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was a special provision for interest on calls in arrear in the articles of association, which were held to be still in force to this effect, and because the call made was a specialty debt, and as such fell within 3 and 4 Wm. IV. c. 42 s. 28.
NEGLIGENCE-Carriers by Railway.—By 7 & 8 Vict. c. 85, s. 6, children under three years of age accompanying passengers by parliamentary trains are to be taken without any charge, and children of three years and upwards, but under twelve at half-fare. Plaintiff, a child between three and four years of age, was travelling by railway with its mother, who took a ticket for herself, but paid nothing for the child, though without fraudulent intention,-Held, the company might be sued for negligently carrying the child. Per Cockburn, C.J., Shee, J., and Lush, J., that there was a contract to carry both mother and child, and that the mistake as to age was no answer to an action for breach of this contract. Per Blackburn, J., that, apart from any contract, the company were liable for the injury to the child while it was lawfully in one of their carriages. [Vide supra, p. 320.] Austin v. the Great Western Rail. Co. 36 L.J., Q.B., 201.
LANDS CLAUSES ACT, 1845.—Railways Clauses, 1845: Compensation: Loss of Trade.-Loss of trade by the obstruction of a highway during the execution of the works of a ry. co. is not an “injurious affecting " of the tradesman's interest in his premises which entitles him to compensation under sec. 68 of the Lauds Clauses Act, 1845, or under secs. 6 or 16 of the Railways Clauses Act, 1845. A ry. co. placed a temporary bridge over a highway during the construction of their works, whereby for about 20 months access to a public-house was made more difficult, passengers were deterred from passing that way, and loss of trade ensued to the publichouse:-Held, per Chelmsford, C., and L. Cranworth, (L. Westbury diss.), compensation could not be claimed for this. Per Chelmsford, C., sec. 68 of 8 Vict. c. 18, and sec. 6 of 8 Vict. c. 20, provide for damage of a permanent, and not merely of a temporary nature, and sec. 16 of 8 Vict. c. 20, which provides for damage of a temporary nature, contemplates only a direct and not a merely consequential damage; and per L. Cranworth, compensation can only be claimed where damage has been done to the structure of the property, or where the plaintiff has suffered some special damage differing not merely in degree from that which the rest of the public has sustained.-Judgment of Q. B. rev., and that of Exch. Cham. (34 L. J. 257, ante vol. x., p. 47) affirmed. Per Chelmsford, C., "It was most desirable, as Erle, C. J., said in Cameron v. Charing-cross Railway Company' (16 C. B. N. S. 430; 23 L. J. C. P. 313), that if possible some definite and precise rule should be laid down as to the true limits within which claims against railway and other companies for compensation in respect of damage caused by their works are to be confined.' It appeared to be a hopeless task to attempt to reconcile the cases upon the subject, and therefore he must endeavour, by an examination of them, to determine which were most in accordance with principle. The criterion of a party's right to damages under the clauses of the Railway Companies Acts, upon which this case depended, was correctly stated by Lord Campbell in re Penny v. South Eastern-Railway Company' (7 E. B., 660; 26 L. J. Q. B., 225), and, in his words, unless the particular injury would have been actionable before the company had acquired their statutory powers, it is not an injury for which compensation can be claimed.' At the same time, the observation of Lord Cranworth in The Caledonian Railway Company v. Ogilvy' (2 Macq. 235), must not be lost sight of, that it does not follow that a party could have a right to compensation in some cases in which, if the Act of Parliament had not passed, there might have been not only an indictment, but a right of action.' In the first place, therefore, it was material to inquire whether plaintiff in error could have maintained an action against the Co. for the alleged consequences of their acts if they had been done without the authority of Parliament. As far as he had been able to examine the cases, in all of them except two, in which anindividual had been allowed to maintain an action for damages which he had specially sustained by the obstruction of a highway, the injury complained of had been personal to himself, either immediately or by immediate consequence. The two excepted cases were 'Baker v. Moore,' mentioned by Gould, J., in ‘Iveson v.
Moore' (1 Lord Rayn., 491), and 'Wilks v. Hungerford-market Company (2 Bing. N. C. 281). In his opinion, however, the damage in those was too remote. In the present case, also, the damage, which was the foundation of the claim to compensation, was too remote. He might have been content to rest his judgment in favour of the defendants in error upon this ground alone; but the diversity of opinion which had prevailed as to the application of the clauses in question rendered it almost imperative upon the House to pronounce an authoritative final decision upon the whole case. His Lordship then proceeded to examine a great number of cases bearing upon the question. “Senior v. Metropolitan Railway Company' (2 H. and C. 258; 32 L. J. Ex. 225) was the only direct authority against the judgment of the Exch. Cham. under consideration, and there the judgments were not very satisfactory ; while the decision in ‘Rex v. The London Dock Company? (5 A. and E. 163) was an equally strong authority the other way.
A critical examination of the words of sec. 16 of the Railway Clauses Act led to the conclusion that compensation for remote consequences resulting from a company's works was not intended.
Upon a review of all the authorities, and upon a consideration of the section of the statute relating to this subject, he had satisfied himself that the temporary obstruction of the highway which prevented the free passage of persons along it, and so incidentally interrupted the resort to the plaintiff's public house, would not have been the subject of an action at common law, as an individual injury sustained by the plaintiff in error, distinguishing his case from the rest of the public; that, therefore, he had failed in bringing himself within the general principle upon which a claim to compensation under the Acts in question had been determined to depend ; that upon the construction of the clause upon which his claim is rested, sec. 16 of the Railway Clauses Act, and sec. 68 of the Lands Clauses Act were both inapplicable, as his damage arose from the temporary operations of the company, and not from their permanent works ; and that upon sec. 16 of the Railway Clauses Act, which did apply to his case, the damage was not of such a nature as so entitle him to compensation; the interruption of persons who would have resorted to his house but for the obstruction of the highway being a consequential injury too remote to be within the provision of that section. [Cf. Cal. Ry. Co. v. Ogilvy, 2 Macq. 229; Gattke's Case, 3 Macn. and G. 155.]—Rickett v. Metropolitan Ry. Co., 36 L. J. Q. B. 205.
PRINCIPAL AND SURETY—Bond for Performance of Office.- Declaration on a bond reciting that S. was in March 1852 appointed collector of the poor-rates of the parish of A., and that he was also in March 1866 appointed collector of sewers rates and general rates under the Metropolis Local Management Act 1865, and defts. had consented to become sureties for him. The condition of the bond was that if S. should well and truly perform the duties of the said offices, and account for the moneys collected in the execution of his office of collector, the bond should be void. Breach, that S. was continued in the said offices, and collected and received sums of money, but did not pay certain monies he had collected to the church wardens, &c. The defts. pleaded that the bond was executed before the passing of the Metropolis Local Management Act Amendment Acts, and that the duties of S. in his office of collector of the said rates were increased and varied by the said Acts, that the said S. was appointed collector of the main drainage rates under the said Acts, and that by those Acts he was bound as collector of the sewers rate to collect sunis of money for defraying the expenses of the Metropolitan Board and other moneys, and that the risk of the sureties was varied and increased :—Held (aff. judgment of the Court of C. P., 35 L. J., C. P., 154, on demurrer), that even if the duties as collector of sewers rates were altered, the poor-rate remained the same, and that as the breach was large enough to cover both, the plea was no answer to the action :- Held, also, that there was no substantial alteration in the office of collector of sewers rates, and that the most that could be said was, that S. had been appointed to a new and distinct office, which would not affect the
liability of the sureties for the other rates which were unaltered. [Note for Reference, Leith Bank v. Bell, 8 S. 721, 5 W. and S. 703; Bonar v. M‘Donald, 9 D. 1537, 7 Bell's App. 379.] Skillett v. Fletcher (Exch. Cham.), 36 L.J., C.P., 206; 16 L. Times, N.S., 426.
JOURNAL OF JURISPRUDENCE.
THE LEGISLATION OF 1867.
SOME of the Acts of the Parliament of 1867 are measures of great importance. The Public Health Act, the Debts Recovery Act, and the Hypothec Act are, however, all that the Government have accomplished out of the seven Scotch bills which they announced at the beginning of the year. We begin with the bills which are exclusively Scotch, and leave out of view in the present article the Debts Recovery and the Public Health Acts, which are separately discussed. Cap. 17 of the late session is the first Act since 1672 regulating the court and office of the Lyon King at Arms, and the emoluments of himself and his officers. It is now provided that this functionary, who has hitherto been an ornamental personage, generally a nobleman, shall discharge his duties personally, and not by deputy. The Act also fixes salaries, fees, and hours of attendance at the Lyon Office.
Cap. 28 extends the Labouring Classes Dwellings Act of 1866 to Scotland, and authorises the Public Works Loan Commissioners to make advances upon mortgage to local authorities, railway, harbour, and other companies, and to proprietors of land in Scotland, for the erection, alteration, and adaptation of dwellings for the labouring classes, to be repaid with interest at not less than 4 per cent, within
4 forty years.
The Scotsman lately pointed out that “the subject of Public Libraries is one which well-meaning but muddle-headed legislators have shown a curious propensity to cobble at. An Act applicable to both England and Scotland was passed in 1853, and repealed so far as it related to Scotland in 1854, when a special Act was substituted applicable to Scotland alone. An exclusively English Act was passed in 1855. Last year, there was an Act amending both the English Act of 1855 and the Scotch one of 1854, but, of course, leadVOL, IX, NO. CXXXI.- NOV. 1867.
ing to some confusion from the jumbling up together of the patches intended for two different statutes.” 30 & 31 Vict. c. 37, consolidates the provisions of the Acts of 1854 and 1855 in one exclusively Scotch statute, which may be adopted by the householders of any royal or parliamentary burgh, burgh of barony or regality, or other populous place where any local or general Police Act is in force, or of any parish, by a resolution of the majority of those present at a meeting duly called. Expenses are to be paid out of the police rate, or a rate not exceeding a penny in the pound of yearly rent levied along with the police rate in burghs and districts, and out of a similar rate levied along with the poor's rate in parishes. The rate is to be levied by the Council or Police Board in burghs and districts, and the Parochial Board in parishes. The library is to be managed by a committee, one half being members of the Council or Board, and one half being chosen by the Council or Board from the householders who are not members. The word “householder" is defined to “mean in burghs all persons entitled to vote in the election of members of Parliament.” Elsewhere it is to mean ratepayers.
Cap. 42 gives effect to the recommendations of the Royal Commission on the Law of Landlords' Hypothec. It must be said for the measure that it is as little adverse to the prejudices of landlords as might be. The landlord's hypothec ceases and determines in two cases—(1) Where agricultural produce has been bona fide purchased, delivered, and removed from a farm, and the price has been paid ; and (2) where it has been sold by auction after seven days' notice to the landlord, without sequestration being obtained and registered in the register provided by the Act. The endurance of the hypothec is limited to three months after the conventional or legal term at which the last portion of the year's rent is payable ; and declaratory enactments are added—(1) That the stock of a third party taken in to graze upon a farm shall be subject to the hypothec to the full extent of the stipulated payment so long as any portion of the sheep, cattle, or other live stock shall remain on the farm, and, after removal from the farm, so long as any part of the payment remains unpaid ; and (2) that household furniture, agricultural implements, imported manure, lime, drain-tiles, feeding stuffs, or other material not the produce of the farm, and not incorporated with the soil or consumed, shall not be included in any sequestration for rent except where such manure or other material has been brought upon the farm in fulfilment of any specific obligation imposed by the lease.
Two Acts of the session, 30 and 31 Vict., amend the law relating to Railway Companies. Cap. 126 is identical in substance with an English Act on the same subject. The bill was originally intended to relieve the public, and railway companies themselves, from the inconveniences of insolvency. It first prevents creditors from using diligence against the moveable property of the company, and thus carrying off a necessary part of the undertaking A creditor can no longer attach the rolling stock of a railway company, but his only
remedy is, in future, an application to the Court for the appointment of a judicial factor, who shall distribute among the creditors any surplus revenue that may remain after paying working expenses. As originally passed by the House of Commons, the bill provided, further, two alternative ways in which creditors might obtain a settlement of their claims,—(1) an arrangement between them and the company; and, (2) after the judicial factory had endured for a year without any arrangement being made, a compulsory sale of the undertaking. The provision for compulsory sale was struck out by the House of Lords. Thus there remain only the clauses authorising the Court, on the application of the company, where it is unable to meet its engagements with its creditors, to approve a scheme of arrangement. Notice of this application in the Gazette operates as a stay of all diligence. The scheme must be assented to in writing within three months after the presentation of the petition for confirmation, (1) by three-fourths in value of the debenture-holders; (2) by the same proportion of persons in right of any annual payment charged on the receipts of the company, in consideration of the purchase of the undertaking of another company ; and (3) by threefourths in value of each class of guaranteed or preference shareholders of the company. It must also be assented to by the ordinary shareholders at an extraordinary general meeting, specially called for the purpose. The assent of creditors whose interest is not affected by the scheme is not required. The scheme when confirmed shall be extracted; and the extracted scheme has the effect of an Act of Parliament. may be doubtful how far the Act will work without the provision for compulsory sale, which might be regarded as an essential part of it. The power to make an arrangement also authorises, in fact, the creation of pre-preference shares without the unanimous consent of the shareholders and debenture holders ; but the numerous consents required, and the power of the Court to refuse to confirm a scheme may perhaps prevent practical evil in this respect.
Sec. 30 imposes upon auditors the duty of preventing dividends from being paid out of capital. The Act also extends the operation of the Abandonment of Railways Act of 1850 to all companies authorised to make railways before the session of 1867; and the winding up of abandoned railways is to be under the Act of 1862 instead of that of 1848.
Another Act (c. 80) makes certain alterations in the method of valuing railways by the Assessor of Railways and Canals, amending the Valuation of Lands Acts. The whole subject of the valuation of lands is to be treated of with some fulness in the forthcoming new edition of Sheriff Smith's Treatise on the Poor Law; in reviewing which we shall have occasion to refer to this statute.
The Act to facilitate the Administration of Trusts confers on all trustees absolutely, where such acts are not at variance with the terms or purposes of the trust-deed under which they act, nower to