to Allen v. The South Western Railway Company (4).

Lewis Glyn was not called upon to support the rule.

BLACKBURN, J.-This case seems to me to fall completely within the authority of Goff v. The Great Northern Railway Company (2), and therefore I think that my brother Lush made a mistake in nonsuiting the plaintiff. I think there was evidence that might have been and ought to have been left to the jury. I do not mean that there was a mere scintilla of evidence, but that there was evidence which would have justified the jury in finding that the person who gave the plaintiff into custody was acting with the authority of the company. The principle that was laid down in the case of Goff v. The Great Northern Railway Company (2) (which was much considered at the time), has, I think, never been deviated from at all, and it is this,-following the case of Giles v. The Taff Vale Railway Company (5) in the Exchequer Chamber, in which case the principle was first clearly expressed,-that where a railway company are carrying on business there are certain things necessary to be done for the company, and certain things which may and ought to be done for the protection of the company, and things which, if done at all, must be done at once. The company ought to have a person upon the spot to do those things, a person with common prudence and common sense, with authority to decide whether the thing shall be done or not, and if intending to exercise his authority properly, he makes a mistake, and does that which he is not justified in doing, the company are responsible, because he was their agent. The case of Goff v. The Great Northern Railway Company (2) goes to this, that where there is such a necessity to have a person on the spot to act in a case of emergency, and to determine whether certain things shall be done or not, the fact that there is a person there who is acting as if he had

(4) 40 Law J. Rep. (N.s.) Q.B. 55; 8. c. Law Rep. 6 Q.B. 65.

(5) 2 E. & B. 822; s. c. 23 Law J. Rep. (N.s.) Q.B. 43.

NEW SERIES, 42.-Q.B.

express authority is prima facie evidence which the jury may take into consideration in determining the question, and the presumption that he has authority is to be rebutted by the company shewing that he had not. Now, applying that to the present case, it comes to this: The plaintiff had a return ticket, which would have authorized him to go to Notting Hill, but if he wished to get out at Edgware Road where this ticket would not authorize him to get out, he would have had to pay 2d. more than if he had got out at Notting Hill. Now, if he got out at Edgware Road with a view to defraud the company of that 2d., it seems to me very clear that it would be a plausible thing at least for the agent of the company-I need not go a bit further than that to determine that the act done by the plaintiff did come within the beginning of the 103rd section of the Act, that is, that he had travelled without having paid his fare, and, if that was done with the intention of preventing the company from getting the payment, it would have been a plausible thing at least for the company to say that he had violated the early part of the 103rd section. I do not say that he had, but in such a case, the company's agent on the spot would have had authority from the company to ask himself, "Do I, acting for the think that in this case company, there is what seems to me to be an infringement of the Act, and shall I exercise the authority that is given to me, and give the man into custody?" He is put there by the company for the express purpose of determining on the spot, whether or no he will exercise the power he has. He makes a mistake, but for that mistake the company are responsible. Mr. Chambers has argued that that cannot be, unless there had really been an infringement of the Act of Parliament; but if that were so, there never could be an action of this sort against a railway company at all. If the plaintiff had committed the offence with which he was charged, there would have been a defence upon the merits. It is upon the ground that the officer of the company made a mistake, that the company are responsible. The case of Poulton v. The London

E

and South Western Railway Company (1) has been cited and relied upon, but if the judgments in that case are looked at it will be found at once that no such difficulty arose there, and it will be seen that the decision was not against the judgment which we now deliver.

The station master there had taken a party into custody for not paying the fare for a horse. Now, nobody had authority to give him into custody for that. There was no occasion for the company to have an agent there to decide whether or not a person should be given into custody for that, because the company themselves had not the power to do it, and, therefore, the question as to the authority given to the servants to decide upon the exigency of the moment did not arise, because there was no such exigency at all. There was no more occasion for them to give authority to a man to consider and determine whether a party should be given into custody or not on a charge of not paying the fare for a horse, than there would have been to give him authority to consider whether, in the exigency of the moment, he should commit an assault and beat a man violently with a horsewhip. It was not a thing that could be done by the company. But in the pre

sent case, and in the case of Goff v. The Great Northern Railway Company (2), there was a large class of things as to which the company had to consider on the spur of the moment, whether the power should be exercised or not, and in which, if it was put into execution, it would be much for the benefit of the company. It therefore seems to me that this case falls within Goff v. The Great Northern Railway Company (2), and that there was evidence enough to go to the jury to shew that the inspector at the station had authority to give the plaintiff into custody if he believed him to have committed an offence, and, if he made a mistake, the company are responsible for that mistake. It is said that that is hard upon the company. That is true, but it would be a great deal harder upon individuals, if they had no remedy against the company when they have wrongfully been given into custody by the company's officials, who, although responsible men doubtless

in their way, are not very likely to be persons against whom any one would like to bring an action, because there probably would be a difficulty in getting payment from them of the damages and costs. I do not say anything about the 154th section, because the 103rd and 104th sections are enough to shew that the plaintiff should not have been nonsuited. Those sections are quite enough to shew that the act which was done here was one of those acts which in a proper case might have been done by an official for the benefit of the company.

MELLOR, J.-I am of the same opinion. When this rule was moved for, and when it was granted, I was present; and no doubt, for some time, I was under the idea that the nonsuit was right; but on our attention being called to one or two authorities, there appeared to be sufficient to induce the Court to grant a rule nisi, in order that the matter might be discussed. I am quite satisfied, after the discussion which has now taken place, that there was evidence fit to be submitted to the jury to shew that the company was liable for the act of the inspector. There is no doubt that the 103d section was passed with a view to protect the revenue or the traffic of railway companies from various frauds which are specifically mentioned. I agree that by that section of the statute and the 104th section, power is given to arrest and detain. I say nothing about the 154th section. I think that the 103rd and 104th sections shew that the company must have some person at the station, and they had, in this case, an inspector, whose duty may be assumed, in the absence of evidence to the contrary, to have been to protect the interests of the company, and to see that these frauds were not committed, and in case he was of opinion that an attempt had been made to commit any frauds, such as those specified in those sections of the Act, he was authorized by the company necessarily to act on an emergency when it arose, and to exercise his honest judgment at the time as to apprehending or arresting a man, as the case might require, although I think that he was mistaken, and that he entirely misunderstood the facts, when he took upon himself to order the ar

rest of a man as to whom there was no pretence for saying he had been guilty of fraud. I cannot help thinking that the company are responsible, if their inspector did not exercise that sound discretion which the 'company hoped he would exercise when they appointed him to the office. It was within the scope of his authority to take the necessary steps to protect their interests, and to prevent the commission of frauds of this description. I think that the case of Poulton v. The London and South Western Railway Company (1) is not only distinguishable from the present case, but that the distinction is perfectly clear. In that case nobody was authorized to do the act complained of. The company themselves would not have been authorized, and therefore it was held there that the person who was supposed to be the agent of the company could not be an agent with an implied authority to do an act which the company themselves could not do. Now, in the present case, it is very clear that the company could have done it, and it is most likely that in their interest they would have a person in the nature of an inspector, to see that their interests were protected. The company might possibly have shewn that the inspector had no such duties cast upon him at all, and that he was a mere volunteer in doing what he did, and that it was not within the scope of his authority. But, in the absence of evidence to the contrary, I think that there was evidence sufficient to go to the jury to shew that he was authorized by the company to act as he did, that is to say, not that he should exercise that authority improperly, but that he should act properly within the scope of the authority conferred upon him; if he acted improperly by giving a man into custody who was not liable to be given into custody, the company are responsible for it. I entirely agree with what my brother Blackburn has said, and am clearly of opinion that the rule should be made absolute to set aside the nonsuit, and for a new trial.

Goff v. The Great Northern Railway Company (2), I cannot distinguish this caso from it. According to the doctrine that is laid down there, it is to be presumed that the station inspector in this case had authority from the company to exercise for their benefit and in their interest the powers which are conferred upon them by the 103rd and 104th sections. Applying that to the facts, the inspector, I think, clearly supposed (erroneously, no doubt), that the ticket which the plaintiff had did not authorize him to get out at the Edgware Road, and therefore, inasmuch as that was a ticket which would only entitle him to travel from Moorgate Street to Notting Hill, with no power to get out at an intermediate station, he had travelled from Moorgate Street to Edgware Road without any ticket authorizing him to take that journey, so as to come within the 103rd section. The inspector thought the plaintiff was a person who had travelled on the railway without any ticket, with intent to defraud the company, and in the exercise of the power conferred by the 103rd section, he gave the plaintiff into custody; and I think, in the absence of proof to the contrary, that it must be inferred that he had authority from the company to do what he did.

tioned by the vestry or district board of works:-Held, that strips of land belonging to a railway company abutting upon a street, and kept and used for the sole purpose of repairing the arches of the railway viaduct, were chargeable to the costs of paring the street under the Act, as was also land used only as a buttress for the railway embankment, and to allow for slippings from it.

[For the report of the above case, see 42 Law J. Rep. (N.S.) M.C. p. 31.]

1872. 1 Nov. 26. J

}

SIMPSON AND OTHERS v.
CRIPPIN AND OTHERS.

Contract-Sale of Goods-Delivery by Instalments-Breach as to one Instalment Continuation of Contract.

The plaintiff's agreed to take from the defendants, "say about 6,000 to 8,000 tons of coal... put into our waggons at the colliery; delivery to commence from the 1st of July next, and to be taken in about equal monthly quantities over the next twelve months," &c. The defendants agreed to supply the coal, "to be delivered into your waggons at our collieries, in equal monthly quantities during the period of twelve months from the 1st of July next," &c. Up to the 1st of August the plaintiffs only supplied waggons sufficient to take away 158 tons of coal, whereupon the defendants gave them notice that they cancelled the agreement :Held, in an action brought by the plaintiff's to recover damages in respect of the refusal by the defendants to deliver any more coal, that the defendants were not justified in cancelling the agreement in consequence of the plaintiffs' failure to send waggons in the first month sufficient to take away the quantity of coals agreed to be delivered in that month.

Hoare v. Rennie (5 Hurl. & N. 19; s. c. 29 Law J. Rep. (N.S.) Ex. 73) questioned.

Declaration, for that the defendants bargained and sold to the plaintiff's, and the plaintiff's bought from the defendants, a quantity of coal, to wit, from 6,000 to 8,000 tons, at the price of 58, 6d.

per ton, to be delivered by the defendants to the plaintiff's in equal monthly quantities during the period of twelve months, from the 1st day of July last, strikes of workmen, accidents or other circumstances beyond control of defendants excepted, and to be paid for monthly at the above price, less 2 per cent. discount; that all conditions were fulfilled, and all things happened and all times elapsed necessary to entitle the plaintiffs to the monthly delivery of the said goods as aforesaid, and there were no strikes of workmen, accidents or other circumstances in the said agreement excepted; yet the plaintiffs did not deliver the said goods monthly in the manner and quantity aforesaid, but have refused wholly to deliver the said goods or to perform the said contract, whereby the plaintiffs have been deprived of the profits which would have accrued to them from the delivery of the same.

Pleas.-First. That the defendants did not bargain and sell to the plaintiffs, nor the plaintiffs buy of the defendants the said coal as in that behalf alleged.

Second. That the plaintiffs were not ready and willing to accept or pay for the said coal as in that behalf alleged.

Third. The defendants deny the breaches in the declaration complained of.

Fourth. That the defendants were prevented from delivering the said goods, and performing the said agreements as in the declaration mentioned by the acts, neglects and defaults of the plaintiffs, and not

otherwise.

Fifth. That before the alleged breaches or any of them, the plaintiffs exonerated and discharged the defendants from the alleged agreement and the performance thereof by the defendants.

Sixth. That there were strikes of workmen, and accidents and other circumstances beyond the control of the defendants, and that such non-delivery as in the declaration mentioned was caused and occasioned by the same, and not otherwise. Issues thereon.

At the trial which took place before Lush, J., at the last Spring Assizes at Liverpool, it appeared that the action was brought by the plaintiffs, coal merchants at Runcorn, against the defendants, coal proprietors near Wigan, to recover the

sum of 4011. 18. 5d. by way of damages for the non-delivery of coals pursuant to contract.

The contract was contained in two letters, one from plaintiffs to defendants, dated the 10th of June, 1871-" We agree to take from you, say about 6,000 to 8,000 tons of your best Wigan four-feet coal at 58. 6d. per ton, of 21 cwt. to the ton, put into our waggons at the colliery, delivery to commence from the 1st of July next, and to be taken in about equal monthly quantities over the next twelve months. It is understood that you are not bound to supply in case of accidents or strikes. Terms, cash monthly, less 24% discount."

The letter from the defendants to the plaintiff's was in the following terms"We agree to supply you with from 6,000 to 8,000 tons of our best four-fect Wigan, coal properly screened and free from slack, to be delivered into your waggons at our collieries, in equal monthly quantities, during the period of twelve months from the 1st of July next (strikes of our workmen, accidents or other circumstances beyond our control excepted), at 5s. 6d. per ton of 21 cwt. Terms, cash monthly, less 21% discount.

The following letters were put in evidence"8th July, 1871.

"From W. & J. B. Crippin, Brynn Hill Colliery, near Wigan.

"To Messrs. Simpson, Son & Co., Run

corn.

"The first week of your contract has terminated without you sending waggons or orders for coal. We have sold the whole of the production for some long time to come of the four-feet coal, and unless you take the coal in regular weekly quantities, we shall not be able to make up for past deliveries. We thought it advisable to inform you of this.

"W. & J. B. C." "From Messrs. Simpson & Davies, Runcorn.

"To Messrs. W. & J. B. Crippin, Liverpool.

"13th July, 1871.

"Dear Sir,-We are in receipt of yours of 8th inst., and thank you for reminding us of the contract for Wigan four-feet

Gentlemen, Referring to our arrangement (dated 10th June last) to supply you with from 6,000 to 8,000 tons of our four-feet coal in your waggons, during the twelve months ending the 30th June, 1872, to be taken by you in equal monthly quantities, we beg to inform you that, inasmuch as you have only taken 158 tons during the month of July, and as the sole inducement for us to entertain such an arrangement as the above was the regular and punctual withdrawal by you of the stipulated quantity during the summer months, which you have failed to perform, we beg to give you notice that we hereby cancel the arrangement, as it is impossible for us to continue to hold for your disposal such a quantity of