1866 TETLEY v. WANLESS. ditors' respective debts " as aforesaid;" and it is argued that these words limit the covenant to the payment of a composition to the creditors named in the schedule. But I think such a reading of the clause would be repugnant to the contents of the deed taken as a whole. The words in question should rather be read as reason and common sense would appear to dictate. They come at the end of an express covenant with all the creditors. They should be referred, therefore, to those parts of the deed where all the creditors are mentioned, and be applied in this covenant to the debts of all. The covenant further provides for the delivery to "each and every of the creditors" of certain promissory notes. There may be some doubt whether this is a cumulative covenant or not-that is, whether the covenant is to pay 5s. in the pound in cash, and to secure the payment of 5s. more by the notes, or whether it is merely a covenant to secure 5s. in the pound by notes; but however that may be, the covenant is expressly entered into with all the creditors. Both the first and second objections then fail. The release is absolute, and no tender of the notes is necessary; and the deed is not unequal, for the covenant is express to pay the composition to all, the plaintiff amongst the rest. The amendment suggested, therefore, having been made, I consider the plea in its amended form was proved. This rule must accordingly be discharged. BRAMWELL, B. I am of the same opinion on both points. At the trial the defendant failed to prove his plea. An amendment was therefore necessary, and it having been made, I think the plea, thus amended, is proved. The deed therein set forth covenants with all the creditors to pay the stipulated composition; and looking at all its provisions, I think the release was absolute, and that no tender was necessary. CHANNELL, B. I am also of opinion that the defendant is entitled to our judgment. It has been argued that the plea in its original form was not proved, but that ground of objection has been removed by the amendment made. Then there remain the questions raised by the application to enter the verdict for the plaintiffs on the points reserved, and by the motion to enter the judgment non obstante veredicto, which are substantially the same. The first point for our decision has reference to the release. Was it conditional, or was it absolute, so as to bind the plaintiffs, who were non-assenting creditors? This question is distinct, and ought to be considered apart from that of inequality. Now, without repeating the Lord Chief Baron's reasons, I think with him that this release was unconditional. The deed is entered into with all the creditors. Every one of them is in terms a party to it. It is true that the first recital describes the debtor as indebted to the "said several creditors in the several sums of money set opposite to their several and respective names in the schedule hereunto written," and this clause is followed by a clause stating it to have been agreed by a majority in number and value of "the said several creditors" to accept a certain composition. The contention on the part of the plaintiff is, that these words, "said several creditors," must mean the creditors named in the schedule, and referred to in the immediately preceding recital. But I do not agree with that proposition. Primâ facie, no doubt the words would apply to the antecedent next before them; but we may look at the rest of the deed, and, if necessary, apply the words, not to the antecedent next before them, but to the one next before that. This view of the construction to be put on a deed is supported by the decision in the House of Lords in The Eastern Counties Railway Company v. Marriage. (1) The other parts of this deed have been fully referred to by the Lord Chief Baron, and they all shew in what sense it was intended, viz. as a deed entered into by the debtor for the benefit of all his creditors. As to the second objection, that the deed, assuming it to contain an absolute release, is void for inequality, I am unable to see that it is unequal. The intention of the debtor is to give the same composition to all his creditors equally, whether they assent to the deed or not. PIGOTT, B. I am of the same opinion. The deed is expressed to be made between the debtor and all his creditors. Then looking at the form of the covenant and at the release, we find that the covenants to pay the composition are with all the creditors, and that they all join in the release. In spite of some grammatical (1) 9 H. L. C. 32. 1866 TETLEY v. WANLESS. 1866 TETLEY v. WANLESS. criticisms that might be made on it, I think this is the fair interpretation of the deed, and that being so, it contains an absolute release, and no tender of the composition or notes to the plaintiffs was necessary. Upon the question of inequality I concur with the rest of the Court. Rule discharged. Attorney for plaintiffs: R. Walthew, agent for Wood and Killick, Bradford. Attorneys for defendant: T. M. & M. Howe, agents for Eglinton, Sunderland. Nov. 17. WARBURTON v. THE GREAT WESTERN RAILWAY COMPANY. Negligence-Master and Servant-Fellow Servant-Common Control. The plaintiff was a porter in the employment of the L. & N. W. R. Co. at their Manchester station. The defendants also used that station, and their servants whilst within the station were subject to the rules of the L. & N. W. R. Co., and to the control of their station-master. The plaintiff, whilst engaged in his usual employment in the station, was injured by the negligence of the defendants' engine-driver, in shunting a train without signal :— Held, that the plaintiff and the defendants' engine-driver were not fellow servants. ACTION by a porter in the employment of the London & North Western Railway Company, at their Manchester station, against the Great Western Railway Company, for injuries caused by the negligence of one of the defendant's servants whilst using that station. The defendants used the Victoria Station at Manchester, which belongs to the London & North Western Company, under their running powers, and under an agreement with that company. The defendants' servants, whilst managing the defendants' trains within the station, were subject to the station rules of the London & North Western Company, and to the direction of the station-master. On the 4th of July, 1864, the plaintiff was employed in cleaning carriages belonging to the London & North Western Company, which stood on a siding in the station, and which were separated into two divisions for the convenience of passage across the line. One of the 1866 v. GREAT WESTERN RAILWAY Co. defendants' trains having arrived at the station and discharged its passengers, the engine-driver proceeded to shunt it on to the same WARBURTON siding, but, contrary to the rules of the station, did so without giving any signal to the pointsman, or receiving any from him. The train struck the carriages which were being cleaned, and the plaintiff, who was at the moment passing across the line between the two divisions of carriages, was caught by the buffers of those struck by the defendants' train, and jammed against the buffers of the remaining carriages. For the injuries so caused he brought this action. The case was tried before Martin, B., at the last Manchester summer assizes, and a verdict was found for the plaintiff for 1507. Nov. 6. Brett, Q.C. (Crompton with him), moved for a new trial, on the ground that the plaintiff and the defendants' engine-driver were fellow servants, and that the plaintiff ought therefore to have been nonsuited, or a verdict directed for the defendants. The true test of fellow service must be community in that which is the test of service. Now the test of service is subjection to control and direction. In Sadler v. Henlock (1) this is laid down as the test of whether the person, through whose negligence a plaintiff is injured, is a servant of the defendant, or an independent contractor. Crompton, J., there says: "The test is, whether the defendant retained the power of controlling the work." Again in Abraham v. Reynolds (2), where the plaintiff was held not to be a servant of the defendant, and therefore entitled to sue the defendant for his servant's negligence, Watson, B., says: "They are persons doing work for a common object, but not under the same control, or by the same orders." The test, then, of fellow service is, not the doing work for a common object, or being engaged in a common work. Neither is it the being paid by the same person, as is shewn by the case of Degg v. Midland Railway Company (3), for there the volunteer, who was paid nothing, was considered as on the same footing as the defendants' paid servants. But it is the working subject to a common direction and control, and such was the case here; both (1) 4 E. & B. 570, at p. 578; 24 L. J. (Q.B.) 138. (2) 5 H. & N. 143, at p. 149. (3) 1 H. & N. 773; 26 L. J. (Ex.) 171. 1866 the plaintiff and the defendants' servants were bound to work WARBURTON according to the regulations of the London & North Western Company, and under the control of their station-master, and they are therefore in the position of fellow servants. He also cited Murphy v. Caralli. (1) v. GREAT WESTERN RAILWAY Co. [CHANNELL, B., referred to Morgan v. Vale of Neath Railway Company. (2)] Cur. adv. vult. Nov. 17. The judgment of the Court (Kelly, C.B., Martin, Channell, and Pigott, BB., was delivered by KELLY, C.B. This was an action tried before Martin, B., in which the verdict was for the plaintiff; and a motion was made before my Brothers Martin, Channell, and Pigott, and myself, for a new trial. By an The action was for negligence by the servant of the defendants, whereby the plaintiff sustained injury. The plaintiff was a servant in the employ of the London & North Western Railway Company, and was at work at the Victoria Station, in Manchester, when an engine-driver in the employ of the defendants, the Great Western Railway Company, having entered the station, shunted a train belonging to the defendants from one part of the station to another, and in so doing was guilty of the negligence complained of. The station was the property of the London & North Western Railway Company, and was used in common by the plaintiff's employers, and the defendants, and other companies. arrangement between these companies, the defendants' enginedriver ought to have awaited a signal from an officer of the London & North Western Railway Company before he shunted the train into the siding; but without doing so, and without any signal at all, he shunted the train, and negligently caused the injury in question to the plaintiff. The defendants were no doubt primâ facie liable for the negligence of their servant, but it was contended that under the circumstances before mentioned, the plaintiff and the engine-driver must be taken to have been servants engaged under one master, in one common employment, and that therefore, upon the authority of several cases lately decided, |