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Lopes (Patchett with him), for the the interval of change the appellants fastened other attorney, desired to proceed with the the dog up by means of the strap, and the matter, as regarded his client, and to take dog slipped through the collar, got on to no notice of the objection to the affidavit. the railway, and was killed :-Held, that

the appellants were not liable. WILLES, J.-You may do so, inasmuch as rule 138 of Hilary Term, 1853, is not

This was a Case stated on appeal from statutory and is only directory, and there

the decision of the County Court Judge fore a breach of it is only an irregularity

of Westmoreland. (1), and may be waived. It is otherwise

1. This was an action brought in the if the proceeding is made void ; and rule

above County Court by the plaintiffs, 140, providing that no affidavit shall be joint owners of a certain greyhound, to read or used if there be any interlineation

recover 501. damages against the defenor erasure in the jurat, is an instance of a

dants for the loss of the said greyhound case where the parties cannot waive the

under the following circumstances : objection. But a party may waive an

2. On the 19th of February, 1870, the objection under rule 138, and is entitled

greyhound was taken by the plaintiff to get rid of the rule obtained against

Sisson to the defendants' station at Temple him, and, according to the authorities Sowerby, for the purpose of being concited by Mr. Greaves in his edition of

veyed from Temple Sowerby to Morpeth, Russell on Crimes (2), the deponent is

another station on the defendants' line of liable to be indicted for perjury, if he has

railway. The plaintiff Sisson applied to sworn falsely, so that no objection can arise

tha collector at Temple Sowerby station, on the ground of his non-liability in such

and stated that he required the greyhound

to be conveyed to Morpeth. He paid the BYLES, J., BRETT, J., and GROVE, J.,

fare which the collector demanded, and concurred.

gave the greyhound into the charge of the

guard of the train by which it was to The matter was then proceeded with,

be conveyed on its journey. and eventually referred to the Master.

3. The plaintiffs did not declare the value of the dog, and paid no extra charge for its conveyance. No ticket was issued. The greyhound, when delivered to the guard, had round its neck a collar of leather, and was clothed with a sheet. At the trial it was proved that the sheet

did not so cover the collar as to prevent 1871. THE NORTH EASTERN June 23, 24. WAY COMPANY (appellants)

its being exanıined; it was also established

at the trial that the dog was of the 1872. V. RICHARDSON AND SISSON

value of seventy guineas. The greyhound Jan. 31. (respondents).

was safely carried to Kirkby Stephen Carriers-BaileesNegligence-Contri

station, where the train from Temple butory Negligence--Dog.

Sowerby stopped. The remainder of the

journey to Morpeth was intended by the The respondents delivered a dog to the defendants, for their own convenience, to appellants for carriage on their railway. be performed in another train, which, on The appellants received it, not as common

its arrival from Tebay, was to proceed carriers, but as ordinary bailees. The dog from the Tebay side of Kirkby Stephen was delivered with a collar on it and a strap

station; the train from Temple Sowerby attached thereto. During the journey there arriving at the other side (known as the was a change of trains ; for security during

Eden Valley side of the Kirkby Stephen

station. The greyhound was taken from (1) See Seymour v. Maddox, 19 Law J. Rep.

the van in which, up to that point, it (N.s.) Q.B. 525.

had been carried, and was taken from the (2) 3 Russell on Crimes, 104.

Eden Valley side of the platform to the


Tebay side to await the arrival of the bill, a copy of which, marked A (2), is to train from Tebay then 'due. The train be taken also as part of the case, was from Tebay being a few minutes late, the tacked to the wall inside the passengers' greyhound was fastened by the company's waiting-room. The notice marked B, but servant to an iron spout by a strap, which which makes no reference to dogs, could one of the plaintiffs, before delivery to be easily seen by any person entering the defendants, had attached to its collar, open platform-shed, where tickets are and having been so fastened it was left given; but the printed paper which is a alone to await the arrival of the train. time table, and contains a marginal note Within three minutes afterwards the dog about dogs, could only be seen by persons slipped its head through the collar and who had entered the waiting-room, but escaped, and ran away down the line. there was no evidence to slew that the The next day it was found dead, having plaintiff Sisson bad and the plaintiff been run over by a train.

Sisson deposed on oath that he never had 4. At the time the plaintiff Sisson seen or heard of either of these notices brought the greyhound to Temple Sower- or of the terms contained therein. by Station, a bill, a copy of which, marked 5. The defendants are not common B (1), is to be taken as part of the case, carriers of dogs, and it was proved that on was exposed on a board in the open plat- one previous occasion they had for hire form-shed of the station; and another carried the same dog for the plaintiffs, but that the defendants having undertaken for for ordinary circumstances, but the dog valuable consideration to carry the dog being left alone, fought itself loose, and safely from Temple Sowerby Station to which in all probability would not have Morpeth, on the complete delivery of the happened if the dog had been conducted dog to them they became responsible for by one of the company's servants from one the security of the dog, and the dog then van to the other. That the printed paper remained at the risk of the defendants, A., suggested as a notice, is not a notice who were bound to lock the dog up or within the meaning of the Statute, for take other proper means to secure it; that several reasons, namely, it does not parthe defendants were guilty of negligence port to be a public notice, but merely a in the first place in not making the strap time table shewing the dates of arrival and of the dog secure, and in the second, in despatch of trains; it is not signed by any tying the dog to an iron spout in the open authority of the company; that the parastation of Kirkby Stephen, and leaving it graph applying to dogs is a mere marginal alone in a strange place amongst stran- note, and is in no way a leading feature gers, instead of keeping the dog either in in the document, and that notice B. does hand or in the van of the Temple Sowerby not apply to dogs unless specifically named, train, or in a building, until the Tebay and is not in conformity with the Railway train arrived, and then transferring the and Canal Traffic Act, but is in small dog direct from the Temple Sowerby print, and directly at variance with the train to the Tebay train. It was further requirements of the Statute, namely, that contended by the plaintiffs that there was such notice shall be in legible characters; no notice to the plaintiffs of any special also on the ground that there should have conditions by which the company limited been a special ontract signed by the their liability. It was also contended by parties. In Peek v. The North Staffordshire the plaintiff's, that the defendants having Railway (1), the Court said: “All the been guilty of negligence, could not take parts of section 7 of 17 & 18 Victoria advantage of their own wrong or avail must be read together, and not only must themselves of any notice to the purport or the terms limiting liability be reasonable, effect of that alleged in notices A. and B. but they must be embodied in a special

no ticket was given, and there was no (1) The notice B contained, amongst others, the evidence that the plaintiffs had on that following paragraphs7. And in pursuance of “The Railway and

occasion any knowledge of the notices Canal Traffic Act, 1854,” The North Eastern

A. or B. Railway Company hereby give further notice, that 6. It was contended for the plaintiffs they require to be paid to their collector at this station for any horse, cattle, sheep, pig, or other (2) The time table A contained, amongst others, animal conveyed by them which shall be declared the following marginal noteto be of higher value than as hereinafter men- Horses, carriages, and dogs.—The company are tioned, as and by way of compensation for the not common carriers of horses, cattle, dogs, and increased risk and care thereby occasioned, a per other animals which are received, forwarded, and centage or increased rate of charge in addition to delivered solely on and subject to the following the ordinary rate of charge for such conveyance conditions: The company will not be responsible at the rate of—Then followed a list of per- for any loss of or injury to any horse, cattle, or centages for horses, neat cattle, sheep, and pigs other animal in the receiving, forwarding, or deonly).

livering occasioned by the kicking, plunging, or 8. And notice is hereby further given that unless unruliness of the same, or by any other cause or the owner or person sending or delivering any means whatever, except the neglect or default of such animal as aforesaid to the company, shall, the company or its servants ; nor will they be at the time of such delivery, make and sign a responsible for any greater amount or damages declaration in writing of the value thereof, and for the loss of or injury to any animals beyond pay such increased charge as aforesaid, no greater the sums hereinafter mentioned (then followed damages can be recovered for the loss or for any sums relating to horses, neat cattle, sheep, and injury to the same respectively, beyond the re- pigs only), unless a higher value be declared at spective sums hereinbefore and in the said Act the time of delivery to the company, and a permentioned, and only then upon proof of the value centage paid upon the excess of value so delivered thereof by the person claiming compensation. according to the following scale, namely (then

9. And the said company hereby give further followed percentages relating to horses, neat cattle, notice and declare that they never have been and sheep, and pigs only). The company will not are not and decline to become common carriers of accept dogs for conveyance, unless they have prohorses, cattle, sheep, pigs, and other animals, and per chains and collars attached, and then only will only undertake the carriage thereof upon upon condition that they are not responsible for special contract in each case first entered into by loss of or injury to the animals in event of these them with the owner or person sending or deliver- fastenings proving insufficient; and they will not ing the same, the special terms whereof may be receive dogs for conveyance, except on the terms learnt on application to the company's collector at that they shall not be responsible for any greater this station, and will appear in the note at the amount or damages for the loss thereof, or injury foot of or endorsed upon the ticket or memoran- thereto, beyond the sum of 21., unless a higher dum of each such contract issued or made by him, value be declared at the time of delivery to the and according to which alone the company au- company, and a percentage of 5 per cent. paid thorise him to contract on their behalf.

upon the excess of value so declared.

7. It was contended for the defendants contract in writing signed by the owner or that the loss arose through no negligence sender of the goods.' It is no defence in of the defendants, but from the insecurity this case for the company to say that the of the collar placed on the greyhound by doy was delivered to them so near to the the plaintiffs, and that defendants not time of the departure of the train as not being common carriers of dogs but only to afford time for a ticket, as they might professing to carry dogs on the terms well have refused to take it until the next stated on the bills A. and B., they were train. not liable at all under the circumstances, The question for the opinion of the and in any event could not be liable in Court of Common Pleas is, whether the damages beyond two pounds.

said verdict should stand. 8. The learned judge gave a verdict for the plaintiffs for the full amount claimed, Shield, for the appellants, contended namely, fifty pounds, on the several that they were not common carriers of grounds that the defendants were guilty dogs, and therefore no statutory proof negligence in not seeing that the strap visions were applicable; and that, consewas properly secured when the dog was quently, they were bailees for hire on the in their charge, and also in leaving the terms of the documents A. and B., which dog alone amongst strangers in a strange shewed no contract making them liable or place in the station at Kirkby Stephen tied at least only a contract making them liable to a spout, from which it almost imme- to the extent of two pounds. diately escaped, instead of securing it in Kemp, for the respondents, contended the van or in some other safe place, the company being responsible for its security.

(1) 10 H. L. Cas. 473; 8. c. 32 Law J. Rep. (x.s.) The collar might be sufficiently fastened Q.B. 241.

that there was nothing to shew that the been followed by the respondents, and it notice came to their knowledge, and they was insisted on the part of the company would be justified in concluding that the at the trial, that they were entitled to collector had authority to contract, and rely on this in answer to the action. The that, consequently, there was a contract, County Court Judge overruled this point, unfettered by the notice, on which the ap- and it was insisted on again by the compellants were liable.

pany on the argument before us, but it is The following cases were referred to- not necessary to discuss it further, because The Belfast and Ballymena Railway Com- it is found as a fact in the case that the pany v. Keys (2); Slim v. The Great

company were not common carriers of Northern Railway Company (3); Harrison dogs, so as to have an absolute responsiv. The London, Brighton and South Coast bility imposed on them to carry dogs. Railway Company (4); Peek v. The North Consequently, in the present case, the Staffordshire Railway Company (1); Van company were, with reference to the dog Toll v. The South Eastern Railway Com- in question, in the position of ordinary pany (5); Zunz v. The South Eastern bailees, and only liable for its loss in the Railway Company (6); Cahill v. The event of negligence on their part, and London and North Western Railway Com- would not be liable if its loss was by reapany (7).

son of negligence of the person who deCur, adv. vult. livered the dog to the company. It was

insisted on by the respondents before the The judgment was (on Jan. 31, 1872) County Court Judge that there was no delivered by

contributory negligence on their part. WILLES, J.—This was an appeal from Now, in order to see if that be right, it is the decision of the Judge of the County necessary to consider the facts a little furCourt of Westmoreland, holden at Apple- ther. At Kirkby Stephen station there by, and was argued before my brothers is a change of carriages, and passengers Keating and Montague Smith (8) and and goods have to be taken out of the myself, at the sittings after last Trinity train which arrives there, in order to be Term. We took time to consider our carried on by another train to Morpeth. judgment, which I am now about to The train with the dog duly arrived at deliver. The respondents sued the rail- Kirkby Stephen, and the dog was taken way company in the County Court for out and fastened by one of the company's the loss of a greyhound which was de- servants by the strap which was attached livered to the company at their station at to its collar to an iron spout, in order to Temple Sowerby, to be conveyed from remain at the station until the other train there to Morpeth. At the time the dog came up. Whilst it was so fastened, it was received by the company, it had a appears the dog slipped through its collar collar with a strap attached to it. The and got on the line, where it was desfare was paid, but no ticket was given troyed. On these facts the County Court for it. The company only carried dogs Judge decided that the company were reunder certain provisions, which had not sponsible for the loss of the dog, and that

there was no contributory negligence on (2) 9 H.L. Cas. 556.

the part of the respondent. We are (3) 14 Com. B. Rep. 647; 8. c. 23 Law J. Rep. clearly of opinion to the contrary, and (x.s.) C.P. 166. (4) 2 B. & S. 122 ; 8. c. 31 Law J. Rep. (n.s.) Crawley (9), is, we think, very applicable.

what Lord Ellenborough said in Stuart v. Q.B. 113. (5) 12 Com. B. Rep. N.S. 75; 8. c. 31 Law J.

That was an action for the loss of a greyRep. (8.8.) C.P. 241.

hound which had been delivered to the (6) 38 Law J. Rep. (N.s.) Q.B. 209.

defendant, a carrier. The dog had no (7) 10 Com. B. Rep. N.S. 154 ; s. c. 30 Law J. collar, but was taken to the defendant's Rep. (8.s.) C.P. 289; in Ex. Ch. 31 Law J. Rep. (r.s.) C.P. 271.

warehouse with a string round its neck; (8) Who, in the meantime, had ceased to be a

and the defendant's servant gave a remember of this Court, and become a judge of the Priry Council.

(9) 2 Stark. 323.



ceipt for it, which was not done here. [IN THE EXCHEQUER CHAMBER.] The dog in that case was afterwards tied by this string to a watch-box, and it

(Appeal from the Court of Common Pleas.) slipped from its noose and was lost.

1872.] Lord Ellenborough held that the defen- Feb. 10. dant in that case was responsible, and he said that it was not like the case of

Tithes-ModusConversion into Tila delivery of goods imperfectly packed,

lage.' since there the defect was not visible, but Where land is subject to a modus in lieu that there the defendant had the means of hay and agistment tithe till" converted of seeing that the dog was insufficiently into tillage,and a house is built on secured. The defendant was therefore part thereof and the rest turned into a held liable, because he ought to have garden and orchard for the convenience of known better than to fasten a dog of such house, there is no conversion into tillthat kind with only a string such as age or breach of the modus, and the same that which was round its neck. Obvi. continues in force. ously, that case is a very different one from the present, because here the dog This was an appeal from the decision was delivered with a collar and a strap, of the Court of Common Pleas, reported which clearly indicated that the proper 40 Law J. Rep. (N.s.) C.P. 229, and the mode of securing the animal was by these. facts will be found sufficiently set out in The present case differs from that of

the report of that decision. Stuart v. Crawley (9) in two important The question was whether, where land particulars. In the first place, the com- was liable to a modus for hay and agistpany are not common carriers of dogs, ment tithe till converted into tillage and in the next place the dog which was (when a higher sum became payable) the delivered in that case was evidently not building a house on part of the land and intended to be secured by the string, turning the rest into a garden and orand the defendant had the means of see- chard accessory to such house, was such ing how it ought to be secured; where- conversion ; and the Court of Common as here the company had a right to Pleas had held that it was not. suppose that the collar and strap were Edwin Jones argued for the appellant. intended to be used for securing the Charles, for the respondent, was not dog. For these reasons we are of opinion that the judgment of the County Court cannot be sustained and should be re- COCKBURN, C.J.— The question is whether versed, and in so deciding we only follow there has been a conversion into "tillage," the decision of this Court in The Great and we are of opinion that there has not. Western Railway Company v. Talley (10). The reasons for so deciding are fully set

The judgment must therefore be re- forth in the judgments in the Court beversed, and if Schroder v. Ward (11) were low ; with those reasons we agree,

and it followed, it ought to be with costs; but is unnecessary to say more. as the company gave no ticket when they The other judges (1) concurred. received the dog, and therefore are not without blame, we think it should be re

Judgment affirmed. versed without costs. Decision reversed.

Attorneys — Lowless & Nelson, for appellant;

Vizard, Crowder & Co., agents for H. Tuson, Attorneys—R. T. James, agent for Hutchinson &

Ilchester, for respondent.
Lucas, Darlington, for appellants; Kynaston
& Gasquet, agents for Bleaymire & Shepherd,
Penrith, for respondents.

called upon.

(10) 40 Law J. Rep. (N.s.) C.P. 9.

(11) 13 Com. B. Rep. N.S. 410; s. c. 32 Law J. Rep. (N.s.) C.P. 150.

(1) Channell, B.; Blackburn, J.; Mellor, J. Pigott, B.; and Cleasby, B.

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