V.C. W.] [V.C. W. ATTORNEY-General v. BRADFORD NAVIGATION COMPANY. pools. a navigable cut or canal from Bradford to join the | into the beck and the canal instead of into cessLeeds and Liverpool Canal at Windmill, in the township of Idle, in the county of York." It enacted as follows: The said company of proprietors shall be and are hereby empowered to supply the said cut or canal, while the same shall be making and when made, with water from such springs, soughs, brooks, drains, streams, and watercourses as shall be found in making the said canal, and from such springs, brooks, soughs, streams, drains, and watercourses running into a brook called Bowling Mill Beck as shall be found within the distance of 2000 yards of Hoppy Bridge aforesaid, except such water as may supply any house or houses by pipes; and also to make such reservoirs as shall be found necessary for the purposes of the said Act within the said distance. And this Act shall be sufficient to indem nify the said company of proprietors, and their servants, agents, and workmen, and all other persons whatever for what they or any of them shall do by virtue of the powers hereby granted, subject to such provisions and restrictions as are hereinafter named. Soon after the passing of the Act the company constructed the canal, and from 1774 to the present time it had been used for navigation. It extended from the place called Hoppy Bridge to Windmill, where it joined the Leeds and Liverpool Canal, its whole length being about three miles. The head of the canal at Hoppy Bridge formed a basin, into which supplies of water were brought for the purpose of the canal. The canal from this basin to the first lock, called Spinkwell Lock, was about threequarters of a mile in length, and passed the townships of Bradford and Bolton. The principal stream of water flowing through Bradford near the canal was a natural stream called the Bradford Beck. The Bowling Mill Beck mentioned in the Act was a tributary of the Bradford Beck, and ran into it at a point about 350 yards above Hoppy Bridge. A natural stream called the Low Beck fell into the Bowling Mill Beck about 800 yards above the point where the Bowling Mill Beck entered the Bradford Beck. At some time previous to the year 1802, the company made a culvert out of the Bradford Beck into the basin at Hoppy Bridge, and diverted a large quantity of water from the beck into the canal. The company were not empowered by their Act to take the water of the Bradford Beck, and claims were made upon them by various millowners for injuries sustained by them through the diversion of the water, and to prevent disputes the company purchased the mills, and in 1802 an Act was passed for vesting the mills so purchased and other property in trustees for the company discharged from all claim of the Crown in respect to any forfeiture incurred by the Mortmain Act. Since the passing of the Act the company had supplied their canal almost entirely with water from the Bradford Beck. When the canal was first made the Bradford Beck was a pure stream, but from the great increase of population in Bradford it had become foul and polluted, but as it had a rapid fall no offensive deposit had taken place. But in the canal the water was almost stagnant, and from being kept standing, the filth contained in it putrified and gave out noxious and offensive gases. In July 1859 the company made a lease of the canal to the defts. Crowther and Dixon for a term which would expire in 1866, and the defts. were in possession of the canal at the time the information was filed. The defts. had supplied the canal with water in the same way that it had been supplied by the company. In the summer of 1864 the nuisance increased to such an extent that the houses about the canal become almost uninhabitable. In 1865 it was worse than it had ever previously been, and in. June 1865 the information was filed. On the 10th Aug. 1864, an indictment for nuisance had been proposed against the company and their lessees. It came on for hearing at the spring assizes at Leeds in March 1861, and a verdict for the Crown was returned by the consent of the parties, subject to a special case for the opinion of the Court of Q. B. A special case was subsequently drawn up by the counsel on both sides, and it contained the following statements: During the summer of 1864, and at the time to which the said indictment refers, the part of the canal from Hoppy Bridge to Spinkwell Lock aforesaid was in so foul and polluted stench arising from the liquid sewage and polluted water in the a state (caused as hereinafter described) that the smell and canal became a public nuisance to the inhabitants of the above-mentioned streets of the town of Bradford and of the said districts, buildings, and suburban residences, and to the persons passing along the streets and highways aforesaid. At the time the canal was first supplied with the water from the Bradford Beck, and for many years afterwards, the water of the canal was pure and free from the pollution herein before described, but within the last thirty or and increased in size above the point where the supply of forty years the town of Bradford has been greatly extended water to the canal from the Bradford Beck, as above described, has been so obtained as aforesaid, and for many years last past a great number of the drains and sewers of the town of Bradford have run and emptied themselves into the Bradford and Bowling Mill Becks in their course through the town above that point, and large quantities of filth and sewage refuse, and other foul polluted matter, have been emptied and discharged into those becks above the same point from the drains, sewers, privies, mills, dyehouses, and factories of the town, by reason whereof for many years before, and at the time mentioned in the indictment, the water in the Bradford Beck, before being diverted into the canal in the manner hereinbefore described, was greatly fouled and polluted, and at all times there were collected into the waters and channels of the Bradford and Bowling Mill Becks above the said floodgate very large quantities of foul and feculent matter, which ran down the channel as in an open sewer, or under the streets and buildings, and thus reached the floodgates where the water in the foul and polluted state above described was diverted into the basin of the canal in the manner hereinbefore described. It was by reason of the water so diverted into the canal being in such a foul and polluted state as aforesaid. that the canal was at the time mentioned in the indictment in so foul and polluted a state that the smell and stench arising from it became a public nuisance as hereinbefore stated The special case was argued before the Court of Q. B. on the 10th June 1865, when the court being of opinion that the defts. had committed a nuisance, and that there was nothing in the Act incorporating the company which authorised them to do so, directed judgment to be entered up for the Crown, against the lessees of the company, who gave notice of appeal from the decision, and threatened to continue the nuisance. The company indemnified them against the costs of the indictment and of the appeal. The information alleged that there was no flow of water in the basin or canal sufficient to carry off any foul matter deposited at the bottom. That there was formed a deep layer of mud of the most foul and offensive nature (composed chiefly of the sewage matter brought in by the foul water from the beck), and which was constantly disturbed by the boats passing along the canal, and when so disturbed, gave out unwholesome and offensive gases; that the basin and canal had for many years The defts., the lessees of the company, by their been growing offensive, but that the mischief had answer admitted that the water of the Bradford Beck been rapidly increasing within the last twenty years was for the reason stated in the information exceedowing to the increase of population, and the altera-ingly impure, and that the beck was at the part tion in the system of drainage, the houses draining where the culvert from the canal entered it an open The information prayed that the defts. might be restrained "from diverting into the said canal or allowing to pass into the same, or collecting, or keeping, or continuing therein, any filth, sewage, or polluted matter or water, so as to be a nuisance to the inhabitants of the streets, or any of the streets, of the town of Bradford." V.C. W.] ATTORNEY-GENERAL v. BRADFORD NAVIGATION COMPANY. [V.C. W. sewer; but stated that, though the Bradford Beck | filed on the part of the relators in reply, they had a fall of about 1 yard in 234, it had several stated as follows: pools in which the sewage and filth stagnated, and was in that part as foul and offensive as the canal; and that they believed it not to be the fact that no nuisance or annoyance to the persons residing near the beck was found to arise from the beck itself; that they intended "to continue to supply the canal with water, and, if necessary, foul water, from the said Bradford Beck, but not to continue the alleged nuisance, except so far as it may be unavoidable." The company in their answer said: We We do insist that the company are entitled to use the water of the Bradford Beck for supplying their canal, and that without regard to such water being so foul that when used it creates a public nuisance, and that such nuisance is legalised by the Act of Parliament incorporating the company. submit that, if the alleged nuisance really exists, the persons responsible for it are those who foul the Bradford Beck, and the corporation who do not use the powers vested in them to cleanse and keep it pure, and that inasmuch as the informant might, by taking proper proceedings, compel the corporation to cleanse the Bradford Beck and keep it free, or comparatively free, from pollution, which, if done, would abate the alleged nuisance without injury to the navigation, he is not entitled to the relief he asks in this court. A great deal of evidence was adduced in support of the information. There were affidavits by old inhabitants of Bradford, in which they stated that in the summer of 1864 their houses had been rendered uninhabitable by the stench from the canal, and that the state of the canal had caused fever and sickness among their families. This was corroborated by the evidence of numerous medical men, who stated that the condition of the canal for some time past had been very prejudicial to health, and had been the cause of a good deal of fever, dysentery, and other illness, and that in 1864 the rate of mortality in the town rose from 25 per 1000 to 28 per 1000, and that such increase in the mortality was caused by the canal; that the canal had been in a bad state some ten years ago, yet that for the last four or five years it had been rapidly growing worse. A civil engineer stated in his affidavit that, during the dry season of the year, the water of Bradford Beck consisted almost entirely of sewage and refuse matter from the manufactories; that if the company had constructed reservoirs and drains flowing into Bowling Mill Beck they would have obtained a sufficient supply of water without having any occasion to get water from Bradford Beck. On the part of the defts., the evidence of medical men was adduced who stated that there was more sickness in other parts of the town; that the stench from Bradford Beck was worse than the canal; that the canal had been in as bad a state about ten years ago; and that it would have a very injurious effect on the health of the neighbourhood if the canal were emptied, as the effluvia from the mud would be worse than that from the water. A chemist stated in his affidavit that there was less organic matter in the canal than in the beck, because of the gratings placed at the entrance of the culvert, and that it would be very dangerous to the health of the neighbourhood if the canal were cleansed. A good deal of evidence was adduced to show that the navigation of the canal was very important as a means of communication with other canals, and through them to the east and west coasts of England; and that if it were stopped the injury to trade would be very great. Several civil engineers stated in their affidavits that the company had done all they could to mitigate the nuisance by clearing the canal, and that none of the plans suggested would enable the company to get a sufficient supply of water from sources other than the Bradford Beck. That the canal has been for the past three or four years & rapidly increasing nuisance, and has year by year become in a fouler state and condition. A very dry hot summer no doubt causes a good deal of influence on the state of the canal, as it raises the temperature of the water, beside lessening its quantity, and so makes it more foul. But the canal, apart from any effect of exceptionally dry and hot weather, is an increasing and dreadful nuisance. The nuisance is no doubt worse in summer, but it exists in all seasons of the year, and is often felt very seriously even in damp, cold, wet weather. The matter came on to be heard by his Honour on the 22nd July 1865, when the following order was made: "The defts. so undertaking to clean the canal from time to time by means of flushing, and if the parties differ, then as Mr. Martin, of Leeds, shall direct, provided that no such direction be given except at intervals of a fortnight at least, and that no such flushing be directed except on Saturday, unless more than a fortnight shall have elapsed since the last flushing, and Mr. Martin shall be of opinion that urgent necessity exists for such flushing on another day than a Saturday. Provided also, that no such direction be given at any time so as to stop the flow of the water in the canal for more than thirty-six hours. Let the motion stand over till the second seal in Michaelmas Term. On the 11th Jan. 1866 the adjourned motion came on for hearing, when the V. C. made the following order: "Informant to give notice of decree within seven days from this date. Undertaking continued till the hearing. Liberty to apply to advance the cause when ready." The cause now came on on motion for decree. Palmer), Giffard, Q. C., and Cadman Jones, in support of the The Attorney-General (Sir Roundell information, contended that the fact of the nuisance had been established by the judgment of the Court of Q. B., and that the evidence in the suit was conclusive as to the existence of the nuisance. Rolt, Q. C., Amphlett, Q. C., and J. Pearson, on behalf of the defts., contended that the court ought not to interfere while the appeal from the decision of the Q. B. was pending. If the injunction were granted it could do no possible good, as, if the company were prevented from taking the water of the beck, an equal or greater nuisance would exist elsewhere. That the defts. were acting in strict compliance with their statutory powers. Assuming the power of the court to interfere, the right to relief had been barred by delay and acquiescence. No proceedings had been taken until after a long lapse of time, and the company had been allowed to spend a great deal of money on their canal. As the plts. had chosen to proceed in a court of common law they ought to abide by that court, or show some reason for giving this court jurisdiction. They cited The Curriers Company v. Corbett, 12 L. T. Rep. Darell v. Pritchard, 1 Law Rep., Ch. Ap., 250; The Attorney-General in reply. The VICE-CHANCELLOR said that it had been quite settled by the decision at law that the two defts. at law were guilty of a nuisance in allowing the continued flow of filthy water in their canal. It was also clear from the evidence that there was a continual deposit of a foul and fœtid nature in the canal, and which was intolerable to the persons In an affidavit of certain inhabitants of Bradford, dwelling near the canal. The evidence in the cause V.C. W.] ATTORNEY-GENERAL v. BRADFORD NAVIGATION COMPANY. [V.C. W. placed it beyond a doubt that the canal in its pre- whenever there were four or five evils assaulting sent state was a nuisance. The company had no those who complained of them. There was only doubt power to draw the water from the stream, one other point which required consideration, and but a material circumstance had occurred since the that was as to the delay which had taken place in the passing of their Act. When their Act was passed the filing of the information. It was said, on the part beck was perfectly pure; about thirty years ago, in of the defts., that the public had submitted to the consequence of the number of houses which drained evil for ten years; that if the defts. had been told into it, it became foul, and became gradually more before, that it was intended to take proceedings, and more polluted, and about ten years ago the they would not have expended all the money they water was nearly as bad as at present. The two dry had on the canal; the fact that this had been summers of 1864 and 1865 had increased the evil to allowed for ten years naturally led them into the a considerable extent, and awakened every one to notion that it would be allowed to go on. Without the alarming nature of the evil. But though the doubt there were cases where expenditure had inhabitants of Bradford had submitted to this been allowed without complaint, and in which it state of things for nine years, they at last took might fairly be said that the public were not proceedings. The judges at common law had de- to be permitted, any more than individuals, to cided that the defts. had allowed this filthy water to allow a large expenditure to be made and then to flow into their canal, and that they had com- complain. Here it was a gradual and increasing mitted a nuisance in so doing. The defts. had said act of polluting the canal. Besides, it was not they intended to appeal, and it had been argued sought to stop up the canal; it was not intended that, because there was an appeal, therefore he to prevent their having a supply of water, but only ought not to consider the law as established. He that they should not take it from a polluted source. thought the mere fact that there was to be an There was a good deal of truth in the observation appeal ought not of itself to be any ground of delay. that had been made, that if parties waited until the The court would not hold its hand simply on the nuisance increased to such an extent as to become ground of there being an appeal, unless it had some quite intolerable, they might be told that they were doubt as to whether the decision was right. He too late, while, on the other hand, if they filed their thought it certainly ought not to be a ground of bill directly the nuisance began, they might be told delay in the case before him. For here the parties they were too soon, as there was not sufficient evidence said it was no fault of theirs; the water came to them of a nuisance. Here the parties waited to see if the foul. The only authority which the Act gave to them evil would decrease, and whether it was to be attriwas simply to draw water from the stream, it did not buted only to an exceptional state of the weather. not say they were to draw filthy water; they had entire Then came two hot summers, and the evil becontrol over the supply of the water from the stream, came quite intolerable, and they filed their and they were not obliged to admit any against their expended by the defts. on the faith of their being will. If, for example, it had been found that the water information. Could it be said that money had been was so foul with sand that it would silt up and obstruct allowed to bring this gradually increasing nuisance their canal with the deposit from it, then they would up to the point it had reached? They had gone on not have allowed it to enter. The four judges had all expending money for the purpose of increasing concurred in considering that a serious nuisance was their traffic, but he could not suppose that they had committed, and he saw no reason for doubting it. done it on the faith and expectation that this Other grounds of defence had been alleged. It had nuisance would be tolerated. Then, as to the been said that, as the matter was already in a court objection which had been made, that the suit ought of law, there was no need for this court to interfere; to have been brought against the lessees, and not that they were innocent parties, and could not do against the canal company: the lease would exanything to abate the nuisance, and that, therefore, pire this year, and the canal company had indemthe court of law would probably say, when they nified the lessees in the proceedings for the appeal, gave judgment on the defts., that it would be and so had identified themselves with them. The enough to inflict a very slight fine. But this might canal company moreover say, they had a right to do be an answer to this case, and every other case what they have done, and that they intended on the where parties were annoyed by a nuisance. Of expiration of the lease to supply the canal with course, if a party applied to this court, and could not water from Bradford Beck. Under these circumdistinctly trace the nuisance, then Wood v. Sutcliffe stances he certainly ought to grant an injunction. (2 S. N. S. 163) might apply. But the present case was He thought, however, that he ought to give the very far short of this. The canal was, per se, an defts. some time, as whatever was done to abate the indictable nuisance. The defts. said that the beck nuisance must take some considerable time. He was a greater nuisance than the canal, and that if the should grant an injunction restraining the defts. defts. are restrained from drawing water from the from diverting into the said canal, or allowing to beck, then all the filth, &c., which now comes into pass into the same, or collecting, or keeping, or conthe canal would be thrown into the beck, and it would tinuing therein, any filth, sewage, or polluted matter become worse than the canal was. The great or water so as to be a public nuisance. The order difficulty with regard to this contention was, that if not to take effect till the fourth day of Michaelmas the court found that there was a nuisance established Term. Defts. to pay the costs of the suit. Liberty in the case before it, the court could only stop the to apply in the meantime. persons who created the nuisance; it could not go into other cases not before the court, and it must leave the persons who committed other nuisances to be prosecuted when they might arise. But as regards the beck he was not satisfied that the nuisance there was of the same character. He did not think the nuisance arose in the same The beck had a more rapid current, and this would prevent the sewage matter from having the same effect as it had in the canal. But it was quite enough that persons were annoyed by the canal, and the court would not stop to inquire whether other persons would be annoyed by the beck. That sort of argument might be brought manner. Solicitors for the plts., Field, Roscoe, Field, and Francis. Q. B.] HOLMES AND OTHERS v. JAQUES-Ex parte WALTER PEPPERCorn. Common Law Courts. COURT OF QUEEN'S BENCH. Reported by JOHN THOMPSON and T. W. SAUNDERS, Esqrs., Barristers-at-Law. Monday, April 16. (Before COCKBURN, C. J., BLACKBURN, SHEE, and Lush, JJ.) HOLMES AND OTHERS v. JAQUES. Promissory note-Alternative payees. Although the payee of a promissory note must be a person certain, a note will not be bad for being payable in the alternative if both the parties are in the same interest. Where, therefore, a promissory note was as follows: "On demand, I promise to pay to the trustees of the Wesleyan Chapel, Harrogate, or their treasurer for the time being," &c., it was Held, that the note was good. This was an action upon a promissory note for 1007., tried at Leeds before Shee, J., when a verdict was returned for the plts., with leave to the deft. to move to enter a verdict for him. The note was in the following form: Tuesday, April 17. [Q. B. Ex parte WALTER PEPPERCORN (an Articled Clerk). Articled clerk-Service under articles-Holding the office of steward of a manor. The stewardship of a manor is an office within the meaning of sect. 10 of the 23 & 24 Vict. c. 127 (Attorneys and Solicitors' Act), which articled clerks are prohibited from holding during their term of service. In this case Mr. Walter Peppercorn, an articled clerk, went up for examination in Hilary Term last, when the examiners found him capable to act as an attorney, but that, owing to the circumstances hereinafter mentioned, they withheld their certificate until an order of this court should be obtained for the purpose. In his affidavit Mr. Peppercorn stated that on the 9th Feb. 1864 he was articled with Mr. E. B. Jennings, of Burton-upon-Trent, solicitor, and that on the 22nd June 1865 he was assigned to Mr. Hawkins, solicitor, of New Boswell-court, for the remainder of his term; that his father was steward of the manor of Headington, in the county of Oxford, up to the time of his death, in July 1864, and upon his death it became necessary to appoint a new steward; that his brother-in-law was before his father's death, and still is, lord of the manor, formerly as trustee for his father, and now for his mother, who has a life-interest in the father's same under his will; that, upon the death of his mother, the manor will become divisible amongst himself and his brothers and sisters; that his father always expressed a desire that he should after his death be appointed steward of the manor in his place; and, upon his death, his brother-in-law accordingly, and also by desire of his family, appointed him such steward, in which capacity he first acted in Dec. 1864. That he appointed a solicitor to act as his deputy, and the general business of the manor has been transacted by him. That the only way in which he acted in the business of the said manor has been to be present at the courts to admit the tenants and take the surrenders, and, as the conduct of the manor would be left to him when he should be admitted, he considered it his duty to become acquainted with the customs of the manor and duties of a steward. That occasions of one day each for the purpose of being he has been absent during his articles on three present at the courts as aforesaid, with his principal's consent. That the fees of the court have by agreement been divided between himself and his Manisty then argued another objection upon the deputy-steward. That he never imagined he was facts. doing wrong in the foregoing, &c. On demand, I promise to the trustees of the Wesleyan Chapel, Harrogate, or their treasurer for the time being," &c. Manisty, Q. C., for the deft., now moved for a rule to enter the verdict for the deft., upon the ground that the note being in the alternative to pay the trustees or their treasurer, was not a valid instrument, as a promissory note, and he referred to Yates v. Nash, 8 C. B., N. S., 581, in which it was held, that a note payable "to the order of the treasurer for the time being" of a benevolent institution was bad; and also to Cowie v. Stirling, 6 Ell. & B. 333, and Blanckenhagen v. Blundell, 2 B. & Ald. 417, in which it was held, that a note whereby the maker promised to pay to A., or to B. and C., a sum therein specified, value received, is not a promissory note within the meaning of the statute of Anne. [BLACKBURN, J.-But in that case Bayley, J. says: If there had been any community of interest stated between the payees, so as in any respect to identify Damer and Blanckenhagen, it is possible that an action might have been maintained on this note." Is this anything more than a note payable to the trustees, with a notification that it may be paid to their treasurer?] Here there would be two distinct parties entitled to sue. [COCKBURN, C. J.That would not be so.] COCKBURN, C. J.-I think there should be no rule in this case. I fully concur in the proposition that the payee of a promissory note must be a person certain. But all that this promissory note shows is, that it is payable to the trustees in the first instance, but with the option of the payer to pay the treasurer as their agent. The treasurer would have no authority to sue; all the authority which he derives from the note is to receive the amount. All that is meant is, that the deft. is to pay the trustees or the treasurer on their behalf. If we are to construe this note differently, we should be introducing unnecessary strictness, and be defeating justice. BLACKBURN, J.-I am quite of the same opinion. the trustees, and I give notice that the treasurer is Rule refused. Solicitors Act), s. 10, it is enacted that No person hereafter bound by articles of clerkship to any attorney or solicitor shall, during the term of service mentioned in such articles, hold any office or engage in any employment whatsoever other than the employment of clerk to such attorney or solicitor. And every person bound as aforesaid shall, before being admitted an attorney or solicitor, prove by the affidavit required under sect. 14 of the first hereinbefore mentioned Act (6 & 7 Vict. c. 73), that he has not held any office or engaged in any employment contrary to this enactment, &c. Turner now, on behalf of Mr. Peppercorn, applied for a rule directing the examiners to give their certificate, and he contended that under all the circumstances as disclosed in the affidavit, Mr. PepperJ.-He is certainly within the letter of the 10th corn was entitled to the certificate. [BLACKBURN, section, though not its spirit. Has the court any dispensing power ?] There is none given expressly; but this gentleman, although nominally steward of the manor, was not the acting steward, as he had a deputy. The meaning of the 10th section is, that C. P.] THE LONDON, BRIGHTON, AND SOUTH COAST RAILWAY COMPANY v. WALTON. the clerk has actually served his master; the duties COCKBURN, C. J.-It appears to me that you are in a difficulty out of which we cannot help you. You are clearly within the words of the 10th section, for there can be no doubt that a stewardship of a manor is an office which the words of the section comprehend. It is no doubt a very hard case, and the Legislature could never have contemplated such a one. The words used however are clear, and we have no discretion. BLACKBURN, J.-I agree that it is a hard case, and if we could assist you we would do so. SHEE and LUSH, JJ. concurred. Rule refused. COURT OF COMMON PLEAS. Reported by W. MAYD and W. GRAHAM, Esqrs., Barristers-at-Law. THE LONDON, Saturday, Feb. 10. BRIGHTON, AND SOUTH COAST RAILWAY COMPANY (apps.) v. WALTON (resp.) Contributory negligence-Question for the jury-Two horses and carts left unattended. The resp.'s horse and cart was standing unattended in front of his shop, and the apps.' servant having occasion to go to the shop, drew up a horse and van of the apps, immediately behind the resp.'s cart, which he also left unattended. Shortly afterwards the resp.'s horse broke through the shop window, and there was evidence that the apps. horse had moved on and forced it to do so. In an action by the resp. against the apps., the judge directed the jury that the question for them was whether the defte van occasioned the accident, and whether the same was brought about by the negligence of the defts.' servant, and that there was no evidence of contributory negligence on the part of the plt.: Held, that this direction was wrong; that there was clear evidence of negligence on the part of the plt., and that the judge ought to have left it to the jury to say whether such negligence proximately contributed to the accident. The proper question for a jury in such a case is that stated in the judgment of Wightman, J., in Tuff v. Warman, 5 Č. B., N. Š., 573. This was an appeal from the Croydon County Court. The case stated that the action was tried by a jury, and that the plt. sought compensation under the following circumstances :— The plt. is a grocer carrying on business at the corner house in Park-street, Croydon, which is a private street leading out of the High-street. The shop has a plate-glass window, consisting of three large panes, facing Park-street. On the afternoon of the 15th Aug. last the plt.'s horse and cart was drawn up opposite his shop for the purpose of loading goods, the head of the horse being about opposite the shop window. having occasion to go to the plt.'s shop on busiThe defts.' servant ness, drew up a horse and van of the defts. two or three feet in the rear of the plt.'s horse and cart, and went into the shop. No person was watching either the plt.'s or the defts.' horses, but the plt.'s foreman stated that he was opposite the side window of the shop at the time of the accident, and that, if the plt.'s horse had backed, he must have seen it. No person was called who actually saw the accident, but it was proved that the plt.'s horse [C. P. smashed and came through the shop-window, and chained at the time of the accident, and that the The counsel for the defts., in addressing the jury, contended that the plt. had been guilty of contributory negligence, and was not entitled to recover, and that he had contributed to the accident by allowing his horse to remain in the street unattended. He also requested the opinion of the learned judge who was trying the cause on the law relative to contributory negligence, and the learned judge told him that in his opinion he had put an extreme view of the law. The learned judge then stated that a person could not recover damages if, but for his own negligence or that of the person who represents him, the accident would not have of the deft.; and that negligence or misconduct on happened, though there was negligence on the part damages in cases where the negligence or misconthe part of the plt. does not prevent him recovering duct has not been an immediate co-operative cause of the injury complained of. The learned judge, in summing up, stated to the jury that the first question for them to determine was whether the defts.' van occasioned the accident by running into the plt.'s cart, and whether the same was brought about by the negligence of the defts.' servant; and that a question might have arisen under some circumstances as to whether there was contributory negligence on the part of the plt. He said that he had no hesitation in ruling, on the authority of Addison on Torts, that negligence on damages unless, but for that negligence, the acthe part of a plt. will not disentitle him to recover cident could not have happened, nor if the deft. could, by the exercise of care on his part, have avoided the consequences of the neglect or carelessness of the plt. He further stated that the plt. was therefore entitled to damages if the van ran into the cart, and that in the present case there was the plt., and that it was occasioned by the negligence no evidence of contributory negligence on the part of doubt whatever; and the only remaining question of the servant leaving the van there could be no was whether the' defts.' van did run into the plt.'s cart, the evidence as to which was conflicting. damages, and judgment was given accordingly. The jury returned a verdict for the plt. with 357. whether the learned judge was right in so directing The question for the opinion of the court was, the jury. left out of its place, that does not excuse another Hannen for the apps.-If anything is negligently damage had been done to another person's window, party from using ordinary care. Suppose the judge is right, the leaving the horse unattended and he brought his action against the plt., if the would be no evidence of negligence: Illidge v. Goodwin, 5 C. & P. 192; The plt. is in this dilemma: either there was no Tuff v. Warman, 2 C. B., N. S., 573. evidence of negligence, or the plt. contributed. The judge could not say, as a matter of law, that there was no contributory negligence. |