1881 Midland Insurance Co. v. Smith. Q.B.D. issues raised upon the pleadings, and there is no instance on record of the Attorney-General or the Crown having interposed to stop the action. This position of the question is somewhat altered by the Judicature Act. The judge of nisi prius is no longer a mere commissioner to try issues; but by that act (36 & 37 Vict. c. 66, s. 29) every judge acting under the ordinary commissions constitutes a court of the High Court of Justice. In this uncertain state of the law the question was once more discussed in the case of Ex parte Ball, In re Shepherd (), in 1879, when the doctrine. that it was a condition precedent to the enforcing the civil remedy that the felon should have been first prosecuted, if it ever had any solid foundation, was finally exploded. The question arose in the bankruptcy of one Shepherd, who had been a clerk in the banking house of Willis & Co., and had embezzled about £7,000 of their moneys. Willis & Co. had neglected to prosecute and had given the felon an opportunity for escape. Shepherd was made a bankrupt, and shortly afterwards Willis & Co. became bankrupt, and Ball having been appointed their trustee, brought in a proof upon Shepherd's bankruptcy for the £7,000, and the question was whether it could be allowed on account of the felony. The Lords Justices held that the trustee in bankruptcy, against whom no charge of neglect to prosecute could be brought, was entitled to prove for the debt. Bramwell, L.J., said: The law upon this subject is in a remarkable state. For 300 years it has been said in various ways by judges, many of the greatest eminence, without intimating a doubt, 575] *except in one instance, that there is some impediment to the maintenance of an action for a debt arising in this way. The doubt is that of Blackburn, J., in Wells v. Abrahams"(); and he points out that there are "only four possible ways in which the impediment can arise: 1. That no cause of action arises at all out of a felony. 2. That it does not arise till prosecution. 3. That it arises on the act, but is suspended till prosecution. 4. That there is neither defence to, nor suspension of, the claim by or at the instance of the felon debtor, but that the court, on its own motion, or at the instance of the Crown, may stay proceedings till public justice is satisfied." But he points out difficulties in the way of each theory, and finally suggests that there is a great deal to justify Mr. Justice Blackburn's doubt. Baggallay, L.J., agreed with the result, and laid down the following propositions as resulting from the authorities: "1. That a felonious act may give rise to a maintainable action. 2. That (1) 10 Ch. D., 667; 27 Eng. R., 196. (2) Law Rep., 7 Q. B., 554. 6. Q.B.D. Midland Insurance Co. v. Smith. 1881 the cause of action arises upon the commission of the offence. 3. That notwithstanding the existence of the cause of action, the policy of the law will not allow the person injured to seek civil redress, if he has failed in his duty of bringing or endeavoring to bring the felon to justice. 4. That this rule has no application to cases in which the offender has been brought to justice at the instance of some other person, or in which prosecution is impossible by reason of the death or escape of the felon. 5. That the remedy by proof in bankruptcy is subject to the same principles of public policy as those which affect an action." The resolutions laid down by Baggallay, L.J., appear to me to be sound and logical, and to be fully supported by the authorities when closely examined. The question in the present case arises upon demurrer to the statement of claim, by which all that appears is that the plaintiffs are suing for damages for an injury caused by the felonious act of the defendant Mary; the only question, therefore, is, whether such an action is prima facie maintainable, or whether upon the face of the claim it ought to be finally and conclusively rejected. In my judgment, upon this demurrer, the action may be maintainable in fact. There is nothing to show whether the plaintiffs have or have not neglected to prosecute the felon; and it is consistent with this demurrer that the felon may in fact have [576 been convicted; and, as it seems clear to me that the prosecution of the felon is not an absolute condition precedent to the accruing of the cause of action, the statement of claim is prima facie sufficient, so far as the present point is concerned. But as in my opinion the action is upon the first ground not sustainable, the judgment upon this demurrer must be for the defendants. Judgment for the defendants. Solicitors for plaintiffs: Swann & Co., for Tweed, Stephen & Dashper. Solicitor for defendants: John Collon. 1881 South Eastern Ry. Co. v. Railway Commissioners. (C.A.) Q.B.D. [6 Queen's Bench Division, 586.] Feb. 5, 1881-(C. A.), Q.B.D. [IN THE COURT OF APPEAL.] 586] *THE SOUTH EASTERN RAILWAY COMPANY V. THE RAILWAY COMMISSIONERS and the MAYOR, ALDERMEN, and BURGESSES of Hastings. Railway Company-Regulation of Railways Act, 1873 (36 & 37 Vict. c. 48)-Railway and Canal Traffic Act, 1854 (17 & 18 Vict. c. 31)—Jurisdiction of Railway Commissioners-Demurrer. The Railway Commissioners, to whom has been transferred the jurisdiction of the Court of Common Pleas under the Railway and Canal Traffic Act, 1854 (17 & 18 Vict. c. 31), have under that act jurisdiction to hear and determine a complaint against a railway company of not, according to its powers, affording all reasonable facilities for receiving, forwarding, and delivering passengers and other traffic at and from any of its stations which are used by the company for such passengers or other traffic; and although the commissioners have no jurisdiction to order the company to make a new railway station, or to order any particular works, or otherwise to interfere with the discretion of the company in the mode of performing its obligation to afford such facilities, according to its powers, for the receiving, forwarding, and delivering of the traffic, yet they have jurisdiction to order such facilities, even if their doing so would necessitate the making by the company of some structural alteration of such station. If the Railway Commissioners act beyond their powers, prohibition will lie, notwithstanding the power of the Court of Common Pleas over railways under 17 & 18 Vict. c. 31, was transferred to such commissioners by 36 & 37 Vict. c. 48. In a declaration in prohibition by a railway company against the Railway Commissioners it appeared that a complaint, under the Railway and Canal Traffic Act, 1854, had been made to the commissioners against the company, and that the commissioners proposed to order certain things to be done by the company in respect of such. complaint, and that the company denied the jurisdiction of the commissioners to hear and determine the complaint or any part of it, and prayed for a writ to prohibit the commissioners "from further proceeding in any way touching the premises before them." The court, being of opinion that the commissioners had jurisdiction over the general matter of the complaint, and that they had jurisdiction to order some of the things they proposed ordering, though not to order the others: Held (Brett, L.J., dissenting), that a general demurrer by the commissioners to the whole declaration should be allowed. Q.B.D. Payne v. Fern. 1881 [6 Queen's Bench Division, 620.] Feb. 23, 1881-Q.B.D. *PAYNE V. FERN. [620 Bill of Sale-Proviso for Possession by Mortgagor-Sale by Mortgagor to Third Person-Conversion. In consideration of a loan of money, G. [the mortgagor] by bill of sale conveyed his furniture, stock-in-trade, and other effects in and upon the farm-house occupied by him, to the plaintiff, and all things of the like nature which might at any time during the continuance of the security be brought on the premises. The bill of sale contained provisos that if the mortgagor should upon demand delivered to him or his assigns pay the amount secured the security should be void, and that in case he should make default in payment of the amount, or in case he should assign the goods or permit them to be removed from the premises before such payment, it should be lawful for the plaintiff to enter upon the premises and take possession of all and sell the goods assigned. There was a further proviso that until the mortgagor or his assigns should make default, or do any act whereby the power of entry might be put in force, it should be lawful for him or his assigns to hold and possess the goods assigned. The mortgagor, while part of the consideration money remained unpaid, sold and delivered off his premises to the defendant part of the goods assigned. The plaintiff thereupon demanded these goods from the defendant, and upon his refusal to give them up, brought an action for their conversion. At the trial the jury found that the sale to the defendant was not in the ordinary course of business: Held, that the defendant was liable, for upon the true construction of the bill of sale the sale and removal of the goods gave no title to the defendant as against the plaintiff. ACTION for the conversion of live stock and goods assigned to the plaintiff by bill of sale. At the trial, before Watkin Williams, J., at the Gloucestershire winter assizes, 1881, it appeared that in February, 1880, one Griffin executed the bill of sale to secure the pay. ment of £26 by him to the plaintiff. The bill of sale conveyed the furniture, stock-in-trade, and other effects in and upon the farm-house occupied by Griffin, to the plaintiff, and all things of the like nature which might at any time during the continuance of the security be brought on the premises. It contained provisos that in case the mortgagor should on demand to him or his assigns pay the £26 the deed should be absolutely void; and that in case the mortgagor should make default in payment of the said sum, or in case he should assign the said goods, &c., or remove, or permit them to be removed, before the money thereby secured should be fully paid, it should be lawful for the plaintiff to enter *the mortgagor's premises and take and keep posses [621 sion of the goods assigned and sell and dispose of them, and that until the mortgagor or his assigns should make any default or do any act whereby the power of entry might be put in force, it should be lawful for him and his assigns to 1881 Payne v. Fern. Q.B.D. hold and possess the goods assigned. Part of the consideration money was paid by Griffin, but in August, 1880, £14 remained due, and in that month Griffin sold and delivered off his premises to the defendant the cattle, goods, and chattels for £90, which was paid or settled in account. Upon hearing of this transaction, the plaintiff demanded the goods from the defendant, and upon his refusal to give them up brought this action. The learned judge directed the jury to find for the plaintiff if they thought that the sale to the defendant was not a sale in the ordinary course of business. The jury found a verdict for the plaintiff. Bosanquet moved for a new trial, on the ground of misdirection: The articles assigned by the bill of sale are not enumerated in any schedule, and it repeatedly refers to "assigns" of the mortgagor. It is also stipulated that until default the mortgagor is to be allowed to have the enjoyment of his property. The object of the parties must therefore be taken to have been that the bill of sale should operate as a floating security, giving the mortgagee full power upon default to enter and take possession of such property as he might find on the mortgagor's premises, but not restraining the mortgagor from assigning the farming stock to a purchaser like the defendant. FIELD, J.: I think the decision of my Brother Williams was quite right and in accordance with the National Mercantile Bank v. Hampson (') and Taylor v. Mc Keand (). The bill of sale operates as an absolute conveyance of the property on the mortgagor's premises, subject to the condition that the conveyance may be defeated on payment of the amount due by the mortgagor. With regard to such part of that property as consists of stock-in-trade, it may be, that according to the cases cited, there is an implied condition that 622] the grantor shall be at liberty to deal with it in the ordinary course of his business. But the jury have found. that the sale to the defendant was not in the ordinary course of business, and the plaintiff had therefore a right to demand that the defendant should give up the goods and, upon his refusal, to bring this action. The plaintiff had under the circumstances both the property in and a right to the possession of the goods. The question involves no difficulty, and I have had to decide it before. MANISTY, J., concurred. Rule refused. Solicitors for defendant: Chester & Co., for Cooper & Chawner, Uttoxeter. (1) 5 Q. B. D., 177; ante, p. 252. (2) 5 C. P. D., 358. |