 of goods, and more strongly to agreements restricting the liability 
 of the company as to injury to passengers ; and, as it appears to 
 have been disregarded in the cases of that description which I 
 have cited, I feel bound to disregard it on the present case. 
 There will be a verdict for the defendants, with liberty to the 
 plaintiff to appeal by case within one month, if so advised. 
 
 McGedy v. London and South-Western Railway Company. 'The precise 
 point decided by the County Court judge iii the above case does not appear 
 to have arisen in the Superior Courts. There seems no reason, however, why 
 a special agreement, such as the plaintiff had entered into with the defen- 
 dants, should not be binding upon him. For there is certainly nothing 
 to prevent a railway company from making such a condition, and it has fre- 
 quently been determined that an agreement by a person to be carried at 
 a lower rate '' at his own risk " relieves a railway company from liability not 
 only during the actual transit on the railway (McCaivley v. Furness Railway 
 Company, L. Rep. 8 Q. B. 57 ; 42 L. J. 4, Q. B. ; Duff v. Great Northern 
 Railway Company, 4 Ir. L. B. 78), but even whilst the passenger is going 
 from the premises of the company : (Gdllin v. London and North-Western 
 Railway Company, L. Rep. 10 Q. B. 212 ; 44 L. J. 89, Q. B.) 
 
 It is, however, submitted that if, in the above reported case, the special 
 agreement signed by the plaintiff had simply stipulated that he was to 
 be carried " at his own risk," without expressly relieving the company from 
 liability for delay, the plaintiff would probably have succeeded ; for it has 
 been held, with reference to the carriage of goods, that a contract to carry 
 goods " at tho owner's risk " exempts the company only from the ordinary
 
 REPORTS or CASES. 205 
 
 risks incurred by goods going along the railway, but not from responsibility 
 for negligence proceeding from delay in delivery (Robinson v. Great v. 
 
 Western Railway Company, 35 L. J. 123, C. P.; D'Arc v. London and LONDON 
 North-Western Railway Company, L. Rep. 9 Q. B. 325), unless indeed it A.ND SOUTH- 
 should appear that in using the words " owner's risk " the plaintiff intended RAILWAY 
 that the goods should be carried at a lower rate, and subject to conditions COMPANY. 
 excluding the liability for the defendants for delay : (Leicis \. G-reat Western 
 Railway Company, 3 Q. B. Div. 195.) 
 
 SOUTHWARK COUNTY COURT. 
 
 Monday, Dec. 22, 1879. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 CASE v. LONDON AND SOUTH-WESTERN RAILWAY COMPANY. (a) 
 Provisions, viz., fowls, apples, and vegetables taken bij a passenger 
 
 as a present to another person held to be <( personal luggage " 
 
 within the rule laid down in Hacrow v. The Great Western 
 
 Railway Company (L. Rep. 6 Q. B. 622). 
 Goodman for plaintiff. 
 
 Bowen for defendants. 
 
 His HONOUR. In this case the plaintiff was a passenger on the 
 defendants' line from Waterloo station to Barnes station, and as 
 such was by the general regulations of the company allowed 
 a certain quantity of " personal luggage (not merchandise)" free 
 of charge. He took with him a portmanteau and an ordinary 
 hamper packed with straw, and secured by string, and delivered 
 both to the defendants' servants who labelled them and put 
 them into the luggage van in his presence. On the arrival 
 of the train at the Barnes station the hamper was missing. 
 It contained two pairs of shooting boots valued by plaintiff at 
 3Z. 10s. and two fowls and certain apples and vegetables valued 
 by the plaintiff at 21., making together 57. 10s., for which the 
 plaintiff sued. The defendants did not dispute the value of the 
 articles contained in the hamper, and paid 3Z. 10s. into court in 
 respect of the boots, but they denied their liability in respect of 
 the fowls and other provisions, which they contended were 
 not " personal luggage." The plaintiff contended, first, that the 
 defendants' servants knew or ought to have known by the 
 appearance of the hamper that it contained provisions, and that, 
 
 (a) County Courts Chronicle, vol. vii., p. 255.
 
 206 REPORTS OF CASES. 
 
 CASK therefore, they took charge of it with notice of the nature of its 
 
 v - contents, and that the defendants were consequently liable in 
 LONDON . . . T 
 
 AND SOUTH- respect of it, whether it was personal luggage or not. 1 cannot 
 
 WESTERN acce( j e to this proposition. If authority be necessary, the case 
 COMPANY, of Cahill v. The London and North-Western Eailway Company 
 (31 L. 3. 271, C. P.), where it was held that, although a package 
 was marked " glass," the servants of a railway company were 
 not thereby affected Avith notice that its contents were other 
 than " personal luggage," shows, I think conclusively, that the 
 defendants' servants in the present case were not bound to 
 inquire into or to speculate upon the contents of this hamper. In 
 point of fact it did contain certain articles which were un- 
 doubtedly personal luggage, and it might have been wholly filled 
 with the like articles. The plaintiff also contended, secondly, 
 that the provisions in question were personal luggage, and on the 
 point I entertain very little doubt. In the case of Nacrow v. 
 Great Western Eailway Company (L. Eep. 6 Q. B. 622), Lord 
 Chief Justice Cockburn, in delivering the judgment of the Court 
 of Queen's Bench, said : " We hold the true rule to be that, 
 whatever the passenger takes with him for his personal use or 
 convenience, according to the habits or wants of the particular 
 class to which he belongs, either with reference to the immediate 
 necessities or to the ultimate purpose of the journey, must be 
 considered as personal luggage. This would include not only all 
 articles of apparel, whether for use or ornament, leaving the carrier 
 herein to the protection of the Carriers Act (to which being 
 held to be liable in respect of passenger's luggage as a carrier 
 of goods he undoubtedly becomes entitled), but also the gun 
 case or the fishing apparatus of the sportsman, the easel 
 of an artist on a sketching tour, or the books of the student and 
 other articles of an analogous character, the use of which is 
 personal to the traveller, and the taking of which has arisen from 
 the fact of his journeying;" and I can see no reason why, 
 according to this rule, the passenger is not entitled to carry (of 
 course within the proper limits of weight) provisions as " personal 
 luggage." The passenger may be going to a remote district 
 where he will be unable to obtain them, or to a place where he 
 will not be able to obtain them at a reasonable price ; or, inde- 
 pendently of such reasons, he might prefer provisions which he 
 had at hand to what he might be able to obtain elsewhere. The 
 plaintiff further contended, thirdly, that even if the goods were
 
 REPORTS OF CASES. 207 
 
 not personal luggage the defendants would, under the circum- CASE 
 
 stances of this case, be liable as involuntary bailees. It is not T v - 
 
 necessary for me to decide this point, but I feel no doubt upon AND SOUTH- 
 
 it. The case which I have just cited is conclusive on it. The WESTERN 
 
 court there held that the defendants were not liable in respect of COMPANY. 
 
 a heavy trunk containing sheets, blankets, and quilts, and surely 
 
 a hamper is more easily lost or stolen at an intermediate station 
 
 or a railway terminus than such a trunk, be the journey short 
 
 or long. There remains, however, another point in this case. 
 
 At the trial it was admitted that the plaintiff intended these 
 
 provisions as a present to a person with whom he w r as going to 
 
 stay. Xow, Mr. Baron Parke, in the case of The Great Northern 
 
 Railway Company v. Shepherd (21 L. -J. 286, Ex.) certainly 
 
 expresses a doubt whether presents are included in " personal 
 
 luggage/' where he says, " perhaps even a small present " may 
 
 be so included, and I much regret that I have not been able to 
 
 find any decision on the point. Being, however, obliged to 
 
 express my humble opinion upon it, I submit that the mere 
 
 intention of a passenger more or less formed and fixed to present 
 
 an article otherwise " personal luggage " to another person at 
 
 the end of a journey, which intention must necessarily be 
 
 conditional and contingent on many circumstances, cannot make 
 
 the article less his personal luggage, so long as such intention 
 
 is not carried into effect, and the article remains in his power. 
 
 Even the intention to sell at the end of the journey which 
 
 would be equally conditional and contingent, could not, I submit, 
 
 alter the character of " personal luggage " unless it came within 
 
 the term of " merchandise " excepted in the regulation in 
 
 question. I therefore must hold these provisions to have been 
 
 " personal luggage," as well as the other articles contained in 
 
 the hamper, and I find for the plaintiff for the whole amount 
 
 claimed. I shall give the defendants leave to appeal by case 
 
 within one month. 
 
 Verdict for plaintiff, with costs. 
 
 Case v. London and South-Western Railway Company. This case is 
 referred to in Brown and Theobald on Railways, p. 302, and the learned 
 authors express the opinion that the decision seems to lie inconsistent 
 with the other authorities.
 
 208 KEPOKTS OF CASES. 
 
 SOUTHWARK COUNTY COURT. 
 
 Thursday, Jan. 22, 1880. 
 
 (Before H. J. STONOK, Esq., Judge.) 
 
 VAN RAALTE v. LONDON, BRIGHTON, AND SOUTH COAST RAILWAY 
 
 COMPANY, (a) 
 Action by consignor against carrier for breach of contract held to be 
 
 rightly brought. 
 Rogers counsel for plaintiff. 
 
 Moseley counsel for defendant. 
 
 The plaintiff in this case, a wholesale fancy basket dealer in 
 London, received in July, 1879, an order from one Hughes, of 
 Portsea, for a quantity of fancy baskets, which he forwarded to 
 Messrs. Krauss, manufacturers, in Bavaria, who shipped the 
 baskets in three packages to the plaintiff to London, invoicing 
 them to Hughes, and adding, as instructed by the plaintiff, 
 10 per cent, on the invoice value of the goods to cover all 
 charges for insurance freight, and carriage to Hughes at Portsea, 
 making in all 261. Is. 9d. Messrs. Krauss, pursuant to standing 
 business arrangements with the plaintiff, debited the plaintiff 
 with the goods, and credited him with 1\ per cent, on their 
 invoice value as his share of the profits. The plaintiff had 
 previously agreed with Hughes to deliver the baskets to him at 
 Portsea at the amount of invoice, free of all charges, and in time 
 for their sale during the season extending from the end of May 
 to the end of September. On the 18th September the plaintiff 
 sent the consignment note or bill of lading which he had received 
 from Messrs. Krauss to the defendants, with written instructions 
 to collect the goods and pay all charges thereon, and deliver the 
 same carriage free to Hughes at Portsea, and to debit the 
 plaintiff with the disbursements and carriage. The defendant's 
 collector shortly afterwards called and received the amount of 
 the carriage to Portsea from the plaintiff, and promised to call 
 again or send for the disbursements ; and the defendants 
 collected the goods and forwarded them to Portsea, and 
 on the 19th September tendered them to Hughes, but on 
 condition of his paying the remaining charges, which Hughes 
 refused to pay, and the defendants consequently refused to 
 deliver the goods until the 27th October, when, having ascertained 
 
 (a) County Courts Chronicle, vol. vii., p. 276.
 
 REPORTS OF CASES. 209 
 
 that they were in error they tendered the baskets to Hughes free VAN 
 of any chai'ges, but he then declined to receive them, as the R^^TE 
 season for their sale had passed. The goods were afterwards LONDON, 
 returned to London and tendered on the 4th November to the BRIGHTON, 
 plaintiff, who refused to accept them. The goods remained in COAST 
 the possession of the defendants, and were proved to be of the 
 value of IOL or thereabouts, at the time of the tender. The 
 plaintiff now sued the defendants for damages for breach of 
 contract. It was contended on his behalf that, as consignor, he 
 was the proper person to sue, and that he was entitled to 
 16Z. Is. 9d. damages, being the difference between the value of 
 the goods, if delivered at the proper time, and their value when 
 tendered to him, and that he was also of course entitled to the 
 goods. On behalf of the defendants it was contended first, that 
 the general principle of law by which the consignee and not the 
 consignor is the proper person to sue applied, and therefore that 
 Hughes and not Van Eaalte should have brought the action ; 
 and secondly, that the damages which the plaintiff could claim, 
 if any, would only be the loss of profit he had sustained, viz., 
 7| per cent, on the value of the goods. In the course of the 
 argument Davis v. James (5 Burr. 2680), Dunlop v. Lambert 
 (Cl. & Fin. 600), Addison on Contracts, Chitty on Contracts, and 
 numerous other cases and authorities were cited. 
 
 His HONOUR, in delivering judgment, said that as a rule the con- 
 signee was the right person to bring an action against a carrier, but 
 that in some cases the consignor was the right person, and in others 
 both consignor and consignee might bring an action against a 
 carrier, and in the latter case the action first brought was a bar to 
 the subsequent action, although possibly the party who recovered 
 in the first action might be a trustee for the other. In the present 
 case he thought the consignor was clearly the right party to 
 bring an action against the defendants for their admitted breach 
 of contract, and that as the goods had in consequence of such 
 breach of contract been thrown upon his hands he was intitled 
 to the damages now claimed, but whether he was a trustee for 
 the consignee of all or any part of such damages was not a 
 question for the decision of the court in the present action. 
 
 Verdict for plaintiff for 161. Is. 9d. and costs, the goods to be 
 returned.
 
 210 REPORTS OF CASES. 
 
 SOUTH\YARK COUNTY COURT. 
 
 Thursday, Sept. 16, 1880. 
 
 (Before H. J. STONOR, Esq., Judge.) 
 
 YETTS v. LONDON AND SOUTH-WESTERN RAILWAY COMPANY, (a) 
 
 Overcrowding railway carriages Breach of contract Trespass. 
 IN this case the plaintiff, a solicitor, practising in London and 
 residing at Lower Norwood, appeared in person. 
 
 Bowen represented the defendants. 
 
 The admitted facts of the case were that on the 2nd August, 
 1880 Bank Holiday the plaintiff, who was a first-class season- 
 ticket holder on the defendants' line, travelled by the 11.16 a.m. 
 down train from Ludgate Hill to Tulse hill. The compartment 
 in which he travelled was constructed to carry six passengers 
 only ; at the Elephant and Castle station the porter put in ten 
 additional passengers, making five in excess of the proper 
 number. The plaintiff remonstrated with the porter and also 
 with the guard, but no notice was taken. The plaintiff now 
 brought his action for damages for the breach of contract by the 
 defendants in overcrowding the compartment, which, he con- 
 tended, was attended with inconvenience and danger, especially 
 in case of a collision or other accident on the line. 
 
 The defendants' solicitor contended that the plaintiff was only 
 entitled to nominal damages, in respect of which Is. had been 
 paid into court. 
 
 His HONOUR held that the plaintiff was entitled to substantial 
 damages for the breach of contract on the part of the defendants, 
 by which he was deprived of the accommodation which they had 
 undertaken to provide, and observed that, without doubt, the 
 inconvenience to which the plaintiff had been subjected amounted 
 to a trespass in law. He therefore gave a verdict for 2Z., the full 
 amount claimed, with liberty to the defendants to appeal by case 
 within one month, if so advised. 
 
 A second action in a similar state of facts, brought by a Mr. 
 Staight, who was travelling on the same day by a later train, was 
 decided in the same way as the above. 
 
 (a) County Courts Chronicle, vol. vii., p. 421.
 
 REPORTS OF CASES. 211 
 
 SOUTHWARK COUNTY COURT. 
 
 Monday, Oct. 11, 1880. 
 (Before H. J. STONOR, Esq., Judge.) 
 DAVOSS v. SOUTH-EASTERN RAILWAY COMPANY, (a) 
 Liability of railway company for goods deposited in cloak room. 
 His HONOUR delivered the following judgment in this case: 
 The plaintiff (who is a foreman in the tailoring department) sues 
 the defendants for a sum of 101. in respect of the loss of a 
 portmanteau containing wearing apparel and other things, which 
 was deposited by him in the defendants' cloak room at Margate, 
 for which the defendants' servants gave the plaintiff a ticket, but 
 which they failed to deliver to him on the production of the 
 ticket, the portmanteau having been previously given to some 
 other person or stolen from the cloak room. The station-master 
 at Margate caused the portmanteau to be advertised, without any 
 result, and the plaintiff thereupon applied to the defendants for 
 the sum of 201., which he alleged to be the value of the 
 portmanteau and its contents, and which, according to the 
 evidence produced by him at the trial, considerably exceeded the 
 sum of 10Z. now claimed. The defendants deny any liability for 
 the loss of the goods in question, on the ground that they are 
 exonerated therefrom by a notice printed in red ink on the front, 
 and in black ink on the back, of the ticket given to the plaintiff. 
 That notice is in the following words : " Important notice. The 
 company will not be responsible for articles left by passengers 
 at the station unless the same be duly registered, for which a 
 charge of 2d. per article will be made, and a ticket given in 
 exchange, and no article will be given up without the production 
 of the ticket or satisfactory evidence of the ownership being 
 adduced. A charge of Id. per diem in addition will be made on 
 all articles left in the luggage-room for a longer period than 
 twenty-four hours. The company will not be responsible for any 
 package exceeding the value of 10Z." The plaintiff, who is an 
 educated man, deposed that he took the ticket as a receipt for 
 the portmanteau, that he saw, but never read, the notice 
 appearing upon it, and that no inquiry was made by the 
 defendants' servants at the time of the deposit as to the value of 
 the goods. Two questions arise upon this notice: 1. Whether 
 the plaintiff is bound by it under the circumstance of the case ; 
 
 (a) County Courts Chronicle, vol. viii., p. 434. 
 p 2
 
 212 REPORTS OF CASES. 
 
 DAVOSS and 2. Whether it exonerates the defendants from all liability in 
 
 v - respect of the goods in question in consequence of their exceeding 
 
 EASTERN in value the sum of 10Z. On the first point I think that the cases of 
 
 RAILWAY y an To u v> South-Eastern Railway Company (12 C. B. N. S. 75; 
 
 ' 31 L. J. 241, C. P.), and Harris v. Great Western Railway 
 
 Company (L. Eep. 1 Q. B. Div. 515 ; 45 L. J. 729, Q. B. Div.), 
 and Parker v. South-Eastern Railway Company (2 C. P. Div. 416), 
 are express and decisive authorities that the plaintiff is bound 
 by this notice, but, nevertheless, so far only "as the terms 
 contained in such notice are reasonable " (see Mr. Justice Byles's 
 observations in the first-named case, 12 C. B. N. S., 877). 
 The second question must be subdivided into two further 
 questions first, is the effect of the final stipulation in the notice 
 to exonerate the defendants from all liability, as contended; 
 secondly, if so, is such stipulation reasonable ? The affirmative 
 of both questions is evidently assumed throughout Van Toll's 
 case (already cited), in which the notice is identical with the 
 present, but I nevertheless cannot help entertaining some doubt 
 as to both questions. The first part of this notice, down to the 
 words " twenty -four hours " inclusively, evidently contemplates 
 the company receiving all articles which passengers may choose 
 to deposit, without any limit of value, and the subsequent clause 
 may, I think, be reasonably understood by a person of ordinary 
 intelligence to limit the company's responsibility to the value or 
 amount of 10Z., but not to relieve the company from all liability 
 in respect of articles exceeding the same especially considering 
 that no provision is made in respect of articles exceeding that 
 value, and that no inquiry is made as to the value of articles at 
 the time of the deposit. The word " exceeding," would thus be 
 read as " beyond." The rule of law that every contract must be 
 construed liberally as well as reasonably appears to me to apply 
 to the present case, and according to which I conceive that an 
 agreement prepared with care by a bailee, and impliedly assented 
 to by a bailor, under circumstances like the present, ought to be 
 construed favourably to the bailor. Should, however, the 
 plaintiff be bound by the strictly grammatical construction of 
 the stipulation in question, which I think is favourable to the 
 defendants, I cannot help feeling much doubt on the remaining 
 question, namely, whether such a stipulation, especially thus 
 ambiguously expressed, is under the circumstances of this 
 contract reasonable, and the grounds of my doubt sufficiently 
 appear in the observations I have already made. The case of
 
 REPORTS OF CASES. 
 
 213 
 
 Harris v. Great Western Railway Company and the cases on the 
 Carriers Act which have been cited before me, and which are 
 certainly favourable to the defendants' contention, are, I think, 
 distinguishable from the present case, inasmuch as the notice 
 printed on the ticket in the former and the clauses contained in 
 the Act in the latter provide for the reception, at a higher rate 
 of charge, of articles exceeding in value 10Z., which the present 
 notice does not. Feeling, however, that I am bound by the 
 case of Van Toll v. South-Eastern Railway Company, I must 
 find for the defendants, giving the plaintiff leave to appeal by 
 case within one month, and possibly the divisional court may 
 think it right to consider the questions which I have raised, or 
 to allow them to go before the appellate court, which would not 
 be bound by the last-mentioned case. 
 
 Verdict for the defendants. 
 
 DAVOSS 
 
 Davoss v. South-Eastern Railway Company. In Parker v. South- 
 Eastern Railway Company (2 C. P. Div. 416) MELLISH, L.J. laid down the 
 rule of law as follows : "I am of opinion that the proper direction to leave 
 to the jury in these cases is that, if the person receiving the ticket did not 
 see or know that there was any writing on the ticket, he is not bound by the 
 conditions ; that if he knew there was writing, and knew or believed that the 
 writing contained conditions, nevertheless he would be bound if the delivering 
 of the ticket to him in such a manner that he could see there was writing 
 upon it, was in the opinion of the jury reasonable notice that the writing 
 contained conditions." (See, however, the recent decision of the Divisional 
 Court in Watkins v. Rymill, 10 Q. B. Div. 178, which is somewhat difficult 
 to reconcile with the ruling cited of MELLISH, L.J.) It must be observed 
 that in the above-reported case the learned County Court judge discharged 
 the functions of judge and jury. One point raised by the learned County 
 Court judge in this case deserves separate consideration, viz., whether a 
 stipulation relieving a bailee for hire from all liability is reasonable. Since 
 the above case was decided the Court of Appeal has in the recent case of 
 Brown v. Manchester, Sheffield, and Liverpool Railway Company (10 Q. B. 
 Div. 250) held, reversing the judgment of the Court of Queen's Bench 
 Division, and confirming the judgment of Dr. Stephen, the judge of the 
 County Court of Great Grimsby, that a similar stipulation by railway as to 
 goods consigned was " invalid under the Railway and Traffic Act, 1854, sect. 
 7," and "not jiist or reasonable," and that a contract, being one and indi- 
 visible, if it was void under certain losses, " it was void altogether." Lord 
 Justice BRETT in this case expressed his opinion " that no condition can be 
 reasonable which would lessen the liability of the railway company lower 
 than that of a gratuitous bailee." 
 
 EASTERN
 
 214 REPORTS OF CASES. 
 
 SOUTHWARK COUNTY COURT. 
 
 Thursday, Oct. 21, 1880. 
 (Before H. J. STONOR, Esq., Judge. 
 SOUTH-EASTERN RAILWAY COMPANY v. SANKEY. (a) 
 Inequality of rates may be justified, and undue preference nega- 
 tived by difference of circumstances of traffic. 
 Special Railway Act, 1836, Railway Consolidated Clauses Act, 
 
 1845, and Railway and Canal Traffic Act, 1854. 
 Bremner was counsel for plaintiffs ; and M'Kenzie for the 
 defendant. 
 
 His HONOUR, in delivering judgment in this case, said : The 
 plaintiffs in this action claim the sum of 5Z. 7s. 3d. for the 
 carriage of thirty-three pockets of hops by the plaintiffs' railway 
 from the Margate station to the Bricklayers'jArms goods station, 
 London, and for the delivery of the same by the plaintiffs' vans 
 at the consignees' warehouse in the Borough. This claim is 
 made by them according to a rate of 3s. 3d. per pocket for such 
 carriage, shown in a book kept by them at the Margate station, 
 in conformity with the 14th section of the Railway and Canal 
 Traffic and Regulation Act, 1873. The facts of this case, so far 
 as regards the contract between the parties, are few and almost 
 undisputed. On the llth November, 1879, the defendant con- 
 signed thirty-three pockets of hops (so described without any 
 particulars of weight either in the way bill or consignment note) 
 by the plaintiffs' railway to Messrs. Paterson and Smith, South- 
 wark-street, Borough, and it was at the same time agreed 
 between the defendant and the plaintiffs' agent that the latter 
 were not only to convey the goods from the Margate station to 
 the Bricklayers' Arms station, but also to deliver them at 
 the consignees' warehouse according to the invariable course 
 adopted by the plaintiffs in conducting the " up " traffic of their 
 hop service. After the goods had been duly consigned in pur- 
 suance of the agreement the defendant inquired of the plaintiffs' 
 agent what the charge for the same would be, and the latter 
 informed him that 3s. 3d. per pocket was the rate fixed by the 
 company, and handed him the rate book. It was admitted that 
 the plaintiffs charged a different rate for carriage of hops in 
 respect of the down traffic of their line from the Bricklayers' 
 (a) County Courts Chronicle, vol. viii., p. 434.
 
 REPORTS OF CASES. 
 
 215 
 
 Arms to the Margate station, viz., 19s. 6d. per ton (not including 
 delivery), but that the circumstances of the up traffic and down 
 traffic (as, indeed, was subsequently proved) were very different. 
 It was also admitted that the pockets of hops in question 
 weighed, in fact, 2 tons and 12 cwt. This action came on 
 for trial on the 9th September last, but, as I was not then 
 informed whether the Eailway Clauses Act, 1845, had been 
 incorporated by any extension or amendment Act with the 
 original South-Eastern Eailway Act (6 Will. 4, c. 75) 1836, and 
 as the very important recent case of Euershed v. London and 
 North-Western Raikvay Company (L. Eep. 3 Q. B. Div. 254; 
 3 Q. B. Div. 134; and L. Eep. 3 App. Gas. H. L. 1029) was not 
 discussed or cited before me, I thought it right to have the case 
 further argued, and the further argument was for the convenience 
 of counsel postponed until the 15th inst. The defendant's counsel 
 on both occasions objected to the rate of 3s. 3d. per pocket 
 charged by the plaintiffs on the following grounds : He con- 
 tended, firstly, that the contract between the parties must be 
 regarded, so far as relates to the use of the railway and locomo- 
 tive power (or, in other words, the conveyance of the goods from 
 station to station), as falling within the 126th, 128th, and 129th 
 sections of the original South-Eastern Eailway Act (6 Will. 4, 
 c. 75) 1836 ; that the plaintiffs are entitled under those sections 
 only to a toll or rate of 3d. per ton per mile for the use of 
 the railway as provided by the 126th section, and reasonable 
 charges for locomotive power as provided by the 129th section, 
 that the plaintiffs are entitled independently of the Act to a 
 reasonable additional charge for the delivery of the goods in 
 London, and that the charge for locomotive power ought not 
 to exceed Id. per ton per mile (being a rate sanctioned by 
 the Legislature with regard to the London, Chatham, and Dover 
 Eailway Company for a similar service in the same district), ana 
 the charge for the delivery in London ought not to exceed 
 2s. 9d. per ton. Taking the weight of the thirty- three pockets, 
 which was actually 52cwt., at three tons, and taking the distance 
 from Margate to London at seventy-seven miles, these rates 
 would give the following results : Three tons at 3d. per ton per 
 mile for seventy-seven miles for use of railway, 21. 10s. Id., three 
 tons at Id. per ton per mile for seventy-seven miles for locomo- 
 tive power, 16s. 8d., three tons at 2s. 9d. per ton for delivery in 
 London, 8s. 3d., total, 31. 15s., which sum the defendant paid into 
 
 SOUTH- 
 EASTERN 
 RAILWAY 
 COMPANY 
 
 v. 
 SANKEY.
 
 216 
 
 REPORTS OF CASES. 
 
 SOUTH- court. These calculations, however, proved erroneous, as the actual 
 
 EASTERN di s t ance o f railway from Margate to London is eighty-eight miles, 
 
 COMPANY and therefore a trifling sum ought to be added to the two first items 
 
 " ^ in respect of the additional eleven miles, which would give a total 
 
 ' of 4Z. 11s. 3d. The defendant's counsel contended, secondly, that the 
 
 plaintiffs are not entitled to recover the rate in question of 3s. 3d. 
 per pocket for the conveyance and delivery of hops in respect of 
 the up traffic on their line from the Margate station to the Brick- 
 layers' Arms station, inasmuch as they have a lower rate of 
 carriage for hops in respect of the down traffic on their line for 
 the same distance, viz., 19s. 6d. per ton, and that consequently 
 there is an undue preference to the latter traffic and prejudice to 
 the former, contrary to the 137th section of the South-Eastern 
 Eailway Company's Act, 1836, which enacts that " Rates and 
 toll to be taken by virtue of the Act should at all times be 
 charged equally and after the same rate per ton per mile 
 throughout the whole of the said railway;" and the 2nd section 
 of the Railway and Canal Traffic Act, 1854, which provides that 
 "No railway company shall make or give any undue or unreason- 
 able preference or advantage to or in favour of any particular 
 person or company or any particular description of traffic in any 
 respect whatsoever, or shall subject any particular person or 
 company or any particular description of traffic to any undue or 
 unreasonable prejudice or disadvantage in any respect whatso- 
 ever," and that the plaintiffs ought, therefore, not to recover in 
 respect of the use of the railway and locomotive power more 
 than the latter rate of 19s. Qd. per ton, which is less than the 
 defendant has allowed in respect of the same. I think it will be 
 better for me to deal first with the second contention on the part 
 of the defendant, in reply to which at the first hearing the 
 plaintiffs' counsel contended that this court could not take into 
 consideration the question of inequality so raised, and that the 
 only remedy for a party so aggrieved was by an application to 
 the Railway Commissioners in the exercise of the speciaj powers 
 conferred upon them by the last-mentioned Act. The case of 
 Evershed v. London and North-Western Railway Company, and 
 the cases referred to in it, however, appear to me to be decisive 
 against the plaintiffs' contention, and to leave no doubt that 
 undue preference is a sufficient defence to an action for the 
 excess of a toll or rate, as well as a ground of action for the 
 recovery of the same after payment under protest. In the
 
 REPORTS OF CASES. 
 
 217 
 
 present case, however, I feel no doubt that such undue preference SOUTH - 
 does not exist. At the second hearing it was ascertained EASTERN 
 that the Bailway Clauses Act, 1845, had not been incorporated COMPANY 
 into the plaintiffs' original Act of 1836. If it had it would, I v - 
 
 think, have been conclusive on the present occasion, as it 
 
 provides (sect. 90), "That all tolls be at all times charged 
 equally to all persons, and after the same rate, whether per ton 
 per mile or otherwise, in respect of all passengers and of all 
 goods or carriages of the same descriptions, and conveyed or 
 propelled by a like carriage or engine passing only over the same 
 line of railway under the same circumstances" and, as it was 
 admitted, and, indeed, subsequently proved in the present case, 
 that the circumstances of the "up" and the "down" traffic 
 were not the same, and although the clause had not been incor- 
 porated into the plaintiffs* original Act, -it appears to me to 
 supply (so to speak) a legislative interpretation of the term 
 " undue preference " employed in the Railway and Canal Traffic 
 Act, 1854, and which is in accordance with the rule laid down 
 by Lord Justice Cotton in Evershed v. London and North-Western 
 Railway Company (L. Rep. 3 Q. B. Div. 149), " that when a 
 railway company receives goods to be carried over the same 
 line under circumstances involving the same cost and the 
 same risks to themselves, and in respect to these goods 
 render the same services, there is an undue preference if 
 a higher charge is made to some customers than to others," 
 but not, of course, where these circumstances do not 
 exist. I feel, however, that there is some difficulty in the 
 construction of the 137th section of the plaintiffs' original Act 
 (1836) ; but it appears to me that if the -sums charged for any 
 services by the railway company, including what they are 
 entitled to charge for the use of the railway (in the present case 
 3d. per ton per mile for hops), is in itself reasonable, so that the 
 excess beyond that amount is a fair charge for the additional 
 services given beyond the use of the railway (which is a matter 
 of evidence), there would be no violation of the clause ; and I 
 cannot help thinking that the words " rates and tolls " must in 
 this case be restricted to the tolls charged for the use of the 
 railway, and not to other sums authorised to be charged for 
 conveyance and other services by the Act, although a contrary 
 construction has prevailed with regard to the same terms as 
 employed in the Acts of 1845 and 1854, already cited, aided by
 
 218 REPORTS OF CASES. 
 
 SOUTH- an interpretation, clause in the former. The use of the railway 
 
 EASTERN ^ Q ^j^ the tonnage rate applies can only entail the wear and 
 
 COMPANY tear of the permanent way, which cannot much differ, whilst the 
 
 v ~ expense of conveyance and other services must differ very much, 
 
 ' according to the circumstances. There remains to be considered 
 
 the first contention of the defendant's counsel, viz., that the 
 charge of 3s. 3d. per pocket now in question is unreasonable, 
 having regard to the 126th, 128th, and 129th sections of the 
 plaintiffs' original Act. Now, it must be borne in mind that the 
 mode of conveyance contemplated by the 125th section lias 
 proved universally, or almost universally, impracticable, and that 
 the plaintiffs have consequently never charged the rate of 3d. 
 per ton per mile for hops under the 126th section, but always a 
 higher rate, including the cost of locomotive power, as provided 
 by the 129th section, and also, as regards the "up " traffic, the 
 cost for delivery, which together form the subject of a special 
 contract between them and the consignors. The 14th section of 
 the Railway and Canal Navigation Act, 1873, provides that 
 every railway company shall keep at each of their stations a book 
 showing every rate for the time being charged for the carriage 
 of traffic (other than passengers) including any rate charged 
 under any special contract, and that every such book shall be 
 open to the inspection of any person ; and in conformity with 
 this provision the plaintiffs kept a rate-book at the Margate 
 station showing the rate of 3s. 3d. per pocket fixed by the 
 plaintiffs for the conveyance of hops from that station to the 
 Bricklayers' Arms station, London (including delivery to con- 
 signees), which book the defendant could have seen previously 
 to or at the time of entering into the special contract if he had 
 applied. The plaintiffs therefore appear to have complied with 
 all the provisions of the statutes in question, subject, of course, 
 to the question of the reasonableness of the charge of 3s. 3d. per 
 pocket, so far as it exceeds the rate of 3d. per ton per mile. 
 Now, what is the evidence before me as to the reasonableness of 
 the charge in quesstion ? On the part of the plaintiffs it consists 
 of the testimony of Mr. Light, the traffic manager of the South- 
 Eastern Railway Company, and is substantially as follows : The 
 witness deposed that the "up " traffic of the hop service is from 
 first to last of a special nature, and worked at a special cost, 
 whilst the " down " traffic is in no wise special in its nature or 
 cost, and is included in and effected by the ordinary service of the
 
 REPORTS OF CASES. 
 
 219 
 
 railway. That in respect of the " up " traffic numerous trucks 
 frequently run seventy miles empty in order to collect the hops ; 
 that a special staff of employes have to be engaged for two 
 months at much higher rates of wages than ordinary ; and that 
 great precautions, involving much care and expense, are neces- 
 sary for the conveyance of the hops to London, and still more for 
 the prompt delivery of them in London without damage, and was 
 attended with much risk and often loss. The witness further 
 deposed that the present rate was fixed in 1876, after careful 
 consideration, and had been in operation ever since, and half a 
 million of pockets carried without any dispute at that rate. He 
 further deposed that in his opinion the average weight of a 
 pocket was Ifcwt., and not l^cwt. as the defendant contended, 
 but this point did not appear to me to be material. He further 
 deposed that the lowest cost to the company for conveyance and 
 delivery of hops in London from Margate has been 3s. per 
 pocket, and that the highest has been 5s., and that last year the 
 rate as 3s. 3d. per pocket was not remunerative, and that on an 
 average and proportionately the company derived as much benefit 
 from the lower rate of the " down " traffic as the higher rate of 
 the " up " traffic. On the part of the defendant, the evidence, 
 if any, consists of the Legislature having fixed a rate of Id. per 
 mile for services similar to some of those performed by the plain- 
 tiffs in respect of another railway company. The balance of 
 evidence is clearly in favour of the plaintiffs, and completely 
 rebuts the unfavourable presumption which at first sight arises 
 from the difference between the two rates now in question, 
 inasmuch as it appears that such difference is occasioned and 
 justified by the difference in the circumstances of the transit and 
 delivery. I had at first some doubt how far the plaintiffs, in 
 charging the rates in question, could take into consideration the 
 risk which they may incur through the peculiar nature of the 
 goods in question and the peculiar conditions under which they 
 are conveyed. But it appears to me that they come among the 
 circumstances to be considered in testing the equality and 
 reasonableness of tolls and rates according to the rule laid down 
 by Lord Justice COTTON in Evershedv. London and North- Western 
 Railway Company. Upon the whole, I have no hesitation in 
 saying that the rate charged by the plaintiffs for the " up " 
 traffic is reasonable in itself, and consequently reasonable so far 
 as it exceeds the rate of 3d. per ton per mile provided by the 
 
 SOUTH- 
 EASTERN 
 RAILWAY 
 COMPANY 
 
 v. 
 SANKEY.
 
 220 
 
 REPORTS OF CASES. 
 
 SOUTH- 
 EASTERN 
 RAILWAY 
 COMPANY 
 
 v. 
 SANKEY. 
 
 126fch section of the original South-Eastern Railway Act; and I 
 have already expressed my opinion that the inequality between 
 that rate and the rate for the "down" traffic cannot be regarded 
 as an undue preference." The defendant's counsel, in the 
 course of his argument, contended that the plaintiffs were 
 bound to apportion their charges into separate items, showing 
 what was demanded for the use of the railway, what for loco- 
 motive power, and what for delivery ; and also that they were not 
 entitled to any terminal charges that is to say, charges beyond 
 the use of railway and locomotive power except the cost of 
 actual delivery in their vans, and therefore were not entitled to 
 charge for or take into account the precautions, care, and 
 expense necessary to protect the hops after their arrival at the 
 Bricklayer's Arms station before and during their delivery to the 
 consignees in London, or the risk or loss incidental thereto ; and 
 in support of his contention he cited the case of Pegler v. The 
 Monmouthshire Railway Company (30 L. J. 249, Ex.), but on 
 referring to the report of that case I find that the defendant 
 company in that case was by its special Act, sect. 136, bound to 
 apportion its rates in the manner suggested, whilst in the present 
 case I can discover no such obligation on the plaintiffs; and as to 
 terminal charges, although it was there held that the company 
 were not entitled to certain charges connected with the receiving 
 and delivery of goods at the company's stations, it was also held 
 that even for some services and facilities included in such 
 charges they might by special agreement have been entitled to 
 make some charge ; and I think that it follows a fortiori that the 
 plaintiffs are entitled to charge for or take in account the pre- 
 cautions, care, expense, risk, and loss connected with both the 
 conveyance of the goods now in question to London and the 
 delivery of them at the consignees' warehouse there, which are 
 special services, included in the special contract entered into 
 between them and the defendant. I therefore find for the plain- 
 tiffs for the full amount claimed, with costs, but with liberty to 
 the defendant to appeal by case. 
 
 South-Eastern Railway Company v. Sankey. The above reported 
 judgment, from which no appeal was brought, deals with a question of 
 considerable importance to railway companies, and one not actually 
 determined by previous cases. The decision of the County County judge is, 
 shortly, to this effect, namely, that a difference in the conditions affecting the
 
 REPORTS OF CASES. 
 
 221 
 
 " up " and '' down " goods traffic, respectively, justifies a railway company in 
 resorting to inequality of rates, provided equal advantages, so far as the rate 
 of charge is concerned, be given to all persons similarly circumstanced. This 
 view certainly does not conflict with the rule laid down in Ever shed v. 
 London and North-Western Railway Company (3 Q. B. Div. 149), and is in 
 complete harmony with the observations made by COCKBTJRN, C. J., in Harris 
 v. The Cockermouth and Workington Railway Company (3 C. B. N. S. 693; 
 27 L. J. 162, C. P.), where he draws the distinction between charges 
 affecting all persons similarly circumstanced and charges which affect 
 particular individuals only, and therefore amount to " undue preference." 
 See also Jones v. Eastern Counties Railway Company (3 C. B. N. S. 718, 
 where the right of the defendants to issue season tickets between Colchester 
 and London at a different rate from that at which they issued season tickets 
 between Harwich and London was upheld, and Ransome v. Eastern Counties 
 Railway Company (8 C. B. N. S. 709; 29 L. J. 329, C. P. ; 2 L. T. Rep. 
 N. S. 376), where a lower rate of charge for the conveyance of full train loads 
 was held to be valid, as the company held out equal opportunities and equal 
 facilities to all persons using the railway. 
 
 This case was referred to with approval in the evidence taken by the Select 
 Committee on railways in 1881. In answer to a question put by Sir E. 
 Watkin, M.P., Mr Light, the goods manager of the South-Eastern Railway 
 Company, said that not only the company, but the defendant also, " was 
 perfectly satisfied with the decision," and added, " I am bound to say that the 
 judge took a vast amount of pains in this case. There was not a point 
 left undiscussed." (Report of Select Committee on Railways, Part I, 
 [No. 374], printed August, 1881.) 
 
 SOUTH- 
 EASTERN 
 RAILWAY 
 COMPANY 
 v. 
 
 SANKEY. 
 
 SOUTHWAKK COUNTY COURT. 
 
 Thursday, June 8, 1882. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 LAWSON v. LONDON AND SOUTH- WESTERN RAILWAY COMPANY, (a) 
 
 The value of an author's MS. may be estimated by competent 
 
 witnesses The MS. of an author "a writing" within the 
 
 Carriers Act (11 Geo. 4 # 1 Will. 4, c. 68), s. 1. 
 
 His HONOUR. In this case, the plaintiff, an author, claimed from 
 
 the defendants 10Z. as damages for the loss of a packet containing 
 
 a manuscript intrusted to them as common carriers. On the 
 
 1st March the plaintiff delivered the packet in question to the 
 
 booking clerk of the department at Maiden station, and took a 
 
 receipt for the same in the following words : " Received of J. A. 
 
 Lawson, a packet of manuscript for transmission to Messrs. 
 
 Hurst and Blackett, 13, Great Marlborough- street, London," 
 
 (a) County Courts Chronicle, vol. viii., p. 356.
 
 222 REPORTS OF CASES. 
 
 LAWSON signed with the clerk's initials, and the plaintiff paid the sum of 
 
 Vl Qd. for carriage. On the next day the packet was delivered at 
 LONDON f 
 
 AND SOUTH- the publishers, and Qd. demanded and paid for carriage, but, on 
 
 WESTERN O p en i n g the packet, it appeared that it had been previously 
 COMPANY, opened, some cardboard introduced and the MS. abstracted. 
 The plaintiff deposed that he was the author of several works, 
 for which he had received considerable remuneration, and that 
 Messrs. Hurst and Blackett had offered to receive the MS. in 
 question on approval ; that in the event of their accepting it, he 
 had intended asking 300Z. for it, and that he would not have 
 taken less than 150Z. for it, but that he claimed only 10Z. because 
 he conceived that he was disabled by the Carriers Act from 
 claiming any larger sum. Mr. Alfred Blackett, of the firm of 
 Hurst and Blackett, confirmed the plaintiff's evidence, and proved 
 the receipt of the packet and loss of the MS., as also the 
 payment of Qd. for carriage ; and he further deposed, " That 
 any work written by a man who had his previous works published 
 like the plaintiff would certainly be worth more than 101." On 
 the part of the defendants, it was contended that the manuscript 
 had no appreciable value except as waste paper, and that the 
 plaintiff could only be entitled to nominal damages, and that if 
 the MS. was in fact worth more than 10Z. as deposed by the 
 plaintiff and Mr. Blackett, that it was a " writing" within the 
 first section of the Carriers Act, and that the value not having 
 been declared by the person sending the same, the defendants 
 were not liable. I am of opinion that the manuscript of an 
 author, like the painting of an artist, is capable of being appre- 
 ciated where there is sufficient evidence of its merits according 
 to the opinion of competent witnesses, and although in the 
 present case there has been no very satisfactory evidence of the 
 nature of the MS. in question, still I think that there is sufficient 
 evidence that it was of greater value than 10Z., and therefore 
 that under the Carriers Act the plaintiff can recover no damages 
 for the loss of the same. There will therefore be a verdict for 
 the defendants, without costs.
 
 REPORTS OF CASES. 223 
 
 SOUTHWARK COUNTY COURT. 
 
 Friday, July 7, 1882. 
 
 (Before H. J. STONOR, Esq., Judge.) 
 
 HAEKER v. SOUTH-EASTERN RAILWAY COMPANY, (a) 
 
 A special contract for the conveyance of goods to a certain siding 
 
 on the defendant's railway is fully performed wlien the goods 
 
 are left by them at such siding, and they are not liable for what 
 
 may subsequently happen to them. 
 Arnold for the plaintiff. 
 
 George Elliott for the defendant. 
 
 His HONOUR this day delivered judgment as follows : The 
 plaintiff sued the defendants for QL 9s. od. for damages sus- 
 tained by the plaintiff through the non-delivery by the defendants 
 to the plaintiff of certain goods, to wit, five tons of grains 
 intrusted to the defendants for carriage for reward from London 
 to Thornton siding, near Redhill station. The circumstances of 
 the case are peculiar. Near to the Redhill station there is a siding 
 which is not in general use, and at which no porter, watchman, 
 or other person is employed by the defendant company. It is 
 used, in fact, only_for the convenience of three or four neigh- 
 bouring proprietors, of whom the plaintiff is one, and he has 
 been in the habit of having goods constantly consigned to him 
 there, and left, unattended, for him to remove at his conveni- 
 ence. The defendants were not in the habit of sending the 
 plaintiff formal notices of the arrival of goods at the siding, but 
 the latter had a person in his employment who drove a milkcart 
 daily to the Redhill station, and to whom information of their 
 arrival was usually given, and by whom also weekly accounts 
 were sent to the plaintiff. On Friday, the 8th October, a truck 
 containing the grains in question arrived at the Redhill station, 
 and was shunted by means of an engine to the Thornton siding. 
 On the next day (Saturday) the plaintiff received a notice from 
 the consignor, who was pro tanto his agent, that the grains in 
 question had been consigned to him from the Bricklayers' Arms 
 to the Thornton siding, and he likewise received his weekly 
 account from the defendants, in which the carriage for them was 
 charged, and he sent a waggon to the siding for the grains, but 
 the driver found only an empty truck there. On the Monday the 
 
 (a) County Courts Chronicle, vol. viii., p. 380.
 
 224 REPORTS OF CASES. 
 
 HARKER plaintiff again sent a waggon to the siding for the grains with 
 
 v ' the same result, and about nine days afterwards the plaintiff 
 
 EASTERN applied to the defendants in respect of the missing grains, but 
 
 RAILWAY they were unable to give him any information, and the grains 
 
 ' have never been heard of since. The plaintiff now sues the 
 
 defendants for the loss of the same. My view of the case is that 
 the contract between the plaintiff and defendants, for a breach 
 of which this action is brought, is not an ordinary contract for 
 the conveyance of goods and delivery of the same to the con- 
 signee, but a special contract, implied from the course of business 
 between them, for the conveyance of the goods in question to a 
 certain place on the defendants' railway, viz., the Thornton 
 siding, there to remain unattended, and at the consignees' risk, 
 until he took them away, and I think that the defendants fully 
 performed such contract when the goods were left by them at 
 the Thornton siding, and that they have not been guilty of 
 any breach of it. There will therefore be a verdict for the 
 defendants. 
 
 Judgment accordingly, with costs. 
 
 SOUTHWAEK COUNTY COURT. 
 
 Friday, Aug. 4, 1882. 
 
 (Before H. J. STONOE, Esq., Judge.) 
 
 BALDWIN AND ANOTHER v. LONDON, CHATHAM AND DOVER 
 
 EAILWAY COMPANY, (a) 
 Liability of common carriers. 
 
 Nominal damages only are recoverable from a railway company for 
 injury to goods delayed in transmission when it is proved that the 
 injury to the goods was caused through their having been packed 
 in a damp state by the plaintiffs, who did not inform the defen- 
 dants of the fact. 
 Gaskell for plaintiffs. 
 Wright for defendants. 
 
 His HONOUR. The plaintiffs in this action sue the defendants, 
 first, for 43L 6s. 8d. damages for wrongful converson of eighteen 
 (a) County Courts Chronicle, vol. viii., p. 397.
 
 REPORTS OF CASES. 225 
 
 bales of rags to their own use ; and, secondly, alternatively for the BALDWIN 
 
 like damages for breach of contract. The facts are undisputed L v ' 
 
 and simple. On the 19th December last, the plaintiffs intrusted CHATHAM, 
 
 the defendants with eighteen bales of rags of the value of AN , D 
 
 iv AI LWAY 
 
 43L 6s. 8d. to convey to Messrs. Monckton, at Wrotham station, COMPANY. 
 and it was admitted that in due course they would have arrived 
 there in twenty-four hours. By mistake, they were sent to 
 another station, and did not reach Wrotham station until the 4th 
 January. On that day, the station-master wrote to the plaintiffs, 
 stating that " the rags had been traced," and that " endeavours 
 were being made to induce Messrs. Monckton to accept them," 
 and on the 7th January the station-master wrote again to the 
 plaintiffs, informing them "that the rags had been refused by 
 Messrs. Monckton in consequence of the quality not being 
 suitable," and requesting instructions as to the disposal of the 
 same. The plaintiffs declined or failed to give any such instruc- 
 tions, and the rags, in consequence of having been packed in 
 a damp state, had heated and rotted, and became an intolerable 
 nuisance, and the defendants were consequently obliged to 
 destroy them. It appeared by the evidence of the plaintiffs, 
 that rags packed in a damp state would heat and rot in a 
 few days (much less than a fortnight) and become worthless 
 except for manure, and that in the month of January they 
 could not be sold even for that purpose; and that rags 
 packed in a dry state would not be injured by a delay of six 
 months or more. It was admitted by the plaintiffs that the 
 defendants had no notice that the rags in question had been 
 packed in a damp state, nor any knowledge or means of know- 
 ledge that such was the case, the bales having been very securely 
 packed with iron bands. Upon these facts, I think that the 
 plaintiffs ought clearly to be non-suited on the first count for 
 wrongful conversion, and I think that they ought to recover 
 only nominal damages on the second count for breach of contract 
 by delay in transit, upon the following grounds : First, in con- 
 formity with the rule in Hadley v. Baxendale (9 Ex. 341), viz.: 
 " That where two parties have made a contract which one of 
 them has broken the damages to be recovered by the other 
 should be either such as may fairly and reasonably be considered 
 arising naturally, i.e., according to the -usual course of things, 
 from such breach of contract itself, or such as may reasonably be 
 supposed to have been in the contemplation of both parties at the
 
 226 REPORTS OF CASES. 
 
 BALDWIN time they made the contract as the probable result of the breach 
 of it." - For although, as far as I know, the rule has hitherto 
 
 CHATHAM, been applied only to the loss of profits by delay of goods in 
 AND DOVER transit, I can see no reason why it should not apply also to loss 
 
 COMPANY, or depreciation in respect of the goods themselves through the 
 same cause. Secondly, because in the present case the improper 
 condition of the goods, and not the delay in transit, appears to 
 me to have been the proximate cause of the loss of the goods, 
 which the law alone regards, according to the rule, "Causa 
 proximo- non remota spectatur" (see Smith's Mercantile Law, 
 9th edit. 358); and thirdly, generally on account of the con- 
 tributory negligence of the plaintiffs, so far as that defence is 
 applicable to breach of contract. See the case of Boyd v. Dubois 
 (3 Campb. 132) and the form of a plea by a carrier in a case like 
 the present, Bullen and Leakers Precedents, 3rd edit. p. 354. 
 There will therefore be a nonsuit on the first count, and a 
 verdict for the plaintiffs, with nominal damages of one shilling, 
 on the second count. The defendants were nonsuited on their 
 counter-claim for freight and demurrage at the hearing. 
 
 Judgment accordingly. 
 
 Baldwin v. London, Chatham, and Dover Railway Company. The above 
 decision, which was pronounced on the 4th August, 1882, was, four days 
 afterwards, that is to say, on the 8th August, affirmed on appeal (L. Rep. 
 9 Q. B. Div. 582). MATHEW, J., in his judgment (p. 587), said : " I 
 think the decision of the County Court judge was quite right. The true 
 measure of damages in a case of this kind is that which may fairly be said to 
 have been in the contemplation of the parties at the time as the natural con- 
 sequence of a breach of contract on the part of the defendants. The goods 
 in question were not delivered or tendered to the consignees until fourteen 
 days after the time at which they ought to have been delivered. What were 
 the natural or necessary consequences resulting from that delay ? If the 
 rags had been dry when delivered to the company, the damage would have 
 been nil. The rags, however, were then damp, and hence their destruction. 
 But the company did not know they were damp. It was the duty of the 
 plaintiffs to inform the company at the time, if special care were required in 
 dealing with the rags. The point was not raised in Hooper v. London and 
 North-Western Railway Company, 50 L. J. 103, Q. B."
 
 REPORTS OF CASES. 227 
 
 PART IV. 
 BANKRUPTCY 
 
 WANDSWORTH COUNTY COURT. 
 
 Tuesday, Feb. 10, 1874. 
 
 (Before H. J. STONOK, Esq., Judge.) 
 
 Re LANDON (an Infant) ; NX parte HODGSON, (a) 
 
 Liability of infants under the present Bankruptcy Act (1869). 
 Thompson appeared for the petitioning creditor. 
 
 Pearce for the debtor. 
 
 His HONOUK. This was a petition for adjudication in bank- 
 ruptcy against Sidney Clarke Landon, an infant under the age 
 of twenty-one years, by Annie Hodgson, also an infant under 
 twenty-one years, by her next friend, John Hodgson, under the 
 following circumstances : - The debtor was robbed on the 
 Brighton racecourse of his watch, and, subsequently meeting 
 the petitioner, gave her in charge of a policeman, who brought 
 her before a magistrate, by whom she was committed for trial at 
 the next borough sessions, but admitted to bail. The debtor sub- 
 sequently discovered that he was mistaken, and withdrew the 
 charge at the sessions. The petitioner brought her action in the 
 Common Pleas for false imprisonment ; the debtor appeared, but 
 did not defend, and on an inquisition in pursuance of a writ of trial, 
 320Z. damages and costs were awarded to the petitioner. It does 
 not appear by the writ of trial whether the debtor appeared by 
 guardian or next friend, or in person, or by attorney, and counsel 
 were unable to inform me as to the fact. If he did not appear 
 by guardian or next friend it was error in fact, and the court will 
 order all the proceedings to be set aside, and the defendant to 
 appear by guardian : (Carr v. Cooper, 4 L. T. Rep. N. S. 323.) 
 For the present I am bound to assume that all things were 
 rightly done, and that there is a valid subsisting judgment for 
 
 (a) County Courts Chronicle, vol. iv., p. 342.
 
 228 
 
 REPORTS OP CASES. 
 
 Re LANDON damages and costs against the debtor, and the question I have to 
 (an Infant) ; <} ec id e ^ an( j which I am told has never yet been raised under the 
 HODGSON, existing bankruptcy law, is whether the infancy of the debtor, 
 which has been proved before me, is a bar to his being adjudi- 
 cated a bankrupt. Before the Bankruptcy Act of 1861, only 
 traders could be made bankrupt, and by the law of Eng- 
 land no infant could trade, and it was consequently held that an 
 adjudication of bankruptcy against an infant was not only void- 
 able but void. See the cases of Rex v. Cole (1 Raym. 443) ; Ex 
 parte Sidebottom (1 Atk. 146) ; Ex parte Adam (1 Y. & B. 494) ; 
 and Belton v. Hodges (9 Bing. 365) . Although under some cir- 
 cumstances the court refused to supersede bankruptcies in which 
 proceedings had taken place : (Ex parte Moule, 14 Yes. 602 ; 
 Ex parte Watson, 16 Yes. 265; and other cases.) But under the 
 Act of 1861 " All debtors, whether traders or not, are made 
 subject to its provisions" sect. 69; and it was held by that 
 eminent judge in bankruptcy, Mr. Serjt. Wheeler, in the County 
 Court of Liverpool, in Re Smedley (10 L. T. Rep. N. S. 432), 
 that an infant, whether a trader or not, was liable to the opera- 
 tion of the bankruptcy law under the Act of 1861 ; and that 
 decision was approved of and followed by the commissioners of 
 the London Court of Bankruptcy in Re Purser (19 L. T. Rep. 
 N. S. 23). By the present Bankruptcy Act, 1869, s. 6, all 
 persons, non-traders as well as traders, are likewise liable to be 
 adjudicated bankrupts for any debts due by them, and, a fortiori, 
 for debts due by them upon judgments recovered against them 
 in actions of tort, like - the present, and there is no exception in 
 the Act as to infants. I therefore think that the petitioner is 
 entitled to an order of adjudication against the debtor if he 
 appeared by guardian or next friend, or in the event of his not 
 having so appeared if he does not take steps to set aside the 
 judgment now recorded against him without delay. I propose 
 to adjourn the hearing of this petition until it has been ascer- 
 tained whether the defendant appeared by guardian or next 
 friend. If he did so appear, adjudication will pass at once ; if 
 not, I shall further adjourn the hearing until he has had an 
 opportunity to set the judgment aside. If he succeed in setting 
 the judgment aside, the present petition will be dismissed without 
 costs, if he fail, adjudication will then pass. 
 
 Adjourned to the next court. 
 Feb. 17. An affidavit was handed to the court showing that
 
 REPORTS OF CASES. 229 
 
 the debtor in this case had appeared by his next friend in the Re LANDON 
 
 action, and thereupon adjudication passed. (an Infant) ; 
 
 HODGSON. 
 
 Be Landon (an infant) ; Ex parte Hodgson. The precise question deter- 
 mined in the above case by the County Court judge does not appear ever to 
 have been considered by the London Bankruptcy Court. The decision 
 therefore is of especial value, proceeding as it does from a court of co-ordinate 
 original jurisdiction with the London Bankruptcy Court ; and, if it had 
 been reported in the regular reports, it would have prevented writers of 
 learned and valuable textbooks on bankruptcy practice from stating too 
 broadly that " an infant, being legally incapable to contract, except for 
 necessaries, cannot be made a bankrupt except perhaps for debts so con- 
 tracted : " (Robson's Bankruptcy, 4th edit., p. 101 ; Baldwin's Bankruptcy, 
 2nd edit., p. 20-21.) Of the correctness of the above -reported decision, 
 having regard to the facts of the case, there can be no doubt, for infancy 
 certainly does not constitute any defence to an action of tort (Addison on 
 Torts, 5th edit., p. 106), and in the above case the debt due to the petitioning 
 creditor, and upon which his petition was founded, consisted of damages and 
 costs actually recovered against the infant debtor in an action of tort. 
 Owing, however, to the passing of the Infants' Relief Act, 1874 (37 & 38 Viet. 
 c. 62), which was not in operation when the above judgment was delivered, 
 some of the observations made by the learned County Court judge as to 
 liability of infants in respect of contracts are no longer applicable, for the 
 effect of that Act is, shortly, to render an infant's contracts, other than those 
 for necessaries, not merely voidable, but void, and incapable of ratification 
 after full age has been attained. An infant cannot therefore now be made a 
 bankrupt in respect of debts contracted by him, whether as a trader or 
 otherwise (Re Jones ; Ex parte Jones, 50 L. J. 673, Ch. Div. ; Reg. v. 
 Wilson, 5 Q. B. Div. 29), except perhaps where the money is due for neces- 
 saries supplied to him. A person dealing with an infant trader does so at 
 his own peril. " He trusts to his honour to repay him, and to the infant 
 finding it to his advantage to continue to carry on the trade : " (Per JESSEL, 
 M.B., in Re Jones ; Ex parte Jones, ubi sup.) 
 
 KINGSTON - ON - THAMES COUNTY COURT. 
 
 Friday, May 10, 1874. 
 (Before H. J. STONORJ Esq., Judge. 
 Re W. AND T. MILES; Ex parte W. MILES, Sen. (a) 
 Bankruptcy Act, 1869 The registrar has no power before the first 
 meeting of creditors to estimate an unascertained debt under the 
 31st section What is an ascertained debt? 
 His HONOUR delivered judgment in this case as follows : The 
 
 (a) County Courts Chronicle, vol. iii., p. 317.
 
 230 REPORTS OP CASES. 
 
 Re W. & T. bankrupts, who formerly carried on the business of carriers as 
 MILES; C o-partners in Kingston, were adjudicated bankrupts on the 
 
 W. MILES, 9th March last, and on the 14th March an application was made 
 S en> to the registrar of this court, as provisional trustee, to estimate 
 and fix in accordance with the provisions of the Bankruptcy Act 
 1869, sect. 31, the value or amount of the debt or liability of the 
 bankrupt's estate, to the said William Miles, sen., under a 
 contract dated 29th June, 1867, and made between the said 
 William Miles, senior, of the one part, and the said bankrupts 
 of the other part, in respect of the horses, carts, harness, and 
 other chattels referred to in the said contract. The material 
 parts of the contract were as follows :-^-The said William Miles, 
 senior, agreed to let, and the said bankrupts agreed to take, 
 certain premises for six months, from the 24th June, at the 
 yearly rent of 25Z. ; and the said William Miles, senior, agreed 
 to give all profits of his business of carrier, and the use of all his 
 horses, carts, &c., for the above time ; and further, that if the 
 said bankrupts should well and successfully carry on the business, 
 they should have the option of taking, at a fair valuation, such 
 horses, carts, &c., as they might deem necessary, at the 
 expiration of the term therein agreed ; but if, on the other hand, 
 the affair should not prove successful, the said William Miles, 
 sen., should have full power to re-enter on the said premises, and 
 repossess himself of the said horses, carts, &c., and carry on the 
 said business as if the said agreement had never been made. 
 Under this contract the bankrupts took possession of the 
 premises, and also the horses, carts, &c., and carried on business 
 from the date of the agreement until they were adjudicated 
 bankrupts ; and the registrar, as trustee in bankruptcy, now has 
 possession of the horses, carts, &c., except such as have died or 
 become useless. In support of the application made to the 
 registrar, a joint affidavit by William Miles, sen., J. C. Aspin, 
 a veterinary surgeon and farrier, and Thomas Malins, a wheel- 
 wright, was filed, stating the above facts, and also showing, in 
 three carefully prepared schedules, that on a fair valuation the 
 horses, carts, &c., were, at the date of the agreement, of the 
 value of 244Z., and at the first meeting of creditors, on the 
 26th March last, a proof was tendered by the said William Miles, 
 sen., for 361 Z., including the above 244Z., and the proof as to the 
 latter sum was objected to on behalf of other creditors, but 
 admitted by the registrar. The first meeting of creditors were
 
 REPORTS OF CASES. 231 
 
 then adjourned to obtain the opinion of the court on two points, Re W. & T. 
 which were very conveniently and ably stated in a written case -^ ILES ; 
 embodying the foregoing facts. Those two points are, first, has W. MILES, 
 the registrar, as trustee, power, before the first meeting of Sen. 
 creditors under sect. 31, to estimate the amount of an 
 unascertained debt, within the meaning of sect. 16, sub-sect. 3, 
 so as to enable a creditor to vote in the choice of a trustee ? 
 Secondly, is the debt of William Miles, sen., an unascertained 
 debt within the meaning of the last-mentioned section and sub- 
 section ? Upon both points I entertain some doubts ; but, upon 
 consideration, I have come to the following conclusions : On the 
 first point I think that, although the literal construction of the 
 act may be otherwise, the power given to the trustee by sect. 31 
 to estimate uncertain and contingent debts, and unliquidated 
 damages on contract, is only exercisable by the trustee for the 
 distribution of assets, and not for the admission of proofs, 
 enabling creditors to vote for a trustee under sect. 16, sub- 
 sect. 3, and therefore that such power is not exercisable by the 
 registrar, as trustee, previously to the first meeting, although it 
 is exercisable by him after such meeting if he eventually 
 carry on the bankruptcy and distribute the estate as trustee, 
 as under the 84th section. The strongest, and, to my mind, the 
 unanswerable, arguments in favour of this conclusion are, first, 
 that the inquiries into such claims by the registrar previous to 
 the choice of a trustee might extend over weeks and months, and 
 practically defer the appointment of a trustee and the pro- 
 ceedings in bankruptcy for a very considerable period, to the 
 injury of the other creditors ; secondly, that an appeal is pro- 
 vided under the 31st section, against the registrar's decision, to 
 the court and to the Chief Judge, which might cause serious 
 further delay ; thirdly, that there is no such power given to the 
 chairman of the first meeting in liquidation, and that a trustee 
 must therefore be chosen in liquidation without such claims 
 being ascertained, and therefore there appears to be no valid 
 reason why a trustee should not be also chosen in bankruptcy 
 without such claim being first ascertained, the intention of the 
 Legislature being clearly to assimilate the proceeding in liquida- 
 tion and bankruptcy as far as possible ; and, fourthly, that the 
 intention of the Act is that the registrar should act as trustee 
 until the first meeting for the preservation of the property, the 
 reception of proofs, and the election of a trustee, but not for any
 
 232 REPORTS OF CASES. 
 
 Re W. & T. other purposes. On the second point which had been raised, I 
 
 MILES ; think that the debt of Miles, senior, was not an " unascertained 
 Ex parte 
 W. MILES, debt " within the meaning of sect. 16, sub-sect. 3, after a fair 
 
 Sen. valuation had been made by the joint affidavit of himself, Mr. 
 Aspin, and Mr. Malins, but was well and sufficiently ascertained 
 by such valuation. " Cerium est quod cerium reddi potesi " is a 
 maxim of law; and in the present case this debt not only can 
 be ascertained, but is actually ascertained, and by the means 
 contemplated at its inception, viz., a fair valuation, and I think 
 that the registrar was right in admitting it to proof upon that 
 valuation ; indeed, it appears to me that the present case is not 
 distinguishable from any sale of goods upon credit, where the 
 price of the articles sold is not expressly agreed upon at the time 
 of sale in the ordinary transactions of life, as in the purchase of 
 articles of food, clothing, or of personal use. In all these cases 
 the creditor has to put a value upon and ascertain the amount of 
 his debt by his affidavit of proof, and in this case he does so, but 
 with the further guarantee of two competent valuers, which 
 probably is necessary, in consequence of the terms of the agree- 
 ment under which this debt originally arose. Whilst, therefore, 
 I think, on the one hand, that if this debt had been unascertained, 
 the registrar would have had no power at present to estimate or 
 ascertain it, I am also of opinion, on the other hand, that this 
 debt was not an unascertained debt, but was, in fact, ascertained 
 by the fair valuation contained in the affidavit of the creditor 
 and valuers, and was therefore rightly admitted to proof by the 
 registrar, and that the creditor is entitled to vote in respect 
 of such debt, in the choice of a trustee. Of course his claim will 
 remain open to further investigation previously to the distribu- 
 tion of the estate. 
 
 Be W. and T. Miles ; Ex parte W. Miles, Sen. The above case (which is 
 quoted in Roche and Hazlitt's Bankruptcy Act, note to sect. 31, p. 64) is 
 believed to be the only authority for the proposition that the registrar has no 
 power, before the first meeting of creditors, to estimate an unascertained debt 
 under the 31st section of the Bankruptcy Act, 1869. The reasons given by 
 the learned County Court judge for this decision appear to be unanswerable. 
 Under the Bankruptcy Act, 1869, proof of debts is, it seems, twofold, namely, 
 (1) proof of debt to the registrar, which entitles a creditor to vote, at 
 the first meeting (sect. 16, sub-sect. 2, and General Rules, 1870, rule 67), 
 and (2) proof to the satisfaction of the trustee (sect. 25, sub-sect. 1, General 
 Rule 72), which alone entitles him to receive a dividend. Whether there be 
 any substantial difference in kind between these two descriptions of proofs is,
 
 REPORTS OF CASES. 233 
 
 semble, a moot point (see Ex parte Kemp ; Re Sir W. Russell, 42 L. J. N. S. Re W. & T. 
 26, Bank.). But it is submitted that the former is of a primd facie character MILES ; 
 merely, whilst the latter is of a final and conclusive character. -"* 
 
 It may be mentioned that it has recently been held that sect. 31 of the " 
 Bankruptcy Act, 1869, does not enable the trustee to make an estimate of 
 the ultimate balance which may be due to a secured creditor who has not 
 valued or realised his security, for until this has been done the creditor has 
 no debt provable, in respect of which the trustee is bound to make any 
 reserve on declaring a dividend : (see Ex parte Good ; Re Lee, 14 Ch. Div. 82.) 
 
 KINGSTON-ON-THAMES COUNTY COURT. 
 
 Friday, April 17, 1874. 
 (Before H. J. STONOE, Esq., Judge.) 
 Re THEBADKELL ; Ex parte SHEUBSOLE. 
 THE KINGSTON BTTEIAL BOAED, Garnishees. (a) 
 Liquidation by arrangement Absolute garnishee order a " charge" 
 on debt attached within the 12th and 16th sections of the Bank- 
 ruptcy Act 1869. 
 
 IN this case the liquidating debtor had entered in a contract, 
 dated 24th NoVember, 1873, with the Kingston Burial Board for 
 the execution of certain works. On the 9th January, 1874, a 
 garnishee summons was issued against the board by Messrs. 
 Shrubsole, the judgment creditors of the liquidating debtor ; and 
 on the 16th January an absolute order was made thereon for 
 44Z. 10s. 3d., debt and costs. On the 19th January a certificate 
 was signed by the surveyor of the completion of the works in 
 the contract, and of a balance of 76L 4s. 4<d. being due to the 
 liquidating debtor. On the 20th January the petition for 
 liquidation was filed, and on the 5th February resolutions were 
 duly passed and a trustee appointed. The trustee now applies 
 for an order upon the burial board to pay to him the balance of 
 76Z. 4s. 4d., certified to be due as above. Messrs. Shrubsole 
 oppose this application, and apply for an order that the sum of 
 44Z. 10s. 3d., for which they have obtained a garnishee order 
 against the burial board as above, may be paid to them on the 
 ground that under such last-mentioned order they are creditors 
 holding a " charge," and therefore a security on property of the 
 bankrupt, under the 12th and 16th sections of the Bankruptcy 
 
 (a) County Courts Chronicle, vol. iv., p. 383.
 
 234 REPORTS OF CASES. 
 
 Re THREAD- Act, 1869. According to the recent case of Emmanuel v. Bridger, 
 E^^arte Roberts garnishee (Q. B. Weekly Notes, February 21, 1874). 
 
 SHRUBSOLE. That case, as reported, indeed goes much farther than the 
 present, for it decides that an absolute garnishee order is a 
 charge not only on the debt due from the garnishee, but on goods 
 belonging to the garnishee of .which his creditor had taken 
 possession by his agent under a bill of sale, and on which the 
 agent had a lien for an advance of 50Z. made by him without 
 notice of any attachment. I confess that I have some difficulty 
 in following the latter part of this decision ; but I think that it is 
 quite clear that an absolute garnishee order constitutes a charge 
 upon the debt due from the garnishee within the meanings of 
 the above sections of the Bankruptcy Act, 1869, and therefore 
 that Messrs. Shrubsole are entitled under the order obtained by 
 them to a charge for 44/. 10s. 3d. on the balance of 761. 4s. 4d., 
 found due from the burial board as above, and to the receipt of 
 the same from the burial board, and likewise to receive their 
 costs of this application from the estate. 
 
 Re ThreadTcell ; Ex parte Shrubsole; The Kingston Burial Board, 
 Garnishees. Since the above decision was given, it has been held that a 
 judgment creditor who has obtained and served on the garnishee a garnishee 
 order nisi, under sect. 61 of the C. L. P. A. 1854, before a petition for 
 liquidation has been presented by the judgment debtor, is a creditor holding 
 a security on the debtor's property within the meaning of sect. 12 of the 
 Bankruptcy Act," 1869 (Lowe v. BlacTcmore, L. Rep. 10 Q. B. 485). Until, 
 however, the order nisi has been actually served upon the garnishee, no 
 charge on the debt is created : (Re Stanhope SilJcstone Collieries Company, 
 11 Ch. Div. 160). The effect of a garnishee order is to bind the debt 
 attached, and to prevent the creditor from receiving it ; and when it is made 
 absolute it gives the judgment creditor a right to recover payment from the 
 garnishee: (per COTTON, L.J. in Chatterton v. Watney, 17 Ch. Div. 259, 
 262.) 
 
 KINGSTON-ON-THAMES COUNTY COURT. 
 
 Friday, April 17, 1874. 
 
 (Before H. J. STONOE, Esq., Judge.) 
 
 Ex parte MARSH; Ex parte BAYLEY. 
 
 Written orders to debtor " Charges" under the 12th and 16th 
 
 sections of the B. A. 1869. 
 
 THESE two claimants obtained written orders from the liquidating 
 
 debtor, dated respectively the 3rd and 16th January, for the 
 
 (a) County Courts Chronicle, vol. iv., p. 383.
 
 REPORTS O CASES. 
 
 235 
 
 respective sums of 17Z. lls. 9d. and 10Z., addressed to the Kingston 
 Burial Board, directing them to pay the above amounts out of 
 any moneys due from them under a certain contract to the 
 debtor, and which orders were given previously to the sur- 
 veyor's certificate, and also to the filing of the petition for 
 liquidation above stated. I think that such orders are clearly 
 equitable charges, and amount to assignments in equity of so 
 much of the debt. Row v. Dawson (1 Yes. 331), and Bell v. 
 The London and North-Western Railway Company (15 Beav. 
 548), and are also charges within the meaning of the 12th and 
 16th sections of the Bankruptcy Act, 1869. The claimants are 
 therefore entitled to receive the above sums of 171. 11s. 9d. and 
 10Z. respectively from the Burial Board, which together with the 
 sum of 44Z. 10s. 3d., payable to Messrs. Shrubsole, make the 
 sum of 72 1. 2s., leaving the sum of 41. 2s. 2d. only payable to the 
 trustee. The claimants, Marsh and Bay ley, are of course also 
 entitled to their costs from the estate. With regard to these 
 two charges, I have assumed that they were given for present 
 value, and not for previous debts, in which case they would be 
 fraudulent preferences, and void under the 92nd section. The 
 Burial Board must also have their costs from the estate. 
 
 Ex parte Marsh ; Ex parte Bayley. It does not appear, from the above 
 report, whether the burial board had received notice of the assignment. The 
 omission to give such notice would not, however, render the assignment less 
 valid inter partis as an equitable assignment (see Burn v. Carvalho, 4 M. & 
 Cr. 690), though it would prevent it from operating as an assignment under 
 the Judicature Act, which only applies where express notice in writing has 
 been given to the debtor : (36 & 37 Viet. c. 66, s. 25 (6).) It has been 
 recently held, by the Court of Appeal, that an assignment of moneys not 
 yet become due may be an absolute assignment : (Bricev. Bannister, 3 Q. B. 
 Div. 569.) (See Montague v. Sinclair, vol. viii. p. 354.) 
 
 Ex parte 
 MARSH ; 
 Ex parte 
 BAYLEY. 
 
 CROYDON COUNTY COURT. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 May, 1874. 
 
 Re POT PEE AND FEREIGE ; Ex parte PARK AND OTHERS, (a) 
 B. A. 1869, s. 34 Mortgagees Distress on bankrupt tenants in 
 
 partnership Separate attornments. 
 Mortgagees to whom mortgagors have attorned as tenants Tiave their 
 
 (a) County Courts Chronicle, vol. iv., p. 411.
 
 236 REPORTS OF CASES. 
 
 Ee POTTER rights of distress reserved by the 34ith section of the Bankruptcy 
 
 AND j_ c ^ iggg . b u t w } iere fav mortgagors had attorned separately as 
 
 Ex parte' tenants of undivided moieties of separate rents, held that mort- 
 
 PARK AND gagees could only distrain on each tenant's effects for the rent due 
 
 ' from him, but not on the effects of both. 
 
 Oswald for applicants. 
 Willis for the trustee. 
 
 His HONOUE. By a deed of mortgage, dated the 29th October, 
 1867, and made between Hy. Potter and Wm. Ferrige, the bank- 
 rupts, of the first part, and Messrs. Park, Hutchins, and Church, 
 the present applicants, of the other part, the bankrupts conveyed 
 certain freehold hereditaments of which they were seized as 
 tenants in common to the Messrs. Park, Hutchins, and Church in 
 fee, subject to redemption and reconveyance on payment of 2000L, 
 and interest at 5Z. per cent., on the 21st December then next, 
 with a covenant by the bankrupts that in case of default they 
 would pay interest at the rate aforesaid half-yearly, on the 30th 
 June and the 31st December, with an absolute power of sale as to 
 the said premises, or any part thereof, after the 31st December. 
 Then follow two separate attornments by the bankrupts respec- 
 tively to the mortgagees to the following effect : " He, the said 
 Henry Potter, doth hereby attorn and become tenant from year to 
 year to the said mortgagees, their heirs and assigns, for and in 
 respect of one equal undivided moiety of the premises mentioned 
 in the schedule to the deed to be in the occupation of the said H. 
 Potter and W. Ferrige, at the yearly rent of 50Z., clear of 
 all deductions, to be paid by equal half-yearly payments, on the 
 30th June and the 31st December, the first half-yearly payments 
 thereof to be made on the 30th June next. And he, the said 
 Wm. Ferrige, doth hereby attorn and become tenant from year 
 to year to the said mortgagees, their heirs and assigns, for 
 or in respect of the other undivided moiety of the same premises 
 at a like yearly rent of 50 L, clear of all deductions, and to 
 be paid/' &c., with a proviso that the mortgagees might 
 enter at any time and determine the tenancies created by the 
 aforesaid respective attornments or either of such tenancies. 
 Default was made in payment of the principal and interest on 
 the 30th December. On the 10th February, 1874, the mort- 
 gagees made two separate distresses for 300Z. each, the warrants 
 for distress being in the following terms : " To A. B., our bailiff. 
 We do hereby authorise and require you to distrain the goods
 
 REPORTS OF CASES. 237 
 
 and chattels of Henry Potter on the premises in the possession Re POTTER 
 of the said H. Potter and W. Ferrige, situate at Sutton, in the AND 
 county of Surrey, for 300?., being six years' rent due to us by Ex parte' 
 the said H. Potter for his one equal undivided moiety of the said P ARK AND 
 premises, on the 31st December, 1873, and to proceed thereon 
 for the recovery of the said rent as the law directs. Dated the 
 7th February, 1874." And a similar warrant as to Mr. Ferrige. 
 The bailiff seized under these warrants a quantity of bricks and 
 machinery of considerable value, the property of the bank- 
 rupts as partners, in their trade or business of brickmakers. 
 On the 13th February the bankrupts were so adjudicated on 
 a friendly petition. On the 16th February the bricks and 
 machinery were condemned under the distress. On the 17th 
 February an interim injunction was obtained on the application 
 of the receiver in bankruptcy. On the 30th March the present 
 application was made on behalf of the mortgagees to dissolve 
 that injunction and fully argued ; but as I thought it right to 
 reserve my judgment, it was arranged that the bricks and 
 machinery should be sold and the proceeds paid into court. 
 The counsel for the applicants relied on the 34th section of the 
 Bankruptcy Act, 1869, reserving to landlords their right of 
 distress, with a limitation that if the distress be not put in till 
 after the commencement of the bankruptcy only one year's rent 
 can be recovered, the landlord to prove for the overplus due, 
 and cited the following cases : Morton v. Woods (18 L. T. Rep. 
 N. S. 791 ; L. Rep. 4 Q. B. 293, and 3 Q. B. 658) ; Ex parte 
 Bayley (22 L. J. 26, Bank. Gas.); Re Brown (18th Nov. 
 1872) Roche and Hazlitt's Bankruptcy, 2nd edit. 17; Re 
 Adams (L. Rep. 11 Eq. Cas. 204; 24 L. T. Rep. N. S. 42) ; and 
 Re Fanshaw (24 L. T. Rep. N. S. 639, ibid 615). Counsel for 
 the trustee contended that sect. 34 was meant to protect land- 
 lords in the ordinary sense of the word, and not mortgagees in a 
 kind of pseudo tenancy, and which in its operation violated the 
 Bills of Sale Act, and cited Walker?. Giles (6 C. B. 697) to show 
 that the relation of landlord and tenant was not in reality created 
 by the attornment on the present deed. Upon the authorities and 
 arguments thus laid before me I am of opinion that a mortgagee 
 to whom a mortgagor has attorned as tenant from year to year 
 is entitled during the continuance of the mortgage security, and 
 before the bankruptcy, to distrain for the rent reserved on such 
 attornment in the same manner and for the same period as an
 
 238 REPORTS or CASES. 
 
 Be POTTER ordinary landlord, without any interference from the Court of 
 
 AND Bankruptcy. The objections that the relation of landlord and 
 
 Ex parte tenant is not in reality created by the attornment, and that the 
 
 PARK AND d ee( j containing it is an evasion of the Bills of Sale Act, and there- 
 JTHERS. ^ e ^^ ^ or non _ re gj g t ra tion are fully met by the observations and 
 judgment of Baron Channell and Chief Baron Kelly, in the case 
 of Martin v. Wood (L. Rep. 4 Q. B. 302). The case of Walker v. 
 Giles (sup.), in which it was held that the attornment did not 
 operate as a demise so as to justify a distress for the rent thereby 
 reserved, contained many special circumstances which prevent its 
 having any application to the present, and indeed its authority 
 has been much shaken, if not altogether destroyed, by the case 
 of Brown v. Metropolitan, fyc., Insurance Society (1 El. & El. 832) 
 (per Lord Campell), and other cases. The words "landlord or 
 other person to whom rent is due," in the 34th section, certainly 
 include and therefore recognise the rights of a landlord under an 
 attornment in a mortgage deed, although possibly the case was 
 not present to the mind of the framers of that section, and may 
 undoubtedly, as pointed out by Mr. Willis, lead to much 
 hardship, inasmuch as a mortgagee or separate or successive 
 mortgagees may come in or sweep off the entire personal 
 property of the mortgagor in aid of their real security, whilst 
 creditors who have given credit on the faith on the mortgagor's 
 possession of such personal property will be disappointed. 
 
 But a very grave objection to the right of the applicants to 
 distrain in the present case has occurred to me, and been the 
 subject of much consideration and, I may say some research, on 
 my part. At the hearing I noticed the peculiarity in the present 
 deed, that the mortgagors, instead of attornment as tenants of 
 the entire premises as tenants in common at one entire rent 
 (100Z.), had each separately attorned as tenant of an undivided 
 moiety at a separate rent (50Z.) ; and, in answer to an inquiry on 
 my part, I was informed that separate distresses were put in 
 for each rent on the entire premises, and that the joint partner- 
 ship and personal property of the mortgagors (the bankrupts) 
 was seized under both distresses, and copies of the warrants of 
 distress have since been furnished to me. Now, in Co. Lit. 186a 
 it is laid down that " although two joint tenants in fee are seised 
 per my et per tout, yet for divers purposes each of them hath but a 
 right to a moiety as to enfeoff, give, or demise; " and this must be 
 at least equally true of tenants in common who are seised per my,
 
 REPORTS OF CASES. 239 
 
 but not per tout. Now, if joint tenants and tenants in common Re POTTER 
 can demise only one undivided moiety, how can they charge the AN1 
 other undivided moiety with the payment of the rent reserved on Ex parte 
 such demise or the liability of distress for the same when in p AEK AND 
 arrear ? Of course the same law and reasoning must apply to an 
 attornment in respect of an undivided moiety as to a lease of the 
 same, and the rent reserved on such attornment and the liability 
 to distrain for the same cannot attach to the other moiety any 
 more than in the case of a lease. 
 
 The great hardship of allowing one joint tenant or tenant in 
 common to render the moiety or share of the other liable, will 
 best appear from one or two cases. Supposing in the present 
 case a rent of 991. had been reserved out of one moiety, and 
 II. out of the other. If both moieties were liable the pro- 
 perty of the tenant who was liable to the payment of II. 
 rent, and had paid the same, might be distrained for the 991. 
 rent left unpaid by the other, and it must be remembered that at 
 common law the former would have had no action of account 
 against the latter (Co. Lit. 199). Again, supposing one mort- 
 gagor alone had attorned for one moiety, or if the mortgagees 
 entered and avoided the tenancy created by one attornment 
 under the power in that behalf in the deed, the mortgagees might 
 distrain upon goods of a stranger on lands of which one moiety 
 would belong to themselves, which is clearly contrary to law, 
 and many other unjust and absurd results from the supposed 
 doctrine might be imagined. At first I was strongly inclined to 
 think that the reservation of a rent out of an undivided nieiety 
 was not in fact a reservation out of the land itself, and like the 
 reservation of rent out of an incorporeal hereditaments, such as 
 impropriate tithes, &c., conferred no power of distress. 
 
 But in Viner's Abridgment, tit. " Distress/' i.,26, it is laid down 
 " that if there are several joint tenants and one grant a rent- 
 charge, the grantee may distrain the cattle of the grantors, but 
 not the cattle of the other joint tenant." And in Kemp v. Cory 
 (Ventris, part 2, pp. 228 and 283), "it was held clear that 
 where A. is seised of a third part in common with B., and B. of 
 two other parts in common with A., and A. let his third part 
 reserving rent, and B. or a stranger by his licence put in his 
 cattle, that such cattle were not distrainable," which is the 
 present case, excepting that the present is the case of an attorn- 
 ment and not a demise, and that the distress, instead of having
 
 240 REPORTS OF CASES. 
 
 Re POTTER been made on the goods of the other tenant in common, was 
 AND ma d e on goods which were the joint partnership property of the 
 
 _c EHRIGE ; B . 
 
 Ex parte two tenants in common; circumstances which appear to me 
 PAKK AND i mma terial for the present purposes. It may possibly be argued 
 
 ' that each tenant in common would be estopped by this deed 
 
 from denying his liability to the rent reserved upon the attorn- 
 ment of the other ; and the case of Cooper v. Fletcher (34 L. J. 
 187, Q. B.), and the reasoning of Mr. Justice Blackburn in that 
 case, may seem to favour this contention. But in the case of 
 Cooper v. Fletcher (sup.) two joint tenants had demised to a 
 third, and rent had been paid by him in respect of the entire 
 premises, whilst in the present case the demise is by strangers to 
 two tenants in common of undivided moieties, reserving separate 
 rents (which have never been paid) ; and there appears to me to 
 be no covenant, statement, or acknowledgment express or 
 implied, which can form the basis of an estoppel in the present 
 case. I am therefore of opinion, upon the authorities which I 
 have cited on this point, that the mortgagees, the present 
 applicants, are only entitled to a qualified right of distress for 
 each rent on the goods of the tenant in common out of whose 
 moiety such rent is reserved, and that having in both cases 
 distrained on goods which were the joint partnership property 
 of the bankrupts, they have exceeded their rights, and that the 
 injunction restraining them from proceeding on such distress 
 ought to be made perpetual, and the goods distrained and 
 proceeds thereof delivered and paid to the trustee for the benefit 
 of the creditors. 
 
 Application dismissed. 
 
 Re Potter and Ferrige ; Ex parte Parlte and others. The above decision 
 was affirmed on appeal by the Chief Judge in Bankruptcy, but he stated 
 that " a more ridiculously technical case than this, if the word ridiculous 
 could be used with regard to any point of law which is merely technical," 
 could hardly be conceiA^ed at the present day (Ex parte ParJce ; Be Potter, 
 L. Rep. 18 Eq. 381). It is, however, submitted that the main point involved 
 in the case was one of real practical importance, and was not sufficiently 
 appreciated or kept in view by the learned Chief Judge. For, so far as 
 can be gathered from his judgment, he held the distress to be illegal, because 
 the property seized was partnership property, which, therefore, could not be 
 subject to the payment of rent due from the bankrupts separately. Thus he 
 says, in speaking of the property distrained upon " if it be joint property 
 first of all it is subject to the payment of the joint debts, and until the 
 partnership obligations have been satisfied, nobody can say what is the 
 interest of either partner in the chattels ; so that, practically, not only you 
 cannot point to any one of these chattels and say it belongs to Potter, but
 
 REPORTS OF CASES. 241 
 
 you cannot even satisfy yourself that lie really has such an interest in it as Re POTTER 
 would make it liable to the debt due to the landlord " (L. Rep. 18 Eq. 385). AND 
 The true ground for the decision is, however, that indicated by the County FERRIGE ; 
 Court judge in his learned judgment, namely, that as the mortgagees were p P a 
 tenants in common, each of whom had separately attorned as tenant of his OTHERS 
 
 undivided moiety at a separate rent, the mortgagees were entitled only to a 
 
 qualified right of distress " for each rent on the goods of the tenant in 
 common out of whose moiety such rent was reserved, and that, having in 
 both cases distrained on goods which were the joint partnership property of 
 the bankrupt, they had exceeded their rights " (vide judgment of the County 
 Court judge, supra). The restriction of the right to distrain for rent due in 
 respect of an undivided part, to the goods of the owner of such undivided 
 part, established by the early authorities cited by the learned judge, and 
 vindicated by the decision in this case, which was confirmed on appeal, is, it 
 is submitted, an important equitable limitation of the landlord's power, and 
 is very far from being " ridiculously technical." 
 
 WANDSWORTH COUNTY COURT. 
 
 Tuesday, July 21, 1874. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 Re WILLIAM DREW HARVEY, (a) 
 A distress under a magistrates' warrant, addressed to peace officers, 
 
 can only be levied by such officers. 
 
 A gas company empowered by their special Act to obtain a magis- 
 trates' warrant to distrain for gas rent in arrear, not " a land- 
 lord or other person to whom rent is due from a bankrupt," 
 within the meaning of the Bankruptcy Act, 1869, s. 34. 
 Pearce for the trustee. 
 
 Robertson Griffiths for the Richmond Gas Company. 
 This was a motion on the part of the trustee for an order that 
 certain goods and effects alleged to have formed part of the 
 bankrupt's estate, and as such the property of the trustee, and 
 to have been improperly and illegally seized and removed by 
 the respondents, the Richmond Gas Company, or their agent, 
 from the premises of the said bankrupt, situate at Richmond, in 
 the county of Surrey, be restored and returned to the said trustee 
 by the respondents or their agents, or that the respondents pay 
 to the trustee the value thereof. And also that the said respon- 
 dents pay the costs and expenses of this appli cation. 
 
 On the 21st March the bankrupt filed his petition of liquidation 
 
 (a) County Courts Chronicle, vol. iv., p. 462, 
 R
 
 242 REPORTS OP CASES. 
 
 .Be in this court, and a receiver was appointed. At that date the 
 WILLIAM k an k ru pt was indebted to the Eichmond Gas Company in the 
 HAKVEY. sum of 30Z. 14s., one year's gas and meter rent, and on the 25th 
 March a distress for that amount and \l. 16s. costs, was put in 
 by Charles Piggott, an auctioneer's clerk, whose affidavit was on 
 the file, and who was also examined viva voce, and notice thereof was 
 given to the bankrupt in the following terms : " Take notice that 
 by the authority of the magistrates, and on behalf of the Rich- 
 mond Gas Company, I have this 25th March, in the year of our 
 Lord 1874, distrained the several goods and chattels specified 
 in the schedule or inventory hereunder written, in your house at 
 Upper Hill-street, in the parish of Eichmond, in the county of 
 Surrey, for 30Z. 14s. and 5s. costs, being the arrears of gas and 
 meter rent due to the said gas company at Eichmond, the 25th 
 December, 1873, last, and if you shall not pay the said gas and 
 meter rent so due and in arrear as aforesaid, together with the 
 costs and charges of this distress or replevy the said goods and 
 chattels within five days from the date hereof, I shall cause the 
 said goods and chattels to be appraised and sold pursuant to the 
 statute in that case made and provided. (Signed) CHAELES 
 PIGGOTT. To Mr. William Drew Harvey." This distress was 
 made under a warrant of two justices of the peace, dated the 
 same day, addressed to the constables of the metropolitan police, 
 and all peace officers in the county of Surrey, commanding them 
 to make distress of the goods and chattels of the said bankrupt, 
 and if within the space of five days the said sum of 30Z. 14s., and 
 the costs and charges were not paid, to sell the said goods and 
 chattels and pay the money arising therefrom unto the clerk of 
 the justices, that he might apply the same as by law directed, 
 and render the overplus (if any) on demand to the bankrupt. 
 
 On the 8th April a similar distress was made by the same 
 agent of the company, under a similar warrant from two justices 
 of that date for 15Z. 13s., and 13s. costs in respect of gas rent, 
 which had become due since the 21st March, but in the notice 
 of distress the agent professed to act by the authority not of the 
 justices, but of the Eichmond Gas Company. These warrants 
 were both made on summonses taken out by the Eichmond Gas 
 Company in pursuance of the 64th section of their Act of 
 Incorporation (30th Viet. c. 100), entitled "The Eichmond Gas 
 Act, 1867," which provides that all sums of money due, or to 
 become due, either to the company or to the old company, or to
 
 REPORTS OF CASES. 243 
 
 either or both, for the supply of gas, or for the supply or hire, Re 
 or fixing of meters, pipes, or other fittings, may be levied ^ LLIAM 
 by distress, and any justice on application may issue his warrant HARVEY. 
 accordingly, but no warrant shall be issued without a previous 
 summons." It did not appear what were the proceeds of the 
 sale of the goods taken in the first distress, and such proceeds 
 were not paid to the clerk of the justices as required by the 
 warrant ; also it did not appear whether the goods seized on the 
 second distress had been sold at all. On the 15th April a 
 petition in bankruptcy was presented (the liquidation proceedings 
 having fallen though), and on the 5th May adjudication passed. 
 On the 22nd May the first meeting took place, and a trustee was 
 appointed, and on the 18th June the trustee gave notice of the 
 present application. At the time of each distress notice was 
 given on the part of the receiver to Piggott, the person who 
 made the distress, that the same was illegal, and notice of an 
 application to this court for an injunction was given on the 
 27th March, but the application was not proceeded with. 
 
 His HONOUR, after stating the facts as above, said : In this 
 case it was contended by Mr. Robertson Griffiths, on the part of 
 the respondents, that the delay which has taken place on the 
 part of the receiver in the liquidation and the trustee in bank- 
 ruptcy in asserting their rights ought to be fatal to the 
 application, and the judgment of Lords Justices Knight Bruce 
 and Turner in the case of Re Savin (L. Eep. 1 Ch. Ap. 616), 
 and other authorities were cited by him on the point. I cannot 
 agree in this view, especially as no account has been furnished 
 of the goods sold or of the proceeds, but I think that such delay 
 does entitle the respondents to great consideration, both as to 
 the costs of this application, and likewise as to any liabilities 
 they may have incurred in the sale of the goods in the event of 
 the decision of the court being against them. Apart from this 
 consideration, the case appears to me to resolve itself into two 
 questions. First, were two distresses or either of them illegal 
 in consequence of their having been made by an unauthorised 
 person instead of the public officers to whom they were addressed, 
 bearing in mind as to the second distress the obvious irregularity 
 of the notice in omitting all mention of the magistrates under 
 whose warrant the distress was made ; secondly, if the distresses 
 were legal, whether they were made by or on behalf of " land- 
 lords or other persons to whom any rent was due from th 
 
 R 2
 
 244 REPORTS or CASES. 
 
 Be bankrupt" within the meaning of the 34th section of the 
 
 W DREW M Bankru P tc y Act ; 1869? On the first P oint tlie evidence of 
 HARVEY. Piggott who made the distress, and Mr. Cartlidge, the clerk to 
 the magistrates of Richmond, taken viva voce, shows that the 
 distress warrants for gas rent were in all cases (as in the present) 
 handed to the police officers in the same way as warrants for the 
 recovery of penalties, but that the former were handed over by 
 them to an agent for the gas company, and the latter were 
 executed by the police themselves, and that the proceeds of the 
 former were retained by the agent of the gas company and paid 
 to their officer, although directed by the warrant to be paid to 
 the clerk of the justices, while the proceeds of the latter 
 were always paid to the clerk of the justices. It was contended 
 that the company's agent was also the agent of the police 
 officers for the purpose of the distress, and that the 151st section 
 of the Companies Clauses Consolidation Act, 1845, incorporated 
 into the Eichmond Gas Act, 1867, which enacts "That no distress 
 should be unlawful nor any party making the same be deemed a 
 trespasser on account of any defect or want of form in the 
 summons, conviction, warrant of distress, or other proceeding 
 relating thereto," would render valid the present distress. Upon 
 the whole, I think that Piggott cannot be regarded as acting by 
 the authority or as the agent of the police officers, and that his 
 own notice is conclusive evidence of the contrary, and that the 
 above section does not meet the present case, as the error com- 
 mitted is that of an unauthorised person executing an authority 
 given to another, and not any defect in any "summons, con- 
 viction, warrant of distress, or other proceeding," which must, I 
 presume, be construed to mean other written proceeding. On 
 this question the case of Reg. v. Saunders (L. Rep. 1 Cr. Gas. 75), 
 appears to be much in point. In this case it was decided that a 
 warrant of commitment upon a conviction for a penalty addressed 
 to the parish constable, and handed to a county police constable, 
 could not be executed by the latter. On the second and main 
 question in the present case, I am of opinion that the respon- 
 dents are not " landlords or other persons to whom rent is due 
 from the bankrupt within the meaning of the 34th section of the 
 Bankruptcy Act, 1869." The present case is distinguishable 
 from that of Ex parte The Birmingham and Staffordshire Gaslight 
 Company, Re Fanshawe (L. Rep. 11 Eq. Cas. 615), inasmuch as 
 in that case the company were authorised by their special Act to
 
 REPORTS OF CASES. 
 
 245 
 
 recover rent and charges due to them for gas "by the same 
 means as landlords may recover rent in arrear," which the Chief 
 Judge observes " gives to the company all the rights which a 
 landlord has for the recovery of rent in arrear, including the 
 right to distrain with his own hands and to pay himself out 
 of the proceeds." In the present case the company have no 
 power to distrain by their own hands, or indeed at all, nor 
 of course to pay themselves. They must take out a summons 
 and obtain a warrant, and that warrant must be addressed to 
 peace officers, who must pay the proceeds to the clerk of the 
 justices, and the gas company must look for payment to him. 
 The Birmingham and Staffordshire Gaslight Company had the 
 right of landlords, and could distrain by themselves or their 
 agent, and pay themselves without legal proceedings. The 
 Richmond Gas Company have not the rights of landlords, 
 cannot distrain by themselves or their agents, and can only 
 obtain their rent by an execution, the result of a conviction in a 
 court of law, and by application to the clerks of the justices. In 
 the former case the relation of landlord and tenant is expressly 
 created between the gas company and the consumer by the 
 special Act. In the latter, the words "rent" and "distress" are, 
 indeed, used incidentally, and not perhaps accurately, by the 
 special Act ; but the relation of landlord and tenant is certainly 
 not created expressly, nor, I think, impliedly, by that Act, and 
 the company have no power to distrain at all for the so-called 
 rent, but only to institute legal proceedings for its recovery. I 
 should like to have had more time to consider the many impor- 
 tant points involved in this case, but as this is the last court held 
 here before the vacation, I thought it desirable that I should 
 deliver my judgment to-day. I shall make an order in the terms 
 of the application, viz., that the respondents and their agents do 
 return the goods taken on both warrants, or pay the value 
 thereof to the trustee ; and if the value of such of the goods as 
 have been sold cannot be agreed upon, the same must be tried 
 and ascertained by the court. Order according to the terms of 
 the application, without costs. 
 
 Re 
 WILLIAM 
 
 DREW 
 HARVEY. 
 
 Re William Drew Harvey. The mode of executing warrants of distress, 
 issued by a Court of Summary Jurisdiction, is now regulated by the Summary 
 Jurisdiction Act, 1879 (42 & 43 Viet. c. 49), which provides that " a warrant
 
 Re 
 
 WILLIAM 
 
 DREW 
 HARVEY. 
 
 246 
 
 REPORTS OF CASES. 
 
 of distress shall be executed by or under the direction of a constable " 
 (sect. 43, sub-sect. (1). The exact meaning of this provision is not very 
 evident. But it is submitted that it does not dispense with the necessity of 
 a constable being present whilst the warrant is being executed, though he 
 need not execute it himself. Consequently the above decision is still 
 applicable. 
 
 As regards the second point involved in the above reported case, it is 
 sufficient to observe that in the subsequent case of Ex parte Hill; Re 
 Roberts (6 Ch. Div. 63), the Court of Appeal, under precisely similar circum- 
 stances, came to the same conclusion as the County Court judge has expressed 
 in his judgment. 
 
 READING COUNTY COURT. 
 
 Wednesday, Sept. 23, 1874. 
 
 (Before H. J. STONOE, Esq., Judge.) 
 
 Ee SWAIN ; Ex parte EGGINTON. (a) 
 
 What amounts to a sale and delivery of growing timber No lien 
 
 for purchase money if sale complete. 
 
 Bremner (instructed by R. G. Dryland, Reading), appeared for 
 the trustee ; and 
 
 Tatham (instructed by Tatham and Co., London), for the 
 respondents. 
 
 His HONOUE. This is an application by the trustee, J. Eggin- 
 ton, for an order on Miss Connop, of Bradfield, and Isaac Evans, 
 a timber dealer, to deliver up fifty-three oak trees to the trustee. 
 The debtor carried on the business of a barge builder in Reading. 
 About the 5th February, Swain agreed to purchase from Evans 
 some timber lying in Park Copse, belonging to Miss Connop, 
 which timber Evans had bought from Miss Connop's agent while 
 standing, and had cut down himself. It is admitted that Evans 
 has paid for the timber. At that time Evans did not know the 
 quantity of the timber, but on the 7th February he called at 
 Swain's offices and told him that there were about seventeen 
 loads, and the price was 78Z. altogether. Swain gave Evans a 
 promissory note for 281., payable on the 5th April, and also a 
 promissory note for the remainder, payable on the 1st August. 
 Between the 14th February and the 18th March Swain removed 
 several loads of the timber. On the 13th April Swain filed a 
 petition in liquidation, and on the 30th April the first meeting of 
 
 (a) County Courts Chronicle, vol. iv., p. 51.
 
 REPORTS OP CASES. 247 
 
 creditors took place, and resolutions were passed, and a trustee Re SWAIN 
 appointed. At that time there were fifty-three trees still 
 remaining unremoved. The promissory note for 281. due on the 
 5th April had not been paid, and the promissory note for the 
 balance was of course not due. The trustee in liquidation tried 
 to get possession of the remainder of the timber, but was unable 
 to do so, the road to it having been purposely blocked up. 
 Evans was applied to, but he declined to interfere, and said he 
 should leave the matter to Miss Connop, and that the timber was 
 forfeited to her in consequence of its not being removed by the 
 25th March, but this point was abandoned. It was, however, 
 also contended by Evans that he had a lien on the timber for the 
 unpaid purchase money. It was agreed that if judgment were 
 given for the trustee, the timber sbrrld not be removed till 
 November, as the removal of it before that time would be 
 injurious to Miss Connop's property. Upon this state of facts I 
 am of opinion in this case that the trustee is entitled to the 
 possession of the whole of the timber, inasmuch as it was sold 
 and delivered to the debtor before he presented his petition for 
 liquidation, and that Evans must prove for the balance of the 
 purchase money. The case of Tansley v. Turner (2 Bing. N. C. 
 151), is on all fours with the present. In that case the plaintiff 
 having purchased timber growing on the land of B., felled it, and 
 afterwards sold it to J. at a certain price per cubic foot. The 
 trees were marked and measured by J., the number of cubic feet 
 in each tree being ascertained, but the total contents were not 
 summed up. Some of the trees were taken away by the pur- 
 chaser. It was held that the transfer of the whole was complete, 
 and consequently that the vendor had no right of lien for the 
 unpaid price of the timber. The case of Ex parte Chalmers, Re 
 Edwards (L. Kep. 8 Ch. App. 289), which was cited for the 
 respondents, does not apply to the present case, inasmuch as in 
 that case there was no actual sale and delivery of the goods, but 
 only a contract for the sale of them. There will be an order for 
 the delivery of the timber to the trustee on the 1st November.
 
 248 REPORTS OF CASES. 
 
 WANDSWORTH COUNTY COURT. 
 
 Tuesday, Oct. 13, 1874. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 Ee MILLS ; ~Ex parte GILBERT, (a) 
 
 Treasurer of friendly society Debt due to the society. 
 
 A debt due to a friendly society from its officer lias no priority in 
 
 bankruptcy. 
 B. A. 1869, ss. 12, 32, repeals (pro tanto) the 23rd section of the 
 
 Friendly Societies Act (18 # 19 Viet. c. 63.) 
 
 His HONOUR delivered judgment in this case as follows : The 
 bankrupt wa.s treasurer of a friendly society called the " Loyal 
 Leigham Lodge of Odd Fellows/' and at the time of his bank- 
 ruptcy had a balance of 60Z. in his hands due to the society. 
 The moneys received by him for the society had been mixed by 
 him with his own funds. The society claims to be paid in full, 
 under the 23rd section of the Friendly Societies Act (18 & 19 
 Viet. c. 63), which provides in effect that all sums of money due 
 to a friendly society from an officer of such society shall be paid 
 out of his estate, assets, or effects before any of his other debts 
 are paid, both in bankruptcy and otherwise. The Bankruptcy 
 Act of 1849 contains a clause in conformity with that in the 
 Friendly Societies' Act, so far as the administration of estates 
 m_bankruptcy is concerned, but that Act was repealed, together 
 with all other existing Acts relating to bankruptcy, by the 
 Bankruptcy Repeal Act (32 & 33 Yict. c. 83), which received 
 the Royal assent on the same day as the Bankruptcy Act, 1869. 
 The Friendly Societies' Act is not mentioned or referred to in 
 the Bankruptcy Act, 1869, or the Bankruptcy Repeal Act, 1869. 
 The question, however, arises, whether the 23rd section of the 
 Friendly Societies' Act is not repealed by implication by the 
 12th and 32nd sections of the Bankruptcy Act, 1869, so far as 
 the administration of estates in bankruptcy is concerned. The 
 12th section is as follows : " When a debtor shall be adjudicated 
 a bankrupt no creditor to whom the bankrupt is indebted in 
 respect of any debt provable in bankruptcy, shall have any 
 remedy against the property or person of the bankrupt in 
 respect of such debt except in manner directed by this Act." 
 
 (a) County Courts Chronicle, vol. iv., p. 515.
 
 REPORTS OF CASES. 249 
 
 And the 32nd section is to the following effect : " The debts Re MILLS 
 hereinafter mentioned shall be paid in priority to all other debts, ^ x P arte 
 that is to say : (1) All parochial or other parish rates due from 
 the bankrupt, subject to certain limits, and (2) all wages or 
 salary of any clerk or servant, subject to certain limits, and also 
 all wages of any labourer or workman, subject to a certain limit." 
 And then concludes as follows : " Save as aforesaid, all debts 
 provable under the bankruptcy shall be paid pari passu." This 
 question has been considered by the learned judges of the 
 Newport and Lincoln County Courts, Mr. Herbert and Dr. 
 Stevens, and they have come to contrary conclusions upon it, and 
 as far as I have been able to learn, the point has never come 
 before the learned judge of the London Bankruptcy Court, on 
 appeal or otherwise. After attentively perusing the elaborate 
 judgments delivered by the learned judges I have mentioned 
 (Re Matthews, Co. Cts. Chron. vol. 3, N. S. 270; and Re 
 Key worth, ibid, 386), I feel that it is quite superfluous for me to 
 go fully into the considerations which the case presents or the 
 authorities bearing upon it. Mr. Herbert concludes his 
 exhaustive judgment as follows: "It seems to me that if the 
 solution of the question be made to depend alone on the plain 
 grammatical construction of the 32nd section of the late statute 
 (and the true rule of construction is that the words of an Act are 
 to be read in their ordinary sense) it is impossible to conceive 
 any words, falling short of expressly repealing, more utterly 
 inconsistent or repugnant to the clause in the Friendly Societies 
 Act," and further, "I think one should conclude that the 
 attention of the Legislature must have been called to the 
 preferential rights of friendly societies when the Bankruptcy 
 Act was under consideration, for the Bankruptcy Acts of 1849 
 and 1861, which were incorporated together, contained no less 
 than five clauses giving priority as well to friendly societies' 
 claims as to various others, and the Act of 1869, which has 
 repealed all those clauses, has dealt expressly with all the other 
 preferential claims besides those of friendly societies, leaving 
 some of them unaltered and extending others, and has also 
 introduced fresh preferential claims ; and when it is further 
 considered that the Bankruptcy Act was manifestly intended to 
 contain the whole corpus of bankruptcy law, the contempo- 
 raneous Act of repeal having swept away all the other existing 
 statutes, I think this consideration strongly corroborates the
 
 250 
 
 REPORTS OF CASES. 
 
 Re MILLS ; view that it was the intention of the Legislature to do away with 
 
 Ex pare 
 GILBERT. 
 
 the priority in question/' I fully concur in these observations, and 
 it also appears to me that the Legislature having repealed all the 
 provisions of the existing bankruptcy law of the kingdom (includ- 
 ing the priority of friendly societies as given by such law), and 
 abolished the existing bankruptcy jurisdictionitself,and re-enacted 
 a new bankruptcy law and created a new bankruptcy jurisdiction, 
 must have considered that the express repeal of a provision 
 contained in a former Act of Parliament on another subject 
 having reference to an abolished law and an abolished juris- 
 diction, and being at direct variance with the 32nd section of the 
 New Act, was wholly unnecessary. Dr. Stevens, indeed, 
 observes "that the Legislature, when it passed the Bankruptcy 
 Act and Repealing Act 1869, must be taken to have been aware 
 of the existence of the Friendly Societies Act (18 & 19 Viet. c. 
 63, s. 23). And that consequently such last-mentioned enact- 
 ment must be read in connection with the 32nd section of the 
 Bankruptcy Act, 1869, as if, indeed, it had been inserted 
 immediately before that provision, that the latter of these enact- 
 ments is therefore qualified by the former, and that the words 
 'save as aforesaid' at the end of the 32nd section, must be 
 construed as extending to the debts mentioned in the prior 
 statute." I cannot agree in these observations, nor can I think 
 that the words " save as aforesaid" in any statute can extend to 
 the provisions of another statute which is not mentioned in, or 
 referred to by, such statute, although the Legislature may, and 
 I think must, be held to have been aware of its existence. On 
 the whole I am of opinion with the learned judge of the Newport 
 County Court, that the claims of friendly societies on their 
 officers have no priority in bankruptcy since the passing of the 
 Bankruptcy Act, 1869, and the Bankruptcy Repeal Act, 1869. 
 The present application will therefore be dismissed. 
 
 At the conclusion of the judgment Fullagar stated that since 
 the case was adjourned he had found that Mr. Harden, the judge 
 of the Birkenhead County Court, had decided the point in the 
 same way as his Honour and Judge Herbert. 
 
 Application dismissed.
 
 REPORTS OF CASES. 251 
 
 CROYDON COUNTY COURT. 
 
 Monday, Feb. 15, 1875. 
 
 (Before H. J. STONOE, Esq., Judge.) 
 
 Re FEEEIGE AND FEEEIQE ; Ex parte SHATTOCK AND Ex parte 
 
 HAYWAED. (a) 
 Fraudulent preference negatived by a distinct demand of debts by 
 
 creditor without notice of bankruptcy Bankruptcy Act, 1869, 
 
 ss. 92, 94. 
 
 His HONOUE. These two cases are governed by the principles 
 laid down by the Chief Judge in Ex parte Graven (23 L. T. Rep. 
 N. S. 563; L. Rep. 10 Eq. 648), and approved and confirmed 
 by the Lords Justices in the same case on appeal, under the 
 name of Ex parte Tempest (23 L. T. Rep. 650 ; L. Rep. 6 Ch. 
 App. 70), and I think that there is no difficulty in the application 
 of those principles to the facts and circumstances of the present 
 cases. A clear and distinct demand for payment of a bond fide 
 debt by a creditor, without notice of an act of bankruptcy by the 
 debtor, which was clearly proved in both these cases, is quite 
 sufficient to prevent any payment or transfer of property by 
 a bankrupt before his bankruptcy in satisfaction of such debt 
 being "fraudulent or void" within the 92nd section of the Bank- 
 ruptcy Act, 1869, or at all events to bring it within the saving 
 clauses as to purchases and dealings " in good faith and for 
 valuable consideration/' contained in the 92nd and 94th sections, 
 notwithstanding that there may be a desire or willingness on the 
 part of the bankrupt to favour the applicant over his other 
 creditors, which existed, probably, in both these cases, and at 
 all events in the first case (Shattock's). I, therefore, think that 
 the sale of cattle and pigs by the bankrupts to the creditors in 
 these two cases in satisfaction of their respective debts, cannot be 
 impeached. At the same time, there are some suspicious circum- 
 stances in the first case (Shattock's) as to the debt itself, and 
 also as to the creditor's dealings with the property purchased by 
 him, especially his keeping a separate account of the expenses 
 incurred by him in feeding the pigs subsequently to his purchase; 
 and, considering these circumstances, I shall not allow him his 
 costs, but I think that the creditor in the second case ought to 
 have his costs. 
 
 (a) County Courts Chronicle, vol. v., p. 63.
 
 252 REPORTS OF CASES. 
 
 WANDSWOETH COUNTY COURT. 
 
 Tuesday, Sept. 21, 1875. 
 (Before H. J. STONOR, Esq., Judge). 
 
 KEYSELL v. PADDOW. (a) 
 
 Bankrupt may sue for mere personal labour pending bankruptcy. 
 His HONOUR. In this case the plaintiff sues the defendant for 
 11. Is. professional services as a surveyor in examining and 
 reporting as to the raising of a certain wall. It appears that the 
 plaintiff became indebted to the defendant about the same time 
 for medical attendance, and forbore to make any claim on 
 account of his services, expecting that they would be taken into 
 account on the settlement of the defendant's claim against him. 
 The defendant, however, sued the plaintiff and recovered the full 
 amount of his professional charges, and the plaintiff having failed 
 to plead a set-off in that action, now sues the defendant in the 
 present action. The defendant pleads that the plaintiff was at 
 the time of rendering the services in question a bankrupt, and 
 had not then or since received his discharge. I disallow the 
 plea, as it has been always held that a bankrupt is entitled to the 
 proceeds of his mere personal labour during the continuance of 
 his bankruptcy : (See Robson on Bankruptcy, 2nd edit., p. 543, 
 and the authorities there cited.) It would be particularly hard 
 in cases like the present if the plaintiff could not recover a debt 
 which he was manifestly entitled to set-off against a counter 
 claim of the defendants. 
 
 Verdict for the Plaintiff. 
 
 READING COUNTY COURT. 
 
 Tuesday, September 22, 1875. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 Re COOKE ; Ex parte HILDER. (a) 
 
 Disposition of a bankrupt's estate held to be void in the alternative, 
 either as a fraudulent preference by bankrupt, or a wrongful 
 taking by creditor B. A. 1869, s. 92. 
 
 (a) County Courts Chronicle, vol. v., p. 219. 
 
 (b) County Courts Chronicle, vol. v., p. 218.
 
 REPORTS OF CASES. 253 
 
 Rolland, for the trustee (instructed by Seal and Martin). Re COOKE: 
 
 Green for Messrs. Simonds (instructed by W. Dodd). HILDEB 
 
 His HONOUR delivered judgment this day as follows : This is an 
 application by the trustee of the bankrupt's estate for a declara- 
 tion that he is entitled to the proceeds of the sale of the 
 bankrupt's stock-in-trade and book debts, 108L 11*. 6d., 
 received by Messrs. Simonds, brewers, in January last, within 
 three months of the bankruptcy, after deducting a sum of 
 42Z. 17s. 3d. and costs of distress for rent due from the bankrupt 
 to Messrs. Simonds at the time of such sale, and for an order 
 that Messrs. Simonds do pay the same to the trustee. The 
 bankrupt was tenant to Messrs. Simonds of a public house at the 
 weekly rent of 8s. 10^., under a lease dated the llth October, 
 1871, which contained, amongst other provisions, a power to the 
 landlords to distrain for any debts or sums of money due to them 
 in respect of any liquors or other goods, or for money paid or 
 lent, not exceeding 100Z., exclusive of the said rent, and to sell 
 the goods distrained. On the llth January Messrs. Simonds put 
 in a distress for 42Z. 17s. 3d., arrears of rent then due to them, 
 but, although a considerable sum was also then due to them for 
 goods and money lent, no distress was put in for the same. The 
 broker to whom the warrant of distress was given, Mr. Stephen 
 Swain, executed it without delay, but on the application of the 
 bankrupt, and also of Mr. Albury, a creditor of the bankrupt for 
 701. (and who is the petitioning creditor), Messrs. Simonds, by 
 their agent and manager, Mr. Johnson, authorised the broker to 
 defer the sale under the distress, in order to enable the bankrupt 
 to find a purchaser for his goodwill, stock-in-trade, and book 
 debts, which with the exception of a trifling quantity of 
 furniture, constituted the whole of' his property. A purchaser 
 was found for the stock-in-trade and book debts of the bankrupt 
 at the sum of 108Z. Us. Qd., but the goodwill was considered 
 valueless. The purchaser was accepted as a tenant by Messrs. 
 Simonds, took possession of the business, and paid the sum of 
 108Z. lls. Qd., for which the bankrupt gave a receipt; but the 
 whole of the money was taken possession of by the broker in his 
 presence, and paid by him to Mr. Johnson for Messrs. Simonds. 
 The broker's evidence is as follows : " The money was put down 
 on the table, and of course I picked it up ; I thought I had the 
 right to do so by Mr. Cook's conversation beforehand. Mr. 
 Cook made no objection to my doing so. Mr. Cook knew that
 
 254 
 
 REPORTS OF CASES. 
 
 Re COOKE 
 Ex parte 
 HLLDEB. 
 
 all that money was to go to Simonds ; he had said ( I wish to pay 
 Messrs. Simonds the full amount ; ' I paid the money to Mr. 
 Johnson. Mr. Johnson's evidence is as follows : " I knew 
 nothing at all about the sale. There was no sort of corres- 
 pondence with me by Cook or Swain to my knowledge till after I 
 had the money in my hands. Swain had no authority under any 
 circumstances to sell for me or the firm. I received from Mr. 
 Swain about 100L There was 7Z. odd expenses. I received it 
 as agent to Messrs. Simonds, and handed it to them. It did not 
 pay our debts. There was about 10s. in the pound on our trade 
 account, and a note of hand for 50Z., cash lent." The evidence 
 of Mr. Miller, the auctioneer, who introduced the new purchaser, 
 goes somewhat farther than the evidence of Swain or Johnson. 
 He says that Cook clearly understood that the whole of Simonds' 
 
 v v 
 
 account was to be paid out of the valuation, and that when 
 Johnson accepted the new tenant he said " Mr. Cook must pay 
 our account," which, if communicated to Cook might perhaps be 
 held to be a condition on releasing him from his tenancy. There 
 is, however, no evidence that this was communicated to Cook. 
 The bankrupt says that he considered that Swain took possession 
 of the purchase money beyond the 43Z. " for the benefit of his 
 creditors/' that he never sanctioned the payment of it to Mr. 
 Johnson, that he saw Mr. Johnson the next day and remon- 
 strated with him, and asked if Swain had received instructions 
 from Mr. Johnson to act 'as he had done, and he said, " Swain had 
 no instructions from him." This statement, it must be observed, 
 corresponds very much with Mr. Johnson's written deposition 
 already referred to, where he says, " he knew nothing about the 
 sale, and that Swain had no authority to sell from him or the 
 firm," and also with the viva voce evidence which he gave before 
 me, where he said that he had not instructed Swain to distrain 
 for more than 43Z. rent, and had given him no other instructions. 
 It is evident that there is a direct conflict of evidence between 
 the bankrupt on the one hand and Swain and Miller on the other 
 hand, as to whether the former authorised the payment of the 
 balance of the proceeds of the sale beyond the amount due for 
 rent to Mr. Johnson, in satisfaction of Messrs. Simonds' trade 
 and loan account ; but as Mr. Johnson's evidence clearly shows 
 Swain had no authority from him, nor of course from Messrs. 
 Simonds, except to distrain for the rent, I think that his retaining 
 the surplus and paying it to Johnson must l)e regarded as purely
 
 REPORTS OF CASES. 255 
 
 voluntary and fraudulent as regards the bankrupt if he agreed Re COOKE 
 to it or permitted it, and the question would then arise whether g* P arte 
 Messrs. Simonds by their agents, Messrs. Johnson or Swain, 
 knew or had reasonable ground of belief or suspicion at the time 
 of such payment that the bankrupt was in insolvent circumstances, 
 as otherwise they would probably be protected as " payees in 
 good faith and for valuable consideration " by the saving clause 
 at the end of sect. 92 of the Bankruptcy Act, 1869, according to 
 the case of Ex parte Butcher, Re Meldrum (L. Rep. 9 Ch. App. 
 595), recently affirmed by the House of Lords. Now, after 
 attentive consideration of the evidence, I feel no doubt that both 
 Swain and Johnson, from their communications with the bank- 
 rupt and others, were perfectly well aware that, at the time of 
 the payment in question, the latter was in insolvent circumstances. 
 For it was known to both of them that the whole of the 
 bankrupt's property except his furniture (which it is admitted 
 was of very trifling value had realised little more than 100Z., that 
 the debts due to Messrs. Simonds and Mr. Albury amounted to 
 more than double that sum, and that the bankrupt had other 
 creditors besides. And, indeed, the bankrupt's inability to pay 
 the rent or get security for the same, his consent to the sale of 
 his property and transfer of the publichouse and licence, and his 
 permitting the broker to retain the whole proceeds, whether for 
 all bankrupt's creditors or for Messrs. Simonds, were, I think, 
 under the circumstances, ample and conclusive evidence of his 
 insolvency, and were all known to Swain and Johnson. It is, 
 therefore, quite clear to me that if the bankrupt sanctioned or 
 permitted Swain to take this money and to pay it to Johnson 
 towards satisfaction of Messrs. Simonds' account (as Swain and 
 Miller depose) Swain had no authority from Messrs. Simonds to 
 demand, take, or receive the same, and therefore the transaction 
 was voluntary and fraudulent on the part of the bankrupt ; and 
 as Messrs. Simonds had by their agents clear notice of the 
 insolvency of the bankrupt, it was also fraudulent as far as they 
 were concerned, and therefore void under the 92nd section of the 
 Bankruptcy Act, 1869. On the other hand, if the money was 
 wrongly paid by Swain to Johnson without the sanction and 
 against the express wish of the bankrupt (as he deposes), then, 
 as Messrs. Simonds received the money with notice through their 
 agents that the same was so wrongfully paid, and also that the 
 bankrupt was at the time of such payment in insolvent circum-
 
 256 
 
 REPORTS OF CASES. 
 
 Be OOOKE 
 Ex parte 
 
 HlLDER. 
 
 stances, they would certainly be bound to refund it, and pay it 
 to the trustee as part of the bankrupt's estate. There will, 
 therefore, be declaration that the trustee is entitled to the 
 proceeds of the sale after deducting the rent and costs of distress 
 (of which an account must be taken if necessary) and an order 
 made that Messrs. Simonds do pay the same to the trustee, 
 together with the costs of this application, within one month. 
 
 Re CooTee ; Ex parte Hilder. This decision was affirmed on appeal, as 
 appears by the following report taken from the shorthand writer's note : 
 
 SUPREME COURT OF JUDICATURE. 
 
 COURT OF APPEAL, LINCOLN'S INN. 
 
 Friday, Jan. 28, 
 (Before JAMES and HELLISH, LJJ., BAGGALLAY, J.A., and MELLOB, J.) 
 
 Be COOKE ; Ex parte HILDER. (a) 
 
 Winslow, Q.C. and H. D. Greene (instructed by Beale and Martin) appeared 
 for the appellants. 
 
 Finlay Knight and Bolland (instructed by Dodd) appeared for the 
 respondent. 
 
 Winslow, in opening the case, read an agreement for tenancy, which 
 reserved to Messrs. Simonds the right not only to distrain for rent, but for 
 any sum due for beer or money lent. MELLISH, L.J. remarked that this 
 power was invalid, and MELLOR, J. observed that he had never heard of a 
 power of distress for liquor. 
 
 H. D. Greene followed on the same side, and contended that the judgment 
 of the judge of the County Court was wrong. [MELLISH, L.J. requested 
 him to read the judgment in extenso, and JAMES, L.J. observed that ifc was 
 an excellent judgment, and suggested to the appellants' counsel whether it 
 was necessary to urge his case further.] 
 
 JAMES, L.J. The question in this case is a question of fact which has 
 been found by the County Court judge who heard the whole case, and his 
 decision was affirmed by the Chief Judge, who found no reason to differ 
 from the County Court judge, whose judgment has been read. I do not 
 think it necessary to say a word in addition to the judgment. He said there 
 were two alternatives : either that the payment was made by the bankrupt 
 voluntarily, or that it was made without his authority. Either way the 
 money ought not to have been kept by Simonds, and we think that the County 
 Court judge is quite right. 
 
 MELLISH, L.J. I am of the same opinion, and I entirely agree with the 
 County Court judge. 
 
 (a) County Courts Chronicle, vol. v., p. 329.
 
 REPORTS OF CASES. 257 
 
 CROYDON COUNTY COURT. 
 
 Monday, Oct. 23, 1876. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 Re ELLIOTT, (a) 
 Motion far removal of proceedings, on the ground that petitioning 
 
 creditor was a client of Registrar refused B. A. 1869, s. 80. 
 AT the sitting of the Croydon County Court, Mr. H. Parry, 
 solicitor, said he had to submit to his Honour a memorial, signed 
 by eight solicitors practising in that court, in opposition to a 
 motion praying that a bankruptcy case which would come before 
 his Honour in the course of the day should be removed to the 
 London Court, on the ground that the petitioning creditor (Mr. 
 Chasemore) was a client of the learned Registrar. 
 
 His HONOUR said he should be happy to consider the memorial 
 at the proper time, but he thought the present was not the proper 
 time, inasmuch as the proceedings forming the subject matter of 
 the memorial were coming before him for judicial decision. 
 
 When the case Re Elliott was called on, Heathfteld made the 
 application, supported by the affidavit of Messrs. Berry and 
 Pestcott, two small creditors for about 10L each, that the pro- 
 ceedings in the case should be removed to the London Bankruptcy 
 Court, on the ground that the petitioning creditor, Mr. Chase- 
 more, a creditor for 8001. , was a client of the learned Registrar 
 of the court. Heathjield said he made the application without 
 casting the slightest imputation upon Mr. W. H. Rowland, the 
 learned Registrar. 
 
 His HONOUR intimated that he had no power to make the order 
 prayed for, but only to make a declaration that it would be 
 advisable to transfer the proceedings, as to which the creditors 
 could afterwards exercise their own discretion under the 80th 
 section of the Bankruptcy Act, 1869. He would, however, allow 
 Mr. Heathfield to amend the motion, and hear him upon it. 
 
 Heathjield then addressed the court, and at the conclusion of 
 his argument, 
 
 His HONOUR, without calling upon Mr. Cooper Willis, who 
 appeared as counsel for the petitioning creditor (instructed by 
 Mr. Streeter), refused the motion, and observed that for the 
 
 (a) County Courts Chronicle, vol. v., p. 487. 
 S
 
 258 REPORTS OF CASES. 
 
 Re ELLIOTT, purpose of conferring the benefit of immediate local justice on 
 the parties concerned, the Legislature had empowered the judges 
 of County Courts having jurisdiction in bankruptcy to delegate 
 their powers to the registrars of their courts. Those gentlemen 
 were generally the most eminent solicitors in the locality, and 
 consequently numbered among their clients the principal com- 
 mercial men and tradesmen resident there or in the neighbour- 
 hood. If the judges delegated their powers to the registrars 
 unreservedly, so that parties must abide by their decision unless 
 they appealed to the Chief Judge and Lords Justices, it would 
 be a serious question whether, in those cases in which the 
 petitioning creditor or any other person interested was a private 
 client of the registrar, the proceedings ought not to be removed 
 to the London Court, although such removal from distant places, 
 as, for instance, Newcastle, or Liverpool, would necessarily be 
 attended with expense, inconvenience, and delay. In the courts, 
 however, over which his Honour presided, he had never delegated 
 his powers to the registrars unreservedly, for he had always made 
 this reservation, that all cases of difficulty and importance, and 
 in all cases in which the parties desired it, should be heard before 
 him, and consequently he seldom attended at a court without 
 hearing numerous applications in bankruptcy. He was sure, 
 however, that it would have been quite unnecessary for him to 
 make this reservation as regards cases like the present, for every 
 registrar would spontaneously desire him to hear all litigated 
 matters in which his clients were interested. The principle of 
 English law and common justice, that a man is not to be a judge 
 in his own case, or in those cases in which he is interested for 
 others, through being nearly related or professionally concerned, 
 was so plain that the registrars would invariably, even without 
 any application, reserve such matters for his Honour's decision. 
 There appeared, therefore, to be no ground for this motion, and 
 it was accordingly dismissed ; the costs of the petitioning 
 creditor to be paid out of the first assets received.
 
 REPORTS OF CASES. 259 
 
 WANDSWORTH COUNTY COURT. 
 
 Tuesday, May 11, 1880. 
 
 (Before H. J. STONOR, Esq., Judge.) 
 
 Re MASSUBINI (in Liquidation), (a) 
 
 Bankruptcy Act, 1869 Parochial rates retain their priority under 
 the 32nd section, notwithstanding registered resolutions of 
 creditors accepting a composition under the 126th section. 
 His HONOUR this day delivered judgment as follows : This is 
 an application under sect. 126 of the Bankruptcy Act, 1869, by 
 the debtor for an order "to restrain the churchwardens and over- 
 seers of the parish of Battersea and their collector of rates, from 
 taking any further proceedings against the debtor upon an order 
 made by the justices of the county of Surrey on the 25th day of 
 March, 1880, for the recovery of the whole of the rates of the 
 said parish, for which he was duly rated and assessed on the 14th 
 day of November, 1879, and which were duly inserted as a debt 
 due by him to the said parish in the statement produced by him 
 at the meetings under the said proceedings, at which the statu- 
 tory majority of the creditors present adopted resolutions accept- 
 ing a composition of Is. in the pound in satisfaction of the debts 
 due to his creditors." The estate of the debtor consisted of 
 furniture, fixtures, and effects of the estimated value of 56L 
 which have been kept in the debtor's possession, no trustee 
 having been appointed of the estate. The debtor has been 
 served with notice of a distress-warrant against his goods, issued 
 in pursuance of the justices' order, but which has not yet been 
 enforced. The substantial question argued before me, and which 
 I have to decide, is, whether the following clause contained in 
 the 126th section, viz., "the provisions of a composition accepted 
 by an extraordinary resolution in pursuance of this section shall 
 be binding on all the creditors whose names and addresses and 
 the amount of the debts due to whom are shown in the statement 
 of the debtor produced to the meetings at which the resolution 
 was passed/' is binding on the parochial authorities, so as to 
 compel them to receive the composition in full of their demand. 
 Primd facie, there can be no doubt that it is so, inasmuch as its 
 terms are general and unqualified, but the 32nd section of the 
 (a) County Courts Chronicle, vol. vii., p. 353.
 
 REPORTS OP CASES. 
 
 Re Bankruptcy Act, 1869, also provides " that all parochial or other 
 MASSUBINI. j oca j ra t es due from him at the date of the order of adjudication, 
 and having become due and payable within twelve months next 
 before such time, shall be paid in priority to all other debts ; " 
 and as in the administration of the debtor's estate either in bank- 
 ruptcy or in liquidation otherwise than by composition, these 
 debts would have priority under the section, it seems monstrous 
 that a majority of creditors should be able by resolution to 
 deprive such debts of their priority ; and I am therefore strongly 
 of opinion that the 32nd section must be held to control and 
 qualify the 126th section in this respect, and on this ground I 
 decline to make the order prayed for. If, however, I am wrong 
 in this view, and these debts fall within the clause in the 126th 
 section above referred to, the debtor can tender the amount due 
 as a composition for these rates to the authorities, and if they 
 subsequently proceed for the whole amount they will in any case 
 be liable to an action. I may add, however, that I have some 
 doubt whether the parochial authorities have now a right to pro- 
 ceed against the debtor by distress or committal under the 
 magistrate's order, and whether they ought not to proceed by 
 motion in bankruptcy in this court. If a trustee had been 
 appointed of the estate, there is no doubt that the latter would 
 have been their proper course, and in that case I should, as at 
 present advised, have granted a similar application against them, 
 but I think, although with some doubt, that I ought to refuse 
 this. 
 
 Application refused. 
 
 WANDSWORTH COUNTY COUET. 
 
 Tuesday, October 18, 1881. 
 
 (Before H. J. STONOE, Esq., Judge.) 
 
 Re PHILIPPART; Ex parte MARIA PHILIPPART, EMMA HARVETT, 
 
 KOSINA PHILIPPART, and EUGENIE PHILIPPART. (a) 
 Liquidation Presents to a married woman by strangers held to be 
 
 gifts to her for her separate use. 
 Dunn for applicants. 
 Maitland for trustee. 
 
 The debtor was the proprietor of a long-established seminary 
 (a) County Courts Chronicle, vol. viii., p. 207.
 
 REPORTS OE CASES. 
 
 261 
 
 for the education of young ladies at Montague House, Richmond, 
 and the applicants were his wife and daughter and two relatives 
 who assisted him in conducting the same, and who respectively 
 claimed certain articles on the premises as their private property, 
 and applied for an order upon the trustee to deliver them up. 
 The only case of doubt or difficulty was that of Madame 
 Philippart, the debtor's wife, who claimed several pieces of plate 
 and other articles of value, which had been given to her in some 
 instances by the governesses and pupils, with inscriptions or 
 written addresses, and in other instances by the mothers of 
 pupils, in recognition of her care, attention, and kindness. 
 
 His HONOUR held, on the authority of Graham v. Lord 
 Londonderry (3 Atk. 393), that she was entitled to the articles in 
 question, which must be considered gifts to her for her separate 
 use, being presents made to her by strangers during her 
 coverture; and ordered the trustee to deliver to Madame 
 Philippart, the articles claimed by her, as well as to the other 
 applicants the articles claimed by them. His Honour also 
 allowed the applicants one set of costs to be divided amongst 
 them. 
 
 Re Philippart; Ex parte Maria Philippart, Emma Harvett, Rosina 
 Philippart, and Eugenie Philippart. It is to be noticed that all real and 
 personal property, acquired by or devolving npon married women after their 
 marriage, is, by the Married Women's Property Act, 1882, declared to be 
 their separate property, whether they were ' married before or after the 
 passing of the Act (45 & 46 Viet. c. 75, sects. 2 and 5). And the same 
 statnte provides that, as regards women married after the Act came into 
 operation, all real and personal property which shall belong to them at the 
 time of marriage shall also be held by them as their separate property: 
 (Ibid., sect. 2.) 
 
 Re 
 
 PHILIP- 
 PART; 
 
 Ex parte 
 MARIE 
 
 PHILLIP- 
 PART; 
 EMMA 
 HARVETT, 
 
 ROSINA 
 
 PHILIPP- 
 
 PAET, 
 
 and 
 
 EUGENIE 
 
 PHILIP- 
 PART. 
 
 SOUTHWARK COUNTY COURT. 
 
 Thursday, March 10, 1881. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 JENNINGS v. WAEREN. (a) 
 
 Composition under sect. 129 of the Bankruptcy Act, 1869. 
 
 Tender by debtor and refusal by creditor to accept composition, 
 
 (a) County Courts Chronicle, vol. viii., p. 66.
 
 262 REPORTS OP CASES. 
 
 JENNINGS and subsequent application by creditor, and refusal by debtor to 
 w v " pay the same. Plea of tender bad. Plea of composition good ; 
 
 and the defendant, having paid composition into court, entitled 
 
 to verdict. 
 Ody for the plaintiff. 
 
 Washington for the defendant. 
 
 In this case the plaintiff sued the defendant for the sum of 
 91. 10s. , balance of an account of 181. goods sold and delivered. 
 Since such balance had become due the defendant had filed a 
 petition of liquidation under the Bankruptcy Act, 1869, and the 
 creditors had, by a resolution passed on the 16th April last, 
 agreed to accept a composition of 2s. 6d. in the pound, payable 
 within six weeks from the registration of the resolution. The 
 defendant had within such period of six weeks tendered the 
 amount of the composition to the plaintiff, who had then refused 
 to accept the same. Immediately afterwards the plaintiff 
 indicted the defendant at the Surrey Sessions for obtaining the 
 goods in respect of which the original debt was incurred by 
 fraudulent pretences. At the trial the chairman of the sessions 
 directed an acquittal. Subsequently the plaintiff, on the 
 4th November, applied to the defendant for the composition, 
 when the defendant unadvisedly refused to pay it, but had now 
 paid the amount into court. The defendant pleaded the 
 composition and tender. 
 
 His HONOUR held that' the tender could not be supported, as 
 the defendant had refused payment on the second application, 
 and to support the plea it was necessary to prove not only that 
 he had tendered the composition within the proper time, but that 
 he had also always been ready to pay the same. His Honour, 
 however, also held that the defendant, having once tendered the 
 composition within the proper time, had complied with the 
 conditions of the resolution, and that the plaintiff was therefore 
 bound by such resolution, and could not recover more than the 
 composition, and that the defendant, having paid the same into 
 court, was entitled to the verdict : (see the cases of Edwards v. 
 Combe, L. Rep. 7 C. P. 519; and Slater v. Jones, L. Eep. 
 8 Ex. 186.) 
 
 Judgment for the defendant with costs.
 
 REPORTS OF CASES. 263 
 
 PART V. 
 MISCELLANEOUS. 
 
 SOUTHWAEK COUNTY COURT. 
 
 Thursday, March 27, 1879. 
 
 (Before H. J. STONOE, Esq., Judge.) 
 
 BUTTIN v. WEEDEEMAN. 
 
 and 
 
 WEEDEEMAN v. BUTTIN. (a) 
 Claim and Counter-claim. 
 
 Matter arising after issue of summons can be pleaded as a 
 counter-claim Separate verdicts ought to be entered on a 
 claim and counter-claim Staples v. Young, Blake v. Appleyard, 
 and Potter v. Chambers considered. 
 
 His HONOUE. The hearing of this case was adjourned, by con- 
 sent, for a week, with liberty to the defendant to file a counter- 
 claim, of which he availed himself. At the adjourned hearing the 
 defendant admitted the plaintiff's claim for 15L 3s. 7d. } and 
 proceeded to prove his counter-claim amounting to 221. 5s. 2d. 
 in respect of two bills of exchange accepted by the plaintiff and 
 indorsed to the defendant. The particulars did not disclose 
 whether the indorsements were made before or after the issue of 
 the summons in the original action, but it was admitted by the 
 defendant that the bills were indorsed to him after the issue of 
 the summons. The plaintiff's counsel took an objection that the 
 bills could not on that account be pleaded by way of counter- 
 claim, but took no other objection. The plaintiff appeared to 
 have been aware of the facts before the adjourned hearing, and 
 should certainly have given notice of the objection to the 
 defendant, and likewise should have been prepared with 
 authorities in support of it; and I cannot help observing 
 that it is particularly the duty of counsel to come prepared 
 with authorities in support of any objection which they intend to 
 
 (a) County Courts Chronicle, vol. vii., p. 84.
 
 264 REPORTS OF CASES. 
 
 BTJTTIN take in County Courts, as, generally speaking, on account of the 
 
 w v ' great pressure of business, and in order to get through the cause 
 
 MAN. list of the day, there is no time to refer to reports or other books 
 
 and during a trial, or to indulge in discussions of points of law. The 
 
 MAN consequence of counsel not being prepared with authorities is 
 
 , v - that the case must be further adjourned (as in the present 
 BUTTIN. . . . 
 instance) for the judge to search for authorities himself, which 
 
 involves additional expense and loss of time to the suitor, and 
 imposes much unnecessary labour upon the judge. In the 
 present case I do not find that the exact point which has been 
 raised has ever been expressly decided, but T find that it has 
 come before the Superior Courts on at least two occasions. In 
 the case The Original Hartlepool Colliery Company v. Gibbs (L. 
 Eep. 5 Ch. Div. 713), the Master of the Eolls expressed his 
 opinion " that matter arising after action could not be made the 
 subject of counter-claim," and thereupon the defendant withdrew 
 the counter-claim, and therefore the present point was not 
 actually decided. On the other hand, in the case of Ellis v. 
 Munson, in the Court of Appeal in November, 1876 (35 L. T. 
 Eep.N. S. 575), it was assumed throughout that matter arising after 
 action brought could be made the subject of counter-claim in the 
 same way as it might be made a matter of defence under Order XX., 
 r. 1, 1875, but it was held that on such a plea the defendant was 
 bound to show when the claim arose, and that a plea which did 
 not state whether the defence arose before or after action brought, 
 the same must by the Common Law Procedure Act, 1852, sect. 8 
 (which still holds good), be deemed to be a plea of matter arising 
 before action ; and as the particulars did not disclose when the 
 counter-claim arose, the present point did not arise, and the 
 court gave no express decision upon it. Eventually, however, the 
 court, disregarding all irregularities in the pleadings, gave judg- 
 ment for the defendant on his counter-claim, specially providing 
 for the plaintiff's costs, in the manner which I shall presently 
 mention. Upon the whole I think that I ought to adopt on the 
 present occasion the view taken by the learned judges of appeal 
 in the last-mentioned case, as being most consonant with the 
 intention of the Judicature Act in creating counter-claims viz., 
 to terminate, if possible, in one action all litigation between the 
 same parties. The following observations of Mellish, L.J., in 
 delivering judgment in the last-mentioned case, appear indeed 
 to apply almost literally to the present : " Where the court is
 
 REPORTS OF CASES. 
 
 265 
 
 enabled to see the exact position of both parties, so that it is 
 clear what the legal result of a trial would be, and when, moreover, 
 the court is abundantly satisfied that there is no real question to 
 try, and that the parties are not at issue upon anything save upon 
 a question of costs, I am of opinion that the court is bound to 
 give directions as to what ought to be done, so that it may pre- 
 vent the parties from proceeding further, and from incurring 
 more expense. We cannot allow this plaintiff and defendant to 
 indulge in technicalities of pleading and devices to embarrass 
 each other, but we must make an order, which it is clear is the 
 only order that can properly be made, and one which will put an 
 end to this waste of money. The plaintiff must pay over to the 
 defendant the balance that is due to him, and must receive from 
 the defendant the costs incurred up to the time when the receipt of 
 the money (in this case the indorsement of the bill) could have 
 been properly pleaded; " and the judgment in the present ought 
 certainly to be so far the same 'as in the last-mentioned case. 
 But a question arises here, whether the defendant ought not to 
 be allowed the costs of his counterclaim, and on that I will hear 
 the plaintiff's counsel if requested ; but if, as I believe, the 
 plaintiff knew the facts of the case before the hearing in time to 
 have admitted the counter-claim, I think that the defendant 
 ought to be allowed his costs. There still remains to be con- 
 sidered what is the right form of the verdict and judgment in a 
 case like the present, and there appears to be unfortunately a 
 great difference of opinion among the judges of the Superior 
 Courts also upon this point. In the case of Staple v. Young 
 (L. Rep. 2 Ex. Div. 325) it was laid down that the verdict and 
 judgment should be for the balance only, and the question of 
 costs be decided solely with reference to that balance : but from 
 the more recent cases of Blake v. Appleyard (3 Ex. Div. 195) and 
 Potter v. Chambers (4 Ex. Div.) it would appear that each party 
 is entitled to a verdict for the amount due to him and (subject to 
 the discretion of the court) to costs on the same respectively, and 
 that judgment should be entered for the balance (if any) due to 
 either party in respect of such amount and costs. This course 
 appears to me to be the most equitable, and is also in strict uni- 
 formity with the County Court form 293, which, in consequence 
 of the case of Staples v. Young, has been departed from in this 
 court : (see the case of Sandell v. Davis, Law Times, vol. 65, 
 p. 423), and I believe in some other courts, but which, according 
 
 BUTTIN 
 
 v. 
 WEEDEE- 
 
 MAN. 
 
 and 
 
 WEEDEE- 
 
 MAN 
 V. 
 
 BUTTIN.
 
 266 
 
 REPORTS OP CASES. 
 
 BUTTIN to the cases of Blake v. Appleyard and Potter v. Chambers, 
 w Vf appears to be perfectly correct. As to the allowance of costs in 
 MAN. these cases, there seems to be a very simple test, at least in the 
 and procedure in County Courts, viz., whether the claim or counter- 
 MAN claim was admitted by the opposite side in due time to save the 
 expense of counsel and witnesses attending at the hearing or not. 
 In conclusion, I venture to add that the present case, like many 
 others, shows the expediency, if not the necessity, of County 
 Court judges (especially in view of extended jurisdiction) being 
 provided in all the circuits with libraries as well as clerks. The 
 absence frequently of professional assistance and the impossi- 
 bility of stopping the business of the court to refer to books 
 or discuss points of law, render such assistance more necessary 
 even to them than to the judges of the Superior Court. Both 
 Houses of Parliament are apparently agreed at present very 
 greatly to increase the jurisdiction of County Courts, and, what- 
 ever other conclusions they may come to, it is to be hoped that 
 provision will in some manner be made in this respect. At 
 present the judges of County Courts are too often called upon to 
 make bricks without straw. There will be a verdict for the 
 plaintiff on his claim for 15Z. 13s. 7d. } and for the defendant on 
 his counter-claim for 221. 5s. 2d. with costs on those respective 
 amounts, and there will be judgment that the difference or 
 balance be paid to the registrar for the party entitled to the 
 same by the other. There will also be leave to both parties 
 to appeal if leave be required, having regard to the amounts of 
 the claim and counter-claim. 
 
 Buttin v. Werderman and Werderman v. Buttin. No appeal was brought 
 in this case. The decisions in the superior courts, upon the question involved 
 in the above case, are very conflicting. Thus the MASTER of the ROLLS 
 (Sir George Jessel), in Original Hartlepool Collieries Company v. Gibbs 
 (5 Ch, Div. 713), held that a counter-claim could only be pleaded in respect 
 of a cause of action which accrued before action brought ; while, on the other 
 hand, in Beddall v. Mailland (17 Ch. Div. 174) and Lees v. Patterson (7 Ch. 
 Div. 866), FRY, J. took an opposite view, which agrees with that adopted by 
 the County Court judge in the above case. Moreover, in ToJce v. Andrews 
 (8 Q. B. Div. 429) it was held that a plaintiff may, in his reply to a counter- 
 claim of the defendant, counter-claim in respect of a cause of action accrued 
 after the issue of the writ, but arising at the same time and out of the same 
 transaction as the counter-claim of the defendant.
 
 REPORTS OF CASES. 267 
 
 SOUTHWAKK COUNTY COURT. 
 
 Monday, April 12, 1880. 
 (Before H. J. STONOK, Esq., Judge.) 
 
 CULLIN V. GOVEK. (a) 
 
 Observations as to judge's notes Commission on sale of a lease 
 
 What is a " ground lease." 
 McColl for plaintiff. 
 
 Marten for defendant. 
 
 When this case was called on, his HONOUE said : Before the 
 trial of this case, which is sent here by the Queen's Bench 
 Division of the High Court of Justice, I wish to make some 
 observations for the guidance of counsel and solicitors as to my 
 taking notes of evidence in the very numerous and important 
 cases which come before this court. My practice is, and always 
 has been, to take notes : first, in all jury cases ; secondly, in all 
 cases in which there is a right of appeal, and also all issues from 
 the High Court of Justice, when I am requested to do so by any 
 party; and thirdly, in all cases in which, from particular 
 circumstances, I have reason to think it desirable. On the trial, 
 some weeks since, of an issue in an action of Harding v. Luck, 
 also sent here by the Court of Queen's Bench, I was informed 
 by the Bar before the trial commenced, that it was a very simple 
 case, namely, whether goods had been supplied upon three 
 months' credit or not, and that it would depend principally on 
 the course of dealing between the parties, which appeared by the 
 books of account subsequently put in evidence. This did not 
 seem to me to be a case in which it would be right to spend the 
 time of the court in taking notes, and the parties (who were 
 perfectly aware that I was not taking notes) did not request me 
 to do so. On the motion for a new trial of the action, which was 
 heard last Thursday in the Court of Queen's Bench, the Lord 
 Chief Justice is reported to have said : ' ' In undisputed cases in 
 County .Courts it would not be necessary for the judge to take a 
 note ; but in other cases, and especially in one like the present, 
 which had been sent down to the County Court for trial, it was 
 the duty and business of the judge to take a sufficient note, and 
 it was not necessary to show that he had been asked by either 
 party to take it." I can hardly think that this report is correct ; 
 
 (a) County Courts Chronicle, vol. vii., p, 338.
 
 268 REPORTS OF CASES. 
 
 CULLIN but, if so, with very great respect for the Lord Chief Justice, I 
 r v ~ must venture to make the following observations. In Best's 
 
 . Treatise on Evidence, 6th edit., by Russell (1875), p. 311 (a 
 
 work of the greatest authority), it is clearly laid down that "a 
 judge only takes notes for his. own private convenience. There 
 is no law requiring him to do so ; " and the case of Leach v. 
 Simpson (5 M. & W. 309) is referred to, which fully supports 
 the proposition in the text. And if this is true of the judges of 
 the Superior Courts and magistrates at common law, it is true a 
 fortiori as to the County Court judges, whose offices are created and 
 duties regulated by statutes, and which statutes impose no such 
 duty on them, except in a special case which I shall presently 
 notice. Accordingly, it has been over and over again decided 
 that a suitor is not entitled to a copy of the County Court judge's 
 notes for preparing a case for appeal on points of law and 
 evidence under the County Court Act, 1850, sect. 14, and that 
 the suitors are bound to prepare their cases from the notes taken 
 by themselves, their legal advisers, or others, without the 
 assistance of the judge's notes, although, of course, if the 
 parties differ the judge refers to his notes on the settlement of 
 the case. Again, by the County Courts Act 1875, sect. 6, 
 a limited obligation was for the first time imposed on the 
 judges to take notes, if requested, of evidence relating to points 
 of law specially raised at the trial, clearly showing that the judge 
 was not under any general obligation to take notes of evidence. 
 As I have already intimated, I consider it desirable that a judge 
 of a County Court should take a note of the evidence on any 
 issue if the parties request it, and, of course, if the High Court 
 desire it. But I feel bound to deny that there is any general 
 obligation to take notes under the statutes which wholly regulate 
 the practice of County Courts. The allegation which I under- 
 stand has been made that notes of evidence are necessary on a 
 motion for a new trial in the High Court is incorrect, as the 
 parties might provide themselves with shorthand writers' notes, 
 the course pursued every day on appeals in bankruptcy. With 
 regard to the practibility or advisibility of County Court judges 
 taking notes in all defended cases, I hope that the Lord Chief 
 Justice will make inquiries of some of his brother judges who 
 are well acquainted with County Court practice, and I may 
 mention particularly Pollock, B., who both practised and pre- 
 sided in County Courts, and to whom, jointly with Mr. Nicol, we 
 are indebted for the valuable "Book of Practice " in daily use in
 
 REPORTS OF CASES. 269 
 
 our courts. I am sure he will learn that if County Court judges CULLIN 
 took notes of all the defended cases in the larger courts there 
 would soon be a serious failure of justice through the accumula- 
 tion of arrears, from which the County Courts have hitherto 
 been happily free ; and, further, that in all courts, large or 
 small, the taking of notes in all defended cases would interfere 
 very much with the examination and cross-examination of 
 witnesses, inspection of account books and other documents, often 
 most illegible and confused duties which fall on County Court 
 judges in nine cases out of ten, and which fall very rarely on 
 the judges of the Superior Courts. 
 
 The case before the court, which was an action brought by an 
 estate agent against a vendor for 33L, being the balance of com- 
 mission on sale of a lease, then proceeded, and involved the 
 question, what is a " ground lease." The evidence for the 
 plaintiff was, that according to custom a ground lease was a lease 
 on which an improved rental or value had arisen from building 
 or otherwise to the extent of at least four times the original 
 value, and that in the present case such improved value being 
 only 320Z. on an original rent of 140Z., the lease was not aground 
 lease. 
 
 His HONOUE said that he thought it was impossible to draw a 
 line as suggested, and that upon the evidence before him he 
 should hold that in every case where there was a substantial 
 improved rental or value, as in the present case, the lease must 
 be considered " a ground lease ; " and the trial resulted in a 
 verdict for the defendant. 
 
 Cullin v. Gover. The observations, above reported, on the subject of the 
 taking of notes by County Court judges, are extremely valuable, proceeding 
 as they do from one who has for so many years occupied a seat on the County 
 Court Bench, and whose decisions have stood the test of appeal so well. 
 As pointed out by him, the Common Law does not impose on County Court 
 judges the duty of taking notes, though it is desirable that they should do so 
 when they are trying issues remitted to them from the High Court, or where 
 there is a reasonable prospect of an appeal, or in special case. Unquestionably, 
 therefore, the 6th section of the County Courts Act, 1875, by imposing 
 upon County Court judges the obligation to take notes, when requested to do 
 so by either party to a County Court action, has materially increased their 
 arduous judicial labours. This enactment has been the subject of much dis- 
 cussion in the High Court, and the decisions upon its construction are some- 
 what difficult to reconcile. It is, however, submitted that they establish the 
 following propositions, namely : (1) That it is a condition precedent to the 
 right of appeal by motion that the question of law upon which it is desired 
 to appeal should have been raised before the County Court judge at the trial
 
 270 
 
 REPORTS OF CASES. 
 
 CULLIN 
 
 V. 
 GOVEB. 
 
 (ClarTeson v. Musgrave, 9 Q. B. Div. 386; Morgan v. Rees, 6 Q. B. Div. 508, 
 514; Rhodes v. Liverpool Commercial Investment Company, 4 C. P. Div. 
 425) ; (2) that the request to the County Court judge to take a note of the 
 evidence must, in order to satisfy the statute, be a request to take a note of such 
 evidence in relation to a specific point of law (Morgan v. Rees, 6 Q. B. Div. 
 508, 513, 514), and that a general request to take a note of evidence, before 
 the point of law has arisen, is insufficient (ibid.) ; and (3) that, provided the 
 question of law upon which it is desired to appeal be raised before the 
 County Court judge, the appeal will be entertained, if, in fact, an adequate 
 note has been taken by the judge, though without previous request made to 
 him by either party (Seymour v. Coulson, ubi supra ; per FIELD, J., in 
 Clarkson v. Musgrave, 9 Q. B. Div. 392), or, semble, if the Court to which 
 the appeal is brought chooses, in its discretion, to direct, under the High 
 Court Order of the 22nd January, 1877, that the appeal motion shall be heard 
 otherwise than upon notes signed by the judge : (per COLERIDGE, C.J. and 
 FIELD, J. in Morgan v. Rees, 6 Q. B. Div. 92 ; and per BRAMWELL, L.J. 
 in Morgan v. Rees, ibid., 513.) For further information upon the subject 
 referred to in this note (see County Court Practice, by G. Pitt-Lewis, 
 assisted by H. A. de Colyar, 2nd ed., p. 600, et seq.). And as to the form of 
 the judge's note, see pp. 147 and 158, ante. 
 
 The case of Harding v. Luck, referred to in the above judgment, and 
 which was sent back by the Queen's Bench for a new trial, came on for 
 hearing in the Southwark County Court on Friday, the 8th May, 1880, before 
 the judge and a jury. The jury found that only one month's credit was 
 agreed to be given, being the same conclusion as the judge arrived at on the 
 former occasion, and there was a verdict for the plaintiff for the amount 
 claimed, 40L 11s. Raymond for the plaintiff, and Scard for the defendant 
 (Law Times, vol. xlix., p. 48). 
 
 WANDSWORTH COUNTY COURT. 
 
 Tuesday, March 2, 1869. 
 
 (Before H. J. STONOR, Esq., Judge.) 
 
 MORRIS v. THE LONDON AND SOUTH- WESTEEN RAILWAY 
 
 COMPANY, (a) 
 The Superior Courts have no power to refer issues of interpleader 
 
 to the County Courts. 
 Wright for the plaintiff. 
 Mangles for the defendants. 
 
 This was an issue of interpleader in the Court of Queen's 
 Bench, and which was referred to this court by an order on the 
 25th Jan. 1869. 
 
 Mangles submitted that the Superior Court had no power to 
 refer this issue, and that the court had no power to try it, and 
 
 (a) County Courts Chronicle, vol. i., p. 463.
 
 EEPORTS OP CASES. 271 
 
 that if it did try it, even with the consent of parties, the verdict MOREIS 
 would be a nullity. 
 
 His HONOUR called upon the counsel for the plaintiff to show AND SOUTH- 
 
 him under what Act of Parliament, and what section of such Act, WESTEBN 
 
 . RAILWAY 
 
 this issue was referred. COMPANY, 
 
 Wright, for the plaintiff, admitted that he could not find any 
 section of any Act of Parliament in point, but understood that 
 the practice of the Superior Court was to refer such issues to 
 County Courts. 
 
 His HONOUE said the Superior Courts have power, under 
 the Act of 1867, to refer actions in contract after issue joined up 
 to 50Z., and actions of tort, where the defendant is unable to give 
 security for costs. This was, strictly speaking, not an action at 
 all, but merely an issue raised for the protection of the officer of 
 the Superior Court. It was not in the nature of contract, but of 
 tort, and there had been no inquiry or application as to the costs. 
 It was clear that this court had not jurisdiction, and the order 
 will be so endorsed. 
 
 Mangles applied for costs. 
 
 Wright resisted the application, on the ground that the order 
 had been made by mistake of the Superior Court. 
 
 His HONOUR refused costs. 
 
 Mangles applied to have such refusal added to the return, and 
 his Honour consented. 
 
 His HONOUE subsequently endorsed the writ as follows : 
 
 " The issue mentioned in this order came on for trial at the 
 County Court for Surrey, holden at Wandsworth on the 2nd 
 March, 1869, when the defendant's counsel objecting, and the 
 plaintiff's counsel admitting, and it appearing to the court that 
 the court had no jurisdiction to try such issue, the same was not 
 tried, and no order was made thereon, the plaintiff's counsel 
 offered to consent to the same being tried in order to give the 
 court jurisdiction, but the defendant's counsel refused to consent 
 thereto, on the ground that such consent would not give the 
 court jurisdiction ; whereupon the plaintiff's counsel applied for 
 costs, and the defendant's counsel opposed such application, and 
 the court refused the same, on the ground that this order had 
 been made in mistake. 
 
 HENRY JAMES STONOE, 
 Judge of the above-named Court. 
 
 9th March, 1869. 
 
 The defendants took out a summons at chambers to show
 
 272 REPORTS OF CASES. 
 
 MORRIS cause why the interpleader order in this action should not be 
 
 T v ~ amended by striking out the words with reference to the trial of 
 
 AND SOUTH- the issue thereon directed, at the County Court of Surrey holden 
 
 WESTERN a ^ "VVandsworth, the Judge of the County Court having no power 
 
 -IvAILWAY . . in*' n i i 
 
 COMPANY, to try an interpleader issue from the buperior Court binding on 
 the parties. 
 
 On the 10th May, 1869, this order was heard before Mr. Justice 
 Hannen. 
 
 Wright for plaintiff. 
 
 Wood for defendants. 
 
 The return of the judge of the County Court was placed before 
 Mr. Justice Hannen, and he held that there had been a mistake 
 in sending this issue to the County Court, and directed the order 
 to be amended accordingly. 
 
 Morris v. The London and South-Western Railway Company. The 
 power to remit cases from the High Court to the County Courts, is conferred 
 by the County Courts Act, 1856, and by the County Courts Act, 1867. By 
 the former Act (19 & 20 Viet. c. 108), any issue between the parties to an 
 action of contract pending in the High Court, may be remitted, for trial 
 only, in the County Court, where the claim indorsed on the writ does not 
 exceed 501. (sect. 26). And, on the other hand, the latter Act (30 & 31 Viet, 
 c. 142), enables a transfer to be made from the High Court to the County 
 Court (not for trial only, but for all purposes whatsoever) of any action of con- 
 tract, where the claim indorsed on the writ does not exceed 50?. (sect. 7), of all 
 actions of tort brought by plaintiffs who have no visible means of paying a 
 successful defendant his costs (sect. 10), and of Chancery actions which 
 might have been instituted in the County Courts (sect. 8). Now it is certain 
 that an order to remit a case from the High Court can be lawfully made, only 
 where the case falls within one or other of the classes above specified, the 
 enactments governing the subject being, it would seem, not merely permissive 
 in their operation, but restrictive (per FIELD, J., in Knight v. Abbott, 10 
 Q. B. Div. 12, 13). Clearly, therefore, the County Court judge was perfectly 
 right in holding, in the case above reported, that an interpleader issue 
 pending in the Superior Court, could not be remitted to him for trial. For 
 such a proceeding is certainly not an action, and cannot therefore be within 
 any of the provisions of the County Courts Act, 1867, which, as already 
 stated, contemplates the transfer of actions only. Nor, on the other hand, 
 is it such an issue as may be remitted for trial in the County Court, under 
 sect. 26 of the County Courts Act, 1856, as this enactment applies only to 
 issues pending between the parties to an action of contract, and an inter- 
 pleader issue is one pending, not between the parties to the original action, 
 but between one of such parties and a third person ; being raised, as the 
 County Court judge expresses it, " for the protection of the officers of the 
 Superior Court." Moreover, it would appear that, even by mutual consent, 
 jurisdiction to try such an issue could not have been effectually given to the 
 County Court judge. For the power given to the parties to confer upon him 
 jurisdiction by consent can only be exercised " with respect to all actions
 
 REPORTS OF CASES. 273 
 
 which may be brought " in any Superior Conrt of Common Law " (19 & 20 MORRIS 
 Viet. c. 108, s. 23). And it is essential that, after the consent has been duly v. 
 
 signified, a plaint and summons shall be issued out of the County Court, in LONDON 
 the usual way, as the parties cannot, even by agreement, dispense with the A ^? botrTH ' 
 necessity for adherence to the ordinary mode of procedure (Pearce v. Wink- RAILWAY 
 ivorth, 28 L. T. Rep. N. S. 710), and if an action has already been commenced in COMPANY. 
 the High Court, it must be discontinued before the action in the County 
 Court is actually tried (Order XVI., r. 10). 
 
 On the other hand, in cases where the alleged invalidity of the order 
 remitting a cause to the County Court proceeds, not from any want of juris- 
 diction on the part of the High Court to make it, but from some defect of 
 form or procedure not apparent on its face, it is the duty of the County 
 Court judge to act upon it. Thus, in Blades v. Lawrence (L. Rep. 9 Q. B. 
 374) it was held that where an order purporting to be made by a judge at 
 chambers, and bearing the signature of the judge impressed upon it by a 
 stamp, in the usual way, transferring a cause from the Superior Court to the 
 County Court, is served on the judge of the County Court, he is bound to 
 obey the order, and cannot inquire into the circumstances under which it was 
 made. 
 
 It may be well to mention that it has been held, in the very recent case of 
 Knight v. Abbott (10 Q. B. Div. 11) that the High Court has no power under 
 19 & 20 Viet. c. 108, s. 26, to remit an action of contract for trial in a 
 County Court (even though the writ be indorsed for a specified sum) if the 
 action be for unliquidated damages. 
 
 SOUTHWARK COUNTY COURT. 
 
 Monday, April 2, 1883. 
 (Before H. J. STONOR, Esq., Judge.) 
 
 MAECUSSEN v. ADRIAN, (a) 
 The County Gourt has no power to try issues in actions of tort sent 
 
 to be tried by High Court County Courts Acts, 1856, s. 26. 
 Sims for plaintiff; Cock for defendant. 
 
 This was an action for damages for a tort, brought in the High 
 Court, and in which a statement of defence and reply had been 
 delivered and was therefore at issue. The Master of the Queen's 
 Bench had made an order upon hearing the solicitors on both 
 sides, and by consent, that the issues of this action be tried 
 before the judge and a jury at the County Court at Southwark. 
 The order did not state as usual under what statute it was made. 
 No jury had been summoned. 
 
 His HONOUR said that the 26th section of the County Courts 
 Act, 1856, which alone gave him jurisdiction to try issues from 
 
 (a) County Courts Chronicle, vol. ix., p. 89. 
 T
 
 274 REPORTS OF CASES. 
 
 MARCUSSEN the High Court, was confined to actions of contract, and that 
 v - therefore he had no jurisdiction to try the present issues. 
 
 Cock said that this had occurred to him also, but he was willing 
 
 to consent to his Honour trying them. 
 
 His HONOUE said that he had no power to try issues except under 
 the above section, even by consent, and asked why the entire 
 action was not remitted under the 10th section of the County 
 Courts Act, 1867. 
 
 Cock replied that the defendant could not have made the 
 necessary affidavit that the plaintiff had no visible means of 
 paying the costs so as to bring the case within that section. 
 
 His HONOUR said that was no doubt the reason this order had 
 been obtained from the master, who had evidently been misled, 
 and that he should make a return to the High Court to the effect 
 that he had no jurisdiction to try the issues in question, and 
 therefore had not tried the same. 
 
 The cause was then struck out of the list. 
 
 Marcussen v. Adrian. See the note to MORRIS v. LONDON AND NORTH- 
 WESTERN RAILWAY COMPANY, ante, p. 272. 
 
 SOUTHWARK COUNTY COUET. 
 
 Monday, Feb. 2, 1880. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 Imprisonment for debt, (a) 
 
 AT the opening of the court his HONOUE made the following 
 observations : I am not in the habit of making any observations 
 in my courts beyond those which are strictly necessary for the 
 discharge of my judicial duties ; but before I proceed to the 
 business of the day I think it will be advantageous if I make a 
 few observations on a question which has recently been raised in 
 the public press, viz., the abolition of imprisonment for debt. I 
 regret to say that, in consequence of that question being so 
 raised, there is already, as I am informed, a great increase of 
 judgment summonses in many courts ; and this circumstance is 
 more noticeable because, in times of pressure like the present, 
 
 (a) County Courts Chronicle, vol. vii., p. 297.
 
 REPORTS OF CASES. 275 
 
 there is in general a falling off in judgment summonses, as 
 creditors, both for their own interest and from consideration for 
 their debtors, wait for better times to enforce their judgments. 
 The subject also is one to which during the fifteen years I have 
 had the honour of filling my present office I have given my 
 constant attention, and the various aspects of which I have had 
 ample opportunities of considering in the two important circuits 
 over which I have presided. The real question, as pointed out 
 in an able leading article which appeared in the Times on the 
 27th ult., is, whether the labouring man in this country ought to 
 have credit or not; in other words, whether in the various 
 contingencies to which he is exposed from sickness, bad weather, 
 want of employment, and other causes, the labouring man ought 
 to be able to obtain necessaries from retail dealers on credit, to 
 be paid for by him out of his subsequent earnings (for which it 
 is obvious there can be no security but the penalty of imprison- 
 ment), or whether he ought to be compelled, by the absence of 
 all credit, to save sufficient out of his wages to provide for such 
 contingencies, with the sole alternatives of seeking refuge in the 
 workhouse or obtaining the necessaries of life through the truck 
 system. Now I cannot help remarking at the outset that in this 
 country, where the climate and the labour market are equally 
 uncertain, and the rate of wages in so many districts and 
 localities exceptionally low, it is quite idle to expect the labouring 
 man to provide by his own savings for the extraordinary 
 contingencies to which he is liable ; and therefore, in my humble 
 opinion, the limited credit which he requires and now obtains is 
 not only a benefit but a necessity, both as regards himself and 
 the rest of the community. Assuming, however, for the present 
 that theoretically it would be desirable and possible to deprive 
 the labouring man of credit in order to force him to heroic acts 
 of providence by the pressure of want, we must consider what 
 would be the practical effects of such a measure socially and 
 financially at the present time. To anyone who is well acquainted 
 with the agricultural districts, there can be no doubt whatever 
 that at the first protracted winter the great bulk of the labouring 
 class, if deprived of credit, would be driven into the union, and 
 their homes broken up ; and what is true of a protracted winter 
 is also true of many other circumstances which may interfere 
 with the demand for labour. Pressure of this kind on 
 the labouring classes must also fall on their employers in 
 
 T 2
 
 276 REPORTS OP CASES. 
 
 the shape of poor rates, and many other burdens. Nor 
 would the labouring class or their employers be the only 
 sufferers. The advocates of the abolition of imprisonment 
 for debt indeed constantly assert that the only class of 
 the community directly interested in this question besides 
 the labouring class are what are called tallymen, that is to 
 say, travelling traders who sell articles, chiefly of clothing, to 
 the labouring classes upon credit. But there is another and a 
 very large class of traders wholly dependent upon the labourers' 
 credit which would be entirely ruined by its destruction, videlicet, 
 the smaller retail provision dealers in every town and village, who 
 provide the labouring class with the necessaries of life, and who 
 often form the sole connecting, and I may say, civilising, link 
 between the labouring class in rural districts and the inhabitants 
 of county and other large towns. If the labourers' credit be 
 destroyed, the occupation of these retail traders will be utterly 
 gone, and they will be obliged to seek employment in towns or 
 emigrate, as their previous habits have not qualified them for the 
 labour market. In large towns, and especially manufacturing 
 towns, undoubtedly credit is not so absolutely necessary for the 
 labouring class as in the rural districts ; wages are higher, and 
 may afford a margin for saving, and more channels of labour are 
 always open ; but certain it is that the same causes will produce 
 the same effects there also, although probably with less intensity. 
 Another result of the abolition of the labouring man's credit 
 would, as I have already intimated, be the revival of what is 
 termed the truck system. In the absence of the small provision 
 shops it would be absolutely necessary in agricultural and remote 
 districts, and probably of common practice in towns both large 
 and small, for the employers of labour, whether agricultural or 
 manufacturing, to provide stores where the labouring man 
 would be compelled to purchase necessaries with his savings, 
 often by way of anticipation, and thus the only credit which 
 would remain to him would be with his employer, which is 
 admitted to be most objectionable on many grounds, and contrary 
 to the policy of the Legislature in the Truck Act (1 & 2 Will. 4, 
 c. 27), if not precisely illegal. I will now consider the subject 
 from the financial point of view, which of course is secondary, 
 but still important. In the leading article in the Times, to which 
 I have referred, the annual imprisonments for debt in County 
 Courts are taken at 5000, in respect of upwards of 1,000,000
 
 REPORTS OF CASES. 277 
 
 actions in a year, but for round numbers I will take them at 
 5500, being 100 for each of the fifty-five County Court Circuits, 
 which is the correct number of circuits at present, four circuits 
 out of fifty-nine having been absorbed since 1867 ; that is to 
 say, their judicial work divided amongst other circuits. In a 
 letter recently addressed to the Times by a correspondent from 
 the Temple, the average period of imprisonment of each prisoner 
 is stated to be twenty-one days. This is, I believe, too high. 
 In my court, and in many others, ten days is the almost invariable 
 period. I am content, however, to take the average at twenty-one 
 days, and I think it right to say that I entertain grave doubts, 
 caused by the experience of other courts, and particularly by the 
 practice of the Birmingham County Court, presided over by my 
 friend, Mr. Motteram, and its great success, whether longer 
 terms do not produce fewer and shorter imprisonments at the 
 same time as they produce larger payments by debtors. But to 
 return to the financial aspect of the subject, I have reason to 
 believe, from inquiries I have made, that the maintenance of a 
 prisoner for twenty-one days in prison cannot possibly be 
 considered as more than 11. } and that the costs of conveyance, 
 which are frequently very high, on account of the distance some 
 prisoners have to be conveyed to county prisons, would, I 
 understand, average under 1 Z., giving an average of say 200?. for 
 100 prisoners for each circuit. The whole expense of the fifty- 
 five circuits would thus be 11,000?. Now there can be no doubt, 
 as I will presently show, that the loss in fees by the diminution 
 in business in what has been called the debt-collecting portion of 
 County Court business consequent on the abolition of imprison- 
 ment for debt would, in a single large circuit, or at all events in 
 two of the larger circuits, exceed that amount, and the aggregate 
 loss would in all probability exceed one-half the present receipts 
 from all the County Courts (upwards of 500 in number) say 
 450,000?., and therefore amount to say 225,000?., of which much 
 the larger portion would fall on the registrars and the high 
 bailiffs, but the residue would fall, as far as I can ascertain, in 
 the proportion of one-fifth, say 45,000?., on the Treasury. That 
 a very great diminution of the debt- collecting business would 
 thus ensue may be proved, if proof be necessary, by a singular 
 circumstance, which is not, I believe, generally known. In the 
 year 1844, in consequence of the passing of the 57th section of 
 the Bankruptcy Act (7 & 8 Viet. c. 95), the experiment of the
 
 278 REPORTS OF CASES. 
 
 total abolition of imprisonment for debts under 20L was actually 
 tried for one year. In the following year imprisonment for 
 debts under 20Z. was practically revived by the 1st section of 
 8 & 9 Viet. c. 127, passed upon the Report of a Select Committee 
 of the House of Lords, which originated the present system of 
 judgment summons in all courts of record, and in the following 
 year County Courts were established, superseding the old small 
 debt courts ; and by 9 & 10 Viet. c. 95, s. 98, the same power of 
 imprisonment was given to them, and, to complete the history of 
 the present system of judgment summons, I may add that in 
 1869 imprisonment for debt in cases above 201. was abolished, 
 and the same powers as County Courts have in judgment 
 summons were given to the superior courts, and which they now 
 daily exercise no doubt most beneficially in cases where 
 people, having ample means to pay debts of larger amounts than 
 generally come before County Courts, but no available effects, 
 would otherwise defraud their creditors. But the singular cir- 
 cumstance to which I wish to draw attention is, that during the 
 one year that imprisonment for debt wholly ceased the business 
 of the old small debt courts fell off very considerably, as I am 
 informed one-half, and an allowance was made in that respect in 
 the compensation subsequently awarded to the officers of those 
 courts. It has been assumed by the advocates of the abolition 
 of imprisonment for debt that there would be a saving subse- 
 quent thereon in the number of judges, registrars, and high 
 bailiffs in County Courts, and which would be a set-off against 
 any financial loss. Now, as to the judges, there would be no 
 such saving, for the diminution in business would be almost 
 exclusively in the debt-collecting cases, which are disposed of 
 by the registrar or by agreement, and not in the contentious 
 business which goes before the judge. As to the registrars, 
 there could only be a trifling saving in some few small courts, 
 which even now might be safely abolished ; and as to the high 
 bailiffs, there would be no reduction in point of numbers, as they 
 are now in course of reduction, and will in future only be 
 attached to the larger courts. As to both registrars and high 
 bailiffs, and other officials, the expense of maintaining them falls 
 wholly on the suitors, and in many large courts there is a large 
 surplus of fees, after paying their salaries and all expenses of 
 the court, which goes to the Government, and is applicable to 
 the general expenses of the County Courts, and in respect of
 
 REPORTS OF CASES. 279 
 
 which there would o course be a considerable loss. To resume 
 these observations, the destruction of the labouring man's credit 
 by the abolition of imprisonment for debt would press grievously 
 on the labouring classes, and often on their employers, would 
 ruin the small traders, and would result in a financial loss to the 
 country of a very serious amount. It is a singular thing that the 
 late discussion has arisen from a rather impatient exclamation of 
 one of my fellow judges, who is reported to have declared that 
 " if there was one part of his work more than another which he 
 hated it was the granting of judgment summonses." I confess 
 this is not the classification of my duties which I should be dis- 
 posed to make; and although no doubt in the wide field of County 
 Court jurisdiction, wider than that exercised by any single 
 judge of the Superior Court, I have far more agreeable duties 
 than that of adjudicating on judgment summonses, I am per- 
 fectly content carefully and conscientiously to perform this duty, 
 which secures the credit of honest debtors, and at the same time 
 protects the just rights of creditors, often in no better circum- 
 stances than the debtors themselves. 
 
 Washington, at the conclusion of his Honour's observations, 
 said that, on the part of himself and his brother solicitors prac- 
 tising in the court, and he might say of the suitors, he thanked 
 his Honour very much for what had fallen from him. He would 
 venture to add that the only alteration they would wish would 
 be that his Honour would not be so invariably lenient as to the 
 terms of imprisonment. Many dishonest debtors preferred to 
 remain in prison for ten days sooner than pay their debts. 
 
 Ody concurred in Mr. Washington's remarks, and added that 
 it would be most desirable that a more uniform practice as to the 
 duration of imprisonment should prevail. In this court ten days 
 was the almost invariable period, whilst in the adjoining court of 
 Lambeth it was forty, and at Croydon it had been reduced from 
 ten to seven. 
 
 His HONOUE said that uniformity no doubt was desirable, but 
 it was obviously very objectionable to alter the long- established 
 practice of any court. For his own part, he never did so without 
 a very strong case indeed being made out, but he would continue 
 to give his best consideration to the subject.
 
 280 REPORTS 01* CASES. 
 
 SOUTHWARK COUNTY COURT. 
 
 Monday, Feb. 14, 1881. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 EVES v. RAFTEEY. (a) 
 Leaseholds Execution in County Court judgments County Courts 
 
 Act, 1846, s. 94. 
 
 Leaseholds can be taken in execution for debts due on County Court 
 judgments, under the County Courts Act, 1846, s. 94. Such debts 
 are not " charges " on leaseholds before execution, like judgments of 
 Superior Courts under 1 fy 2 Viet. c. 110, s 13, but can be made 
 charges and enforced in equity by the County Court according to 
 the practice of the Court of Chancery before the above Act, under 
 the Judicature Act, s. 89. 
 
 His HONOUE gave the following judgment upon an ex parte 
 application this day : The plaintiff in this case has obtained a 
 judgment for the sum of 54L 8s. debt and costs in an action 
 remitted to this court by the Exchequer division of the High 
 Court of Justice, and now applies for an injunction to restrain 
 the defendant from disposing of his equitable interest in certain 
 leasehold premises, and for the appointment of a receiver to 
 collect the rents of the same until the further order of the court. 
 In support of this application it was contended, first, that this 
 judgment was at present a "charge" upon the leasehold premises 
 in question, enforcible in equity, and in respect of which there- 
 fore an injunction could be granted and a receiver appointed, 
 according to the case of Smith v. Cowell, decided by Baggallay, 
 Brett, and Cotton, L.JJ., on the 24th November last (43 L. T. 
 Rep. N. S. 528) ; but I think that this argument rests upon 
 a fallacy viz., that the judgment of this court is a " charge " on 
 the leasehold property in question. The judgments of the 
 Superior Courts are no doubt "charges" upon the defendant's 
 freehold, copyhold, and leasehold property, under 1 & 2 Viet. 
 c. 110, s. 13; but the judgments of this court are not by any 
 enactment made (f charges " upon such property, and they are 
 not enforcible by execution against the real estate of the defen- 
 dant, but only against his " goods and chattels " under the 94th 
 section of the County Courts Act, 1846. The first question to be 
 considered obviously is, whether the terms "goods and chattels" 
 
 (a) County Courts Chronicle, vol. viii., p. 51.
 
 REPORTS OF CASES. 281 
 
 include leasehold property which are "chattels real." In EVES 
 Pollock and Nicols's County Court Practice (9th edit., p. 210) it 
 is clearly laid down that these terms do include leasehold pro- 
 perty to which the defendant is legally entitled; but the contrary 
 view appears to be adopted in Mr. Pitt-Lewis's recent elaborate 
 treatise on County Court Practice (p. 610), where " personal 
 chattels only " are stated to be included in the above terms. I 
 confess that I can see no ground for so narrowing the operation 
 of the terms under consideration and depriving them of their 
 ordinary legal significance, and on inquiry I have ascertained 
 that leaseholds have in fact been taken and sold under County 
 Court executions, although not frequently. The second question 
 to be considered is whether, in cases like the present, where an 
 execution has been taken out against leaseholds and proved 
 abortive in consequence of their being in mortgage, and the 
 defendant consequently not having the legal estate, this 
 court has any power to charge his equitable interest, which is 
 evidently a necessary condition for granting an injunction 
 against his dealing with the same or appointing a receiver of 
 rents as prayed. Now, it is quite clear that under the County 
 Courts Act, 1865, conferring an equitable jurisdiction on this 
 court, it has no such power, inasmuch as the present case does 
 not fall within any of the subject-matters as to which a limited 
 equitable jurisdiction is so conferred. But I think that this 
 court has the power in question under the 89th section of the 
 Judicature Act, 1873, if the Court of Chancery had such a power 
 before 1 & 2 Viet. c. 110, in respect of judgments of the 
 Superior Courts, which, as I have already observed, first made 
 such judgments " charges " on leaseholds as well as on 
 freeholds and copyholds. On this point, strangely enough, there 
 is (as far as I can discover) no judicial decision, but there is 
 the strong expression of opinion of Stewart, V.C., in the case of 
 Gore v. Bowser (24 L. J. 316 ; 3 Sm. Giff. 1), and the clear 
 inclination of opinion of Knight Bruce, L.J. in the same case on 
 appeal (24 L. J. 440), that the execution creditor was entitled, 
 through the medium of a court of equity, to an equitable term 
 belonging to his debtor, before the statute 1 & 2 Viet. c. 110, 
 although ultimately it became unnecessary to decide the point, 
 inasmuch as on appeal it was held by Knight Bruce and Turner, 
 L.JJ., that since that statute the equitable term of a defendant 
 was by the 1 3th section subject to a charge or lien in respect
 
 282 REPORTS OF CASES. 
 
 EYES of a judgment of the Superior Courts. Following the opinions 
 
 v ' of the two eminent nudges whom I have named, and. as I believe, 
 RAFTERY. J 
 
 the subsequent practice of the Court of Chancery, I shall hold 
 that previously to the statute 1 & 2 Viet. c. 110, the Court of 
 Chancery would, in a case like the present, have given the 
 judgment creditor a declaration that the equitable term of the 
 defendant was liable to his debt at all events after execution 
 taken out as in the present case and would consequently have 
 given an injunction against any further dealings with the term, 
 and appointed a receiver provisionally in anticipation, as well as 
 absolutely in consequence, of such declaration ; and I think that 
 the plaintiff is now entitled to the like relief. In other words, I 
 look upon the present case as substantially the same as a 
 judgment of the Superior Courts affecting leaseholds before the 
 passing of the statute 1 & 2 Viet. c. 110. The plaintiff, however, 
 ought, I think, in the first instance to commence an action or give 
 notice of a motion, as he may be advised, (a) for a declaration 
 that the defendant's equitable interest in the leasehold premises in 
 question is liable to the payment of the judgment debt (see Anglo- 
 Italian Bank v. Dames, L. Rep. 9 Ch. Div. 229), and upon 
 his so doing I will make the order now prayed until the trial or 
 hearing of such action or motion, or the further order of the 
 court, the plaintiff undertaking to abide by any order of this 
 court as to damages or costs. 
 
 Solicitors for plaintiff, Keene, Marsland, and Bryden. 
 
 (a) See concluding observation in Yice- Chancellor STUART'S judgment 
 in Gore v. Bowser (ubi sup.) as to the declaration of liability. 
 
 Eves v. Raftery. The above judgment decides a question of practical 
 importance to suitors in the County Courts. Unquestionably, the power to 
 take leaseholds in execution for the satisfaction of a County Court judgment 
 confers a great boon upon County Court judgment creditors. For the trouble 
 and expense of removing judgments into the High Court for the purpose of 
 execution, under 19 & 20 Viet. c. 108, s. 49, is not inconsiderable. This 
 course must, however, be adopted whenever it is desired to obtain execution 
 against freehold property of the judgment debtor. The execution then issues 
 not on the County Court judgment as such, but on the judgment after it has 
 been removed into and has become a judgment of the High Court: (see 
 County Court Practice, by G. Pitt-Lewis, assisted by H. A. de Colyar, 2nd 
 ed., pp. 631, 632.) But the High Court has no jurisdiction to inquire into 
 the merits or into the regularity of the proceedings in the court below : 
 (Williams v. Holland, 1 C. P. Div. 227.) It is, however, to be noticed that, 
 in cases where the judgment to be enforced does not exceed 201., exclusive of
 
 REPORTS OF CASES. 283 
 
 costs, there is no power whatever to remove the judgment into the High EVES 
 
 Court (19 & 20 Viet. c. 108, s. 49), and consequently no means whatever of v. 
 
 obtaining execution against freehold property for the satisfaction of a County RAFTERY. 
 Court judgment debt. 
 
 SOUTHWAEK COUNTY COURT. 
 
 Friday, March 17, 1882. 
 (Before H. J. STONOE, Esq., Judge.) 
 
 WOETHINGTON V. JOHNSON, (a) 
 
 Deposit on appeal Costs out of -Lien. 
 
 A defendant is not entitled to costs of action out of a deposit paid 
 by the plaintiff as security for costs of appeal, and the plaintiff's 
 solicitor has no lien on such deposit, although paid by him with 
 his own moneys. 
 
 His HONOUR delivered judgment this day, as follows : This 
 action was. tried on the 12th January last, and verdict entered 
 for the defendant, with liberty to the plaintiff to appeal by case. 
 The plaintiff gave notice of appeal and the sum of 20Z. was, in 
 pursuance of the 14th section of the County Courts Act, 1850, 
 paid into court by or on the plaintiff 's behalf as security to the 
 defendant, in the words of the section, " for the costs of the 
 appeal," in the event of the verdict standing. Such appeal 
 having been abandoned, the defendant has now moved that the 
 deposit of 20Z. might be paid to the defendant's solicitor as well 
 in respect of the defendant's costs of the action, as of his costs 
 of the appeal. The plaintiffs solicitor, on the other hand, has 
 moved that the balance of such deposit, after payment of the 
 defendant's costs of the appeal only (and not the defendant's 
 costs of the action also), should be paid to him, inasmuch as 
 he paid the deposit into court out of his own moneys, and on 
 that account claims a lien on the same, but the plaintiff has 
 given notice to the registrar not to pay over the same to his 
 solicitor. I am of opinion that the plaintiff, under the 14th 
 section of the County Courts Act, 1850, is entitled only to be 
 paid the costs of the appeal out of the deposit, although in 
 the converse case of an appeal by the defendant against a 
 verdict for the plaintiff, the deposit is a security, if the appeal 
 
 (a) County Courts Chronicle, vol. viii., p. 299.
 
 284 REPORTS OF CASES. 
 
 WORTHING- be dismissed, not only " for the costs of the appeal," but, also, 
 in the words of the section, " for the amount of the judgment," 
 JOHNSON, which would undoubtedly include his costs of the action. With 
 regard to the motion on the part of the plaintiff's solicitor, if 
 he have the plaint note and receipt for the 20L deposit, I am 
 inclined to think that he will be entitled to a lien upon them, 
 but that otherwise he has no lien upon the deposit, inasmuch as 
 it is not money " recovered or procured in the action through 
 his instrumentality," and therefore does not fall within the 61st 
 section of the Common Law Procedure Act, 1854 (see the case 
 of Birchall v. Pugin, 44 L. J. 278, C. P., and L. Eep. 10 C. P. 
 357), and in any case he cannot attach the amount in the hands 
 of the registrar : (see the case of Dolphin v. Layton, L. Rep. 4 
 C. P. Div. 130.) There will be an order on the defendant's 
 motion that the registrar do tax the defendant's costs of appeal, 
 and pay the amount to the defendant's solicitor out of the 
 deposit of 20L, and there will be no order on the motion of the 
 defendant's solicitor, nor as to costs in either motion.
 
 APPENDICES. 
 
 285 
 
 APPENDIX A. 
 
 (See Preface.} 
 
 THE following Table (No. I.) shows the aggregate of Common 
 Law Business transacted by all the County Courts in the years 
 1864 and 1882 respectively : 
 
 
 Hi, 
 
 
 
 
 
 
 Is-fS 
 
 Causes de- 
 termined. 
 
 Amount 
 sued for 
 
 
 Amount 
 recovered 
 
 
 
 Fees 
 received 
 
 
 
 <3 
 
 ^ co ^ 
 
 
 
 
 
 1882 
 
 1,022,158 
 
 625,445 
 
 3,071,814 
 
 1,525,005 
 
 416,066 
 
 1864 
 
 730,481 
 
 402,172 
 
 1,760,384 
 
 980,755 
 
 244,841 
 
 
 
 
 
 
 
 Increase 
 
 291,677 
 
 223,273 
 
 1,311,430 
 
 544,250 
 
 171,225 
 
 
 
 
 
 
 
 The following Table (No. II.), shows the principal business 
 transacted by all the County Courts in the year 1882 under Acts 
 of Parliament passed since the year 1864. 
 
 g^co 
 2 _og 
 
 
 No. of 
 Plaints. 
 
 721 
 
 .* 
 
 Remitted 
 Actions. 
 County Courts 
 Act, 1867. 
 
 i>T 
 
 Bankruptcy 
 Proceedings, 
 Bankruptcy 
 Act, 1869. 
 
 
 2^ 
 
 i? pH CD 
 
 o fl ~*^ 
 
 "cor-l . 
 " -t^rH 
 
 1 
 
 ill 
 
 rfj O 
 5g ^ CO 
 
 ?s 
 
 12 
 
 CD 
 1^ 
 
 lr 
 
 .2~3 * 
 "8 o 
 
 I 
 
 No. of 
 Plaints. 
 
 Con- 
 tracts. 
 
 Torts. 
 
 No. of 
 Plaints. 
 
 Adjudi- 
 cations. 
 
 Liquida- 
 tions. 
 
 No. of 
 Plaints. 
 
 458 
 
 270 
 
 151 
 
 241 
 
 901 
 
 8020 
 
 329 
 
 . Table No. I. does not include the business of the City of London 
 Court, which was not made a County Court till the year 1867, but 
 Table No. II. includes such business.
 
 286 APPENDICES. 
 
 APPENDIX B. 
 
 (See Preface.} 
 
 Letter from Lord LYTTELTON to the Editor of the " TIMES," 
 
 14th May, 1875. 
 
 SIR, 
 
 I said a few words in the House of Lords yesterday about 
 County Court Judges which have not been reported. I shall be 
 much obliged if you will insert this letter, as I do think those 
 learned persons are rather hardly used. My attention was 
 drawn to the matter by a printed statement which I have seen 
 from one of the ablest of them. 
 
 Many recent statutes have thrown upon them additional and 
 onerous duties quite foreign to those for which they were 
 originally constituted. The Agricultural Holdings Bill and the 
 Pollution of Rivers Bill, now before Parliament, would do so to 
 a very serious extent. 
 
 These duties are, or are to be, unpaid. It is not denied that 
 the office is a desirable one, and that the regular work, though 
 not small in quantity, is light in quality ; but the statement I 
 have alluded to shows that popular notions on this subject may 
 be somewhat exaggerated ; and, on the other side, it should be 
 remembered that the salaries are not very high, and that the 
 office is understood to be a complete " shelving," without hope 
 of promotion. 
 
 For the Pollution of Eivers Bill, all that Lord Salisbury said 
 was that the County Court Judges are the only possible 
 tribunal. But, if this be so, and if, as may be presumed, the 
 same be true as to other additional duties, it seems to give them 
 a claim on Parliament for some improvement in their position. 
 
 I am, your obedient servant, 
 
 LYTTELTON. 
 May 14th. 
 
 See leading articles supporting his Lordship's view in the 
 Times, Law Times, and other daily and legal papers in the year 
 1875, and again in the years 1879 and 1880, when Mr. Norwood's 
 County Court Bill was before Parliament,
 
 APPENDICES. 287 
 
 APPENDIX C. 
 
 (See Preface.} 
 
 IT is much to be regretted that, notwithstanding the strong claims 
 which County Court judges have on the legal Profession, they 
 have not invariably received at their hands the consideration 
 which they deserve. The most eminent judges of the Superior 
 Courts have indeed always treated them with respect ; but there 
 have been others who have occasionally commented with 
 unseemly severity on erroneous decisions or eccentric conduct of 
 individual judges of County Courts, and at the same time have 
 made use of expressions calculated to depreciate the County Court 
 bench as a body in the eyes of the Public. Singularly enough, 
 some judges of the Superior Court have declined to consider or 
 even to hear the reasons given by County Court judges for their 
 decisions in their considered judgments, preferring to confine 
 themselves to the bare findings of the judge, (a) The consequence 
 has been that counsel have been obliged to put forward such 
 reasons as their own, thus giving them an ex parte character, 
 and necessarily depriving them of all the weight attaching to 
 them as impartial judicial statements ; and frequently the very 
 reasons given by a County Court judge for his decisions reappear 
 in the reports of the judgments of the Divisional Court without 
 any acknowledgment. 
 
 There have been members of the Bar also who have been 
 wanting in the respect due to the judges of the County Courts. 
 But the most flagrant instance of the hostile and disrespectful 
 treatment to which not only the judges, but the County Court 
 officials and the system itself, has been exposed, was furnished 
 by a member of the other branch of the profession, in the 
 evidence given in 1878 by Mr E. J. Burton, President of the 
 Incorporated Law Society, before the Parliamentary Committee 
 
 (a) It will be seen, however, on reference to p. 256 (ante), that in the case 
 of Re CooTte, Ex parte Hilder, those two most eminent judges, JAMES and 
 MELLISH, LL.J., so far from following such a course, asked to see the judg- 
 ment of the learned County Court judge, and adopted it as their own, 
 declining to make any additions to it.
 
 288 APPENDICES. 
 
 on " The County Court Jurisdiction (No. 2) Bill." The nature 
 of this evidence, and the somewhat half-hearted disclaimer by 
 the Incorporated Law Society of the opinions therein expressed 
 by its President, appear from the following correspondence 
 between Mr. Thomas Collins, the able registrar of the County 
 Court of Bury St. Edmunds, and the secretary of the 
 Incorporated Law Society : 
 
 (Copy Correspondence.) 
 
 BURY ST. EDMUNDS, 
 
 NOVEMBER 20th, 1878. 
 
 GENTLEMEN, 
 
 As registrar of this County Court, and as having for twenty -five 
 years been the annually elected president of a large association of County 
 Court registrars, my attention has been directed to the evidence given by the 
 late president of the Law Society, Mr. Burton, contained in the Blue Book 
 No. 267 Committee on County Court Jurisdiction (No. 2) Bill. 
 
 This gentleman is a London solicitor, and if his evidence had been tendered 
 as that of a private individual I should not have noticed it ; but as he 
 prefaced it by the announcement that he gave it as president of your society, 
 which he stated was a focus of communication for the whole profession, I 
 feel called upon to do so. 
 
 It would be impossible for me within the limits of this letter to call 
 attention to all the parts of Mr. Burton's evidence which are open to remark. 
 I think I am warranted, however, in saying that the whole tone of his replies 
 is in disparagement of the County Court judges, registrars, and practitioners ; 
 and in justification of this view I may quote the following. 
 
 In reply to Question 4221 the late president says, " A man of position 
 cannot go into a County Court." 
 
 To Question 4256, he speaks of the County Court registrars as men " by 
 education not capable very often of deciding the very nice questions that 
 arise amongst poor people." 
 
 To Question 4279, he says, " Altogether litigants have no confidence in the 
 County Court judges;" and to 4280 that under the old practice of appeals 
 " the judge invariably stated the appellant out of court, that is to say, he so 
 stated the case that the appellant had no chance at all " under the present 
 practice by motion, which must be founded upon the judge's notes, " the 
 judge states his case in such a way that he states the fact in favour of the 
 party for whom he has decided, and therefore practically he has just the same 
 power of stating the appellant out of court now as he had before ; " the 
 answer he confirms by his reply to Question 4282, but is contradicted on the 
 spot by the answer of Mr. Serjeant Wheeler to Question 5811. 
 
 To Question 4406 Mr. Burton says, " Nobody ever dreams of reporting a 
 County Court judge's decision ; " and to 4408, " I do not know where they 
 are reported except in newspapers. The Solicitors' Journal sometimes puts 
 them in, but that is often only to complain of them "or to use the exact 
 words before the committee, " to make fun of them."
 
 APPENDICES. 289 
 
 County Courts need no defender in me. Their popularity, arising to a 
 great extent from the fact that our profession has had the working of them, 
 is fully admitted ; but I must submit to you that, without referring now to 
 the County Court judges, the registrars, of whom there are some 500 all 
 solicitors and the general body of country practitioners, very many of whom 
 are members of the Law Society, ought not to be insulted by one of their 
 own profession, holding at the time the honourable position of President of 
 the Law Society, without some protest being made on their behalf. 
 
 I trust that you may see fit in your discretion to testify your disapproval 
 of such evidence, given as it was ostensibly as emanating from your society. 
 
 I am, Gentlemen, 
 
 Your very obedient servant, 
 
 THOMAS COLLINS. 
 
 THE PRESIDENT AND COUNCIL OF THE LAW SOCIETY. 
 
 INCORPORATED LAW SOCIETY, U.K., 
 
 CHANCERY LANE, W.C., 
 
 25th NOVEMBER, 1878. 
 DEAR SIR, 
 
 I have received your letter of the 20th inst., in reference to evidence 
 given by Mr. Burton before a committee on the County Court Jurisdiction 
 (No. 2) Bill. 
 
 Tour letter was read to the meeting of the council on Friday last, who 
 desire me to inform you that, although at the time Mr. Burton filled the 
 position of president to the Incorporated Law Society, his evidence was not 
 intended in any way to bind the society ; but was merely an expression of 
 his own views with regard to the working of the County Court system. 
 I am, dear sir, 
 
 Yours faithfully, 
 
 C. W. WILLIAMSON, 
 
 THOMAS COLLINS, Esq., Secretary. 
 
 BURY ST. EDMUND'S. 
 
 In striking contrast to the above letter of the secretary of the 
 Incorporated Law Society, was the tone adopted by the legal 
 press, and particularly the Law Times, which, in its issue of 
 July 13, 1878, thus commented on Mr. Burton's evidence : 
 
 Mr. E. J. Burton, the ex-president of the Incorporated Law Society, has 
 given evidence before the Select Committee to whom the County Courts Bills 
 were referred. If Mr. Burton had given his evidence in his character of an 
 individual member of the Profession, it might well have passed unnoticed by 
 us. But it was given in his character of president of the foremost society of 
 solicitors. All County Court judges, all County Court registrars, all 
 
 U
 
 290 APPENDICES. 
 
 solicitors practising in County Courts, and hundreds upon hundreds of 
 solicitors besides, will certainly differ from the view to which Mr. Burton 
 gave expression, and he has most effectually put a stop, we fear, to increasing 
 the number of members of the Incorporated Law Society. Mr. Burton may 
 have pronounced the views of a majority of the members of the council, but 
 nothing can be more certain than that he in no way truly represented the 
 opinion of the large majority of the solicitors' Profession. Solicitors will for 
 the most part read with astonishment the evidence given by Mr. Burton 
 before the Select Committee.
 
 INDEX. 
 
 ACCORD AND SATISFACTION 
 
 by cheque indorsed and presented by plaintiff, held good notwithstanding 
 
 plaintiff's letter refusing to accept same in satisfaction, 90 et seq. 
 acceptance of a cheque for a smaller amount in full of a debt operates 
 
 as, 110 et seq. 
 
 AGENT, see PRINCIPAL AND AGENT. 
 
 AGREEMENT 
 
 specific performance of, see SPECIFIC PERFORMANCE. 
 
 secondary evidence of unstamped agreement for a lease purposely 
 
 destroyed when receivable, 56 et seq. 
 though unstamped admitted as evidence of, 99 et seq. 
 
 AMENDMENT 
 
 of summons, 6, see SUMMONS. 
 
 APPEAL 
 
 from County Courts in equity cases, 6 
 former practice, ib. 
 existing practice, ib. 
 form of judges' note prescribed by sect. 6 of the County Courts Act, 
 
 1875, 147-149, 158 et seq. 
 summary of decisions upon sect. 6 of the County Courts Act, 1875, 
 
 requiring judge's notes on appeal by motion, 269-270. 
 defendant not entitled to costs of action out of deposit paid by plaintiff 
 as security for costs of appeal, 283 et seq. 
 
 APPRENTICESHIP 
 
 place of performance of contract of, 108 et seq. 
 
 implied stipulation in, as to, ib. 
 
 effect upon, of dissolution of original firm whose business not carried on 
 in its entirety by either of two new firms into which it is divided, ib . 
 
 ARMY ACT, 1881 
 
 provision in, as to liability of soldiers to arrest on civil process, 132-133 
 
 ARREST 
 
 liability of soldier to, on civil process, 132-133 
 
 ASSIGNMENT 
 
 of debt to a solicitor on account of fees and costs to be paid or incurred 
 by him, not an absolute assignment within Judicature Act, 115 et seq. 
 
 of dramatic composition, 175 et seq. 
 
 statutory right conferred by, ib. 
 
 of debt by a bankrupt, " a charge " under sects. 12 and 16 of Bank- 
 ruptcy Act, 1869, 234-235 
 
 of moneys not yet become due may be an absolute assignment, 235 
 
 omission to give notice of, to debtor does not prevent assignment in 
 equity, though it is inoperative under Judicature Act, ib. 
 U 2
 
 292 . INDEX. 
 
 ATTACHMENT 
 
 of debts by garnishee summons, 66-67, see GAKNISHEE SUMMONS. 
 
 ATTORNMENT 
 
 by tenants in common, separately, in respect of undivided moieties 
 confers qualified right of distress on mortgagees, 235 et seq. 
 decision of Chief Judge in Bankruptcy, 240-241 
 
 AUCTIONEER 
 
 his right to recover for expenses incurred and work done on revocation 
 of his authority to sell, 24, 70, 74 
 
 trustee in liquidation acting as, cannot recover in respect of services 
 rendered, 46-47 
 
 when entitled to commission on sale of property, 75 et seq. 
 
 sale by, of goods assigned by bill of sale without assignee's authority, 
 
 123 et seq. 
 BAILEE 
 
 condition lessening liability of railway company below that of 
 gratuitous bailee invalid, 213 
 
 where goods wrongly consigned, new contract between railway com- 
 pany as involuntary bailees and consignors, 192 et seq. 
 
 BAILIFF, see HIGH BAILIFF. 
 
 BANKRUPT 
 
 liability of infant to be made, 227 et seq. 
 
 may sue for mere personal labour pending bankruptcy, 252 
 
 BANKRUPTCY ACT, 1869 
 
 liability of infant to be made bankrupt under, 227 et seq. 
 
 registrar has no power under 31st section of, to estimate unascer- 
 tained debt before first meeting of creditors, 229 et seq. 
 
 proof of debts under, 232, 233 
 
 absolute garnishee order a " charge " on debt attached within sects. 
 12 and 16 of Bankruptcy Act, 1869, 233 et seq. 
 
 written orders by debtor, for payment of money due to him, are 
 charges under sects. 12 and 16 of Bankruptcy Act, 1869, 234-235 
 
 qualified right of distress possessed by mortgagees where bankrupt mort- 
 gagors have as tenants in common separately attorned, 235 et seq. 
 
 gas company, empowered to distrain for gas rent in arrear, not "a 
 landlord," &c., within sect. 12, 241 et seq. 
 
 what amounts to sale and delivery of growing timber to bankrupt, 
 246-247 
 
 debt due to friendly society from its officer has no priority in bank- 
 ruptcy, 248 et seq. 
 
 fraudulent preference negatived by a distinct demand of debts by 
 creditor without notice of bankruptcy, 251 
 
 disposition of bankrupt's estate may be void either as a fraudulent prefe- 
 rence by bankrupt or as a wrongful taking by creditor, 252 et seq. 
 
 parochial rates retain their priority under sect. 32, notwithstanding 
 acceptance of composition, 259 et seq. 
 
 BARGE OWNER 
 
 whether lighterman employed by, is a contractor or servant, 151 et seq. 
 
 BILL OF EXCHANGE 
 
 formerly no power to County Court to prohibit setting up loss of bill 
 
 as defence, 81-82 
 sufficiency of notice of dishonour, 98-99 
 
 BILL OF SALE 
 
 mode of attestation of, 90 
 
 satisfaction and release of, when presumed, 92-93 
 sale by auctioneer of goods assigned by, without assignee's authority, a 
 wrongful conversion, 123, et seq.
 
 INDEX. 293 
 
 BILLS OF SALE ACT, 1878 
 
 receipt by bailiff, on sale of goods of execution debtor to purchaser, 
 
 who takes possession of them, need not be registered under, 82 
 
 et seq. 
 construction of sects. 9 and 4 of, 87, et seq.; Davies v. Goodman 
 
 considered, ib. 
 
 BILLS OF SALE ACT, 1882 
 
 new provisions as to attestation of bills of sale, 90 
 provisions of, as to notice of dishonour, 99 
 
 BROKER 
 
 liability of, for conversion, 125 
 
 BURIAL BOARD 
 
 action against by a freeholder, 10 et seq. 
 
 CAMPBELL'S ACT, LORD 
 
 measure of damages under, 136 et seq. 
 
 CARRIERS (see RAILWAY COMPANY) 
 
 special contract limiting liability of railway company as carriers of 
 goods, 188 et seq. 
 
 new contract between consignors and the carriers where goods wrongly 
 consigned, 192 et seq. 
 
 liability of railway company to exceptional damages for destruction 
 of perishable goods when object of sender known to them, 195 
 et seq. 
 
 consignor is sometimes the right person to sue, 208-209 
 
 liability of railway company for injury to goods delayed in trans- 
 mission, where packing in damp state, of which defendants had 
 no notice, contributed thereto, 224 et seq. 
 CATTLE 
 
 straying from a common, 137 et seq. 
 liability of owner for, ib. 
 
 straying from a highway without owner's negligence, 140 
 
 CERTIORAR1 
 
 to remove action under Employer's Liability Act refused, 153-154 
 
 CHARGES 
 
 what are, under sects. 12 and 16 of Bankruptcy Act, 1869, 233, 234 
 
 CHARITABLE TRUSTS 
 
 jurisdiction of County Courts in respect of, 122-123 
 
 whether extended by County Courts Act, 1865, ib. 
 
 CHARITABLE TRUSTS ACT, see CHARITABLE TRUSTS 
 
 CHEQUE 
 
 accord and satisfaction by, 90 et seq., 110 et seq. ; see ACCORD AND 
 SATISFACTION 
 
 CIVIL PROCESS 
 
 liability of soldier to arrest on, 132-133 
 
 CLERK, see REGISTRAR 
 
 CLERKS 
 
 judges should be provided with, 266 
 
 CLOAK ROOM 
 
 liability of railway company for goods deposited in, 211 et seq. 
 
 COMMISSION 
 
 auctioneer cannot recover, on revocation of his authority to sell, 24, 70, 
 
 74 
 when agent entitled to commission on sale of property, 75 et seq.
 
 294 INDEX. 
 
 COMMON 
 
 cattle straying from, 137 et seq. 
 
 liability of owner for, ib. 
 
 COMMON CARRIERS, see CARRIERS RAILWAY COMPANY 
 
 COMMON LAW PROCEDURE ACT, 1854 
 
 County Court had no power under, to prohibit defendant from setting 
 up loss of bill of exchange, 81-82 
 
 COMPANY, see RAILWAY COMPANY 
 
 COMPOSITION (see DRAMATIC COMPOSITION PERFORMANCE) 
 defence of, by debtor, 261-262 
 
 COSTS 
 
 no right to costs of action out of deposit paid by plaintiff as security 
 for costs of appeal, 283 
 
 solicitor has no lien on such deposit for his costs, ib. 
 
 CONDITIONS (see SPECIAL AGREEMENT) 
 
 on back of railway ticket, how far binding on passenger, 212-213 
 proper direction to jury as to, 213 
 
 CONTRACT 
 
 specific performance of, 1 et seq., 22 et seq. 
 
 statutory provisions as to notice of action not usually applicable to 
 
 actions of, 31-34 
 for hire of domestic servant when not enforceable by Statute of 
 
 Frauds, 37 et seq. 
 
 of guarantee, 38 et seq., see GUARANTEE 
 
 by trustee in liquidation to value property of creditors A r oid, 46-47 
 secondary evidence of unstamped contract purposely destroyed, when 
 
 receivable, 56 et seq. 
 implied warranty on contract for sale of specific goods, by wholesale 
 
 to retail dealer, where sample taken by latter, 62 et seq. 
 balance of purchase money due in respect of a contract of sale not 
 
 yet performed, not attachable, 66-67 
 of apprenticeship, 108 et seq. ; see APPRENTICESHIP 
 
 place of performance of, ib. 
 no implied contract between school board and parent for payment of 
 
 school fees, 125 et seq. 
 servant's negligence may, independently of contract, render master 
 
 liable for a misfeasance, 146 et seq. 
 High Court may remit issues in actions of contract for trial in County 
 
 Court, 272 et seq. 
 
 not if unliquidated damages recoverable, 273 
 
 CONTRACTOR 
 
 whether lighterman employed by barge owner is, 151 et seq., 165 
 person working manually with other workmen whom he superintends 
 is, semble, not a contractor, 165 et seq. 
 
 aliter if he does not work manually, ib. 
 
 CONTRIBUTORY NEGLIGENCE 
 
 generally available as a defence to action under Employers' Liability 
 
 Act, 162 et seq. 
 
 when it is not available as a defence, 163 et seq. 
 how far available as a defence to action by servant prior to Employers' 
 
 Liability Act, ib. 
 caused by packing goods in damp state, without notice to defendants, 
 
 will substantially relieve railway company from liability for delay 
 
 in transmission, 224 et seq.
 
 INDEX. 295 
 
 CONVERSION (see TROVER) 
 
 of one form of action into another by amendment, 6, 166 
 legal principles governing, 123, 124-125 
 liability of auctioneer for, ib. 
 liability of broker, 125 
 
 liability of pawnbroker fcr, when he has delivered pledge to holder of 
 ticket, 140 et seq. 
 
 COUNTER-CLAIM 
 
 matter arising after action brought available as, 263 et seq. 
 
 conflicting decisions in High Court on this subject, 266 
 verdicts and judgments upon, ib. 
 
 COUNTY COURT 
 
 appeals from in equity cases, 6 ; see APPEAL 
 
 conversion, by amendment of summons, of one form of action into 
 
 one of another form, ib. 
 jurisdiction of, in actions for recovery of small tenements where annual 
 
 rental or value over 201., and length of tenancy created in dispute, 
 
 77 et seq. 
 formerly had no power to prohibit setting up loss of bill of exchange 
 
 as defence, 81 
 jurisdiction of, in respect of charitable trusts, 122-123; see CHARITABLE 
 
 TRUSTS. 
 refusal of High Court to remove action under Employers' Liability 
 
 Act from, 153-154 
 mere fact of petitioning creditor being a client of registrar no ground 
 
 for removing bankruptcy proceedings from, 257 
 High Court no power to remit interpleader issue to, 270 et seq. 
 what actions and issues can be remitted by High Court to, 272 et seq. 
 statistics as to work done in, see APPENDIX A. 
 
 COUNTY COURT JUDGE (see JUDGE) 
 
 letter of Lord Lyttelton as to services of County Court judges, see 
 APPENDIX B. 
 
 COUNTY COURTS ACT, 1850 
 
 provision in, as to joinder of registrar as co-defendant with high 
 bailiff, in action against latter, considered, 135-136 
 
 COUNTY COURTS ACT, 1865 
 
 whether it extends the jurisdiction of County Courts over charitable 
 trusts, 122-123 
 
 COUNTY COURTS ACT, 1875 
 
 form of judge's note for appellate court prescribed by sect. 6 of, 
 
 147-149, 158 et seq. 
 summary of decisions upon construction of sect. 6, 269-270 
 
 CRANE 
 
 moving of a hand crane is within scope of labourer's employment, 
 secus as to steam crane, 160 et seq. 
 
 DAMAGES 
 
 liability of soldier to arrest for non-payment of, 132-133 
 measure of, in cases under Lord Campbell's Act, 136 et seq. 
 exceptional damages recoverable from railway company for destruction 
 
 of goods when object of sender known to them, 195 et seq. 
 nominal, only recoverable from railway company for injury to goods 
 
 delayed in transmission, where packing in a damp state, of which 
 
 defendants had no notice, contributed thereto, 224 et seq. 
 no power to remit action of contract to County Court where damages 
 
 unliquidated, 273
 
 296 INDEX. 
 
 DEBT 
 
 purchase money due in respect of a contract of sale, not yet per- 
 formed, is not attachable as a debt under garnishee summons, 
 66-67 
 
 DEFECT 
 
 notice of, under Employers' Liability Act, 164 
 
 effect of, ib. 
 in plant, &c., under Employers' Liability Act, 164 et seq., 166 
 
 DEFENCE 
 
 contributory negligence is available as, under Employers' Liability 
 Act, 162 et seq. ; see CONTRIBUTORY NEGLIGENCE. 
 
 DEPOSIT 
 
 of purchaser, forfeited on failure to perform his contract, unless other- 
 wise stipulated, 105 et seq. 
 no right to costs of action out of deposit paid on appeal, 283-284 
 
 DETINUE 
 
 not maintainable by owners of goods taken in execution against land- 
 lord who has distrained on them and remoA r ed them with sheriff's 
 consent, 145 
 
 DISTRESS 
 
 joinder in distress by strangers with landlord renders it void, 34 
 
 et seq. 
 goods taken under, by landlord and removed by him with sheriff's 
 
 consent after execution, 145. 
 under sect. 34 of the Bankruptcy Act, 1869, where mortgagors have 
 
 attorned separately as tenants of undivided moieties, 235 et seq. 
 under magistrates warrant addressed to peace officers, to be levied by 
 
 such officers only, 241. 
 mode of executing warrants of, issued by Court of Summary 
 
 Jurisdiction, now regulated by Summary Jurisdiction Act, 245- 
 
 246. 
 
 DOMESTIC SERVANT 
 
 verbal agreement for hire of, to commence infuturo, not enforceable, 
 37-38. 
 
 DRAMATIC COMPOSITION (see PERFORMANCE) 
 
 exclusive right of performing, conferred by statute, extends only to 
 performances in public, 175 et seq. 
 
 EASEMENT 
 
 creation of, by parol, 16 et seq. 
 
 EDUCATION, see ELEMENTARY EDUCATION ACT, 1870 SCHOOL BOARD 
 
 ELEMENTARY EDUCATION ACT, 1870 
 
 no implied contract between school and parent to pay fees, 125 et seq. 
 inequality of fees in same district is not contrary to statute, 125 
 et seq. 
 
 EMPLOYER (see EMPLOYERS' LIABILITY ACT MASTER AND SERVANT) 
 no general liability of, as to fencing machinery, 166 et seq. 
 
 EMPLOYERS' AND WORKMEN ACT, 1875 
 
 whether " fireman " is a " seaman " within meaning of that Act, 168 
 et seq. 
 
 EMPLOYERS' LIABILITY ACT, 1880 
 
 conversion by amendment of summons of action under statute into 
 one at common law, 6 ; but common law action not convertible 
 into one under statute, ib.
 
 INDEX. 297 
 
 EMPLOYERS' LIABILITY ACT continued : 
 
 refusal of^ High Court to remove action under, from County Court, 
 
 153-154 
 
 questions to be left to jury in actions under, 154 et seq. 
 insufficient sendee of notice of injury prescribed by, 156 et seq. 
 moving a hand crane is within scope of a labourer's employment, 160 
 
 et seq. ; secus as to steam crane, ib. 
 contributory negligence a defence under, except in certain special 
 
 cases, 162 et seq. ; see CONTRIBUTORY NEGLIGENCE 
 liability of employer under Act for defect in plant, 164 
 liability of employer under Act for negligence of person with 
 
 superintendence, 164 
 who is a " workman " under, 151 et seq ; 165, 168 et seq. 
 
 EVIDENCE 
 
 secondary, of unstamped agreement for a lease purposely destroyed, 
 
 56 et seq. 
 
 unstamped agreement admitted as evidence of fraud, 99 et seq. 
 against railway company, where unpunctuality alleged, 180-181 
 
 ticket of itself does not warrant punctuality in time of starting 
 
 train, ib. 
 production of time table necessary, ib. 
 
 EXECUTION 
 
 goods taken in, may be removed by landlord under a distress with 
 
 sheriff's consent, 145 
 leaseholds can be taken in execution for debts due on County Court 
 
 judgments, 280 et seq. 
 removal of County Court judgment into High Court for purposes of, 
 
 282-283 
 
 EXECUTOR (see EXECUTION DE SON TORT RETAINER) 
 recovery by, of expenses of sale of leasehold property, 7 
 right to retain as against, payment made by executor de son tort in 
 
 due course of administration, 31 
 
 whether ^executor's right of retainer not entirely abolished by 
 Judicature Act, 47-50 
 
 EXECUTOR DE SON TORT 
 has no right of retainer, 30 
 
 right of creditor, as against rightful executor, to retain payments 
 made by executor de son tort in due course of administration, 
 31 
 
 FIREMAN 
 
 whether a " seaman " within Employers and Workmen Act, 1875, and 
 Employer's Liability Act, 1880, 168 et seq. 
 
 FIRM 
 
 implied stipulation in contract of apprenticeship with, as to place of 
 
 performance, 108 et seq. 
 effect of substitution of two new firms for old firm on contract of 
 
 apprenticeship with latter, ib. 
 
 FORECLOSURE 
 
 scale of taxation in action for, 13-14. 
 
 FRAUDS, STATUTE OF 
 
 verbal agreement for hire of domestic servant, to commence at future 
 
 day, not enforceable under, 37-38 
 what guarantees are within, 38 et seq.
 
 298 INDEX. 
 
 FRAUDULENT PREFERENCE 
 
 negatived by distinct demand of debts made by creditor, without 
 
 notice of bankruptcy, 251 
 disposition of bankrupt's estate may be void in the alternative, either 
 
 as a fraudulent preference by bankrupt or as a wrongful taking 
 
 by creditor, 252 et seq. 
 
 FREEHOLDER 
 
 though non-resident a " parishioner," 10 et seq. 
 
 FRIENDLY SOCIETY 
 
 debt due to, from its officer has no priority in bankruptcy, 248 et seq. 
 
 GARNISHES 
 
 order, when made absolute, is a "charge" within sects. 12 and 16 of 
 Bankruptcy Act, 1869, 233 et seq. 
 
 position of judgment creditor who has served on garnishee a garnishee 
 order nisi before presentation of liquidation petition by judg- 
 ment debtor, 234 
 
 effect of a garnishee order, ib. 
 
 GARNISHEE SUMMONS 
 
 balance of purchase money, due in respect of a contract of sale not yet 
 performed, not attachable under, 66-67 
 
 GOODS 
 
 warranty implied on sale of goods by sample to retail dealer by whole- 
 sale dealer, 62 et seq. 
 
 warranty implied on sale of goods for human consumption, 96-97 
 sale of goods " as owner " implies warranty as to title, 102 et seq. 
 special contract limiting liability of railway company as carriers of, 
 
 188 et seq. 
 
 property in goods wrongly consigned, 192 et seq. 
 effect of contract to carry, " at owner's risk," 204-205 
 consignor may sometimes sue carrier for breach of contract as to, 208- 
 
 209 
 liability of railway company for goods deposited in cloak room, 211 
 
 et seq. 
 inequality of rates imposed by railway company for carriage of, not 
 
 necessarily undue preference, 214 et seq. 
 special contract to carry goods to a certain siding on defendants' 
 
 railway does not render them liable for what may happen at such 
 
 siding, 223 et seq. 
 
 GUARANTEE 
 
 liability of third party, contemplated by the parties, essential to its 
 creation, 38 et seq. 
 
 HIGH BAILIFF 
 
 necessity for joinder of registrar in action against, 133 et seq. 
 meaning of statutory provision on the subject considered, 134-136 
 
 HIGH COURT 
 
 appeals from County Courts to, see APPEAL 
 
 may remit actions and issues to County Courts, see REMITTED 
 
 ACTION, REMITTED ISSUE 
 removal of County Court judgments into, for purposes of execution, 
 
 282, 283 
 
 HIGHWAY 
 
 owner of cattle straying from, without his negligence not liable, 140 
 HOUSEHOLDER 
 
 liability of, for negligence of a competent person employed by him to 
 do acts hazardous to adjoining premises, 173 et seq.
 
 INDEX. 299 
 
 IMPRISONMENT FOR DEBT 
 
 observations of Judge Stonor as to, 274-279 
 
 INDEMNITY 
 
 contained in 25th section of Pawnbrokers Act, 1872, considered, 140 
 et seq. 
 
 INFANT 
 
 liability of, to be made bankrupt, 227 et seq. 
 
 in respect of damages recovered in tort, ib. 
 in respect of contracts, 229 
 for necessaries only, ib. 
 
 INJURY, NOTICE OF, see NOTICE OF INJURY 
 
 INTEREST 
 
 mode of computing under Pawnbrokers Acts, 59 et seq. 
 
 INTERPLEADER 
 
 no power to remit issue of, for trial in County Court, 270 et seq. 
 
 INTOXICATION 
 
 of party to an agreement, 1 
 
 refusal of specific performance on account of, ib. 
 
 JOINDER 
 
 of registrar, as co-defendant with high bailiff, in action against latter, 
 133 et seq. 
 
 statutory provision on this subject considered, 135-136 
 
 JUDGE 
 
 form of note to be furnished by, to appellate court, 147-149, 158 
 
 et seq. ; see NOTES. 
 right of, to refuse to try remitted cause, 270 et seq., 273 
 
 JUDGMENT 
 
 leaseholds may be taken in execution, in respect of County Court 
 
 judgment, 280 et seq. 
 removal of, into High Court for purposes of execution, 282-283 
 
 JUDGMENT SUMMONS 
 
 liability of soldier to be committed on, for nonpayment of damages 
 recovered in County Court, 132-133 
 
 JUDGE'S NOTES, see NOTES 
 
 JUDICATURE ACT 
 
 appeals from County Courts in equity cases, since passing of Act, do 
 not lie to Vice-Chancellor, 6 
 
 mode of computing time under Statute of Limitations since passing of 
 Judicature Act, 50 et seq. 
 
 assignment of debt to a solicitor on account of fees and costs to be 
 paid or incurred by him not an absolute assignment within, 115 
 et seq. 
 
 notice to debtor of assignment essential to its validity under, 235 
 
 assignment of moneys not yet become due may be an absolute assign- 
 ment under, ib. 
 
 JURISDICTION 
 
 of County Courts regarding recovery of small tenements where annual 
 rent or value over 201. and length of tenancy created in dis- 
 pute, 77 
 
 of County Courts in respect of charitable trusts, 122, 123; see 
 CHARITABLE TRUSTS.
 
 300 INDEX. 
 
 JURY 
 
 questions to be left to, in actions under Employers' Liability Act, 154 
 et seq. 
 
 proper direction to where passenger claims not to be bound by con- 
 ditions indorsed on railway ticket, 213 
 
 LANDLORD AND TENANT (see DISTRESS) 
 
 requisite notice to determine weekly tenancy, 14-15 
 
 right of tenant to recover rentcharge paid by him but not deducted 
 
 from the rent, 26 et seq. 
 
 as to property tax, 29, 116-117 
 fraudulent misrepresentations on letting premises provable by 
 
 unstamped agreements, 99 et seq. 
 where length of tenancy created in dispute, qucere whether action for 
 
 recovery of small tenements maintainable in County Court, 77, 
 
 80-81 
 liability of landlord for injury to a stranger by defective repair of 
 
 demised premises, 174 et seq. 
 
 LAW EXPENSES 
 
 meaning of term in a will, 7 
 
 LEASE 
 
 right of tenant to recover rentcharge paid by him, but not deducted 
 
 from rent, 26 
 when secondary evidence, of unstamped agreement for a lease, may be 
 
 given, 56 et seq. 
 
 where length of, in dispute, qucere whether action for recovery of 
 small tenements maintainable in County Court, 77, 80-81 
 
 LEASEHOLDS 
 
 can be taken in execution for County Court judgment debt, 280 et seq. 
 
 LICENCE 
 
 by parol to exercise certain rights over adjoining land, 16-17 
 revocable after reasonable notice, ib. 
 
 LIEN 
 
 upon lease for purchase money, where sale of lease held void, 1 
 
 for purchase money of growing timber sold and delivered to debtor 
 
 before petition filed, 246, 247 
 solicitor has no lien on deposit made by his client in respect of costs 
 
 of appeal, 283 et seq. 
 
 LIGHTERMAN 
 
 employed by a barge owner, whether a contractor or a servant, 151 
 et seq., 165 
 
 LIMITATIONS, STATUTE OF 
 
 when it begins to run, where money obtained by fraud or mistake, 50 
 et seq. 
 
 LIQUIDATED DAMAGES (see DAMAGES) 
 
 provision as to, in agreement to sell public-house held a penalty, 93 
 
 et seq. 
 difference between penalty and, examined, ib. 
 
 LOAN 
 
 construction of promise to repay " in the course of time," 67 et seq. 
 
 LUGGAGE 
 
 what is " personal luggage," 199 et seq. 
 
 commercial traveller's account books and stationery, 199 et seq. 
 
 fowls, apples, vegetables, 205 et seq. 
 what is not " personal luggage," 201-202
 
 INDEX. 301 
 
 LYTTELTON, LORD 
 
 letter as to services of County Court judges, see APPENDIX B. 
 MACHINERY 
 
 110 general liability of employer as to fencing, 166 et seq. 
 MANUAL LABOUR 
 
 person who is not bound to do, is, semble, not a "workman" within 
 Employers' Liability Act, 165 
 
 MANUSCRIPT 
 
 value of, may be estimated by competent witnesses, 221 
 is " a writing " within the Carriers Act, ib. 
 
 MARRIED WOMEN 
 
 presents to a married woman by strangers held to be gifts to her for 
 her separate use, 260-261 
 
 provisions of Married Womens' Property Act, 1882, on this 
 subject, 261 
 
 MARRIED WOMEN'S PROPERTY ACT, 1882 
 what is separate property under, 261 
 
 MASTER AND SERVANT (see EMPLOYEES' LIABILITY ACT 
 
 NEGLIGENCE) 
 verbal agreement for hire of domestic servant, to commence at a future 
 
 day, not enforceable, 37-38 
 implied stipulation in contract of apprenticeship as to place of 
 
 performance, 108 et seq. 
 negligence of servant, may, independently of contract, render master 
 
 liable as for a misfeasance, 146 et seq. 
 scope of employment and authority of servant, 149 et seq. ; moving a 
 
 hand crane is within, 160 et seq. secus as to steam crane, ib. 
 
 MISFEASANCE 
 
 servant's negligence may make master liable for, 146 et seq. 
 
 NEGLIGENCE (see CONTRIBUTORY NEGLIGENCE) 
 
 Common Law action for, against master, cannot be converted into one 
 
 under Employers' Liability Act by amendment of summons, 6 
 by servant, may, independently of contract, render master liable as for 
 
 a misfeasance, 146 et seq. 
 notice of, by workmen under Employers' Liability Act, 163; effect 
 
 of, ib. 
 liability of householder, for negligence of competent employe, in 
 
 respect of acts hazardous to adjoining premises, 173 et seq. 
 
 NEGOTIABLE INSTRUMENT 
 Post-office order is, 129 et seq. 
 
 NOTES 
 
 form of note for Appellate Court to be furnished by County Court 
 
 judge, 147-149, 158 et seq. 
 observations of judge as to, 267, et seq. 
 summary of decisions as to construction of enactment obliging County 
 
 Court judges to take notes, 269-270 
 County Court judges not bound to take notes except under County 
 
 Courts Act, 1875, 269 
 
 NOTICE 
 
 by workman of defect or negligence will negative contributory 
 negligence under the Employers' Liability Act, 163 
 
 NOTICE OF ACTION 
 
 statutory provisions as to, when they apply, 31-34
 
 302 INDEX. 
 
 , I 
 
 NOTICE OF DISHONOUR 
 
 sufficiency of, 98-99 
 
 NOTICE OF INJURY 
 
 prescribed by Employers' Liability Act, 156 
 insufficient service of, 156 
 
 NOTICE TO QUIT 
 
 length of, where tenancy weekly, 14 et seq. 
 
 OVERCROWDING 
 
 liability of railway company for, 210 
 
 PARENT 
 
 no implied contract between parent and school board to pay fees, 125 
 et seq. 
 
 PARISHIONER 
 
 freeholder, though non-resident, is a, 10 et seq. 
 
 PARTIES 
 
 joinder of registrar and high bailiff as co-defendants in action against 
 latter, 133, 135-136 
 
 statutory provision on this subject considered, ib. 
 
 PASSENGER 
 
 Liability of railway company to, for delay caused by waiting for 
 
 unpunctual train of another company, 177 et seq., 179 et seq, 181 
 
 et seq., 202 et seq. 
 liability of railway company to, for loss of passenger's luggage, 199 et 
 
 seq. ; 205 et seq. ; see LtTGGAGE. 
 
 liability of railway company to, for overcrowding carriages, 210 
 effect of special agreement signed by passenger, who is carried at 
 
 reduced rate, relieving railway company from liability, 202 et seq. 
 liability of railway company to, for goods deposited in cloak room, 211 
 
 et seq. 
 how far bound by conditions on ticket, 213 
 
 PAWNBROKERS ACTS (see PAWNBROKERS ACT, 1872) 
 mode of computing interest under, 59 et seq. 
 
 PAWNBROKERS ACT, 1872 
 
 how far pawnbroker indemnified under 25th section of, 140 et seq. 
 
 PAWN (see PLEDGE) 
 
 mode of computing interest under Pawnbrokers' Acts, 59 et seq. 
 
 PENALTY 
 
 difference between it and liquidated damages considered, 93-96 
 
 PERFORMANCE 
 
 of dramatic composition, no infringement of author's statutory right, 
 unless it be in public, 175 et seq. 
 
 decision in High Court as to, 176 
 reasons given considered, ib. 
 
 PERSONAL LUGGAGE, see LUGGAGE 
 
 PETITIONING CREDITOR 
 
 being client of registrar, no ground of removal of bankruptcy 
 proceedings from County Court, 257 
 
 PIGEONS 
 
 owner not liable for damage done by, 150-151
 
 INDEX. 303 
 
 PLANT 
 
 notice of defect in, by Workman under Employers' Liability Act, 
 
 effect of, ib. 
 
 liability of master for defect in, 164, 166 et seq. 
 
 PLEDGE 
 
 liability of pawnbroker for conversion who has delivered pledge to 
 holder of ticket, 140 et seq. 
 
 POSSESSION SUMMONS (see SUMMONS) 
 
 recovery of small tenements by, where rent or value above 201. and 
 length of tenancy created in dispute, 77 et seq. 
 
 POST OFFICE ORDER 
 
 is a negotiable instrument, 129 et seq. 
 
 innocent transferee for value, who has obtained payment of, not liable 
 to refund to payee, ib. 
 
 PRINCIPAL AND AGENT (see AUCTIONEER) 
 
 when agent entitled to commission on sale of property, 75 et seq. 
 
 PRINCIPAL AND SURETY, see GUARANTEE 
 
 PROOF OF DEBTS 
 
 under Bankruptcy Act, 1869, 232-233 
 to registrar, ib. 
 to trustee, ib. 
 
 PROPERTY TAX 
 
 right of tenant to deduct, 29, 116-117 
 
 when he can recover it without deducting, ib. 
 
 PROVISIONS 
 
 may be personal luggage of passenger on railway, 205 et seq. 
 
 PUNCTUALITY 
 
 effect of statement in time table of railway company that every 
 
 attention will be paid to insure, 179 et seq. 
 mere issue of ticket to passenger no warranty of, 180-181 
 effect of notice relieving railway company from consequences of not 
 observing, 181 et seq. 
 
 how far " wilful misconduct " of company's servants excuses, 
 
 ib., 186, 187 
 
 effect of special agreement signed by ticket holder exempting railway 
 company from liability for delay, 202 et seq. 
 
 PURCHASE MONEY 
 
 lien for, on lease where sale held void, 1 
 
 balance of, due in respect of a contract of sale not yet performed not 
 attachable under, 66-67 
 
 QUEEN'S BENCH DIVISION 
 
 appeals from County Courts in equity cases lie to, 6 
 
 RAILWAY COMPANY 
 
 liability to passenger for delay caused by waiting for unpunctual train 
 of another company, 177 et seq. 
 
 liability of, for statements contained in time tables, 179 et seq., 181 et seq. 
 
 liability of, for unpunctuality, ib. 
 
 special contract with, excluding liability other than for " wilful mis- 
 conduct," 188 et seq. 
 
 new contract between railway company and consignor, where goods 
 wrongly consigned, 192 et seq. 
 
 exceptional damages recoverable against, where object of plaintiff in 
 sending goods known to railway company, 195 et seq.
 
 304 INDEX. 
 
 RAILWAY COMPANY continued : 
 
 liability of, in respect of loss of personal luggage, 199 et seq., 205 
 
 et seq. ; see LUGGAGE. 
 effect of special agreement signed by season ticket holder limiting 
 
 liability of railway company, 202 et seq. 
 consignor sometimes entitled to sue, 208 et seq. 
 liability of, for overcrowding railway carriages, 210 
 liability of, for goods deposited in cloak room, 211 et seq. 
 condition lessening liability of railway company below that of 
 
 gratuitous bailee is invalid, 273 
 how far conditions at back of railway ticket bind passenger, 212, 213 
 
 mode of leaving such a question to jury, 213 
 circumstances of traffic may justify inequality of rates imposed by, 
 
 214-220 
 
 what amounts to "undue preference " by, 221 
 liability of, for loss of author's MS., 221 et seq. 
 what is a fulfilment of special contract to carry goods to a certain 
 
 siding on defendant's railway, 223 et seq. 
 where perishable goods packed in damp state, without knowledge of 
 
 railway company, nominal damages only recoverable for injuries 
 
 caused by delay in transmission, 224 et seq. 
 
 RATES 
 
 inequality of, does not necessarily amount to undue preference by 
 
 railway company, 214 et seq. 
 parochial rates retain priority under Bankruptcy Act, 1869, s. 32, 
 
 notwithstanding acceptance of composition under sect. 126, 259 
 
 REGISTRAR 
 
 joinder of, as co-defendant in action against high bailiff, 133 et seq. 
 
 has no power, before first meeting of creditors, to estimate an unascer- 
 tained debt under sect. 31 of Bankruptcy Act, 1869, 229 et seq. 
 
 nature of proof of debts to satisfaction of, 232-233 
 
 mere fact of petitioning creditor being a client of registrar, no 
 ground for removal of bankruptcy proceedings from County 
 Court, 257 
 
 REMITTED ACTION 
 
 statutory provisions as to, 272 et seq. 
 
 right of judge of County Court to refuse to try, 273 
 
 REMITTED ISSUE 
 
 interpleader issue cannot be sent down by High Court for trial in 
 
 County Court, 270 et seq. 
 
 when High Court may direct trial of issue in County Court, 272 et seq. 
 right of County Court judge to refuse to try, 273 
 County Court judge has no power to try issues in actions of tort 
 
 remitted by High Court, 273-274 
 
 REMOVAL OF ACTION (see REMITTED ACTION REMITTED ISSUE) 
 refusal of High Court to remove from County Court action under the 
 
 Employers' Liability Act, 153-154 
 mere fact of petitioning creditor being a client of registrar no ground 
 
 for removing bankruptcy proceedings from County Court, 257 
 
 REPAIR 
 
 agreement to, containing average clause, 18 et seq. 
 unnecessary delay, what amounts to, ib. 
 
 RETAINER 
 
 right of executor de son tort to exercise, 30 
 
 whether executor's right of, not abrogated by Judicature Act, 47-50
 
 INDEX. 305 
 
 REVOCATION 
 
 of parol licence, 16-17, see LICENCE 
 
 of authority to sell given to auctioneer, 24 
 
 his right to recover for expenses incurred and work done, ib., 
 70,74 
 
 SAMPLE 
 
 implied warranty on sale of goods by, to retail dealer by wholesale 
 dealer, 62 et seq. 
 
 SCHOOL BOARD 
 
 no implied contract between it and parent for payment of school fees, 
 
 125 et seq. 
 may prescribe inequality of fees in same district, ib. 
 
 SEAMAN 
 
 whether a fireman is, within the exception contained in Employers and 
 Workmen Act, 1875, and Employers' Liability Act, 168 et seq. 
 
 SEASON TICKET (see TICKET) 
 
 effect of special agreement, signed by holder of, relieving railway 
 company from liability, 202 et seq. 
 
 SERVANT (see EMPLOYEES' LIABILITY ACT MASTEE AND SEEVANT) 
 
 verbal agreement for hire of domestic servant, to commence in fitturo, 
 not enforceable, 37-38 
 
 implied stipulation in contract of apprenticeship as to place of per- 
 formance, 108 et seq. 
 
 negligence of, may, without privity of contract, render master liable 
 as for a misfeasance, 146 et seq. 
 
 scope of employment and authority, 149 et seq. 
 
 whether lighterman employed by a barge owner is a servant, 151 et seq. 
 
 contributory negligence of, except in certain cases, will defeat action 
 by, under Employers' Liability Act, 162 et seq.\ see CONTEIBU- 
 TOEY NEGLIGENCE 
 
 SERVICE 
 
 of notice of injury under Employers' Liability Act, 156 
 
 SMALL TENEMENTS 
 
 jurisdiction of County Court in actions for recovery of, where length 
 of tenancy created in dispute, and annual rent or value over 201., 
 77 et seq. 
 
 SOLDIER 
 
 his liability to committal on a judgment summons for non-payment of 
 damages recovered in County Court, 132-133 
 under old Mutiny Acts, 132 
 under Army Act, 1881, 132-133 
 
 SOLICITOR 
 
 bills of sale need not now be attested by, 90 
 
 assignment of debt to, on account 01 fees and costs to be paid or 
 
 incurred by him, not an absolute assignment under Judicature 
 
 Act, 115 et seq. 
 
 SPECIAL CONTRACTS 
 
 with railway company excluding liability, other than for "wilful 
 
 misconduct," 188 et seq. 
 by passenger, who is carried at reduced rate, relieving railway company 
 
 from liability, 202 et seq. 
 how far conditions on back of ticket amount to, 213 
 
 proper direction to jury in such cases, ib. 
 
 for conveyance of goods to a certain siding on defendant's railway, 
 223 et seq. 
 
 X
 
 306 INDEX. 
 
 SPECIAL CONTRACTS continued : 
 
 extent of defendant's liability under, ib. 
 to carry " at owner's risk," 204-205 
 
 reducing liability of railway company below that of gratuitous bailee, 
 invalid, 213 
 
 SPECIFIC PERFORMANCE 
 
 of agreement entered into by intoxicated person, 1 
 
 of sale of underlease, 22 et seq. 
 
 where only qualified title proved, ib. 
 
 in action for, of unstamped agreement for a lease, secondary evidence 
 
 of contents admitted, 56 et seq. 
 STAMP 
 
 when secondary evidence of unstamped agreement for a lease, 
 
 purposely destroyed, may be given, 56 et seq. 
 agreements, though unstamped, admitted as evidence of fraud, 99 
 
 et seq. 
 
 STATUTE OF FRAUDS, see FEAUDS, STATUTE OP 
 STATUTE OF LIMITATIONS, see LIMITATIONS, STATUTE OF 
 
 SUMMARY JURISDICTION ACT 
 
 regulates mode of executing warrants of distress issued by Court of 
 Summary Jurisdiction, 245-246 
 
 SUMMONS (see JUDGMENT SUMMONS, POSSESSION SUMMONS) 
 
 amendment of, thereby converting one form of action into another, 6 
 possession summons cannot be so amended, ib. 
 
 SUPERINTENDENCE 
 
 negligence of person with, under Employers' Liability Act, 164, 166 
 
 et seq. 
 person exercising superintendence over other workmen may be, 
 
 according to circumstances, a servant or contractor under 
 
 Employers' Liability Act, 165 
 
 SURETY, see GUARANTEE 
 
 TENDER 
 
 readiness at all times to pay debt, essential element of, 262 
 
 THIRD PARTY 
 
 contemplation and existence of liability of, essential to creation of a 
 guarantee, 38, 45 
 
 TICKET (see SEASON TICKET) 
 
 mere issue of, by railway company, does not render them liable for 
 
 unpunctuality, 180-181 
 
 how far conditions on back of, bind passenger, 212-213 
 proper direction to jury in such cases, 213 
 
 TIME TABLE 
 
 statements contained in, binding upon railway company, 179 et seq. 
 production of, necessary in actions against railway company for breach 
 
 of representations therein contained, 181 
 TITLE 
 
 County Court no jurisdiction in action for recovery of small tene- 
 ments where title as landlord in question, 81 
 aliter when right to possession only questioned, 80 
 
 TORT (see EXECUTOR DE SON TORT) 
 
 statutory provisions as to notice of action apply almost exclusively to 
 
 actions of, 31-34 
 liability of infant to be made bankrupt in respect of damages 
 
 recovered against him in action of tort, 227 et seq.
 
 INDEX. 307 
 
 TORT continued : 
 
 trial of remitted actions of, in County Court, 272 et seq. 
 but not issues in such actions, 273-274 
 
 TRAFFIC 
 
 differences in circumstances, of, may justify inequality of rates 
 imposed by railway company, 214 et seq. 
 
 TRAIN 
 
 liability of railway company for the unpunctuality of, 177 et seq. 
 
 one railway company not bound to wait for unpunctual train of 
 
 another company, 179 
 liability of railway company for overcrowding, 210 
 
 TRESPASS 
 
 parol licence, unrevoked by reasonable notice, defence to action of, 
 
 16-17 
 joinder of registrar as co -defendant with high bailiff in action against 
 
 latter for, 133 et seq. 
 owner of cattle straying from a common liable in, 137 et seq. 
 
 TROVER 
 
 against auctioneer selling goods assigned by bill of sale without 
 
 authority of assignee, 123 et seq. 
 liability of pawnbroker in, after delivery of pledge to holder of ticket, 
 
 140 et seq. 
 
 TRUSTEE IN BANKRUPTCY 
 
 whether proofs of debts to satisfaction of, differs from proof of debt 
 to registrar, 232 
 
 TRUSTEE IN LIQUIDATION 
 
 contract of, conflicting with his official duty, not enforceable by him, 
 46-47 
 
 TRUSTS, see CHARITABLE TRUSTS. 
 
 UNDUE PREFERENCE 
 
 inequality of rates imposed by railway company does not necessarily 
 
 amount to, 214 et seq. 
 what amounts to, 221 
 
 UNPUNCTUALITY 
 
 liability of railway company for, to passenger, 177 et seq. 
 proof of, 180-181" 
 what amounts to, 179, 180 
 
 effect of notice limiting liability of railway company for, to cases 
 where it is occasioned by their wilful misconduct, 181 et seq., 186 
 
 VICE CHANCELLOR 
 
 no longer entertains appeals from County Courts, 6 
 
 WARRANTS OF DISTRESS, see DISTBESS. 
 
 WARRANTY 
 
 implied on sale of goods by sample to retail dealer by wholesale 
 
 dealer, 62 et seq. 
 
 implied on sale of goods for human consumption, 96-97 
 implied warranty of title on sale of goods " as owner," 102 et seq. 
 
 WILFUL MISCONDUCT 
 
 by servants of railway company defined, 191 
 
 effect of notice limiting liability of a railway company to unpuuctuality 
 occasioned by wilful misconduct of company's servants, 181 et 
 seq., 186
 
 INDEX. 
 
 WILFUL MISCONDUCT continued -. 
 
 what amounts to wilful misconduct by a railway company, 187 et sea 
 
 191, 193 
 special contract limiting liability of railway company as carriers of 
 
 goods to cases of wilful misconduct. 188 et sea, 193 
 WILL 
 
 meaning of term " law expenses " in, 7 
 
 WORKMAN 
 
 who is, within Employers' Liability Act, 165 et seq. 
 proper test to be applied in each case, 166 
 definition of, in Employers' Liability Act, 171 
 
 WRONGFUL CONVERSION, see CONVERSION, TKOVER.
 
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