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Brougham, had come to a decision on a particular case which involved the liability of a large number of contributories. His decision was overruled by Knight Bruce, V. C., a judge of considerable eminence, acuteness, and ability, whose eulogy I am not here to pronounce. The case came here on appeal before Lord Brougham, sitting alone, with the usual two formal adjuncts, the lay figures by his side. He affirmed the decision of his relative, reversing that of Knight Bruce, V.C. Afterwards a case thought to be of a similar character came before the same learned lord on appeal, with the same adjunctshe was not Lord Chancellor at the time, but the Lord Chancellor happened to be unwell-and he decided that case in a different way, the result being that your Lordships were obliged to do that which is of rare occurrence indeed-re-hear the two cases, or otherwise there would have been two inconsistent decisions on the same subject. Suitors, therefore, suffer from a real grievance. I am not saying that Lord Brougham did anything here which he would not have done sitting in Chancery, but imagine the effect which must be produced on the public mind by this decision in favour of a relative, fol lowed by an apparently contradictory decision in I hesitated much in referring to this case till, on reading once more the report and evidence, I found that Lord Brougham himself cross-examined Mr. Malins about the case, and asked, "Are you not aware that Lord Cottenham sent me his written judgment in which he gave the same opinion as I had arrived at?" The answer was to this effect-" Yes, and that made matters a great deal worse, for Lord Cottenham gave that judgment without being present or having heard a syllable of the argument." The mode of administering justice here, therefore, is unsatisfactory. The committee to which I have referred recommended the appointment of two Deputy Speakers, receiving £6000 a year each, with the addition of a Scottish law lord. To that recommendation we owe a very valuable adjunct here, to whose assistance I am constantly indebted in the hearing of appeals. But the report was not otherwise acted upon.FORD.-A Bill was] introduced and passed this House. The LORD CHANCELLOR.-Then it was
agree, said that experience would be the best test in matters of this kind. Until experience, therefore, has decided, I think the best course will be to secure the attendance of five, though I dare say that other members of the court, who may not be under the same obligation to attend, as not receiving salaries, will give their services, especially in important cases. But in minor matters the attendance of three would be sufficient. Another question arose in the evidence before the same committee as to the mode in which the judgment of the court should be given. The question was whether the judgment was to be that of the whole body without saying who joined in the decision or whether judgment should be given by each judge. There was one important witness, who said that he thought experience would be the best test in this matter also. reserve the decision on the point, for determination by the court in the manner it shall think most fit. Well, then, the advantages of the system which I now propose are-first, the continuous sitting of the court from November to February, which will give three months additional in the year; secondly, the sitting, at least, for five days in the week. It is a question whether Saturday may not be devoted to preparing judgments. A further important reform will be effected by giving over to this same body the appellate jurisdiction of the Court of Chancery as it at present exists, and of the Exchequer Chamber. That will prevent the great evil of two appeals, for I think it would be of essential service to the suitor to have but one appeal instead of two. I have made inquiry, and I find that cases of the most ordinary description cannot be lodged before your Lordships' House without an expense of nearly £100. The actual fees of the House are only £23 or £24, but then the preparation of the case is very costly, it being thought necessary to print eighty copies, for no earthly reason that I know, at a cost of some £60 or £70. Now, a tenth of the sum that is now required to lodge the case would be much nearer the mark. Then this court, which will sit continuously, will take appeals from the colonies, from Scotland and Ireland, and will decide once for all, thus avoiding all conflicting decisions. Your Lordships are aware that you have now the most valuable assistance of a noble and learned lord from Scotland. The Master of the Rolls and another noble and learned judge are members of your Lordships' House, but their cccupations in their respective courts have made it impossible for either of them to hear appeals in your Lordships' House during the time I have occupied the position I have the honour to hold. I think your Lordships must feel that it does not add to the strength of your posi tion or to the dignity of the House of Peers, that the highest function which can be assigned to any body whatever of men should be exercised in that perfunctory manner in which it has been exercised in your Lordships' House. No decision of the House of Lords for the last twenty-five years has been a decision of more than five or seven of its members. I do not wish your Lordships to coe to a hasty conclusion with regard to the resolution I am about to move. The subject is of grave importance, and requires most careful consideration. The noble and learned Lord concluded by moving the following resolution: "That it is expedient that one Imperial Supreme Court of Appeal be established which shall sit continuously for the hearing of all matters now heard by way of appeal before the House or before the Judicial Committee of the Privy Council, and that the appellate jurisdiction of this House be transferred to such Supreme Court of Appeal."-Lord CAIRNS.— My Lords, I am very glad my noble and learned friend does not propose to ask your Lordships to-night to come to any decision whatever upon the very important question which he has brought to our notice. With a view to the discussion hereafter of the resolution of my noble and learned friend I suppose it will be more regular if I should move the adjournment of the debate. The very large proposition which my noble and learned friend has made requires most careful and dispassionate consideration. sure I need not say for myself and every one of your Lordships that the question of appellate jurisdiction is one upon which there should be no personal prejudice on the part of this House. (Hear.) Speaking for my noble friends I may say further-that I think if ever there was a question on which we are bound to make a covenant, as it were, with our own personal inclinations, it is the question of appellate jurisdiction. But having said that much, I must state that I did not altogether follow my noble and learned friend in the course of his argument. Nothing, as it seems to me, can be more improper than to examine into the early history of this jurisdiction. It has been as completely settled as the jurisdiction of any other court in the country, and it has been exercised for better or for worse for a very long period of time. Not one of the witnesses examined before the committee advocated a transfer of that jurisdiction from this House, with the exception of Malins, V. C.; and the reason he gave was
| substance whatever in that scheme? Was there any chance that the House as a body would vote upon such reports, and overturn the decisions of the law lords? Then it was recommended that there should be peerages for life, in order to secure a greater number of law lords in this House. Earl Russell proposed that system, but it did not find favour with your Lordships; at all events, it was not adopted. The question, therefore, is, how really to secure a court of appeal which shall sit as a court, which shall be a real and not a sham court, which shall exercise jurisdiction by its members sitting, not as a committee of this House, to whom they are supposed to be responsible, but to whom, in fact, they owe no responsibility whatever, which shall take upon itself the whole responsibility, and sit, as other courts do, throughout the whole legal year for the administration of justice. I will now tell your Lordships what I propose in order to provide an effective remedy for the great evils of the present system. I think the objects I have in view may best be carried out by constituting one great Court of Appeal, which should comprise the jurisdiction of the Judicial Committee of the Privy Council, and also of the House of Lords, and by that means you would never have the possibility of conflict between the decisions of two co-ordinate courts. I propose that the court should be formed in two divisions, but not with such strictness that the judges of one division cannot act in the other. The judges should have the power of migrating from one division to the other, the system of division being simply intended for convenience, and for the discharge of the ordinary business of the court when circumstances might not require that there should be a meeting of the full court. My next proposal is that one division should consist of all peers who have filled the office of Lord Chancellor or any high judicial office for a specified time either in Great Britain or Ireland. I would also include in this division all peers who can be fairly designated as learned lords-there have been some from time to time in this House-I mean men who have actually practised as barristers for a given number of years. There should likewise be a -Lord CHELMS-power to place in this division all Privy Councillors who are capable of being appointed on the Judicial Committee of the Privy Council, if it should be defeated in the other.--Lord CHELMSFORD.- thought fit. In the other division there shall be No, it was dropped.-The LORD CHANcellor. the members now forming the Judicial Committee In either case the argument is strengthened. of the Privy Council, and others to be selected, The House of Commons have acquiesced in your and there will be this important provision for appellate jurisdiction for 200 years, and it cannot securing attendance, namely, that in each division now be in any way disputed. But they did not there should be not less than three and not more acquiesce in it very willingly originally, and are than five who shall be paid £6000 a year. Such a not now disposed to assist you in extending it provision will, I think, secure the attendance of unless for some useful object and for some good those who would be bound at all times to attend reason. The proposal for the payment out of the to the duties of the court. There is this further public purse of additional officers here would be provision, that noble lords who have filled the met by some such suggestions as these:-"You office of Lord Chancellor shall receive a payment have a number of learned lords who receive certain for attendance in addition to their pension, which pensions. We do not say that, in return, they are shall raise their allowance to £6000 a year-those obliged to attend in the court of appeal, nor do who are over seventy years of age will not be we take upon ourselves to interfere with your ar- expected to attend. (Hear, hear.) The Lord rangements. But while we shall be glad to assist Chancellor will be at the head of the court, and I you in constructing a good court of appeal, we do propose that the three chiefs of the common law not feel called upon to support the state of things courts, the two Chief Justices, and the Chief Baron, which now exists." These were the arguments should be members of it. I further propose that urged when I attempted to reserve to your Lord- a certain number of years' service should be ships some power over appeals. I have not men- required to entitle the members of the court to a tioned one great difficulty in connection with this pension, but in other respects that they should court. You are a final court of appeal in all hold their appointments on the same footing as matters coming from England, Scotland and the judges of the common law courts hold theirs. Ireland. But you have no jurisdiction whatever By this means we should get rid of the difficulty, over the colonies. Now, a number of our colonies and, to a certain extent, I may say the degraare regulated by purely English law. In merdation, of persons attending the highest court cantile cases, land cases, cases involving the title of appeal, half as volunteers, in matters in of land, and so on, precisely the same law exists which they have not the slightest concern, and in there as that which governs us. That being so, it which they do not take the smallest interest. I is perfectly possible for the Privy Council to come should now wish to say a few words with respect to a decision upon matters of plain English law to the amount of authority, not altogether inat variance with your conclusion upon the iden- considerable, with which I have been supported tical point here. Thus from the separation in these views. I very much desired, had it been into two bodies of the appellate jurisdiction you feasible or possible, from a feeling for which I run not an inconsiderable risk of having two con- have been upbraided as being slow, wanting in flicting decisions which cannot be set right. I say my duty, and so on, to retain as far as could be that practically you do not and never have exer. the system which at present exists, by means of cised this jurisdiction since the Bishop of London's a report to the Judicial Committee of your Lordcase; you have renounced it. At present, by acci- ships' House, in the manner I have already dedent, you are able to form a small committee of scribed. I found, however, that it was doubtful about four, sometimes five members, to hear cases whether this could be done, and almost everybody which this House does not hear at all. The robe I consulted disapproved the idea. My noble and of dignity with which you have attempted to learned friend has moved for the communications invest that committee has conferred no dignity at made to me on the subject by the Lord Chief all, because you are obliged to confer the same Justice, Mr. Justice Lush, and the Master of the robe of dignity on the lay figures who take part Rolls. The Lord Chief Justice strongly recomin the sitting without credit either to themselves mended the formation of a real bona fide court or the House. Further, you have entangled your and payments of £6000 a year, in accordance with working body in the folds of this robe. You have the report of the committee of 1855. The reason prevented them from sitting for three months in I have introduced the clause requiring not less the year, or for more than four days in a week. than three and not more than five, who should be I think I have not been over hasty in attempting paid for attendance, is this. There was considerto overthrow existing institutions. There was a able difference of opinion on the subject among scheme recommended by some witnesses-that of the witnesses before the committee of 1855. having a committee of peers who should report to Several expressed the opinion that three ought the House at large in the same way as the Judicial always to be the number; many thought three Committee reports to the Sovereign. That was not sufficient, and held that there ought to be all very well in appearance, but was there any five; and others, with whom I am inclined to
this, that it was absolutely necessary that the House should sit for the convenience of suitors during the whole of the legal year. Other reasons urged against the exercise of appellate jurisdiction by your Lordships' House are that there are no means of securing the attendance of an adequate quorum of a particular class of peers, and that it is a jurisdiction which entails great ex. pense. The committee in their report, which I hope your Lordships will consider very carefully, did not arrive at any decision on this matter. We are too much in the habit of thinking that this is merely an English question. I venture to say that the interests of England in this matter of the appellate jurisdiction of this House and of the Privy Council are very much less than those of the other parts of the empire. If this House were to take only appeals from England, three or four weeks would dispose of them. But this House hears also appeals from Scotland and Ireland. We have got some indication of the opinion of Scotland on the point. The Scotch witnesses examined before the committee were unanimously in favour of the retention of the appellate jurisdiction of this House. Lord Aberdeen made an observation which is entitled to great weight. He remarked that, according to the Act of Union, there should under no circumstances be an appeal from Scotland to any court in Westminster Hall. Now, if you create a court holding its sittings in London, and dealing with cases as our courts deal with them, will not a feeling arise in Scotland that appeals are brought to a court which will be looked on as nothing more than one of the courts in Westminster Hall? Again, with regard to Ireland, there is a provision in the Act of Union that appeals and writs of error shall lie to the House of Lords. Great excitement prevailed in Ireland during last century on this question. It was settled by the Act of Union; but if Irish appeals are brought to what may be termed an English court, considerable discussion and perhaps dissatisfaction may arise. My noble and learned friend wishes for only one appeal, but is it possible in the case of Scotland, Ireland, and the colonies, all of which have an intermediate appeal at home, that their cases should be brought from the primary judges to the proposed final court? Considering that ninety-nine appeals never go further than the intermediate court for everyone which comes to the court of final appeal, that is absolutely impracticable. I understand, indeed, that it is proposed to abolish an intermediate appeal in England, but to retain it for Scotland, Ireland, and the colonies. At present the colonies, by their very constitution as colonies, have an appeal to the Queen in Council, which is disposed of on the advice of the Judicial Committee, and I believe they are satisfied with that tribunal, which stands extremely high with them. (Hear, hear.) My noble and learned fried may think it a sham and a form for Her Majesty to pronounce judgment upon the advice of the Privy Council, but the colonists take pride in the fact that they derive their law, not from an English court, but from the actual Order of the Sovereign in Council, and to do away with this would destroy one of the links which most closely bind them to us. This, indeed, is a very much larger question than the tone of my noble and learned friend's speech would indicate when he speaks as if it was quite at our option whether we retain this jurisdiction or not. Is the jurisdiction of the Judicial Committee to be abolished without any consultation with the colonies, and without their having an opportunity of offering an opinion upon it? That would be one of the strongest measures ever taken in this country. Until I see the Bill I will not say a word on the constitution of the proposed court. As far as I understand, all the legal peers, with a number of other persons, the description of whom was only faintly indicated, and all the chiefs of all the courts, are to form one large committee. Whether that would be a satisfactory course I will not now discuss, though I think every objection to the present system could easily be remedied in the way pointed out by the committee. In the proposed court it would be impossible for the head of it to be other than the Lord Chancellor. Indeed, I do not suppose my noble and learned friend would propose any other arrangement. It seems to me, how ever, that for the Lord Chancellor to sit in such a court after the jurisdiction of this House is abolished would involve a change, not only in the constitution of this House, but in the office of Lord Chancellor. That might be viewed with satisfaction in some quarters, but it is impossible that such an officer should be changed from year to year. While offering these observations, I can assure my noble and learned friend that I am anxious to consider every part of his plan, and I trust your Lordships will arrive at a decision which will be satisfactory and beneficial to the country. Lord WESTBURY did not intend to enter on the discussion of so large a question, for it was impossible to express an opinion whether the House ought to part with the judicial authority which it possessed, and probably exercised
satisfactorily, until it was known whether the new tribunal was one to which it might conscientiously and with a sense of duty yield up its functions. (Hear, hear.) He had hoped to hear an explanation of the proposed scheme, for the two things could not be considered separately. He would therefore move that the debate be adjourned, and be the order of the day in immediate priority to the second reading of the Bill constituting the Supreme Court of Appeal. If his noble and learned friend would lay his Bill on the table, the House would be ready to consider it; and if the proposed tribunal were satisfactory to the whole empire, and entitled to unqualified approval, their Lordships might, as honest men, part with their jurisdiction, but till then they could not do so.- -Lord CAIRNS also thought an adjournment would be convenient. He hoped his noble and learned friend on the woolsack would give the House an assurance that the debate should not be resumed till the second reading of his Bill, and that sufficient time, say a fortnight, should elapse between the printing of the Bill and the second reading.- -The LORD CHANCELLOR had intended to have the Bill printed and not to ask for a second reading of it until a result had been arrived at on this resolution. He doubted whether it would be in order to adjourn the debate to a day depending on some other day not yet named, and he would propose, after laying the Bill on the table to-morrow and naming a time for the second reading, to fix the resumption of this debate for the previous day. Lord WESTBURY had been anxious to expedite the production of the Bill, and he was not without hope that if it at all answered the promise held out, the House might be able to deliberate upon it and upon this resolution in time for the Bill to be sent down to the other House and so to become law this session. This, however, depended on the prompt production of the Bill.- The LORD CHANCELLOR had the same object in view as his noble and learned friend, and he had already stated that he should submit the Bill to the House tomorrow night. The introduction of the measure in that shape on the present occasion was greatly influenced by something which fell on the first night of the session from a noble lord who said he should be glad to see a transfer of jurisdiction made, provided a proper Bill was brought in. In moving the resolution before introducing the Bill, he had stated that he would lay the Bill on their Lordships' table to-morrow. They might fix the adjourned debate on the resolution for a day before they took the second reading.- The Duke of RICHMOND suggested that the adjourned debate on the resolution should be fixed for the same evening as the second reading of the Bill. He did not see any advantage that would be gained by taking the adjourned debate on one night and the second reading on another.The LORD CHANCELLOR was understood to assent to this sugges. tion, and the motion for the adjournment of the debate was then agreed to.
CLERKS OF THE PEACE.
Viscount MIDLETON rose to move for a return of the salaries and emoluments received by clerks of the peace in England and Wales, distinguishing between sums paid by the county treasurer and sums received in the shape of fees on an average of three years. At present there was no uniformity in the mode of remunerating clerks of the peace. In some counties they were paid partly by salaries and partly by fees; in others-and he thought wisely-the whole Fee Fund had been commuted, and specific salaries were assigned to clerks of the peace. Some difficulty had arisen in more than one county in carrying out such an arrangement where the clerks of the peace were not fully consenting parties to it. He thought the general progress of public feeling had been against the payment of any officials through the medium of fees. A Bill had been brought in this session to remunerate the Attorney-General and the Solicitor-General by means of a salary and not by fees; and a measure had also been introduced to remunerate clerks of petty sessions in the same mode. In the county with which he was connected that reform had been effected some years ago; they paid all their clerks of petty sessions by salary, and the result of that experiment had been eminently satisfactory both to the county and to those gentlemen themselves. He wished to see some principle of that kind applied also to clerks of the peace; but before any sound basis of legislation could be laid it was necessary to ascertain what their present remuneration was. The only part of his motion with respect to which he anticipated any difficulty was as regarded a return of the fees. He had heard it argued in quarter sessions that it would be unfair to make any alteration in the salaries of clerks of the peace, because the fees were not received actually from sources connected with the county, but from Her Majesty's Treasury. Even in cases where appointments to clerkships of the peace had been very recent indeed, if there was any difficulty in making out a triennial valuation of fees, there
could not be any difficulty in arriving at some approximation which would enable to get them at the actual amount of the income. If his motion were agreed to, he earnestly hoped that the returns would be laid on the table on an early day. Earl GRANVILLE said there was no objection to the production of the return. The motion was agreed to.
HOUSE OF COMMONS.
PARLIAMENTARY AND MUNICIPAL ELECTIONS
The House went into committee on this Bill and resumed the consideration of clause 3, which deals
with offences in respect of nomination-papers, ballot-papers, and ballot-boxes. Considerable discussion took place on the penal clauses in the Bill.
Displaying ballot-papers after voting.
Mr. LEATHAM rose to move, at page 3, line 32, after "voted," the insertion of the words " and no voter shall, after marking his vote on his ballotpaper, wilfully display such paper in such manner as to make known to any person the name of the candidate for or against whom he has so marked his vote." The principle of that amendment had been so amply discussed on previous occasions that he would best consult the convenience of the committee by moving the insertion of those words without further comment. (Hear, hear.—————Lord CLAUD HAMILTON asked whether it was intended by the amendment to make it a statutory offence for a short-sighted voter to ask a confidential friend whether he had marked his ballot-paper rightly. Mr. GOLDNEY said that a great number of persons, especially when the new system was first introduced, would be ignorant of the proper mole in which they should mark their ballot papers, and, without intending to disclose the secrecy of their vote, they would hold up their papers and ask the returning officer, or one of his clerks, "Is this the proper way of voting?", Yet that would render them liable to punishment. Instead of giving their votes freely and independently, such penalties would deter half the electors from voting at all.—Mr. VERNON HARCOURT thought they ought to have some explanation why that amendment, about which he felt considerable difficulty, was not originally included in the Bill. He understood that they were to allow a person to conceal his vote if he desired to do so. (Cheers from the Opposition.) He thought that that was a very just and proper object; and that was in the Bill as it stood at first. The Bill also provided very pro perly for another thing, viz, that persons who interfered with that concealment which the voter desired should be punished. That was the fourth clause as it now stood; but his hon. friend (Mr. Leatham) proposed to introduce an entirely new thing, viz., to make it a crime on the part of a person openly to declare his vote. (Cheers from the Opposition.) That was not in this Bill at present. He understood that it was in some former Bill, but was afterwards omitted. It was a totally distinct thing from what they had yet considered. He was willing to give every protec tion to the man who wished to conceal his vote; but he was not prepared to say that under any circumstances it was a crime for a man to say how he voted, unless he did it with a corrupt intention, and to further some corrupt bargain. If his hon. friend the member for Hudders field, instead of the word wilfully," would insert the words "with corrupt intent," before display his vote," he should be satisfied with the amendment, because that, as being part and parcel of an act of bribery, ought to be punished. They did not object to a man saying, I vote for Mr. So-and-So," because that might not be true. (A laugh.) They proposed to treat his saying that which might be false as venial, but his saying that which was true was to be made a misdemeanour. (Laughter and cheers.) Suppo sing an elector for Bradford not only called out "Forster for ever" (a laugh), but showed his paper with Forster upon it, it would be hard to send that man to prison. Why, they would in that way fill the gaols of the West Riding. (Hear, hear.) That seemed to him to be entirely wrong. He therefore desired to substitute the words "with corrupt intent" for "wilfully" because in a case of bribery the showing of the ballot paper would be part of the evidence of a corrupt transaction. He might be told that his suggestion would not meet a case of intimidation. A person might threaten, if the voter did not show him his paper, to take away his lease or his house, or to turn him out of his employment. How was it now proposed to reach that? Why, by saying to the voter that if he did not show his paper he should go to prison. That was not a very comfortable position in which to put the unfortunate voter. (A laugh.) If he did not show his paper he would lose his lease or his situation; and if he did show it he would go to
prison. (Hear, hear.) What would the man do if placed in that awkward dilemma? Why, he would inevitably be deterred from voting at all (Hear, hear.) Surely they did not want to add to the burdens of the unhappy elector who was intmidated, but rather to punish the person who intimidated him; and they ought to make it a misdemeanour for any person to use undue influence to induce another to display his paper. In that case the act of displaying his paper would be part of the evidence to prove that some other person exercised undue influence towards him. But if the voter neither corrupted nor intimidated, and merely showed his paper to somebody in a fit of enthusiasm, partly political and partly physical, which sometimes happened at elections, to send the man to prison for three months under those circumstances was a thing to which he could not assent. There seemed to be a growing passion for the creation of misdemeanours. (Cheers from the opposition.) The moment they got hold of something which they did not like, they determined to send everybody to prison who did it. An eminent draughtsman had said to him that they were now manufacturing misdemeanours at the rate of about 500 per annum, and creating more of them in a year than had formerly been created in centuries. (Laughter.) There was only one defence against that legislation, and that was that juries and magistrates were more reasonable than the House of Commons, and declined to take any notice of the misdemeanours they manufactured. (Laughter.) Did anybody believe that if any voter without corruption or intimidation went into a polling booth and said "Here is my ballot-paper," any Judge or jury would be found so tyrannical and absurd as to send him to prison? (Hear, hear.) They had better confine their penal legislation to acts which the moral sense of the country would condemn. If they carried it further by sweeping provisions of that kind, public opinion would not support them. (Hear, hear.) He begged, therefore, to move the omission from the amendment of the word " wilfully," in order to substitute "with corrupt intent.' Mr. W. E. FORSTER said: In preparing the Bill of this Session he took up the measure that was rejected by the House of Lords, he did not find the provision in it, but he thought for a time that it was included. He discovered, however, that it had been overlooked a few days after the Bill was introduced. But after all the real point was whether the provision here should be included or not (hear), and he must differ from the hon. and learned member for Oxford. The Government never intended that there should be a penalty on a man who said how he would vote. What he had always said was that one of the principles of the ballot was that there should be a secret vote, and that the voter should not be able to prove how he had voted. (Hear, hear.) Then came this provision, which would not take effect unless the voter positively proved to an agent how he had voted. He could not accept the substitution of the words "with corrupt intent" for "wilfully," and his hon. friend himself had acknowledged that they would not meet the case of intimida
tion. After some further discussion the committee divided on the question that the word "wilfully," in Mr. Leatham's amendment, should stand. After the division the tellers advanced to the table, and Lord BURY, one of them,
informed the chairman that the tellers could not agree as to the numbers.--The CHAIRMAN thereupon decided that another division must be taken. -The committee then proceeded to divide again. The numbers were-Ayes, 166; noes, 167; majority for Mr. V. Harcourt's amendment, 1. The announcement of the numbers was received with loud shouts of cheering from the Opposition benches. -The CHAIRMAN then put the question that the words " with corrupt intent," moved by Mr. V. Harcourt, be inserted instead of the word "wilfully," struck out; upon which--Mr. W. E. FORSTER moved that the chairman report progress, amid cheers and laughter.--The House resumed.
THE Marquis of Hartington's Bill to repeal the Party Processions (Ireland) Act has been printed. It consists of only one clause enacting that the Act in question be repealed. A Bill introduced by Mr. Knatchbull-Hugessen and Mr. Baxter proposes to continue the appointment and jurisdiction of the commissioners for the sale of encumbered estates in the West Indies. Two Bills brought down from the Lords, have also been printed; an Act to amend the Law of Burials in England and Wales, and an Act to amend the Life Assurance Companies' Acts 1870 and 1871.
MR. WALTER PHILLIMORE, the son of the Dean of Arches, has been appointed to the Chancellorship of the Diocese of Lincoln, vacated by the resignation of Sir Travers Twiss.
NOTES OF NEW DECISIONS. WILL-CONSTRUCTION-GIFT TO "A. AND HER CHILDREN"-LIFE ESTATE WITH REMAINDER OVER.-A testator gave all his property to his wife "for the use and benefit of herself and of his children." Held (reversing the decision of Malins, V.C.) that the property passed to the widow and children as joint tenants: (Newill v. Newill, 26 L. T. Rep. N. S. 175. Chan.)
Fox (Chas.), Dundle, Northampton, farmer and grazier.
LLOYD Martha), Moelgarnedd. Merioneth, widow. May 3;
CREDITORS UNDER 22 & 23 VICT. c. 35.
DAVISON (Sarah), Loughborough, Leicester, confectioner.
GREEN (Eliza R.), Marquis of Granby Public House, Castle-
Powis (John), Esq., Pall Mall, Middlesex.. April 21; Combe and Wainright, solicitors, 9, Staple Inn.
CHARITABLE GIFT-INSUFFICIENT DESCRIPTION-LATENT AMBIGUITY-PAROL EVIDENCE. -Testator bequeathed £1000 to the Victoria Hospital. There was no hospital strictly anwer ing this description, and the legacy was claimed by (1) The City of London Hospital for Diseases of the Chest, which was situate at Victoria-park, and (2) The Victoria Hospital for Sick Children, which was situate in Chelsea. It appeared that the testator had subscribed to the former, and taken an interest in it, and that he sometimes called it "the Victoria Hospital." It was alleged on the other hand that the Victoria Hospital for Sick Children was the only one publicly known as "The Victoria Hospital," and it appeared that letters so directed were always forwarded there by the Post-office. Held, that the description in the will was not sufficiently complete to exclude parol evidence; and the court holding it to be in Victoria-park, ordered it to be paid accordingly: clear that the money was intended for the hospital (Briscoe's Trusts, 26 L. T. Rep. N. S. 149. V.C.M.) PRACTICE-8 VICT. c. 18, s. 78-PAYMENT OF DIVIDENDS ORDERED TO TRUSTEES PAYMENT OF CORPUS OUT OF COURT REFUSED.-Testator devised real estate to trustees on trust for B. for life, and after his death on trust for sale, the proceeds to be divided among B.'s children as and when they should attain twenty-four, with maintenance and advancement clauses. During B.'s life a railway company took part of the real estate, and paid the purchase money, amounting to £590, into court. B. died, leaving six children, of whom four had attained twenty-four, South Hackney-Handley-road, Providence Villa, term 70 and two were infants. Shortly after B.'s death, the trustees sold the rest of the property, and paid their distributive shares (amounting to £727 apiece) to the four eldest children. On a petition being presented relating to the fund in court, the court declined to order the fund to be Kensington -Nos. 9 and 11, Palace-place, freehold-sold for transferred to the trustees, but ordered it to be carried over in moieties to the separate accounts of the infants, the dividends to be paid to the trustees for maintenance: (Re Reaston's Estate, 26 L. T. Rep. N. S. 148. V.C. M.)
COURT OF QUEEN'S BENCH Monday, April 15.
Re AN ATTORNEY.
THIS was an application to reinstate an attorney under these circumstances:-In 1870 the Master of the Rolls had ordered him to be suspended for some supposed misconduct, and this Court, upon being informed of the fact, followed his Lordship's example. The attorney on neither occasion had had recently done so, and satisfied the Master of appeared to meet the charge against him, but he the Rolls that his former decision was erroneous, with many expressions of regret, observing that upon which his Lordship had rescinded his order, it was the fault of the attorney in not having met the charges against him earlier.
Willis, on behalf of the attorney, now applied to the court to rescind their order for his suspension, and
acted on the decision of the Master of the Rolls COCKBURN, C. J. said that, of course, having follow his example in reinstating him. in suspending the attorney, they should equally
UNCLAIMED STOCK AND DIVIDENDS IN THE BANK OF ENGLAND.
[Transferred to the Commissioners for the Reduction of the National Debt, and which will be paid to the persons respectively whose names are prefixed to each in three months, unless other claimants sooner appear.] ACKLAND George). Swithin's-lane, E.C., merchant, and ALLEN (John William), Carlisle-street, Soho, Middlesex, gentleman. £35 8s. 10d. Three per Cent Annuities., Claimant, said John William Allan.
CREDITORS UNDER ESTATES IN CHANCERY. LAST DAY OF PROOF. DOUGLAS (William), jun., Chilton-lodge, Fulham, Middlesex house agent. April 22: White and Co., solicitors, 12, Great Marlborough-street, Middlesex. May 1; V.C. W., at one o'clock.
Stamford Walsall Wigan.
PRITCHARD (Edw.), 37, King-street, Snow-hill, E.C., tobacco manufacturer. June 24; Eagleton and Mason, solicitors, 81, Newgate-street, E.C.
ROSE (William), Thames Lawn, Great Marlow, Bucks, solicitor. June 21: Eagleton and Mason, solicitors, 84, Newgate-street, E.C.
STABLE (Frederick A.), Gympie, colony of Queensland, miner. Nov. 16; Garrard and James, solicitors, 13, Suffolkstreet, Pall-Mall East, S. W.
REPORTS OF SALES.
By Messrs. NEWBON and HARDING, at the Mart. years-sold for £250. Hoxton-No. 114, Murray-street, term 70 years-sold for £360. No. 115. adjoining-sold for £475, By Messrs. PRICE and CLARK. Hackney-road-Ground-rent of £21 per annum, well secured, term 31 years-sold for £285.
By Mr H. E. MAPSH, at Guildhall Tavern.
£340. Nos. 10 and 12-sold for £300. Nos. 13 and 14-sold for £295. Oxford-street-No. 13, Newman-street, the lease of, term 30 years-sold for £180.
Tuesday, April 9.
By Messrs. GADSDEN, ELLIS, and Co., at the Sun Hotel,
A ditto of £7 13s. 9d.-sold for £150.
Thursday, April 11.
By Messrs. FURBER, PRICE, ani FURBER, at the Mart. sometown, Unicorn-yard, dwelling house and range of Hadley-common, the freehold residence known as Hadley Lodge, with stabling, &c., and 11 acres-sold for £7000.
stabling,term 25 years, also Nos 34 and 35, Ossulton-street, term 74 years-sold for £650. Regent's-park, Nos. 6 and 7, Little Charles-street, term 14 pears-sold for £280.
By Messrs. C. C. and T. MOORE. Bcw, Tredegar-road, Woodhouse-cottage, freehold-sold for £309. Old Ford, No. 131, Usher-road, North, freehold-sold for £185. Gravesend, a freehold ground-rent of £10 per annum-sold for £210.
Bromley, a ditto of £20 per annum, short reversion-sold for £570.
A ditto of £6 68.-sold for £130.
No. 147, Grundy-street, freehold-sold for £220.
Wednesday, April 17.
By Messrs. EDWIN FOX and BOUSFIELD, at the Mart. Surbiton.-Newton-house, Sutherland-house, Gloucesterhouse, and No. 2, Surbiton-crescent, term 79 years-sold for £4700.
Starch-green.-No. 2 to 6, Askew-place, the Princess Victoria Tavern, No. 1, la, to 7, Victoria-road, term 37 yearssold for £1120.
Acton.-A freehold ground-rent of £8 per annum-sold for £155.
South Lambeth.-Nos. 7 and 8, Devonshire-road, freeholdsold for £600 each.
No. 9, adjoining-sold for £560.
Stockwell.-No. 35 and 40, Binfield-road, term 68 years-sold for £600.
No. 42, adjoining-sold for £610.
No. 48, same road, and No. 14, Lansdowne-road-sold for £1680.
No. 11, Lansdowne-road -sold for £580.
No. 10, adjoining-sold for £630,
Balham-hill-Devonshire-road, detached residence, term 54 years-sold for £1020.
A ditto, same term-sold for £160.
New-road.-Four houses, term 54 years, and ground-rent of £20 per annum-sold for £310.
Hampstead.-No. 1, la, to 4, Church-place, freehold-sold for £1220.
Bedford-square.-No. 59, Gower-street, term 10 years-sold for £130.
Norwood-Spring-cottage, and the adjoining house, term 12 years-sold for £350.
BOROUGH QUARTER SESSIONS.
Wednesday, May 1 ......... J. Catterall, Esq.
REAL PROPERTY AND CONVEYANCING.
NOTES OF NEW DECISIONS. CHARITABLE GIFT-INACCURATE DESCRIPTION OF THE OBJECT-ADMISSIBILITY OF EXTRINSIC EVIDENCE.-A testatrix, by her will, gave a legacy to "the treasurer for the time being of the fund for the relief of the widows and orphans of the clergy of the diocese of Worcester.' At the date of the will there was no society accurately answering this description, but there was a society which had formerly fulfilled that office or the whole diocese, but had lately been restricted, both in its name and in its operations, to the archdeaconry of Worcester. To this society the testatrix and her parents had subscribed both before and after it changed its name and restricted its operations. There was also a similar society, to which the testatrix had not been a subscriber, in the archdeaconry of Coventry, which formed part of the diocese of Worcester: Held (reversing the decision of Malins, V.C.), that the evidence as to the subscriptions by the testatrix, which was admissible, proved that she intended to benefit the Worcester society, and that that society was, therefore, entitled to the whole legacy: (Re Kil. vert's Trusts, 26 L. T. Rep. N. S. 221. L.JJ.) WILL-SHARE OF RESIDUE-INTESTACY.-A
testator gave the residue of his real and personal estate to trustees upon trust to convert the same, and pay two-fourths of the proceeds to A. and M., and to stand possessed of the two remaining fourth parts upon trust to invest the same, and to stand possessed thereof when invested, and of the income thereof in trust as to one moiety for the benefit of J. and her children; and as to the other moiety in trust for the benefit of E. and her children. And he declared that in the event of either
or both J. and E. dying without issue, the share or shares of either so dying should sink into and form part of his residuary estate, and be paid and divided accordingly, but so that the husband of the one so dying should take no share therein as representing his wife. J. died, after the testator, without issue, and leaving a husband surviving her: Held, that there was an intestacy as to her share: (Re Beviss's Trusts, 26 L. T. Rep. N. S. 239. V.C. W.)
NOTES OF NEW DECISIONS. WINDING-UP-REGISTRATION OF MORTGAGE -COMPANIES ACT 1862, s. 43.-Sect. 43 of the Companies Act 1862, does not invalidate a charge not entered in the register of mortgages, which limited companies under the Act are required to keep; but where a solicitor receives a charge from a company and fails to have it entered in the register, he will not be allowed to claim the benefit of the charge, even though he be not the habitual solicitor of the company, but only employed by them in the matter in respect of which he receives the charge. Decision of the Master of the Rolls affirmed: (Re Patent Bread Machinery Company, 26 L. T. Rep. N. S. 228. James, L.J.) WINDING-UP-PRACTICE-INCHOATE FOREIGN COMPANY-PROVISIONAL DIRECTORS.-In April 1871 a prospectus was published of a company to be called the Imperial Anglo-German Bank, the head office to be in Berlin, with a branch in London. The prospectus published the names of the secretary and of twelve directors, five of whom were resident in Berlin and seven (some of whom were Germans) in England. It stated that by the provisions of the German law, under which the company was to be incorporated, applicants for shares could not be made liable before the incorporation of the company, and that their money must therefore be returned in full if the undertaking should not be proceeded with. It further stated that a moiety of the shares had been subscribed for in Germany, and 10 per cent. paid thereon (which was required by the German law before the incorporation of a company), and it invited subscriptions for the remaining moiety. On the 20th March a large order for advertisements was given at the temporary London office of the inchoate company to R., an advertising agent, by the secretary, in the presence of the principal promoter of the company. The remaining moiety of the shares was allotted in England, and 10 per cent. paid thereon. But it having turned out subsequently that the first moiety of the shares had not, in fact, been subscribed for in Germany, nor the requisite percentage paid thereon, the company was never incorporated. Upon a petition by R., stating these facts, and praying that the Imperial AngloGerman Bank might be wound-up by the court: Held (reversing the decision of Malins, V.C.), that the Imperial Anglo-German Bank, not having been incorporated, never came into existence, and could not be wound-up. Semble, that the provisional
NOTES OF NEW DECISIONS. PRINCIPAL AND AGENT-BROKER-CONTRACT USAGE OF MARKET.-Plaintiffs, tallow brokers in London, were commissioned by defendant at different times in April, to buy two several lots, one of fifty and the other of 200, tons of tallow, for June delivery. On receiving the order for fifty tons plaintiffs bought 150 tons of S., intending to appropriate fifty out of these to defendant, and the remaining 100 to another order which plain. tiffs had received from another person. On receiving defendant's second order for 200 tons, plaintiffs bought 200 tons of R. and 150 of the above-mentioned S., intending to appropriate to defendant fifty out of such 200 tons, and the whole of the 150 tons. On each occasion plaintiffs sent to defendant bought notes in the usual form, signed by them as brokers. In these notes the sellers' names were not disclosed. They also at the same time sent to the persons of whom they had bought, sold notes in which the buyer's name was not disclosed. These bought and sold notes exactly corresponded with each other, except as to quantity. In the month of May, before the time arrived for delivery of the tallow, S. failed; thereupon, plaintiffs and S., having many transactions together outstanding for the sale and purchase of tallow, balanced and settled an account thereof, wherein the quantity of tallow sold was set-off against the quantity of tallow purchased, whereby it appeared that plaintiffs had sold to S. more than they had bought of him. When the day for delivery of the tallow to defend ant arrived, plaintiffs having thus no tallow to receive from S., tendered other 250 tons of tallow to the defendant. It was not disputed that the tallow thus tendered was of the quality described in the contract, but defendant, having by this time discovered what had taken place, refused to accept it. Plaintiffs accordingly sold the 250 tons of tallow, as against defendant, and brought this action to recover the difference in price. A custom was proved to exist in the London tallow trade for brokers, when they receive an order from a principal for the purchase of tallow, to make a contract or contracts in their own names, without disclosing their principals, and either to make such contracts for the specific quantity of tallow so ordered, or to include such order with others they may have received in a contract for the entire quantity, or in any quantities at their convenience, at the same time exchanging bought and sold notes with the selling brokers, as above described in the present case, and passing to their principals a bought note for the specific quantity ordered by them as above described in this case; and that when a broker purchases in his own name he is personally bound by the contract, and that on the usual settling days the brokers balance between themselves the purchases and sales so made, and make or receive deliveries to or from their principals as the case may be, or if their principals refuse to accept or deliver, then to sell or buy against them, as the case may be, and charge them with the loss, if any, or if delivery is not required on either side, then any difference which may arise from a rise or fall in the market, is paid by the one to the other. This custom was unknown to defendant. The whole of the transactions and dealings in the present case were carried on in accordance with this custom. Held (per Kelly, C.B., Channell, B., and Blackburn, J.), that defendant was bound by the custom, and that plaintiffs were entitled to recover; per Mellor and Hannen, JJ., and Cleasby, B., that the custom did not bind defendant, and that plaintiffs were not entitled to recover: (Mollett and another v. Robinson, 26 L. T. Rep. N. S. 207. Ex. Ch.)
NOTES OF NEW DECISIONS. ADMIRALTY COURT-PROHIBITION TO-COLLISION-ACTION FOR NEGLIGENCE.-A prohibition will lie to the Court of Admiralty from any one of the Superior Courts at Westminster: (Smith v. Brown, 40 L. J. 214, Q. B.; 24 L. T. Rep. N. S. 808, approved of.) By sect. 504 of the Merchant Shipping Act 1853 (17 & 18 Vict.c. 104), no owner of any sea-going ship, or share therein, is to be liable for damage or loss to any goods, &c., on board such ship to an extent beyond the value of his ship and the freight. By sect. 514 (part 9) it is enacted that in cases where any liability has been incurred by any owner in respect of loss or
damage to goods, &c., and several claims are made or apprehended in respect of such liability, then it shall be lawful for the High Court of Chancery to entertain proceedings at the suit of any owner for the purpose of determining the amount of such liability, and for the distribution of such amount rateably amongst the several claimants, with power for any such court to stop all actions and suits pending in any other court in relation to the same subject matter. By the 24 Vict. c. 10 (The Admiralty Court Act 1861), s. 13, it is enacted that "whenever any ship or vessel, or the proceeds thereof, are under arrest of the High Court of Admiralty, the said court shall have the same powers as are conferred upon the High Court of Chancery in England by the ninth part of The Merchant Shipping Act 1854." The plaintiff took a ticket of the London and South-Western Railway Company, to be conveyed by them from London to Guernsey, and when on his journey in the company's vessel, the Normandy, between Southampton and Guernsey, a collision took place between this vessel and a vessel called the Mary, in consequence of which the plaintiff lost his luggage, and the Normandy sank to the bottom of the sea. Cross-suits were then instituted in the Court of Admiralty by the owners of both the Normandy and Mary, each alleging negligence; and an action was commenced in this court (Exchequer) by the present plaintiff against the defendants, as owners of the Normandy, and other actions by other passengers were also commenced against them for losses sustained by the collision. The owners of the Normandy, in their proceedings in the Court of Admiralty, undertook that if the court should find the Normandy solely to blame, or find both the Normandy and the Mary to blame for the collision, they would in the other actions admit liabi lity to such plaintiffs as might prove their title to sue, and they prayed the court to pronounce that the plaintiffs, if liable, were not liable to an aggregate amount exceeding £15 per ton of the aggregate tonnage of the Normandy, and that they might be at liberty to pay into court that sum with interest, and that all further proceedings in the said actions should be stayed, &c. Thereupon the Court of Admiralty, after hearing the counsel of the parties in the suits in that court, ordered that all actions should be stayed, the owners of the Normandy undertaking to admit liability in all such actions, as soon as the court should have pronounced for the damages proceeded for in the suit before it. The decree pronounced by the court stated that the court had jurisdiction to entertain the cause, and that the owners of the Normandy were entitled to limited liability, according to the provisions of the Merchant Shipping Act 1854 and the Merchant Shipping Act 1862, and that if answerable, they were only so in damages to an amount not exceeding £6376, being at the rate of £15 for each ton of the registered tonnage, and the owners were ordered to pay into court that sum, together with interest. The court also decreed the Normandy to have been solely to blame for the collision. The defendants accordingly paid into court the said sum of £6376. The plaintiff in the action in this court having applied for a rule to prohibit the Court of Admiralty from further proceeding in the suit, and from further pro ceeding to enforce and issue any injunction to restrain the plaintiff from prosecuting his action in this court, the court directed him to declare in prohibition, whic he accordingly did, and the foregoing facts having been set out in the declaration and the defendant's plea, the plaintiff demurred to such plea. Held, first, that a prohi bition would lie from this court to the Court of Admiralty; secondly, That as neither the vessel nor the proceeds thereof was or were under arrest of the Court of Admiralty, as enacted by sect. 13 of the 24 Vict. c. 10, the Court of Admiralty had no jurisdiction. Per Kelly, C.B.-That had an equivalent for the ship been brought into court, that would have given the Court of Admiralty jurisdiction, but that a payment into court of £15 per ton could not be taken as an equivalent for the value of the ship. Also that the admission of liability should be an absolute and not a qualified admission. Per Martin, B.-That the suit of limited liability should be a simple one of itself, and that the plaintiff in the present action should have been a party to it. Quære, Whether the Court of Admiralty had any jurisdiction over such a cause of action: (Jones v. The London and South-Western Railway Company, 26 L. T. Rep. N. S. 187. Ex.)
AN EVENING BEVERAGE CACA'OINE. The Food Journal says:-By a new process to which the nibs are subjected, the principal part of the oil is effectually removed; a thin beverage, well adapted for afternoon or evening use, as a substitute for tea, being the result. The flavour of Caca'oine will, in addition, be a great attraction to all."- Each packet or tin is labelled, "JAMES EPPS & Co., Homeopathic Chemists, London." Also makers of Epps's Milky Caca'oine (Caca'oine and Condensed Milk.)
ABERDARE COUNTY COURT. (Before T. FALCONER, Esq., Judge.) DAVID V. THE TAFF VALE RAILWAY COMPANY. Where there is no statutory obligation, the owner of a tramway held to be under no obligation to fence off estrays.
Beddoe for the plaintiff.
Stephens, of Cardiff, for the defendants. His HONOUR said :-The plaintiff sues for £20, the value of a cow killed on the Taff Vale Railway on the 25th Oct. last. The plaintiff had three cows grazing in a field three-quarters of a mile. from the place where the accident occurred. One of these cows had calved some six weeks before it was killed by being run over by a train. It got out of the field in which it was placed, respecting the fences of which we have no information, then came into the town, and fwandered into "Pittstreet," which is a miserable rough road leading to the Powell Duffryn Colliery-the main part of which roads leads, on the right, to the colliery. Leaving this main road and going on a few yards, we come to a railway siding unfenced, forming a long segment of a circle, joining the main railway at each of its ends. Between this siding and the railway fence gate there is, to the right, a tip which comes close along the siding rails, and to the left is a space sufficient, after we cross the siding railway, for a cart to go to the level crossing of the main line. This level crossing, with gates, seems to be for the accommodation of a house and premises on the other side of the main line; for on the other side of the main line is a tip on the right, which is almost precipitous to the river; and, on the left, are fenced premises of the house, which almost reach the bank of the river, and there seems to be no public way beyond. Going back over the main line to the railway siding where I have represented its being crossed to reach the gates of the main line, the siding continues, for very many yards before its junction with the main line, almost parallel with the main line. Crossing the siding, before its junction with the main line, is a gate. This siding is a feeder to the main line. The cow being on the main line was killed by a 5.20 a.m. train, the driver of which stopped at the lodge of the gatekeeper and said that something was the matter. On sending back to ascertain what occurred, the cow was found on the ground. The inspector, Mr. Lloyd, tracked the animal to the gatepost on the siding, which I have mentioned, and, according to her track, she had come from the street. The property adjoining the railway belongs to the Powell Duffryn Company. Mr. Lloyd states that the Powell Duffryn Company keep the siding gate in repair, and that it is their gate. Morgan, who is stationed at the crossing, looks after the gate and shuts it, and he sometimes puts a bar across it; precautions which are obviously necessary for the protection of carriages passing along the main line. With the gate on the level crossing we have nothing to do. There is no doubt these gates were shut and that the cow did not pass through either of these gatesat least, there is no probability to justify a doubt on these two points, nor is any doubt suggested. Now let us turn to two well known decisions. In the case of Fawcett v. York and West Midland
Railway Company (20 L. J. 222), it was held that the company were bound to keep the gate at level crossings closed against all persons or cattle upon a highway, whether lawfully there or not. In that case the plaintiff's horses were lawfully in his field, the fences of which were sufficient for all ordinary purposes; but it was found, notwithstanding this, that the horses had jumped the fence, and got through two or three fields into the road, and thence through a gate on to the railway. It was held that under the words of the statute the company were bound to keep the gate shut, whether the horses were lawfully on the road or not. This, let it be observed, was the case of a gate on a level crossing; and the watching of such gate is provided for by 8 & 9 Vict. c. 20, s. 68. In the instance of defective fencing it is otherwise, that is where the animals are straying, and get on the line through defect of a company's fences, i. e., not through omissions of duty at level crossings. Thus, in the case of the Manchester and Sheffield Railway Company v. Wallis (23 L. J. 85, C. P.), it was held that though the owner of horses lawfully passing or driven along a highway may be considered as an occupier of it, and entitled to recover a compensation from a railway company whose land adjoins the highway, if through a defect in the fence, between the land of the occupier and the railroad, occasioned by the negligence of the company's servants, his cattle get on the line and are injured, yet, if an injury happens to horses when straying on the highway to the railway through a defective fence, the company are not liable; for the owner of cattle so straying is not, in law, the occupier of the highway, and consequently, as against him, there is no obligation to maintain the fence. These two cases are, in their application, very clearly illustrative of the law. Owners of animals must
to Rhyl to make inquiry, and he found the goods at the railway station there. It was alleged by the station master at Rhyl that the consignor's place of business, though in the town of Rhyl was three quarters of a mile from the station, and a quarter of a mile beyond the radius of the company's delivery, but that a notice in writing had been posted to the consignee on the evening of the 9th, informing him of the arrival of the goods. The consignee was called at the trial on behalf of the defendant to prove that he had searched for that notice, and could not find it. This was for the purpose of admitting parol evidence of the contents of the notice, but the consignee went much beyond this, and proved that he had never seen the notice nor heard of it. As a probable way of accounting for its not having reached the hands of the consignee, it was stated that he was just at that time changing his residence. It appeared that the plaintiffs, immediately, and without delay, preferred a claim against the company for the full value of the goods, and refused to receive them back though tendered to them by the company, in whose custody they have since remained. The above are shortly the facts of the case, and upon these facts it was argued on behalf of the defendants-First, that the plaintiffs were not the proper parties to sue, but that the action should have been brought by the consignee ; secondly, that the plaintiffs were debarred from maintaining their action, because they had entered into a special contract to be bound by a certain special condition, under which, amongst others, the defendants alleged they had undertaken to carry the goods. This condition was printed on the back of the receiving note given by the com pany on delivery to them of the goods to be carried, and which condition I ruled must be taken to have been within the knowledge of the plaintiffs, and which was to this effect: "That no claim for loss or damage for which they may be liable will be allowed unless the same be made within three days after delivery of the goods, such delivery to be considered complete when notice of arrival is sent to the consignee, or, if the goods be carted by the company, when they are unloaded at the door of the consignee's place of abode or business;" thirdly, that if the court should be of opinion that the plaintiffs were entitled to judgment in their favour, they should only recover nominal damages; fourthly, that there had been no wrongful conversion on the part of the company. The first point was scarcely insisted upon. Clearly the plaintiffs were the proper parties to sue. second point was a more important one, and demanded more consideration. Since the passing of the Railway Traffic Act of 1854, whenever special conditions of carriage are pleaded by a rail
take care of their own animals when straying, except in the case of animals which reach a level crossing, when it is the duty of the company to protect the line and keep off estrays. But there is a third case as respects sidings, not unlike the present. This is the case of Marfell v. South Wales Railway Company (36 L. T. 631, July 1860). There the plaintiff's horse had turned from a tramroad to the railway, and was killed by an engine. The railway and the tramway ran in parallel lines very near to each other on the land of the company. The plaintiff was using the horses and the trucks by the permission of the defendants for certain tolls, that is, money to be paid to them by him for such use. A fence had been placed between the railway and the tramroad, and in the line of fence was a gate which had been opened and left open by the servants of the company, and through this opening the horses swerved from fear on to the railroad. The court differed, but found for the plaintiff. Williams, J. very clearly stated the ground of liability. "It was," he said," part of the constitution of the tramroad of the defendants (which the plaintiff, together with the rest of the public, were invited by the defendants to use on the payment of toll) that some swing gates should be placed across it at the point where it approached the railway, in order to scclude the tramway from the railway, and prevent the perilous position in which horses would be placed who were drawing tram waggons on the siding road when they approached that point-if there were an open communication between the tramroad and the railway. In order to make the gates available for this purpose they ought to be kept shut, except when the transit of tramway waggons, going along the line, required that they should be temporarily opened. The tramroad being thus constituted, everyone who uses it has a right, on payment of toll, to expect, and a duty thereupon arises on the part of the company, that as owners of the tramroad and recipients of the toll, they shall employ ordinary care and diligence in the management of the gates, in order that they may afford that security which they are ostensibly intended to afford to those who are using the tramroad." The distinction between that case and the one before me is very obvious. The railway company were the owners of the tramway and received tolls for its use, and the action was brought by those who were lawfully using the tramway. Here the cow was an estray, and there was a trespass, and the owners of the tramway are not the defendants; but whosoever might be defendants it would be necessary to show a statutory obligation to fence off estrays from that part of the tramway along which the cow passed on to the railway where it was unfortunately destroyed. This has not been shown, and there is no obliga-way tion otherwise to fence off an estray from the tramroad. Nonsuit.
CHESTER COUNTY COURT.
(Before H. S. Hawthorne, Esq., Deputy-Judge.)
In this case, which was heard by me sitting as Deputy Judge on 9th Feb., the plaintiffs sued the London and North-Western Railway Company for damages for undue delay in the delivery of a certain truss or package of goods, and for a wrongful conversion of the same. The case on behalf of the defendants was very fully and ably argued by the learned gentleman by whom they were represented, and a number of authorities were referred to bearing upon the points which were raised on their behalf; and as some of those points were of considerable importance, and had been the subject of much discussion in the Superior Courts, I deferred giving judgment till I should fully consider the case. This I have now done, and am of opinion that my judgment should be for the plaintiffs. The goods (the detention of which was the subject of the action) were delivered to the railway company at Chester at an early hour on Thursday, the 5th Sept. last, to be forwarded to Rhyl. It was alleged on the part of the plaintiffs that they should have been delivered at Rhyl on the evening of the same day, but it was admitted on all hands that they ought to have reached Rhyl on Friday morning. They did not, however, in point of fact, arrive at Rhyl till Monday, the 9th, and the result was that the person to whom the goods were consigned, ordered a supply of similar goods from another quarter. The plaintiffs had no intimation of the non-delivery of the goods till they received a communication from their customer at Rhyl, complaining that the goods hadnot been sent, and informing them of the order for similar goods which had been given elsewhere. Upon this the plaintiffs immediately sent one of their travellers
company to exempt them from liability it is, under the 7th section of the Act, the duty of the judge before whom such may be pleaded to determine in each individual case whether the conditions are just and reasonable. He is to take all the circumstances of the case into consideration, and decide accordingly. That being so, I have given this matter my best consideration, and I think that the above condition could not justly or reasonably be enforced against the plaintiff's claim. To do so would be to require of them to have done that which they could not possibly have done, and on that ground alone I think the giving effect to the conditions would be unjust and unreasonable. They preferred their claim as soon as they became aware of the company's default. The power conferred upon the judge by the 7th section of the Act was expressly given for the purpose of keeping in check the tendency of railway companies to save themselves from liability, by imposing conditions exceptionally in their own favour upon those who intrusted them with the carriage of their goods-a one-sided policy to which they were rather prone, and which enabled them successfully to resist a series of just claims, culminating in the case of Carr v. Lancashire and Yorkshire Railway Compang, the observations upon which and preceding cases of like kind by the judges, would seem to have moved the Legislature to interpose for the protection of the just interests of those who had to avail themselves of the goods-carrying services of railway companies, and the present seems to be exactly a case for which the Act provides a remedy. On behalf of the company, the case of Lewis v. Great Western Railway Company (29 L. T. Rep. 425, Ex.) was cited, in which it was held, that a condition that no claim for loss of goods should be allowed after seven days from delivery" was just and reasonable; but the circumstances of that case were widely different from those of the present. There the goods had been delivered to the plaintiff himself several days before the stipulated period of seven days had elapsed, and the judges before whom the case was argued seem to have based their decisions upon the ground that it was reasonable that railway companies should require to be informed of partial loss of goods, or injury to goods, within a short time after the goods had passed from their possession, in order that they might take immediate steps to ascertain whether