1860. BEAL v. SOUTH DEVON RAILWAY Co. insurers; and the plaintiff had replied, "I am content that you should not be insurers if you will make a less charge:" surely that would determine the question whether the contract was reasonable or not. Therefore, if the question comes before a Court of error, and I am called upon to express an opinion respecting it, I shall consider how far the decision in M'Manus v. The Lancashire and Yorkshire Railway Company is correct. I should not have made these remarks except for the purpose of shewing the extreme difficulty I have in applying the statute, as construed by the majority of the Court of error, where we are called upon to determine whether the terms of a particular bargain with a railway Company are just and reasonable. Ido not know what test to apply. Reasonableness is a relative term. A contract may be reasonable with reference to certain circumstances, but not as to others. However, we must ascertain whether it was unjust or unreasonable for this Company to stipulate with the plaintiffs that if they carried fish they would not be liable for loss of market, or other loss or injury from any cause whatever other than gross neglect or fraud. It seems to me that such a stipulation is most reasonable. The Company might well say, "As to ordinary articles, if they arrive a little later we are content to be subject to an action, because we know that the owners will not sue us unless they have sustained substantial damage; but with respect to articles like fish, which require to be carried within a particular time, and the non-conveyance of which within that time might be attended with great loss, we would rather not carry them at all; but if we do, it must be upon the terms, either that a large sum is paid for the carriage, or that we shall not be liable for loss not occasioned by gross negligence or fraud. Such a condition seems to me most reasonable. There is another consideration which to my mind renders this contract reasonable. After the fish is caught there may be 1860. BEAL v. SOUTH DEVON difficulty in landing it, and some time may elapse before it is brought to the railway station, so that when it arrives it may be more or less fresh. Probably there is no one at the station to see whether the fish is in a sound condition and RAILWAY Co. capable of undergoing the journey, and consequently halfdamaged fish may be sent to London. I do not mean to cast any imputation on the plaintiffs, but there is always this contingency, that a valuable cargo may be placed in the train at a distance from London, and when it arrives there it may be worth less than nothing. Then if, by some good fortune to the sender, the train has met with a trifling delay on the road, he is enabled to assert that it has spoiled his fish. It cannot be said that it is unreasonable for the defendants to guard against such a contingency. The plaintiffs need not employ the railway Company. It is said that the Company has a monopoly; but they do not prevent persons from sending fish by any other conveyance. The Company are either bound to carry it, or they are not bound. If they are bound, let the plaintiffs tender their fish and a reasonable sum for its carriage; and if the Company refuse to carry it they are liable to an action. If they are not bound to carry it, but are willing to do so upon certain terms, it seems to me monstrous that a party who has agreed to those terms shall afterwards be at liberty to say, "I am not bound by them," because in the opinion of a Judge, who perhaps may not be familiar with the subject, the terms are not just and reasonable. It seems to me upon every consideration that this contract is just and reasonable; and if there were no other reason, I think that the plaintiffs' conduct in entering into the contract furnishes abundant evidence of its being reasonable. CHANNELL, B.-I am also of opinion that the rule ought VOL. V.-N. S. MM M EXCH. 1860. BEAL v. SOUTH DEVON to be absolute. I consider that we are bound by the decision of the Court of error in M'Manus v. The Lancashire and Yorkshire Railway Company to this extent, that the RAILWAY CO. plaintiffs are not disentitled to contend that the condition is not reasonable, merely because it is contained in a contract which they have signed. I also think that it binds us upon another point, viz., that it is open to the Court to review the decision of the Judge at Nisi Prius upon the question of reasonableness. I also think that it binds us upon the point, that a condition which exempts the Company from liability in every case is an unreasonable condition. Admitting that it binds the Court on the last point, the question is, whether the condition in the present case is distinguishable. I think it is, because it leaves the Company open to liability in two events, gross negligence and fraud. Then, is the condition reasonable or unreasonable? I think it is reasonable. Fish is one of the several articles enumerated, all of them being articles of a perishable nature; and the Company have not held themselves out to the world as common carriers of articles of that nature, but they are willing to carry them upon certain terms, of which they have given public notice, and which the plaintiffs have adopted by signing the contract. Assuming that some, if not all the grounds mentioned by the majority of the Court of error apply to this case, I think that this contract is reasonable, and therefore binding on the plaintiffs who have signed it. As I understand, my brother Martin intended to give the plaintiffs the benefit of amending the declaration in any way they could consistently with the contract; subject however to this, that if, in making the condition the basis of the contract, the defendants would have an answer to any declaration which incorporated it, the amendment was not to be allowed. Treating this then as a valid contract between the parties, there was a variance between the declaration as originally framed, charging the defendants as common carriers, and the contract proved. On the other hand no contract could be framed incorporating this condition, to which the defendant would not have this answer, viz. that the plaintiffs were unable to shew a breach of the contract. Upon these grounds I am of opinion that the rule ought to be absolute. MARTIN, B.-Had I been aware that the other members of the Court meant to deliver a deliberate judgment, I should have expressed my reasons for taking a different view more fully than I have done in the course of the argument. However, as the case is likely to go to a Court of error, I shall content myself with saying that I think this condition is unreasonable, and that the case is in principle governed by the decision of the Exchequer Chamber in M'Manus v. The Lancashire and Yorkshire Railway Company. Rule absolute. 1860. BEAL v. SOUTH DEVON 1860. June 8. PATIENCE SWINFEN v. LORD CHELMSFORD. No action lies DECLARATION.—That whereas, before the commit against a counsel who, employed to conduct a cause at Nisi Prius, enters into a compromise and withdraws a juror, even though contrary to his client's instruc. tions, provided it is done bona fide. ting of the grievances, &c., Samuel Swinfen, by his last will, gave and devised his estate at Swinfen to the plaintiff, her heirs, &c., and that, after the death of the said testator, F. H. Swinfen, claiming to be entitled to the said estate, as heir at law to the said testator, and impeaching the validity of the said will, on the ground that the testator did not possess a proper testamentary capacity, filed a bill in Chancery against the now plaintiff, and, pursuant to an order in If a counsel the suit, made by the Master of the Rolls, a writ was issued employed in a cause, con trary to the instructions of his client, acting bonà fide, enters into a compromise of the suit, which is a nullity because it embraces matters in respect of which the counsel had no authority; though his client is put to expense in resisting legal proceedings taken by the other side to enforce such compromise, the counsel is not liable to an action; because, first,-subjecting a person to legal proceedings without malice is not a cause of action; and, secondly,-there is no legal damnification, inasmuch as the Court in which the proceedings to enforce the compromise are taken will award such costs to the successful party as the law allows. An advocate at the English bar by accepting a brief in the usual way undertakes a duty, but does not enter into any contract express or implied. The conduct and control of the cause in which he is engaged are necessarily left to counsel. But, although he has complete authority over the suit and the mode of conducting it and all that is incident to it, he has not by virtue of his retainer, any power over matters that are collateral to it. Semble, that an advocate is not responsible for ignorance of law or any mistake of fact, or being less cloquent or less astute than he was expected to be; and, per Pollock, C. B., and Watson, B., that, if he is acting with perfect good faith and with a single view to the interests of his client, he is not responsible for any mistake or indiscretion or error of judgment of any sort; and if he imagines he has an authority to compromise a case when in reality he has not, it is a mistake either in law or fact; or, if in spite of instructions, he enters into a compromise, believing that it is the best course, and that the interest of his client requires it, it is but an indiscretion or error of judgment if done honestly. A declaration alleged that the defendant, a barrister, was retained by the plaintiff to conduct a cause, and undertook to perform his duty as the plaintiff's counsel; that during the progress of the cause, well knowing that he had no authority from the plaintiff to enter into any terms of compromise, he wrongfully and fraudulently entered into what purported to be a compromise of the cause and withdrew a juror, alleging, as special damage, that proceedings were taken to procure an attachment, &c., against the plaintiff to enforce the compromise, whereby she was put to expense. At the trial the plaintiff's counsel opened and endeavoured to prove that the defendant, to serve his own purposes and from improper motives, entered into the compromise. When the summing up of the learned Judge was almost concluded, and not before, the plaintiff's counsel urged that the defendant was liable even if he acted bonâ fide, and offered to tender a bill of exceptions to the Judge's ruling, which however was afterwards abandoned.— Held: First, that as the point was suggested before the case was finally left to the jury it was in time. Secondly, that if a declaration discloses a state of facts upon which an action may be maintained although there be neither malice nor fraud, the plaintiff is not bound to prove either though both be alleged, and may recover on the liability which the facts disclose though both fraud and malice be disproved. |