their own home at the expense of the capitalists by whom they may have been taken out. The passages of the labouring persons, whether paid for by themselves or others, and whether they may be male or female, provided the proportion in the sexes beforementioned be preserved, shall be considered as an investment of capital, entitling the party by whom any such payment may have been made, to an allowance of land at the rate of 157.; that is, of 200 acres of land for the passage of every such labouring person over and above any other investment of capital. Any land thus granted, which shall not have been brought into cultivation, or otherwise improved or reclaimed from its wild state, to the satisfaction of the Government within twenty-one years from the date of the grant, shall at the end of twenty-one years revert absolutely to the Crown. All these conditions in respect to free grants of land, and all contracts of labouring persons and others who shall have bound themselves for a stipulated term of service, will be strictly maintained. It is not intended that any convicts or other description of prisoners be sent to this new settlement. The government will be administered by Captain Stirling, of the royal navy, as civil superintendent of the settlement, and a bill, in the nature of a civil charter, will be submitted to Parliament in the commencement of its next session.

"Colonial Office, Dec. 5, 1828."

The plaintiff alleged that he had expended about 40,000l. under the regulations, and that his accounts of that expenditure had been duly passed by the proper officer in the colony in 1830, and that he obtained about that time a grant of 113,000 acres of land; and the bill, after further alleging that the condition as to the introduction of labourers into the colony, and that which required security to be given had been waived, prayed for the specific performance of the agreement, which, it was alleged, had been entered into by the Crown, through its officers, to grant to the plaintiff a very large tract of land, what was then called the Swan River Settlement, but now known as Western Australia.

The Attorney-General (Sir R. Palmer) and Wickens, in support of the demurrer, contended that the alleged contract was, from its nature, incapable of being performed; that the plaintiff had not himself performed his part of the agreement, for the performance of which he sought to obtain a decree. The condition precedent, viz. the introduction into the colony of labourers, in the proportion of five females to six males, had not been performed, and without that the plaintiff could not bring himself within the class of persons to whom the promise of grants of land was made. The bill alleged that that condition, as well as that which required security to be given, had been waived; but such a waiver was impossible, for those were the conditions with which it was absolutely necessary to comply in order to constitute the contract in the first instance. The regulations were not intended to be the basis of a contract, but were simply matters of government. From the great lapse of time, the claim now preferred was too late. This was an attempt to create a new right against the Crown. [They referred to the 23 & 24 Vict. c. 34, ss. 7 and 9; Viscount Canterbury v. The Attorney-General (1 Ph. 306); Tobin v. Reg. (16 C. B., N. S., 310); Clayton v. The Attorney-General (1 C. P. Coop. 94-114); Baron de Bode's case (8 Q. B., N. S., 208); and Staunforde on Prerogative, tit. "Petition," c. 22.]

Sir H. Cairns and Jessel, for the bill, contended that it must be borne in mind, in reference to the lapse of time, that this was a contest between a subject and the Crown. The plaintiff had done all that he could be required to do, and therefore the rule as to delay

did not apply. The bill averred that the plaintiff had complied with the regulations, and therefore the demurrer ought to be overruled. [They referred to Manning's Exch. Prac., p. 84; Bellamy v. Sabine (2 Ph. 425-449); The Secretary of State in Council of India v. Kammachee Boye Sahaba (13 Moo. P. C. 22); and The Duke of Brunswick v. The King of Hanover (6 Beav. 1; 2 H. L. C. 1).] [Sir J. Stuart, V. C., referred to Hammersley v. De Biel 12 Cl. & Fin. 45) and Taylor v. The Attorney-General (8 Sim. 413-424).] The Attorney-General replied.

Sir J. STUART, V. C.-The question upon this demurrer has been argued as if it were a question of contract, but it seems to me to be one of those questions which might be argued, upon the ground that representations were made on behalf of the Crown, that if persons complied with certain regulations, as to sending out people to the colony in question, grants of land in definite proportions would be made to them. The general equity stated by the bill is of the kind referred to by Lord Cottenham in the case of Hammersley v. De Biel (12 Cl. & Fin. 62), where he said, that "a representation made by one party for the purpose of influencing the conduct of the other party, and acted on by him, will in general be sufficient to entitle him to the assistance of this Court for the purpose of realising such representation." No doubt the words "representation made to influence the conduct of, and acted upon by the other party," are wide and general. There must be such an acting as amounts in good faith to shew that the other party is entitled to the assistance of the Court. Lord Cottenham stated that to be the law of this Court, after saying, "If it be supposed to be necessary for this purpose to find a contract such as usually accompanies transactions of importance in the pecuniary affairs of mankind, there may not be found in the memorandum, or in the other evidence in the cause, proof of any such contract.. but when the authorities on this subject are attended to, it will be found that no such formal contract is required;" and then he announced, that "a representation made by one party, and acted upon by the other, will entitle the person, acting upon the faith of such a representation, to the assistance of this Court. But the main question here is, whether or not there are allegations enough in the bill to shew that there was such a compliance by the plaintiff with the regulations which constituted the representation as entitles him to the assistance of the Court? Whether there are allegations enough to shew that the plaintiff, in acting upon such representation, did so fully and fairly, and part with his money upon the faith that the benefits held out would accrue to him? I have already pointed out that there are several allegations in this bill which, I think, upon a general consideration of the language-keeping in view, that everything not clearly stated must be taken strictly against the plaintiff-are substantial allegations that the plaintiff did act upon a representation, and that he acted in compliance with the regulations in sending out labourers (he states 234, male and female) to the colony; and he avers that the officers of the Government certified that there had been such a compliance; and he also avers that he has actually got a grant of land, but he alleges that he has not got enough, and that he has not been put into possession of all that he is entitled to. No doubt, there are some very extraordinary allegations in the bill as to some of the matters, and it is very difficult to know what the plaintiff alludes to in them. But I cannot hold that these faulty allegations ought to interfere with the consideration, that there is enough to shew that the plaintiff expended a large sum of money in accordance with the regulations. It seems to me that the situation of the parties has not been altered by

the delay; that upon this demurrer the case of the Crown has failed; and that, therefore, it must be overruled.-Demurrer overruled.

Re CAWTHORNE'S ESTATE.-Dec. 16. Will-Construction-Gift to a class-Substitution. A gift of residue in trust for a wife for life, and after her decease to be equally divided between the testator's four brothers and sister as should be living, and all the children of those dead, per stirpes. The widow died in 1862, and the testator's sister in 1830, leaving two children, one of whom died in 1831, leaving children, and the other survived the tenant for life:-Held, that all the children of the testator's sister became entitled to a share of the fund which she would have taken. Thomas Cawthorne, by his will, dated in September, 1824, gave all the residue of his estate and effects to trustees in trust for his wife for life, and directed that after her decease, the capital of all the money, stocks, funds, and securities of which his residuary estate consisted, should go and belong to, and become the absolute property of, all and every of such of his brothers and sister, John Cawthorne, Richard Cawthorne, George Cawthorne, and Margaret Morris, as should be living at the decease of his wife, and all and every the children and child of such of his said brothers and sister as should be then dead, in equal shares and proportions; his said nephews and nieces taking, however, per stirpes, and not per capita. The testator died in 1825, and his sister Margaret Morris in May, 1830, leaving two children surviving, one of whom married a Mr. Cleeton, and died in 1831, leaving children surviving, and the other (George Morris) was still living. John Cawthorne died in 1850, leaving children; George Cawthorne died in 1826, leaving children; and William Cawthorne went abroad, and has not been heard of since 1843. The testator's widow died in November, 1862. This was a petition presented under the Trustee Act, praying for a declaration of the rights of the parties to the funds.

Greene, Q. C., and T. H. Terrell submitted that the brothers' and sister's children who survived the widow of the testator only were entitled to the shares of their deceased parents, and that the representatives of the children, viz. of Mrs. Cleeton, who had died in the widow's lifetime, was excluded from taking any share of the funds. (Re Pell's Trusts, 3 Giff. 152; S. C., 3 De G., F., & G. 291).

Osborne, Q. C., and G. L. Russell appeared for some of the respondents.

Sir J. STUART, V. C., made a declaration, that all the children of each brother and sister who died in the lifetime of the tenant for life, became entitled to a share of the one-fourth share which their parent would have taken, per stirpes, and not per capità.

VICE-CHANCELLOR WOOD'S COURT. BETTS v. DE VITRE.-Dec. 3.

Patent-Damages for infringement―Jurisdiction-Directors of limited company. Costs-The Chancery Amendment and Regulation Acts, 1858, 1862. The jurisdiction given by the Chancery Amendment Act, 1858, to award damages where relief is sought by injunction against wrongful acts, extends to the case where the Court had previously the power of giving some other form of remedy, as e. g. an account of profits. Since the Chancery Acts, 1858, 1862, the question of damages will still be left to be decided by a jury where

there is extreme difficulty in their assessment by the Court itself.

Therefore, in a suit for an injunction by a patentee who had granted no licenses, the Court put him to his election whether he would have an account of profits or an action for damages against the defendants; following the form in Hills v. Evans (8 Jur., N. S., 525, 531). The directors of a limited company, and acting as its agents, infringed a patent, and were made defendants, together with the company, to a suit, the bill in which prayed for an injunction and costs:-Held, that the decree must be made against the directors as well as the company, and that the directors were personally liable to pay the costs.

Motion for decree.-The questions were, whether the Court had jurisdiction to award damages for the wrongful use of a patent, and whether the directors of a limited company should be ordered to pay the costs of the suit.

The suit was brought by the plaintiff, as the patentee of an invention for making capsules, against Winshurst's Patent Metal Foil and Sheet Metal Company (Limited), and its directors, to restrain them from infringing his patent. The bill contained a charge that the directors and managers of the company had all of them from time to time personally interfered in carrying on the affairs of the company, and in the infringement of the letters-patent of the plaintiff, and superintended and given directions to workmen and others employed in the manufactory of the company for the making and manufacturing a metallic material substantially in the manner pointed out in the plaintiff's specification, and by so doing had infringed the plaintiff's letters-patent, without any authority, consent, or permission of the plaintiff; and that the material so manufactured by the defendants had been sold by them in large quantities. The prayer was for an injunction, an account of the profits made by the defendants, and that they might pay the costs, but there was no prayer for damages.

The case was tried before his Honor Sir W. P. Wood, V. C., without a jury, and he found that the patent was a valid one, and had been infringed. The questions as to whether the Court could award damages instead of an account, and as to the form of the decree, were reserved; and the suit was now put into the paper, as a short cause, to be argued on those points. It appeared that no license had been granted by the plaintiff for the use of the patent, and that he was

the sole manufacturer of the article.

Willcock, Q. C., T. H. Terrell, and Webster, for the plaintiff.-The Court is not bound by the terms of the prayer where the equity is clear (Wilkinson v. Beal, 4 Mad. 408); and the prayer for further relief is sufficient to include the damages. The Court previously acted as ancillary to the right at law, and the account was supposed to be consequent on the injunction, so as to preclude profits being made by the person infringing. But that is not satisfaction. The patentee here, stands in a position analogous to that of a cestui que trust, who has a right either to the profits made by the wrongful use of his money, or interest at 57. per cent. The Court has jurisdiction to award damages. Prothero v. Phelps (25 L. J., Ch., 105), a case of specific performance before the Amendment Act, 1858, 21 & 22 Vict. c. 27, shews that the Court has power to deal with the whole case; and now that statute makes the jurisdiction inherent. There is no exact case in which

The order made in Hills v. Evans, as it appears in Reg. Lib. A., 1862, p. 293, was for an injunction, an account of profits, "and of such other compensation as is fit to be awarded to the plaintiff in respect of such making, use, and exercise."

damages have been given in patent suits, except, perhaps, Young v. Fernie (10 Jur., N. S., 921), and there the bill was ordered to be amended to pray damages. Walton v. Lavater (8 C. B., N. S., 162; 29 L. J., C. P., 280) is a case at common law. In Hills v. Evans (8 Jur., N. S., 525; S. C., 31 L. J., Ch., 457) something similar was done. And now the Regulation Act, 1862, 25 & 26 Vict. c. 42, renders it obligatory on the Court to decide the whole question. We leave to the Court to decide as to how the inquiry as to damages should proceed; but we suggest it might be on the principle of ascertaining the profit which the plaintiff would have made by selling the capsules manufactured by the defendants at his original price. At law, the damages have been assessed at some per-centage on the selling price. (Crossley v. The Derby Gas Company, 1 Russ. & M. 166, note; Holland v. Fox, 3 El. & Bl. 977; S. C., 1 Jur., N. S., 13; 23 L. J., Q. B., 211; Newton v. The Grand Junctian Railway Company, 5 Exch. 331).

Rolt, Q. C., and Haddan, for the defendants.-The original jurisdiction at law was to give damages, but in equity to grant an injunction and an account, not of damages, but of profits. Damages were never asked for. The acts of 1858 and 1862 have not extended the jurisdiction so as to enable the Court to give damages where there is already a right to an account of profits. Hills v. Evans only shews that you can go to law if you do not like the account. (Needham v. Oxley, 2 N. R. 388; Johnson v. Wyatt, 9 Jur., N. S., 1333).

Willcock, in reply.-Hills v. Evans was before the act of 1862. [He also referred to Isenberg v. The East India House Company (10 Jur., N. S., 221).]

Sir W. P. WOOD, V. C.-I confess it appears to me, that if the damages are to be assessed, the proper course would be that which was taken in Hills v. Evans, for this reason, that damages of this description for the infringement of a patent, where there has been no license granted at any time for the use of that patent, can only be ascertained on those very vague and guess-like data which juries have been obliged to act upon in ascertaining the actual loss to a patentee by the user by some wrongdoer of his patent right. I say, the very vague guesses which juries are obliged to make, and I say it with some confidence, because, after inquiring as to the cases which have occurred at law, the only answer I have received has been the case cited, of Newton v. The Grand Junction Railway Company, which shews the course that is ordinarily adopted in matters of this kind. I find that the judges, in sending a case to the Master, have said that he is to make an inquiry of what profit the patentee has been deprived by the user of his invention on the part of the defendant. That leaves it extremely vague, and it is easy to see what very great difficulty there would be in arriving at any data on which such a profit is to be estimated. A jury composed of persons of business-like habits, and accustomed to difficulties of this description, are more fit arbiters than this Court can possibly be in dealing with a question of this description. But in that very case of Newton v. The Grand Junction Railway Company the jury gave 10007. Then it came before the Court on the ground of excessive damages, and the party agreed to take 2007., and costs as between party and party, which was very different to what the jury gave. Now, the difficulty one sees must be very great where there are no licenses existing. Where there are licenses it would be next to nothing, because there you would simply ascertain the amount sold, and fix the wrongdoer with that.

As regards the jurisdiction of the Court, I do not

entertain any doubt that, since the passing of the act of 1858, the Court has jurisdiction, because the act of 1858 was passed for the express purpose of enabling this Court to render complete justice without sending the parties to another tribunal, when complete justice could be rendered by this Court. At the same time it was left open to the Court by the act of 1858 (not as in the act of 1862), either to take the course of assessing the damages, or to leave it to a court of law, it being felt, no doubt, that in many cases a jury would be the more proper tribunal. In the act of 1862 it was, no doubt, equally proper, when it was only a question of what was the legal conclusion to be come to from the facts before the Court, to say, that the Court was not any longer to avail itself of the assistance of a court of law, but was bound to determine all the points; because the Court is sufficiently competent to decide such points without the assistance of another tribunal. As the case stood before the act of 1858, the remedy was simply that you obtained an injunction and an account of profits; and that was the only relief given here, as this Court never granted damages, and, before the act of 1858, I apprehend, could never grant damages, in respect of the infringement of a patent right. After the passing of this act of 1858, the 2nd section of which provides, that in all cases seeking an injunction against the Court may award damages to the party injured, the commission or continuance of any wrongful act, either in addition to, or in substitution for, the injunction, the exact course was followed by the Lord Chancellor in Henley's case with reference to lights; and though it is quite true that in such a case there might not be the remedy which the Court has here of taking an account of profits, yet when you find that the Legislature has provided, that in all these cases against wrongful acts, you shall have the power of granting damages, it does not appear to me to exclude the case where the Court had the power of giving some other form of remedy if it thought fit. Therefore, if a simple case came before me of licenses having been granted, and of a fixed and definite royalty, so that the account would be a matter of great simplicity, I should not feel that the Court was doing that which was plainly within the view of the statute, if it sent the parties to law to ascertain that which it had the means in its own hands of ascertaining, in consequence of the 2nd section of the act.

In this case, however, I see the greatest difficulty in arriving at these damages. The plaintiff is content to leave it to the Court to say what the principle should be on which the Court should proceed, but I have not heard that the defendants are willing so to do. The extreme difficulty that might arise in a case of this kind, is best shewn by the fact that the cases are very few, even at law, of ascertaining damages. The general order of things has been to try the patent right, and when that has been determined, the parties have settled the matter as they best could. When it has gone to law, as in Newton's case, application has been made to diminish the damages, on the ground of their having been excessive. I think, therefore, the proper course will be, to give the plaintiff, if he thinks fit to take it, a decree for an injunction, and the usual account of profits. If he chooses to waive that account, then, as was done in Hills_v. Evans, let him be at liberty to proceed at law for damages. I am following the direct precedent of the Lord Chancellor, made after the passing of the act of 1858, and, as far as I can see, upon the same ground, namely, the extreme difficulty of the Court in seeing its way to assess damages.

Willcock, Q. C., then asked for costs against the defendants, as between solicitor and client. [He re

ferred to Davenport v. Jepson, Hills v. Evans, and the Patent Law Amendment Act, 1852. sect. 43.]

Rolt, Q. C., and Haddan, for the defendants, submitted that the company should pay the costs, and not the directors. [They referred to the Companies Act, 1862, sects. 18 and 38; Denman v. The Corporation of Chippenham (14 Ves. 245); The Attorney-General v. Wilson (9 Sim. 30); The Charitable Corporation v. Sutton (2 Atk. 400); and to the proceedings in Betts v. Menzies (see the case before the House of Lords, 9 Jur., N. S., 29).]

Sir W. P. WOOD, V. C.—As regards the point about the defendants being made personally liable for the costs, I really have no doubt on the subject. I think, if any such point as has now been argued had been intended to be raised, it should have been raised at the hearing, because there was a complete case made by the bill, aud, as it appears to me, entirely proved | by the evidence, against the directors. They all, very clearly and very fairly, in their own affidavits, made a complete disclosure of all that had taken place, and admitted what was done, and attempted to justify it, because they thought Mr. Betts had no right to complain. The charge in the bill as to their personal interference includes the whole of the defendants, and the prayer asks specially, that they may pay the costs of the suit. I do not say that was necessary, but it was intended to put the defendants on their guard; and they might have argued it long before this.

It is perfectly novel to me to hear it discussed, whether or not a corporation may sanction the acts of their di- | rectors, who have undertaken, by their direction, to do something wholly illegal, such as the infringement of a patent, or the cutting down of a whole wood, which would be exactly the same thing in effect. It is new to hear it said, that directors who have been guilty of such an act, and can be made responsible for it, are not to be made defendants to a suit, and can say they are not to be answerable for the consequences of their acts in that suit, because forsooth they have done it by the direction of a limited company. If so, there would be no end to the mischief and injury that might be committed by individuals choosing to act under the sanction of a company who had given those orders. This Court has always been in the habit of holding, that anybody who takes part in a wrong of this description is liable to be restrained from committing the wrong, and is answerable. Although the form is to restrain the company, their servants and agents, apprehend that every one of those agents might, if doing an actual wrong, be made a defendant to the suit, and personally and individually be made to pay the costs of it; and it is no justification for him to say, that his master ordered him to do it. Generally speaking, the wrongdoers are persons in that rank of life that it is not thought worth while to make them personally liable. It is no answer to say, because I did it on behalf of a limited company, I am not to be made responsible. The case being distinctly stated and proved, I have not the least doubt that the decree must be against them, both as to the injunction and account, and that they must be decreed personally to pay the

costs.

I

As to the question, whether the costs should be as between solicitor and client, I think there is great difficulty. Undoubtedly, as far as justice is concerned, I should not be moved by anything that has been said as to the possible ground the defendants may have had for supposing that they were not ininfringing a patent. Whatever they did, they did deliberately, with their eyes open; they took the chance of the law being with them, and they found it against them. This is not a case in which a person accidentally infringes a patent, and in which it might be

proper to draw a distinction in determining whether the costs should be as between solicitor and client, but, as far as regards the merits of this case, the defendants have most clearly and deliberately, with the patent before them, said, and they still say, the patent is wrong. Nobody objects to their raising an issue of this kind; but I only act on the conclusion I have come to, when I say that, holding them to be in the wrong, I see no ground for exempting them from any possible penalty which the law may impose.

My difficulty is, however, in acting on a certificate of this description, regard being had to all that has taken place. The judge gave his certificate at the trial, that the right had come in question, and the verdict then was with the plaintiff. After that, this case went to the Court in Banc, and then to the Court of Exchequer Chamber; and the Court of Exchequer Chamber, following the decision of the Court in Banc, ordered the verdict for the plaintiff to be set aside, and the verdict to be entered for the defendant. Then the House of Lords conceived that that direction was wrong, and they ordered the verdict for the plaintiff to remain, but without prejudice to the motion which was still pending for a new trial of the whole action; and then the Court of Queen's Bench directed a new trial of the action. So that, in fact, although I have, on the one hand, the certificate of the judge, that the title came in question, and that the jury found for the title; yet, on the other hand, I have the judgment of the Court of Queen's Bench, that they thought the evidence did not warrant the conclusion come to; and accordingly, the Court of Queen's Bench directed a new trial. That new trial never has been had, through some compromise having been come to between Mr. Betts and the defendant to that action. That being the only certificate I have, I think, regard being had to the purport of the Patent Act, which is, that where there is a wilful act against the rights of a patentee after he has obtained a verdict, and the certificate of a judge that his title came in question, all the world must be taken to know that that was fairly and completely tried and disposed of, and if they infringe the patent, they infringe it, with a liability for costs, in consequence of the full right being disposed of, I say, that being the meaning of the act of Parliament, I have not enough before me here to direct these costs to be paid as between solicitor and client. Notes for reference-Morg. Ch. Acts, 272; Shelf. Joint-stock Companies Act, 28.

COURT OF QUEEN'S BENCH.
TRINITY TERM.

[Before COCKBURN, C. J., MELLOR and SHEE, JJ.] Re A PLAINT OF THE SKIPTON INDUSTRIAL COOPERATIVE SOCIETY (LIMITED) v. PRINCE.-June 9. Industrial society-Arbitration—Jurisdiction of county court-Prohibition-18 & 19 Vict. c. 63, s. 41.

By one of the rules of an industrial society it was provided that disputes between the society and its members should be settled by arbitration. The defendant, a member of the society, who had filled the office of salesman, having resigned his post, disputes between him and the society, in respect of his accounts with them, arose, and were referred to arbitrators, who found that the sum of 181. was due from the defendant to the society; and payment of the said sum was then sought to be enforced by the society by plaint in the county court, under sect. 41 of the 18 & 19 Vict. c. 63. The defendant thereupon, and before the matter came before the county court judge, applied for a prohibition, upon

the ground that the matters in difference between himself and the society were not the subject of arbitration: -Held, that the question of jurisdiction was one for the county court judge, and that the application, being made before the judge had an opportunity of deciding the question, was premature.

Rule calling on the plaintiffs to shew cause why a writ of prohibition should not issue to the judge of the county court of Yorkshire, holden at Skipton, to prohibit them from further proceeding in a plaint against the defendant.

It appeared by the affidavits, that Prince was employed as one of the salesmen or shopmen of the society (being himself a member thereof, as all officers of the society were by rule required to be); that he had given notice of his intention to resign, and had resigned his office of salesman; and that subsequently disputes had arisen as to his accounts with the society, which had been settled by arbitration, the result being that the defendant was found to be indebted to the society in the sum of 187. The plaint was then issued to enforce this award.

Under rule 17 of the society (which had been re

THE COURT then called upon Quain, in support of the rule.-The jurisdiction of the county court judge is a statutable one only, and is confined exclusively to awards as between members of the society. [Cockburn, C. J.-The question, whether or no a case comes within his jurisdiction, must necessarily be one for the county court judge.] But the county court judge cannot give himself jurisdiction by deciding contrary to the facts; and Morrison v. Glover (4 Exch. 430) is in point. [Cockburn, C. J. -If the judge of the county court should decide contrary to the facts, we might in such case interfere by prohibition. He must, however, in the first instance, decide whether or not the case is one within his jurisdiction; but here the question has not yet been before him. Mellor, J.-You come to this court immediately upon plaint issued; your application, therefore, is premature.] PER CURIAM.-The rule must be discharged.-Rule discharged.

MICHAELMAS TERM.

and other officers of the society were to be appointed and removed by a committee of management.

Rule 26. "In case of a dispute between the society and any of its members, or of members and persons claiming on account of a member or under the rules, or of any complaint against any member or officer, application may be made to the officers and committee for redress; but should the party not receive satisfaction, appeal may be made to a general meeting of the members of the society, whose decision shall be final and binding, except reference be made to arbitration." Rule 27. "If any dispute arise, and cannot be settled according to the foregoing rule, it shall be referred to for which purpose, at the first meeting of arbitration; the society after these rules are certified by the registrar, shall be named and elected five arbitrators, none of them being directly or indirectly beneficially interested in the funds of the society; and in each case of dispute the names of the arbitrators shall be written on pieces of paper and placed in a box or glass, and the three whose names are first drawn out by the complaining party, or by some one appointed by him, shall be the arbitrators to decide the matter in dispute."

T. Jones shewed cause.-Under sect. 15 of stat. 25 & 26 Vict. c. 87 (Industrial and Provident Societies Act), the provisions of the 18 & 19 Vict. c. 63 (Friendly Societies Act), are to apply to societies registered under the act, in cases (inter alia) of settlements of disputes by arbitration. By sect. 40 of the 18 & 19 Vict. c. 63, disputes between any member or members of any society established under the act, or any person claiming through or under a member, &c., shall be decided in manner directed by the rules of such society; and by sect. 41, the county court of the district is empowered to enforce the decision of the arbitrators. [Cockburn, C. J.-The county court has unquestionably jurisdiction in disputes between the society and its members. Here the question is, whether a dispute between the society, and a person being a member, but not in the capacity of a member, comes within the meaning of the section.] The salesmen and other officers of the society are required to be members with the very object of bringing them within the rule ralating to arbitration; at all events, the question, whether the dispute is one between the society and one of its members, is one which the judge of the county court must determine before deciding whether the arbitrators had or had not jurisdiction in the

matter.

SHEE, JJ.]

ALLDAY V. THE GREAT WESTERN RAILWAY COMPANY.-Nov. 2.

Railway carriers-Special contract-Unreasonable condition-17 & 18 Vict. c. 31, s. 7.

The plaintiff delivered cattle to the defendants, to be carried to the B. Station, and at the same time signed a ticket, containing certain special conditions, whereby (amongst other things) the company claimed immunity "from any consequences arising from over-carriage, detention, or delay in or in relation to the conveying of the said animals, however caused." The cattle were over-carried, and suffered in condition in consequence of not being supplied with food and water during the interval which elapsed between their delivery to the defendants and their recovery by the plaintiff :-Held, that the condition was unreasonable, and that the deterioration of the cattle was an "injury," within the meaning of sect. 7 of the 17 & 18 Vict. c. 31.

First count of the declaration, that the plaintiff delivered to the defendants certain beasts, to be by the defendants carried from Oxford to the Bordesley Station, Birmingham, and there delivered for the plaintiff in a reasonable time then next following for reward to the defendants; that the defendants received from the plaintiff the said beasts for the purpose aforesaid, and all conditions were fulfilled, and all things happened, and all times elapsed, necessary to entitle the plaintiff to have the said beasts delivered by the defendants at the last-mentioned place, yet the defendants so carelessly and negligently conducted themselves in and about effecting the purpose for which the said beasts were so bailed to them as aforesaid, that by reason of the said negligence and carelessness of the defendants they did not, within the said reasonable time, deliver the said beasts to the plaintiff at Bordesley Station, Birmingham, as aforesaid; by reason whereof the plaintiff lost the use of the same for a long time, and was put to great trouble and inconvenience, and did and performed work, labour, and journeys in and about finding and regaining possession of the said beasts, and was deprived of the opportunity of selling the same, and for a long time was forced to expend food and labour in feeding and taking care of them for that time, and the beasts were not, at the time and place when he regained possession of them, so valuable as they would have been at the time and place when and where the beasts ought to have been delivered to him as aforesaid,