[*504

tricked me, I will not let you go,"-would not that be very good evidence of knowledge and notice?] Possibly it might. But the main point is this, that, as between these parties, the plaintiff has conclusively estopped herself from saying that she is not the Emily M. Dunston mentioned in the writ. The case *of Coote v. Lighworth, F. Moore, 457, does not amount to much: there, there was a mere acknowledgment by the party that his name was the same. Here, that which was done by the plaintiff was done with the intention of inducing the sheriff to take her. Thurbane's Case, Hardr. 323, is a mere dictum, which is not much advanced by the observation of Parke B., in Freeman v. Cooke. [COCKBURN, C. J.-Do you insist, that, because the plaintiff has misled the defendant, he is entitled to keep her in custody until she pays Emily M. Dunston's debt?] The argument certainly must go that length. [WILLES, J.-Suppose the real Emily M. Dunston were now taken, would the sheriff be entitled to detain both?] Yes. [WILLES, J.-Or if the real party were taken and paid the amount, might the sheriff still hold the present plaintiff?] Not after the debt was paid. But she is absolutely and perpetually estopped from denying her identity. [COCKBURN, C. J.—The sheriff does not appear to have sustained any prejudice by what has been done.] He was induced to relax his efforts to capture the real party. Suppose he had been ruled to return the writ. [COCKBURN, C. J.—It may be that the sheriff would have a remedy against the plaintiff for any injury he may have sustained through the misrepresentation: but surely he can have no right to detain her in custody indefinitely.] The rule laid down by the Court of Queen's Bench in Pickard v. Sears and Gregg v. Wells, and substantially adopted by the Court of Exchequer in Freeman v. Cooke,—that, "where one, by his words or conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, or to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time,❞—is precisely applicable here. In Fisher v. Magnay, 6 Scott, N. R. 588, 5 M. & G. 778 (E. C. L. R. vol. 44), where a party was sued by a wrong name, and suffered judgment to go against him, without [*505 attempting to rectify the mistake, it was held that he could not afterwards, in an action against the sheriff for false imprisonment, complain of an execution issued against him by that name. In giving judgment, the court there put it upon the ground of estoppel. In Morgans v. Bridges, 1 B. & Ald. 647, the sheriff, having a writ against G. B., arrested M. B., who was the real debtor, and at the time of contracting the debt had represented himself as G. B.: and it was held that the sheriff, having been informed of these circumstances while he had the real debtor in his custody, was not bound to detain him. Lord Ellenborough there said: Where a party has misrepresented

himself, and taken a name which does not belong to him, it is not permitted to him to take advantage of his own wrongful act, so as to enable him to avoid the consequences of it: for, a mistake induced by his own affirmation cannot give him a right of action. If, therefore, the sheriff had in this case detained Maurice Barnett, it appears to me that he might have justified it, in case that person had brought an action for the false imprisonment against him. I remember a case to this effect before Lord Loughborough, where a person had obtruded himself instead of another on the sheriff's officers, and afterwards, having been arrested, brought an action against them; and Lord Loughborough held that it would not lie. I dissented at that time from the decision; but, on fuller consideration, I have been satisfied that that case was rightly determined." And Abbott, J., said: "The question made at the trial was, whether the sheriff might not under this warrant lawfully have arrested and detained Maurice Barnett. I then thought that he might, and I think so still; and that he might have justified in an action for the false imprisonment, by averring that the party arrested was called Godfrey; for, the name by *which he *506] has designated himself cannot as against him be considered other than his true name; and so the arrest would not be by a mistaken name, as in the case cited from Foster, 312." [COCKBURN, C. J.-That would go to the original arrest.] It is admitted here that the original arrest was lawful: the only thing to make it, on the subsequent detention, unlawful is the counter-statement of the plaintiff. [CockBURN, C. J.-It is impossible to say that the custody was lawful: but it may be that the plaintiff is by her conduct precluded from setting up its illegality as a ground of action.] Erle, J., in delivering the judgment of the court in Walley v. M'Connell, 13 Q. B. 903, 912 (E. C. L. R. vol. 66), says, that, "if a defendant so acts as to be concluded from denying that he is the defendant, final process against him may be valid, although not against him by his real name, but by the name that he must be taken to have adopted." [COCKBURN, C. J.-In that case the process went against the individual intended, and was executed upon the plaintiff in the mistaken belief that he was that person.] The only difference between that case and the present, is, that there the estoppel begins a little earlier. Crawford v. Satchwell, 2 Stra. 1218, is also a strong authority in favour of the defendant. In Howard v. Hudson, 2 Ellis & B. 1, 10 (E. C. L. R. vol. 75), Lord Campbell says: "I accede to the rule laid down in Pickard v. Sears and in Freeman v. Cooke. If a party wilfully makes a misrepresentation to another, meaning it to be acted upon, and it is so acted upon, that gives rise to what is called an estoppel. It is not quite properly so called; but it operates as a bar to receiving evidence contrary to that representation as between those parties." [CRESSWELL, J.-The party making the representation is estopped with reference to the act done upon the faith

of the representation. So, here, the plaintiff is estopped as to the original taking. But it must be confined to that; otherwise you must *contend that the succeeding sheriff would be bound to keep the [*507 plaintiff in custody.] In Ex parte Leslie, 27 Law Times, 525, a bankrupt having contracted debts upon a false representation of his being a trader, was held to be afterwards estopped from denying that he was at the time a trader. In Tyerman v. Smith, 6 Ellis & B. 719 (E. C. L. R. vol. 88), it was held, that, on a compulsory reference under the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), it is no objection to entering up judgment on the award, under s. 3, that the award was made more than three months after the arbitrator entered on the reference, though the order of reference named no time, and no written consent for enlarging the time had been given by the parties, if it appeared that the parties had, within a month before the making of the award, acted upon the reference as still subsisting,such acting estopping them from saying that the circumstances necessary to give jurisdiction to the arbitrator did not exist. So, in Andrews v. Elliott, 5 Ellis & B. 502 (E. C. L. R. vol. 85), a cause was tried without a jury, before a commissioner at Nisi Prius, not a judge of the superior courts. The parties had consented; and the judge in open court. sanctioned this course; but there was neither a judge's order nor a consent in writing. The unsuccessful party having moved for a new trial, it was held, that, the commissioner having general jurisdiction to try, the parties were precluded by their conduct from questioning the verdict on account of the absence of those preliminaries. And in Cox v. Cannon, 4 N. C. 453 (E. C. L. R. vol. 33), 6 Scott, 347, it was held, that if a prisoner who executes a warrant of attorney, introduces a person as his attorney, he cannot afterwards set aside the warrant of attorney, on the ground that such attorney was uncertificated. Upon the whole, therefore, it is submitted that there is nothing upon the record to show that the imprisonment complained of is illegal, and the plaintiff has by her conduct estopped *herself from denying that she was properly arrested and properly detained.

Woollett was not called on to reply.

[*508

CRESSWELL, J.(a)-The first and second points were disposed of in the course of the discussion. The plaintiff might have been estopped by her conduct from denying that she was properly arrested in the first instance. But that which is now complained of, is, that the sheriff detained her in custody, and still detains her, after he has had notice and knowledge that she was not the person named in the writ. How can the doctrine of estoppel apply to that? The cases which have been cited are all beside the question.

The rest of the court concurring,

(a) Cockburn, C. J., was absent.

Judgment for the plaintiff.(6)

(b) The cause was tried at the sittings in London after this term, and the plaintiff obtained a verdict with 57. damages.

*509]

*In the matter of the Complaint of THOMAS BEADELL v. THE EASTERN COUNTIES RAILWAY COMPANY.

June 1.

A railway company agreed with a cab proprietor, in consideration of his paying them 600l. per annum, to allow him the exclusive liberty of plying for hire within their station :-The court refused to grant a writ of injunction against the company, under the Railway and Canal Traffic Act, 1854 (17 & 18 Vict. c. 31), at the instance of another cab proprietor,-no inconvenience to the public being shown to have arisen from the arrangement.

PRENTICE moved for a writ of injunction against the Eastern Counties Railway Company, under the Railway and Canal Traffic Act, 17 & 18 Vict. c. 31, s. 2, to restrain them from giving an undue preference to one Clark, and imposing an undue and unreasonable prejudice on the applicant, under the following circumstances:-The complainant was the proprietor of two cabs which were duly licensed as hackneycarriages; and he complained that the Eastern Counties Railway Company refused to permit him to ply for passengers at their station at Shoreditch, they having, for a consideration of 600l. per annum paid to them by Clark, granted him the exclusive privilege of taking up passengers within their station. It appeared from the affidavits upon which the motion was founded, that the company allowed all cabs to enter the station for the purpose of setting down passengers at the bookingoffice, but that, having set down the persons they brought to the station, they were compelled to leave the yard. The learned counsel referred to In re Marriott, 1 C. B. N. S. 499 (E. C. L. R. vol. 87), as a case very nearly in point. There, the London and South-Western Railway Company made arrangements at one of their stations, with the proprietor of an omnibus running between the station and Kingston, to provide omnibus accommodation for all passengers by any of their trains to and from Kingston, and allowed him the exclusive privilege of driving his vehicle into the station-yard for the purpose of taking up and setting down passengers *at the door of the booking-office: *510] and it was held, that, in the absence of special circumstances showing it to be reasonable, the granting of such exclusive privilege to one proprietor, and refusing to grant the like facilities to the applicant, who also brought passengers from Kingston as well as from other places beyond, was a breach of the prohibition against the granting of undue and unreasonable preferences, contained in the statute. [CRESSWELL, J.-That case is very far from being an authority in your favour. WILLIAMS, J.-There is no suggestion here, as there was in that case, that there is not ample accommodation for the public.] There is not but it is submitted that it is contrary to the spirit of the act, to give such an exclusive privilege to one cab proprietor, to the prejudice of all others. [WILLIAMS, J.-In Marriott's Case, the decision rests expressly upon the inconvenience inflicted upon the public,

not upon the particular grievance to the applicant. CRESSWELL, J.Besides, there the applicant was prevented by the company from setting down his passengers at the door of the booking-office. Here, the only complaint is, that the applicant is not permitted to ply for hire in the station-yard.] That which is complained of is clearly an undue and unreasonable privilege given to Clark. [WILLIAMS, J.—I think it is by no means an unreasonable thing, but, on the contrary, very important to the interests of the public, that the vehicles which ply for hire in the station-yard should be kept upon their good behaviour, by being under the control of the company. CRESSWELL, J.-The case of Barker v. The Midland Railway Company, 18 C. B. 46 (E. C. L. R. vol. 86), has some bearing upon this. The court there held that an omnibus proprietor who carried passengers and their luggage for hire to and from a railway station, could not maintain an action against the company for refusing to allow him to drive his vehicle into the station*yard.] There is nothing in the decision there that is inconsistent with the right sought to be enforced here.

[*511

CRESSWELL, J.(a)—I am of opinion that the applicant has made out no case for the exercise of our jurisdiction under the statute.

WILLIAMS, J.-The affidavits upon which this motion is founded do not show that the agreement with Clark is not highly beneficial to the public as well as to the company. And it has been expressly laid down, in a case which has not been cited,-In re Barret, 1 C. B. N. S. 423 (E. C. L. R. vol. 87),-that the statute in question was passed for the benefit of the public, and not for that of individuals. WILLES, J., concurring,

Rule refused.

(a) Cockburn, C. J., for private reasons, took no part in the discussion.

*FRAZER v. HATTON and Another. May 23.

[*512

The plaintiff, a seaman, in March, 1854, shipped on board a vessel of the defendants, called the Custos, to serve as steward, and signed articles, as required by the statute 13 & 14 Vict. c. 93,which professed to be an agreement between the master and the several persons whose names were thereto subscribed,-at 31. per month wages, for a voyage "from Liverpool to the west coast of Africa, to trade in any ports, bays, or rivers therein, and back to a final port of discharge in the united kingdom, or for a term not to exceed three years." The articles contained, amongst others, the following provision,-"The crew, if required, to be transferred to any other ship in the same employ." After the Custos had remained some time on the African coast, the plaintiff, at the request of the captain, was transferred to another and a larger vessel of the defendants' engaged in the same trade, called the Dauntless, entering into fresh articles with the master, under which he was to receive wages at the rate of 47. per month. The Dauntless arrived in Liverpool on her return voyage in June, 1856, when the plaintiff claimed wages at 47. per month for the period during which he had served on board the Dauntless. The defendants refused to pay him at the increased rate, insisting that he was bound by the original articles to serve on board any ship "in the same employ;" and the plaintiff declined to accept the sum mentioned in the original articles:-Held,

First, that the articles were not invalid for being in the alternative,-"from Liverpool to the west coast of Africa and back, or for a term not to exceed three years:"