Lopes (Patchett with him), for the other attorney, desired to proceed with the matter, as regarded his client, and to take no notice of the objection to the affidavit.

WILLES, J.-You may do so, inasmuch as rule 138 of Hilary Term, 1853, is not statutory and is only directory, and therefore a breach of it is only an irregularity (1), and may be waived. It is otherwise if the proceeding is made void; and rule 140, providing that no affidavit shall be read or used if there be any interlineation or erasure in the jurat, is an instance of a case where the parties cannot waive the objection. But a party may waive an objection under rule 138, and is entitled to get rid of the rule obtained against him, and, according to the authorities cited by Mr. Greaves in his edition of Russell on Crimes (2), the deponent is liable to be indicted for perjury, if he has sworn falsely, so that no objection can arise on the ground of his non-liability in such

the interval of change the appellants fastened the dog up by means of the strap, and the dog slipped through the collar, got on to the railway, and was killed:-Held, that the appellants were not liable.

This was a CASE stated on appeal from the decision of the County Court Judge of Westmoreland.

1. This was an action brought in the above County Court by the plaintiffs, joint owners of a certain greyhound, to recover 501. damages against the defendants for the loss of the said greyhound under the following circumstances:

2. On the 19th of February, 1870, the greyhound was taken by the plaintiff Sisson to the defendants' station at Temple Sowerby, for the purpose of being conveyed from Temple Sowerby to Morpeth, another station on the defendants' line of railway. The plaintiff Sisson applied to tha collector at Temple Sowerby station, and stated that he required the greyhound to be conveyed to Morpeth. He paid the fare which the collector demanded, and gave the greyhound into the charge of the guard of the train by which it was to be conveyed on its journey.

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 its being examined; it was also established at the trial that the dog was of the value of seventy guineas. The greyhound was safely carried to Kirkby Stephen station, where the train from Temple Sowerby stopped. The remainder of the journey to Morpeth was intended by the defendants, for their own convenience, to be performed in another train, which, on its arrival from Tebay, was to proceed from the Tebay side of Kirkby Stephen station; the train from Temple Sowerby arriving at the other side (known as the Eden Valley side) of the Kirkby Stephen station. The greyhound was taken from the van in which, up to that point, it had been carried, and was taken from the Eden Valley side of the platform to the

Tebay side to await the arrival of the train from Tebay then due. The train from Tebay being a few minutes late, the greyhound was fastened by the company's servant to an iron spout by a strap, which one of the plaintiffs, before delivery to defendants, had attached to its collar, and having been so fastened it was left alone to await the arrival of the train. Within three minutes afterwards the dog slipped its head through the collar and escaped, and ran away down the line. The next day it was found dead, having been run over by a train.

4. At the time the plaintiff Sisson brought the greyhound to Temple Sowerby Station, a bill, a copy of which, marked B (1), is to be taken as part of the case, was exposed on a board in the open platform-shed of the station; and another

(1) The notice B contained, amongst others, the following paragraphs—

7. And in pursuance of "The Railway and Canal Traffic Act, 1854," The North Eastern Railway Company hereby give further notice, that they require to be paid to their collector at this station for any horse, cattle, sheep, pig, or other animal conveyed by them which shall be declared to be of higher value than as hereinafter mentioned, as and by way of compensation for the increased risk and care thereby occasioned, a per centage or increased rate of charge in addition to the ordinary rate of charge for such conveyance at the rate of (Then followed a list of percentages for horses, neat cattle, sheep, and pigs only).

8. And notice is hereby further given that unless the owner or person sending or delivering any such animal as aforesaid to the company, shall, at the time of such delivery, make and sign a declaration in writing of the value thereof, and pay such increased charge as aforesaid, no greater damages can be recovered for the loss or for any injury to the same respectively, beyond the respective sums herein before and in the said Act mentioned, and only then upon proof of the value thereof by the person claiming compensation.

9. And the said company hereby give further notice and declare that they never have been and are not and decline to become common carriers of horses, cattle, sheep, pigs, and other animals, and will only undertake the carriage thereof upon special contract in each case first entered into by them with the owner or person sending or delivering the same, the special terms whereof may be learnt on application to the company's collector at this station, and will appear in the note at the foot of or endorsed upon the ticket or memorandum of each such contract issued or made by him, and according to which alone the company authorise him to contract on their behalf.

bill, a copy of which, marked A (2), is to be taken also as part of the case, was tacked to the wall inside the passengers' waiting-room. The notice marked B, but which makes no reference to dogs, could be easily seen by any person entering the open platform-shed, where tickets are given; but the printed paper which is a time table, and contains a marginal note about dogs, could only be seen by persons who had entered the waiting-room, but there was no evidence to shew that the plaintiff Sisson had and the plaintiff Sisson deposed on oath that he never had seen or heard of either of these notices or of the terms contained therein.

5. The defendants are not common carriers of dogs, and it was proved that on one previous occasion they had for hire carried the same dog for the plaintiffs, but no ticket was given, and there was no evidence that the plaintiffs had on that occasion any knowledge of the notices A. or B.

6. It was contended for the plaintiffs

(2) The time table A contained, amongst others, the following marginal note

Horses, carriages, and dogs.-The company are not common carriers of horses, cattle, dogs, and other animals which are received, forwarded, and delivered solely on and subject to the following conditions: The company will not be responsible for any loss of or injury to any horse, cattle, or other animal in the receiving, forwarding, or delivering occasioned by the kicking, plunging, or unruliness of the same, or by any other cause or means whatever, except the neglect or default of the company or its servants; nor will they be responsible for any greater amount or damages for the loss of or injury to any animals beyond the sums hereinafter mentioned (then followed sums relating to horses, neat cattle, sheep, and pigs only), unless a higher value be declared at the time of delivery to the company, and a percentage paid upon the excess of value so delivered according to the following scale, namely (then followed percentages relating to horses, neat cattle, sheep, and pigs only). The company will not accept dogs for conveyance, unless they have proper chains and collars attached, and then only upon condition that they are not responsible for loss of or injury to the animals in event of these fastenings proving insufficient; and they will not receive dogs for conveyance, except on the terms that they shall not be responsible for any greater amount or damages for the loss thereof, or injury thereto, beyond the sum of 2., unless a higher value be declared at the time of delivery to the company, and a percentage of 5 per cent. paid upon the excess of value so declared.

that the defendants having undertaken for valuable consideration to carry the dog safely from Temple Sowerby Station to Morpeth, on the complete delivery of the dog to them they became responsible for the security of the dog, and the dog then remained at the risk of the defendants, who were bound to lock the dog up or take other proper means to secure it; that the defendants were guilty of negligence in the first place in not making the strap of the dog secure, and in the second, in tying the dog to an iron spout in the open station of Kirkby Stephen, and leaving it alone in a strange place amongst strangers, instead of keeping the dog either in hand or in the van of the Temple Sowerby train, or in a building, until the Tebay train arrived, and then transferring the dog direct from the Temple Sowerby train to the Tebay train. It was further contended by the plaintiffs that there was no notice to the plaintiffs of any special conditions by which the company limited their liability. It was also contended by the plaintiffs, that the defendants having been guilty of negligence, could not take advantage of their own wrong or avail themselves of any notice to the purport or effect of that alleged in notices A. and B.

7. It was contended for the defendants that the loss arose through no negligence of the defendants, but from the insecurity of the collar placed on the greyhound by the plaintiffs, and that defendants not being common carriers of dogs but only professing to carry dogs on the terms stated on the bills A. and B., they were not liable at all under the circumstances, and in any event could not be liable in damages beyond two pounds.

8. The learned judge gave a verdict for the plaintiff's for the full amount claimed, namely, fifty pounds, on the several grounds that the defendants were guilty of negligence in not seeing that the strap was properly secured when the dog was in their charge, and also in leaving the dog alone amongst strangers in a strange place in the station at Kirkby Stephen tied to a spout, from which it almost immediately escaped, instead of securing it in the van or in some other safe place, the company being responsible for its security. The collar might be sufficiently fastened

for ordinary circumstances, but the dog being left alone, fought itself loose, and which in all probability would not have happened if the dog had been conducted by one of the company's servants from one van to the other. That the printed paper A., suggested as a notice, is not a notice within the meaning of the Statute, for several reasons, namely, it does not purport to be a public notice, but merely a time table shewing the dates of arrival and despatch of trains; it is not signed by any authority of the company; that the paragraph applying to dogs is a mere marginal note, and is in no way a leading feature in the document, and that notice B. does not apply to dogs unless specifically named, and is not in conformity with the Railway and Canal Traffic Act, but is in small print, and directly at variance with the requirements of the Statute, namely, that such notice shall be in legible characters; also on the ground that there should have been a special ontract signed by the parties. In Peek v. The North Staffordshire Railway (1), the Court said: "All the parts of section 7 of 17 & 18 Victoria must be read together, and not only must the terms limiting liability be reasonable, but they must be embodied in a special contract in writing signed by the owner or sender of the goods.' It is no defence in this case for the company to say that the dog was delivered to them so near to the time of the departure of the train as not to afford time for a ticket, as they might well have refused to take it until the next train.

The question for the opinion of the Court of Common Pleas is, whether the said verdict should stand.

Shield, for the appellants, contended that they were not common carriers of dogs, and therefore no statutory provisions were applicable; and that, conse quently, they were bailees for hire on the terms of the documents A. and B., which shewed no contract making them liable or at least only a contract making them liable to the extent of two pounds.

Kemp, for the respondents, contended

(1) 10 H. L. Cas. 473; s. c. 32 Law J. Rep. (N.S.) Q.B. 241.

that there was nothing to shew that the notice came to their knowledge, and they would be justified in concluding that the collector had authority to contract, and that, consequently, there was a contract, unfettered by the notice, on which the арpellants were liable.

The following cases were referred toThe Belfast and Ballymena Railway Company v. Keys (2); Slim v. The Great Northern Railway Company (3); Harrison v. The London, Brighton and South Coast Railway Company (4); Peek v. The North Staffordshire Railway Company (1); Van Toll v. The South Eastern Railway Company (5); Zunz v. The South Eastern Railway Company (6); Cahill v. The London and North Western Railway Company (7).

Cur. adv. vult.

The judgment was (on Jan. 31, 1872) delivered by

WILLES, J.-This was an appeal from the decision of the Judge of the County Court of Westmoreland, holden at Appleby, and was argued before my brothers Keating and Montague Smith (8) and myself, at the sittings after last Trinity Term. We took time to consider our judgment, which I am now about to deliver. The respondents sued the railway company in the County Court for the loss of a greyhound which was delivered to the company at their station at Temple Sowerby, to be conveyed from there to Morpeth. At the time the dog was received by the company, it had a collar with a strap attached to it. The fare was paid, but no ticket was given for it. The company only carried dogs under certain provisions, which had not

(2) 9 H.L. Cas. 556.

(3) 14 Com. B. Rep. 647; s. c. 23 Law J. Rep. (N.S.) C.P. 166.

(4) 2 B. & S. 122; s. c. 31 Law J. Rep. (N.S.) Q.B. 113.

(5) 12 Com. B. Rep. N.S. 75; s. c. 31 Law J. Rep. (N.s.) C.P. 241.

(6) 38 Law J. Rep. (N.s.) Q.B. 209.

(7) 10 Com. B. Rep. N.S. 154; s. c. 30 Law J. Rep. (N.s.) C.P. 289; in Ex. Ch. 31 Law J. Rep. (N.S.) C.P. 271.

(8) Who, in the meantime, had ceased to be a member of this Court, and become a judge of the Privy Council.

been followed by the respondents, and it was insisted on the part of the company at the trial, that they were entitled to rely on this in answer to the action. The County Court Judge overruled this point, and it was insisted on again by the company on the argument before us, but it is not necessary to discuss it further, because it is found as a fact in the case that the company were not common carriers of dogs, so as to have an absolute responsibility imposed on them to carry dogs. Consequently, in the present case, the company were, with reference to the dog in question, in the position of ordinary bailees, and only liable for its loss in the event of negligence on their part, and would not be liable if its loss was by reason of negligence of the person who delivered the dog to the company. It was insisted on by the respondents before the County Court Judge that there was no contributory negligence on their part. Now, in order to see if that be right, it is necessary to consider the facts a little further. At Kirkby Stephen station there is a change of carriages, and passengers and goods have to be taken out of the train which arrives there, in order to be carried on by another train to Morpeth. The train with the dog duly arrived at Kirkby Stephen, and the dog was taken out and fastened by one of the company's servants by the strap which was attached to its collar to an iron spout, in order to remain at the station until the other train came up. Whilst it was so fastened, it appears the dog slipped through its collar and got on the line, where it was destroyed. On these facts the County Court Judge decided that the company were responsible for the loss of the dog, and that there was no contributory negligence on the part of the respondent. We are clearly of opinion to the contrary, and what Lord Ellenborough said in Stuart v. Crawley (9), is, we think, very applicable. That was an action for the loss of a greyhound which had been delivered to the defendant, a carrier. The dog had no collar, but was taken to the defendant's warehouse with a string round its neck; and the defendant's servant gave a re

(9) 2 Stark. 323.

ceipt for it, which was not done here. The dog in that case was afterwards tied by this string to a watch-box, and it slipped from its noose and was lost. Lord Ellenborough held that the defendant in that case was responsible, and he said that it was not like the case of

a delivery of goods imperfectly packed,

since there the defect was not visible, but that there the defendant had the means of seeing that the dog was insufficiently secured. The defendant was therefore held liable, because he ought to have known better than to fasten a dog of that kind with only a string such as that which was round its neck. Obviously, that case is a very different one from the present, because here the dog was delivered with a collar and a strap, which clearly indicated that the proper mode of securing the animal was by these. The present case differs from that of Stuart v. Crawley (9) in two important particulars. In the first place, the company are not common carriers of dogs, and in the next place the dog which was delivered in that case was evidently not intended to be secured by the string, and the defendant had the means of seeing how it ought to be secured; whereas here the company had a right to suppose that the collar and strap were intended to be used for securing the dog. For these reasons we are of opinion that the judgment of the County Court cannot be sustained and should be reversed, and in so deciding we only follow the decision of this Court in The Great Western Railway Company v. Talley (10). The judgment must therefore be reversed, and if Schroder v. Ward (11) were followed, it ought to be with costs; but as the company gave no ticket when they received the dog, and therefore are not without blame, we think it should be reversed without costs.

Decision reversed.

Attorneys-R. T. James, agent for Hutchinson & Lucas, Darlington, for appellants; Kynaston & Gasquet, agents for Bleaymire & Shepherd, Penrith, for respondents.

(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.

Where land is subject to a modus in lieu of hay and agistment tithe till "converted into tillage," and a house is built on part thereof and the rest turned into a garden and orchard for the convenience of such house, there is no conversion into tillage or breach of the modus, and the same continues in force.

This was an appeal from the decision of the Court of Common Pleas, reported 40 Law J. Rep. (N.S.) C.P. 229, and the facts will be found sufficiently set out in the report of that decision.

The question was whether, where land was liable to a modus for hay and agistment tithe till converted into tillage (when a higher sum became payable) the building a house on part of the land and turning the rest into a garden and orchard accessory to such house, was such conversion; and the Court of Common Pleas had held that it was not.

Edwin Jones argued for the appellant. Charles, for the respondent, was not called upon.

COCKBURN, C.J.-The question is whether there has been a conversion into "tillage," and we are of opinion that there has not. The reasons for so deciding are fully set forth in the judgments in the Court below; with those reasons we agree, and it is unnecessary to say more.

The other judges (1) concurred.

Judgment affirmed.

Attorneys-Lowless & Nelson, for appellant; Vizard, Crowder & Co., agents for H. Tuson, Ilchester, for respondent.

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