be added to or deducted from the sum of 8,6107.; and the local board agreed to pay to Stap the sum of 8,6107. by instalments, the balance (less 3507.) to be paid on completion of the works, the said sum of 350l. to be kept in hand by the board until six months after the completion of the works to meet contingencies. Averment That Stap performed the said works contracted for, and certain additions and alterations thereto, under the directions of the architect; and that the sum to be paid to him for the works amounted to 9,8847. 13s. 10 d., and that all conditions were performed and all things happened, and all times elapsed necessary to entitle the plaintiffs, as such trustees, to receive payment from the local board of the balance of the sum of 9,884l. 138. 10ąd. Breach— That the local board, although they had paid to the said Randal Stap the sum of 9,2821. 18s. 10d., part of the sum of 9,8841. 13s. 10 d., had not paid the residue of the sum of 9,8847. 138. 103d., or any part thereof, and the same remained due and unpaid.

The declaration also contained the common counts for work done and materials provided, and money paid by and money due on accounts stated with Randal Stap before the making of the deed.

Fourth plea, as to so much of the first count as relates to 1717. 12s. 8d. (other than 801. 2s. 6d. paid into court), that after Randal Stap had performed the works, additions, and alterations in the first count mentioned, and there was due and payable to him in respect thereof by the local board, over and above the 350l. so to be kept in hand as in that count mentioned, a sum of money far exceeding the sum of 1717. 12s. 8d. in the introductory part of the plea mentioned, certain creditors of Stap, named William Russell the elder, William Russell the younger, and Simeon Russell, obtained two judgments against him, for the sums of 671. 48. 6d. and 1047. 8s. 2d. respectively, and by two orders of Shee, J., dated the 25th of August and the 27th of August, 1864, respectively, all debts owing or accruing from the local board to Randal Stap were attached, to answer the said judgment debts; and it was also ordered by the same orders that the local board, their attornies or agents, should attend before the said Judge,

to shew cause why they should not pay to the said William Russell the elder, William Russell the younger, and Simeon Russell, so much of the debt due to Randal Stap as might be sufficient to satisfy the judgment debts. The plea went on to state that the orders were duly served upon the defendant and the local board on the 26th and 29th of August, 1864, respectively, and the local board not knowing of any cause to shew why they should not pay the two sums of 671. 4s. 6d. and 104l. 8s. 2d., or either of them, to the said William Russell the elder, William Russell the younger, and Simeon Russell, and not knowing of the trust-deed, or that the causes of action in the declaration mentioned had been assigned, did not, nor did the attornies or agents, appear before the said Judge, or upon either of the orders or the summons to attend (therein contained), and thereupon, by two other orders of the said Judge, bearing date respectively the 2nd of September, 1864, and the 7th of September, 1864, the said Judge ordered that the local board should forthwith pay to the said William Russell the elder, William Russell the younger, and Simeon Russell, so being such judgment creditors, the said debt due from the local board to Randal Stap, or so much thereof as was sufficient to pay the respective judgment debts of 671. 48. 6d. and 104l. 88. 2d., and that in default thereof execution might issue for the same, each of which last-mentioned orders was thereupon, on the 13th of September, 1864, and before the defendant or the local board had any notice or knowledge of the trustdeed served upon the defendant and the said local board, and payment of the judgment debts, amounting to the said sum of 171. 12s. 8d., was demanded under the orders by and on behalf of the said William Russell the elder, William Russell the younger, and Simeon Russell, and the local board, in compliance with the orders, and in order to avoid executions for the same being levied on their goods and chattels, and because they could not otherwise have avoided such executions for the sums so ordered to be paid as aforesaid, paid the same to the said William Russell the elder, William Russell the younger, and Simeon Russell, as such judgment creditors as aforesaid, and were thereby discharged from all claims of Randal Stap,

and of the plaintiffs, as such trustees as aforesaid, in respect of the sum of 1717. 12s. 8d. in the introductory part of this plea mentioned, being the amount of the judgment debts so paid as aforesaid.

Seventh plea, to the money counts, so far as the same relate to 1717. 12s. 8d. (other than the sum of 801. 2s. 6d. paid into court). This was a special plea of payment, repeating the facts stated in the fourth plea.

Replication to the fourth and seventh pleas That the deed or instrument in the declaration mentioned to have been made between Randal Stap and his creditors was registered according to the provisions of the Bankruptcy Act, 1861, before payment by the said local board to the said William Russell the elder, William Russell the younger, and Simeon Russell, or the said sums of money or either of them, or any part thereof, in the said fourth and seventh pleas, or either of them, mentioned.

Demurrer to the replication, and joinder in demurrer.

Rew, in support of the demurrer. The replication is bad. The pleadings, which are rather intricate, shew that the defendants paid the money in order to avoid execution being levied upon them.

[MELLOR, J.-Ought you not to have averred that the money was paid before the registration of the deed?]

By the Common Law Procedure Act, 1854, s. 61, a Judge may, upon an ex parte application, at once order debts due to the judgment debtor to be attached.

[LUSH, J.-The plea does not say that when you paid the judgment creditor you had no notice of the deed.]

The payment would be a good defence even if made after notice of the deed, though it cannot be assumed that the defendants knew of the deed when they paid the money.

[LUSH, J.-Suppose that there had been an actual bankruptcy. It has been held that, if an act of bankruptcy is committed between the seizure and sale under an execution, payment after notice of the proceeds of the sale to the judgment creditor cannot be justified-Notley v. Buck (1). Now, by section 197. of the Bankruptcy Act, 1861, trustees such as the plaintiffs are to have all the rights of assignees in bankruptcy.]

(1) 8 B. & C. 160.

The order is absolute, and must be obeyed. It is not conditional, like that in Holmes v. Tutton (2). The defendants are stated to have paid the money in order to avoid execution being levied upon them. It might be different if they had had time in order to inquire whether the deed was valid.

Warton (Barnard with him), in support of the replication. The plaintiffs rely upon the case of Holmes v. Tutton (2). There debts owing to the judgment debtor were attached under the Common Law Procedure Act, 1854; ss. 61, 62. and 63. On the day when the order was served, but after service, the judgment debtor signed a declaration of insolvency, and was next day adjudicated bankrupt. It was held, that although the defendant was bound so that the garnishee could not pay the original creditor or any one claiming under him, yet the binding must be considered as subject to the provisions of the Bankruptcy Acts for the distribution of property; and Lord Campbell, in his judgment, says, that the expression "bind" in the garnishee clauses has no stronger effect than the operation of a common law judgment. Magrath v. Hardy (3) strongly resembles this case. There, in an action for money had and received, there was a plea of payment under an attachment in the Lord Mayor's Court. A replication that

there was no execution executed was held good, as the custom set up in the plea provided that after execution executed the garnishee should be discharged as against the judgment debtor. In Westoby v. Day (4) payment in the Mayor's Court by the garnishee, who had notice before the proceedings that the defendant, or judgment debtor, had parted with his interest in the debt, was held not to be justifiable. And in the late case of Tilbury v. Brown (5), where an order under section 63. directed the garnishee to pay to the plaintiff the debts due to the defendant, subject to an award for ascertaining their amount, and an award was made, but before payment of the sum awarded the

(2) 5 El. & B. 65; s. c. 24 Law J. Rep. (N.S.) Q.B. 346.

(3) 4 Bing. N.C. 782; s. c. 7 Law J. Rep. (N.S.) C.P. 299.

(4) 2 El. & B. 605; s. c. 22 Law J. Rep. (N.S. Q.B. 418.

(5) 30 Law J. Rep. (N.S.) Q.B. 46.

defendant became bankrupt, Crompton, J. held, that there was no distinction for this purpose between orders under sections 61. and 63, and that the plaintiff was not entitled to the money. These cases shew that the effect of a conditional order is not under these circumstances different from that of an order absolute.

MELLOR, J.-I think that the plea is bad, and that our judgment must be in favour of the plaintiffs, although Mr. Rew has supported his view of the case with much ingenuity. The facts as disclosed by the pleadings appear to be these: The defendant, as clerk to a local board of health, was indebted to the judgment debtor. The judgment creditor obtained the usual garnishee order, attaching debts due from the defendant. In the interval between the order nisi and the order for execution to issue, everything was completed necessary to make the plaintiffs trustees under a deed duly registered within the meaning of the Bankruptcy Act, 1861. The defendant avers that the order was made absolute and served upon him before he had notice of the trustdeed; but he omits to aver that when he paid the money he had no notice of the deed. And I am certainly disposed to think it essential, in order to make this a good plea, that notice or want of notice at the time of payment should be averred. Therefore, if there is any distinction between payment before and after notice, we must take it that payment was made after notice of the deed. Now I have come to the conclusion that the words of the 197th section of the Bankruptcy Act, 1861-[His Lordship read the section]-are wide enough to shew that trustees under a deed such as this (if valid) are placed in the same position as assignees under an ordinary bankruptcy. This has the effect of making provisions as to acts of bankruptcy apply to the administration under a trust-deed. Therefore, as the payment was after notice of the registration, it is not sufficient to say that it was made in order to avoid execution under the garnishee order. I do not think, as the defendant's counsel contended, that the order bound the defendant personally; I think that he is absolved by payment to the judgment debtor. It may be that the debt was not payable out of any particular fund, but the defendant could have applied to a Judge at

a hardship which often arises in cases of bankruptcy, and we must give effect to the bankrupt law where the order of attachment is absolute, in the same way as where it is only an order nisi.

SHEE, J.-I am of the same opinion. The plea does not allege that the defendant did not have notice of the registration of the deed till after payment. Can such a plea under any circumstances be good? I think that it does not shew a complete defence to the action; for I am disposed to think that the effect of the act of parliament is to place trustees on the same footing as assignees in bankruptcy. As, therefore, the title of the trustees was completed before the payment, the discharge from claims by the judgment debtor, which the plaintiffs allege that they have obtained, cannot avail them in this action. The 197th section of the last act provides that trustees shall have the same powers as against third persons as assignees in bankruptcy. This makes the decisions in Holmes V. Tutton (2) and Tilbury v. Brown (4) authorities in favour of the plaintiffs, whom I think entitled to recover.

LUSH, J.-I am of the same opinion. The plea, in my judgment, is bad, because it does not aver a legal obligation to pay the money to a third person. It has been held that if bankruptcy intervenes before the garnishee has paid under the order, the judgment creditor must come in with the other creditors. Now, the 197th section of the last Bankruptcy Act, 1861, is in these words:-[His Lordship read the section]. The effect of this section is, therefore, to give the plaintiffs the rights of creditors' assignees under a bankruptcy. Now the defendant's plea does not shew that payment was made under a garnishee summons prior to the registration of the deed, that is, prior to what, in the present instance, is equivalent to a bankruptcy. It has been contended that payment after registration, without notice of the deed, would be good. I should be inclined to decide against that proposition, but it is not necessary to consider it in order to give judgment against the defendant.

Judgment for the plaintiffs (6).

(6) Cockburn, C.J. was absent through indisposition.

Where a by-law of a railway company imposes certain duties on passengers, and lays correlative duties on the company, the company must have strictly complied with the by-law on their part to entitle them to enforce it against the passenger.

A by-law provided that no passenger would be allowed to travel upon the railway without having first paid his fare and obtained a ticket, and that each passenger, on payment of his fare, would be furnished with a ticket, which ticket such passenger was to shew and deliver up when required by the guard or other authorized servant. A passenger, having three servants with him, paid his own and their fares, and was furnished with four tickets, for a certain train. He took his seat, with the tickets in his possession, in one part of the train, and the servants entered another part. The train was divided into two parts by the company, and the servants were thus separated from their master. The part of the train in which the master was seated was first despatched, and before leaving he shewed the tickets for himself and servants. Afterwards, when the second part of the train was about to be despatched, a duly authorized servant of the company demanded the tickets of the passenger's servants, which they were unable to shew, and, thereupon, were not allowed to travel by the train, which was despatched without them :-Held, that the company could not justify their refusal to carry the servants, inasmuch as the company had given the tickets to the master, and by the division of the train separated him from his servants.

This was an action brought to recover damages from the defendants, as common carriers, for the unlawful detention of the plaintiff's servants and horses. The first count of the declaration was for not carrying certain race-horses which the defendants had received from the plaintiff for carriage from Lincoln to Peterborough, by a certain train, for which they were received, by reason whereof the horses arrived by a later train, and were separated from the plaintiff

and his servants. And the second count of the declaration alleged that the defendants were carriers of passengers by trains from Lincoln station to Peterborough station, for reward to the defendants in that behalf, and that thereupon, in consideration that the plaintiff paid to the defendants, at their request, a certain reward for the carriage of himself and certain servants of the plaintiff, by a certain train from Lincoln to Peterborough, and, at the request of the defendants, he himself became a passenger, and at the request of the defendants, caused his servants to become passengers, to be carried by the said train from Lincoln to Peterborough, for the said reward, the defendants promised the plaintiff to carry him. and his servants by the said train from Lincoln to Peterborough, and all things were done and happened to entitle the plaintiff to have the defendants carry his servants as aforesaid; yet the defendants did not nor would carry his said servants; but wholly refused so to do, whereby the plaintiff lost the services of his servants, and alleging further damage. The third count was for an assault upon Charles Salmon his servant and imprisonment of him, whereby the plaintiff lost his services. And the fourth count was for wrongfully preventing certain servants of the plaintiff travelling by the railway.

The defendants pleaded, fifthly, to the second count, that by one of the by-laws of the said company, duly made under and by virtue of an act of parliament before the making of the promise in the second count mentioned, and of which the plaintiff had due notice, it was ordered as follows: "No passenger will be allowed to enter any carriage used on the railway, or to travel therein upon the railway, without having first paid his fare, and obtained a ticket. Each passenger, on payment of his fare, will be furnished with a ticket, specifying the class of carriage and the distance for which the fare has been paid, which ticket such passenger is to shew when required by the guard in charge of the train, and to deliver up before leaving the company's premises, upon demand, to the guard or any other servant of the company duly authorized to collect tickets." And the defendants further say, that the said servants of the plaintiff had not obtained tickets, and

could not produce the same pursuant to the said by-laws, wherefore the defendants refused to carry the said servants. And for a seventh plea, the defendants, as to the third count, say, that the said Charles Salmon was unlawfully in the said railway train (being a railway train of the defendants), and could not produce or shew a ticket, pursuant to the said by-law, and refused to leave the said train when requested so to do, wherefore the defendants, by their servants in that behalf, gently laid their hands on the said Charles Salmon, and removed him from the said railway train, doing no unnecessary damage and using no unnecessary violence. And for a ninth plea the defendants, as to the fourth count, say, that the conveyance in that count mentioned was the conveyance of the defendants, and that they were lawfully possessed thereof, and because the said servants of the plaintiff were unlawfully, and without the consent of the defendants, about to enter the said conveyance, and were not lawfully entitled to travel as passengers therein, the defendants prevented their travelling by the said conveyance, and compelled them to quit the same, as they lawfully might, for the cause aforesaid.

The plaintiff was a trainer and owner of race-horses, and being about to leave Lincoln, on the last day of the races there, on the 25th of February, 1865, for Peterborough and Newmarket, took a ticket for himself, first class, and for three stableboys, third class, and for three horses, by the 6 o'clock p.m. train. The boys were to travel with the horses in the horse-box, according to the usual practice permitted by the company, when third-class tickets for them had been previously taken. When the train was about to start, it was found that it was too long and too heavy, and it became necessary to divide it into two trains. The first division, containing the passengers, amongst whom was the plaintiff, was despatched a few minutes after 6 o'clock; the latter division, containing the horse-boxes and the boys, started at 6:35 p.m. The plaintiff had taken his seat in the train before the division was made, and had in his possession the tickets for the boys, and shewed them, along with his own, to the ticket examiner, before his part of the train started; and when the latter division of

the train was about to start, the company's servant, duly authorized, called upon the plaintiff's boys, amongst the other occupants of the horse-boxes, to shew their tickets. They said their master had them; but this the company's servant refused to believe, and they were accordingly refused permission to go by the train, which, thereupon, started without them, and they were left behind at Lincoln.

The action was tried, before Erle, C.J., at the Summer Assizes for Cambridge, when the jury found that there was a contract by the defendants to carry the plaintiff and his servants and horses by the 6 o'clock train, and that the defendants had broken that contract. The plaintiff had a verdict for 51. 128., but the learned Judge gave the defendants leave to move to set aside that verdict, and to enter a verdict for them on the fifth plea, on the ground that there was no evidence to go to the jury to entitle the plaintiff to a verdict on the fifth plea, and that there was evidence upon which the jury

should have found for the defendants.

Keane (Markby with him) now moved for a rule pursuant to the above leave. (They also moved to have the verdict set aside, and entered for them on the seventh and ninth pleas, and on the further grounds that the verdict was against evidence, and of the misdirection of the learned Judge. The argument, however, only turned on the second count and fifth plea.)--The defendants were justified under their by-law in refusing to allow the plaintiff's servants to go with the horse-boxes in the second part of the train. They did not produce their tickets when called upon by a person duly authorized. In Woodard v. the Eastern Counties Railway Company (1) a similar by-law was enforced.