His HONOUR observed that the loss, if any, must be the subject of an action, and could not be pleaded as a set-off. The fish had been sold, and there must be a verdict for the plaintiffs for the carriage, 11. 128. 8d.

CHESHIRE.

Chester, December 20, 1850. (Before J. W. HARDEN, Esq.)

BOWER V. THE CHESTER AND HOLYHEAD RAILWAY.
Liability of railways for passengers', luggage.

I

merely releases the person from arrest and suit by particular creditors. The respondent (a former creditor) was entitled to dividend pari passu," and the Chief Judge and Sir George Rose considered that case to resemble a trust deed of composition without a release where a subsequent fiat issues. This decision is not approved of by those who give to the words "debts," the restricted construction which I have mentioned. But thus are the decisions in bankruptcy and insolvency. So far, therefore, as a right, or the absence of a right on the part of the old creditors, to participate is to operate in the consideration of the questions under considera- A railway company is liable for the passengers' luggage.. to tion, if it is to have any weight the decisions are against The plaintiff sought to recover from the defendants 201. as the limited construction. But there does not appear to damages sustained by him under the following circumstances me to be anything in the general object of the acts to On the 13th of August last, the plaintiff, with his wife and six show that the meaning was not that which is expressed, friends, being on a trip of pleasure to Wales, left Bangor by the namely, that a trader shall not be entitled to the be- express train for Holyhead, having seen their luggage, consisting of nefit of the Protection Acts if he does not owe debts, appeared, was behind its time, and crowded. The Earl and Countess three portmanteaus, disposed of in the usual way. The train, it amounting in the whole, to less than 3001. He owes of Clarendon were travelling by it, and on the arrival of the train debts in part, which were due at the time of his former at Holyhead station, there was much pushing to get the passengers insolvency, and debts in part which he has contracted and their luggage down to the pier-the haste and confusion not since. The statute says, in express terms, "debts" in being lessened by the fact that there was a competition between the whole, and therefore includes both these parts. I the Government and the railway steamers. In alighting from the confess I do not find anything in the act to justify the train, the plaintiff saw his own portmanteau already transferred to restriction of the word "debts" to a limited sense-to the laggage van, the other two remaining on the platform. He de justify in effect the interlineation after the wordmanded his luggage, explaining to the officials that he and his "debts" of the words" exclusive of any which he party had no intention of crossing the Channel, or of going to the might have owed at the time of previously taking down to the pier-head, and that if he would get upon one of the pier-head. He was told, however, that all the luggage must go the benefit of any act or acts of Parliament for omnibuses, he would be down in time to prevent it from being put the relief of insolvent debtors," or of words equivalent on board the steamer. There were some sixty passengers for thereto. The words under consideration, namely, "but Ireland. Mr. Bower was unable to get a seat in or upon either of owing debts, amounting in the whole to less than 300.," the first two omnibuses, but by jumping on the step of the third are in themselves clear, and there should be something omnibus, he was able to reach the pier before the packet sailed; equally clear to deprive them of their simple meaning. the van, however, had arrived before him, and all the luggage was The word "debts" is, by the act, qualified or restricted already piled on deck. The plaintiff rushed on board, called for in point of amount; and had it been intended to qualify assistance to recover his luggage, but before he could obtain a sight or restrain it in any other way that would have been of it, the gangway was pulled away, and he was obliged to run up done. On the second question, therefore, I am of the paddle-box, and jump on shore. The plaintiff, after conducting opinion that the insolvent owes debts amounting to more the rest of the party to an inn, returned with a friend to the railthan 3001. And, on the whole, being of opinion that he way station, and gave the requisite particulars, to enable the station is a trader within the meaning of the statute relating to master to recover the luggage as soon as possible; and then went to see how far the shops of Holyhead would meet the requirements of bankrupts, but not owing debts, amounting in the whole the different ladies and gentlemen of the party, a search in which, to less than 3007., I consider that he is not entitled to from his own account, he was far from being successful. The three petition, and therefore his petition is dismissed. It is portmanteaus returned from Kingstown the following evening at satisfactory to me to find that, although I have the mis-six o'clock; but in consequence of the unforeseen detention, the fortune to differ in opinion with some gentlemen for party, whose time was limited, were obliged to abandon the route whose knowledge and ability I have very great respect, they had intended. There was a good deal of conflicting evidence yet that the view which I have taken of the subject agrees berd, both on the arrival of the train, and on the return of the gen as to the civility or impertinence of the station master, Mr. Massingwith the opinions of the majority of the learned commissioners of the Insolvent Debtors' Court, and I tlemen to the station, after the loss of their luggage, when it was believe of the Bankruptcy Court also. admitted that they could not themselves have been in the most unruffled of tempers.

COUNTY COURTS.

CITY OF LONDON.
(Before J. RYLAND, Esq.)

THE SOUTH WESTETN RAILWAY COMPANY v. FORGE.
Carriers-Set-off.

To an action for carriage of lobsters, the destruction of the pro-
perly conveyed by reason of undue delay in the delivery, cannot
be pleaded as a set-off.

Such a claim must be made the subject of a separate action.

In this case the plaintiffs sought to recover from the defendant the carriage of several baskets of lobsters from Southampton, to which a set-off was pleaded.

The defendant, it appeared, is a fish salesman at Billinsgate, and was in the habit of receiving parcels of fish from Southampton by the South Western Railway; and on the occasion to which the action refers it was alleged that the baskets were delivered to the defendant so long after the arrival of the train at the Waterloo station-something near two hours-that a loss of 5%. on the sale of the fish, besides the carriage, had been sustained, and this loss was now urged against the claim for the carriage.

His HONOUR, however, in summing up, begged that the jury would pass lightly over the language that was used; that being really "the fringe" of the case, and warmth on both sides easy to be accounted for; and called upon them to direct their attention to the substantial and indisputable facts of the case, and decide, as calm and reasonable men, what appeared to him to be the only question in the case, viz., what sum between one farthing and twenty pounds the plaintiff was entitled to as damages, for the inconvenience he had clearly sustained through servants; there might be mitigating circumstances in the case, the negligence, and carelessness, and inefficiency of the defendants' which the jury would do well to consider; but those circumstances, however they might lessen the damages, would not amount to justification in point of law for taking a man's luggage from before his face, against his will, and whipping it off to Ireland, or New York, or Ålexandria, and the principle was just the same, though the inconvenience might be less; or even yet taking it from the station at Holyhead, when the journey was completed, to the pier-head, and so compelling the owner to follow it.

The jury, after being locked up some time, returned into court with a verdict for the plaintiff,-damages 201.

Edleston, of the firm of Edleston and Edleston, appeared for the plaintiff.

Higgins, instructed by Messrs. Potts and Brown, Chester, for the railway company.

CLERKENWELL.
COLLYER v. DAVEY.

January 21, 1851.
Trespass-Negligence.

The owner of a house, who leaves the area unprotected, so that a passenger in the street fell into it, is liable in damages for the injury thereby sustained, even although the plaintiff was pushed into the area by another person.

This was an action to recover compensation in damages, which were laid at 401., for injuries sustained by the plaintiff, who had been accidentally pushed down an unenclosed area in front of a house, the property of the defendant.

Parry (Counsel) appeared for the plaintiff.
Wakeling for the defendant.

The Learned Counsel having stated the facts of the case, which were afterwards proved in evidence, remarked that it was impossible to conceive a more grievous injury than that which the plaintiff had sustained, one of his legs having been so severely fractured that it was likely to embitter the remainder of his days. The plaintiff, who held the office of messenger to the Corporation of the city of London, had, in consequence of the injuries he had met with, been an inmate of St. Bartholomew's Hospital for a period of nearly two months, and it was exceedingly doubtful when he would be able to resume his duties. The learned counsel submitted, upon the authority of Lynch v. Marden (2 R. B. Rep. 29; Ros. 5th ed. 373), that notwithstanding the plaintiff had met with his accident in the manner described, the defendant was clearly liable, as the accident arose from his negligence in leaving so dangerous a place unprotected. In the case which he had referred to, and which was very ably argued, the defendant was sued for the negligence of his servant, who had left his horse and cart in the road, and a child, in attempting to get into the cart, met with an accident through the horse being driven on by another boy. In that case it was held that the defendant was liable for the negligence of his servant, Lord Denman observing that whatever negligence there might have

been on the part of the children, it sank into insignificance compared with the negligence of the carman.

Wakeling urged, upon the authority of Williams v. Hollands (5 Car. & Payne, 89), that the plaintiff was not entitled to recover, the accident being partly occasioned by the plaintiff's own negligence, and that it was an accident over which the defendant could have no control.

His HONOUR.-I hold that any person who leaves property in an unprotected state in a public highway is legally liable primâ facie for his negligence, and I consider this a case which calls for an answer on all points.

Wakeling then addressed the court in mitigation of damages. His HONOUR observed that it would require a great deal of skill and ingenuity to satisfy him that a person leaving an area in an unprotected state was not guilty of great negligence. What could be more dangerous than the state which the evidence clearly showed the defendant's premises to have been in at the time of the accident. And the defendant's culpability was the greater, he having, according to the evidence of one of the witnesses, received a previous caution. The fact of the plaintiff having been pushed by another party was perfectly immaterial: that was a state of things of which the law could take no cognizance. A person through whose negligence an accident took place was liable for such negligence. He could not say that the damages were too high, and did not feel at all justified in assessing them at less than the compensation sought to be recovered; but he would take time to consider the matter.

His Honour subsequently gave a verdict for the plaintiff for the

full amount claimed, and allowed full costs.

An order was made for payment in fourteen days.

they had been stolen by any particular servant, it suffices if they are satisfied that some servant of the company had taken them. Tindal Atkinson, counsel for the plaintiffs, instructed by Mr. R. A. Payne, Solicitor.

Blain for the defendants.

Atkinson stated the case. The plaintiffs in this case were the well known silk mercers and drapers, Jeffry, Morrish & Co., of Church-street. The defendants were the better known firm, the London and North Western Railway Company; from whom it was sought to recover the sum of 177. 18. 8d, the value of a piece of silk which was sent by the plaintiffs by the North Western Company to London, on the 19th of October last. He believed he should distinctly prove that the piece of silk in question was enclosed carefully in a box on the 19th of October, and then given to a porter who delivered it into the custody of one of the company's porters at the railway station. The learned gentleman proceeded to state that in all probability the defendants would appeal to the act of the 1 Will. 5, called the act for the protection of carriers, in proof of their exemption from the responsibility in the matter. That act was passed when the ordinary mode of conveyance was by coach, waggon or van, and when the risk of robbery in transitu was greater than it could possibly be now that railways are the ordinary mode by which goods are conveyed. The preamble of this bill set forth that whereas it had become customary for bankers and others to transmit by mail coach, stage waggons, and vans, bankers' bills, notes, watches, jewellery, and other property of great value, and that by the freqnent loss of this description of property by robbery great responsibility had devolved upon the carriers of such property, it should be lawful that the said carriers should charge on all parcels containing property exceeding 101. in value an extra rate of carriage, and that the parties entrusting such parcels to their care should state the nature of their contents and the amount of their value at the time of delivering them. The learned counsel was of opinion that the act had reference merely to gold, or valuables of small balk, and not to packages of manufactured goods, though be admitted that among the articles enumerated as liable to the

charge for assurance in the act manufactured silk was specified. He supposed the possibility of the goods having been purloined by some of the company's servants; for, unfortunately, it was notorious that dishonest men had been discovered among the persons So employed. In making these remarks he entirely acquitted the company of laxity in their arrangements, and paid a high compliment to Mr. Braithwaite Poole, the gentleman who has the more Mr. Atkinson, addressing the jury, said the two legal points for immediate control of the company's servants. In conclusion, their consideration were, whether an act of misfeazance or larceny had been committed-whether the goods had been lost by the company's negligence, or by the felonious act of some of their servants; for if they were satisfied that the piece of silk had been placed in the box, and the bulk had been broken and the silk taken out, then no person could have committed the felony but one of their servants. He went on to show that the railways had superseded the old mode of transit to which the act of William applied, and now enjoyed a monopoly; that for the exemption from competition it was but fair the public should be assured of the safety of all goods entrusted to the care of railway companies. He showed that an extra charge of five per cent. on goods of the description in question, as assurance, would act ruinously on the owners, as it would take away the trade profits.

Thomas Pugh, a packer in employ of Messrs. Jeffrey, Morrish, and Co., was then called. He proved that on the 18th or 19th of October last, he enclosed in a box one piece of silk,

measuring one hundred yards. The box was addressed to T.

Balmer and Son, Gutter-lane, London, and immediately given to Geo. Mizon, one of Messrs. Jeffrey, Morrish, and Co.'s porters, who took it to Wapping station. The box was nailed up, and a rope was passed round it.

George Mizon, the porter referred to, stated that he received the box from the first witness, and carried it to the Wapping station, where it was received by one of the railway porters. The receipt was produced.

James Nolan, a porter from Messrs. Balmer and Sons, Gutterlane, London, deposed to having received a two-piece box on the 22nd of October, addressed to his employers, by Pickfords'. It Western Company, who demanded the payment for carriage. was delivered by one of the porters of the London and North Witness took out the money, but, on finding that the box was empty, refused to pay carriage-empty boxes being chargeable man who brought it, and proved it to be empty. only with porterage. He opened the box in the presence of the

Blair, for the defence, contended that no case had been made out. Taking up the points adverted to by the learned counsel on the other side, he showed that the company could not have committed an ast of misfeasance, inasmuch as that implied a breach of contract, and to have committed a breach of contract it must be shown that the parties bound had the direction of the parcel during the whole of its transit. He disputed the conclusion, that if a felony had been committed, it must have been by some of the servants of the company having "broken bulk." The box was sent from this town on Saturday evening, consequently it remained during Sunday at Camden Town. He likewise drew attention to the circumstance of the delivery in London not having taken place until Tuesday, instead of Monday, as was usual, and thence inferred that the box so received in London had never come from Messrs. Jeffrey and Morrish at all. He dwelt on the strict terms of the act, and observed that if the principle attempted to be set up were admitted, property to the amount of thousands might be claimed from the company: if the plaintiffs could recover in this case, the court would be giving them the advantage of having their property assured without payment of the considerations required from other parties.

SHOREDITCH.
February 10, 1851.

(Before Mr. Serjeant STORKS.)
HUNT v. STEADMAN.
Interpleader-Practice-Notice.

The requirement of rule 39, that four clear days' notice should be given of particulars of claim, is not fulfilled by the mere production to the bailiff of a mortgage deed, under which the claimant asserts his title to the property seized.

Roberts, for the execution creditor, submitted that the claimant was not in a position to be heard. The 39th rule set forth that five clear days' notice shall be given of the particulars of the claim. The claimant had given no such notice, and could not, therefore, establish his claim.

Mr. Attwood, chief clerk in the high bailiff's office, stated that the plaintiff had called at the office, and shown him a deed, under which he claimed the property taken in execution, but he (Mr. A.) informed the party that he must furnish the court with a detailed statement of the particulars of demand. The plaintiff produced the deed.

The

Atkinson, in reply.-Two defences had been set up,-one, that the defendants were not liable under the statute; and, secondly, His HONOUR said that was no notice at all; it was a mere that there was not sufficient evidence as to the identity of the box. demand-a notice to the mortgagor. It was clear that the claim It was for the defendants themselves to show that they had perwas barred, and the judgment must therefore be for the execution formed their duties, not for the plaintiffs to prove that they had not. creditor. It was most essential that due notice should be given, His friend was wrong in laying down the law to them, to say that and full particulars filed, that there may be no false claim. it was necessary that the plaintiffs should prove clearly and dis-object of the rule was two-fold;-to protect the officer, and to tinctly that the servants of the defendants had committed a felony. guard against that sort of contrivance which was too often atIt was the defendants' servants who had access to the property, and tempted to defeat the just creditor. clearly the company were responsible for it while in their custody. Although his clients had not declared the value of the property at the time of its being delivered at the railway station, the company would have been paid for the carriage; for it was clear that the trade of the town would be put a stop to if persons were called upon to pay 5 per cent. upon every package sent per railway. The whole point they had to decide was this,-were they satisfied there had been a felony committed? If so, was there not sufficient evidence for them to infer that it had been committed by some dishonest person in the service of the company?

The learned JUDGE, in summing up the case to the jury, said, that at common law all common carriers were the insurers of the goods transmitted by them; but by the first section of the act no common carrier was held liable for goods where the value should exceed 10%, unless their nature and value should have been declared by the person delivering the same, and an increased charge paid thereon. The responsibility of carriers was limited in certain instances, and it was quite clear that this was one of those instances. But there was another question raised by the same act: although they were not liable, through non-declaration, yet if, during the time the goods were in their custody, any person stole the same, then their common-law liability was re-opened; but it was quite clear that the plaintiffs were not entitled to recover unless they could satisfy them that they came within the 8th section of the act, which made it imperative that the plaintiff should show that the goods had been stolen by some servants in the employ of the carrier. After recapitulating the case, the learned judge concluded thus: "Upon this state of circumstances can you arrive at the conclusion that this property has been stolen? That is one question; but it is not the only question, because you must fix the felony upon some servant of the defendants. The law will not allow you to give the benefit of this act to the plaintiff, for it is for him to satisfy you that a felony was committed by a servant of the company; because, if you are satisfied that there was a felony, but not by a servant, the defendant is not liable. If you think, however, under all the circumstances of the case, that the silk could not have been taken by any other person but a servant of the company, you will find a verdict for the plaintiff."

After a few minutes' deliberation, one of the jury asked the judge whether, if they were satisfied that there had been a felony, it was necessary to fix it upon some particular party?

The JUDGE observed that it was not necessary that they should say that A. or B. took the goods: they might say that a felony had been committed by some person unknown; but they must say whether it was by a servant of the company. JURYMAN: It is out of our power to do that. JUDGE: That is for you, gentlemen, to say.

COLLYER v. PINTO.
Credit.

Where credit has been given to a son of full age living with his mother, he alone is liable, although the mother may have requested the attendance of the plaintiff upon her son during his sickness.

This was an action to recover the sum of 51. 4s. for medical

attendance on the defendant's son.

The plaintiff stated that he was called in by the defendant to attend upon her son, who was labouring at the time under one of the most severe attacks of cholera he had ever witnessed; and that defendant desired he would spare no expense.

The defendant admitted these facts, but denied her liability, her son being of age, and the plaintiff having in the first instance made out his claim to the son.

The plaintiff did not deny that he had given the son credit, but said the defendant promised to pay if her son did not.

His HONOUR.-If you have given credit to the son, and not to the mother, I cannot open parol evidence to make her liable. It ought to be paid, and it is most ungrateful to resist the demand; but if you have given credit to the son, you can re

cover of no one but him.

WESTMINSTER.

(Before FRANCIS BAYLEY, Esq.)

February 24, 1851.

FURNELL v. RIGBY AND ANOTHER.

Nonsuited.

and stated that the action was brought to recover damages for the Colombine, solicitor of St. Martin's-lane, appeared for the plaintiff, wrongful dismissal, by the defendants, of the plaintiff, who was in their employment as clerk. The plaintiff was engaged by the defendants, who are extensive contractors, carrying on business in Holywell-street, Millbank, Westminster, as yearly servant, on the 26th April, 1847, at 120l. per annum, and continued in their employment up to the time of receiving from the defendants a letter, as follows:

Holywell-street, Millbank, Westminster, October 11, 1850. Sir,-As the works upon which you have been engaged are now drawing to a close, we are compelled to convey to you that we shall not require your services beyond the 16th of November, at the same time we should be glad to avail ourselves of them on some future

The jury then almost instantly returned a verdict for the occasion, should an opportunity offer. If a reference to us at any plaintiff for the amount claimed.

time will be of service, you will not hesitate to make it.

Mr. Furnell.

Your obedient servants,
(Signed) J. & D. RIGBY.

It appeared that after this letter was written, the plaintiff

became candidate for an asssistant secretaryship at St. George's Hospital, on which occasion he received from the defendants a testimonial to aid him in his object, a copy of which is as follows:

COUNTY COURTS CHRONICLE

TUESDAY, APRIL 1.

BILL.

Holywell-street, Millbank, Westminster, October 28, 1850. Gentlemen,-The bearer, Mr. W. H. Furnell, is at present, THE NEW COUNTY COURTS EXTENSION and has been for some years, in our estabblishment, in a situation of trust and responsibility. We feel great trust and confidence in strongly recommending him for the situation he seeks in your institution as that of an assistant secretaryship. only reason we dispense with his services is on account of the termination of some large works on which he has been particularly engaged, We are, Gentlemen, your obedient servants, (Signed) J. & D. RIGBY.

The

To the Committee of Governors of St. George's Hospital. Colombine contended that the facts and the entries in the defendant's books constituted a yearly engagement from the 26th April, 1847, and continuing beyond the expiration of the period, was thereby renewed for one year more, and so on, and could not be determined by the notice given. He cited Mansfield v. Scott (1 Clark & Fin. Rep. 219), as bearing out his proposition; also Beeston v. Collyer (4 Bing. 309.)

The plaintiff was then called, and other evidence given, which proved the facts opened, except as to some smaller question of account between the parties.

In other parts of this number will be found a copy of Lord BROUGHAM'S Bill (as originally introduced), for extending the jurisdiction of the County Courts, and a full report of the proceedings in the House of Lords, both upon its introduction and second reading, when its author proposed so great a number of amendments and additions, that the measure has assumed quite a new character, and has become vastly more important than the Profession had contemplated.

Parry, counsel, appeared for the defendant, and took an objection to the form of the action, which was stated to be for breach of contract, whereas it was contended the action, if at all maintainable, ought to have been for tort. The learned judge having overruled this objection, Parry argued that the engage-ration, for upon the success of the provisions which ment w was determined by mutual consent, and called several witnesses, who spoke to the fact that when the plaintiff left he made no further demand, and received a sum which the defendants estimated as the balance due to him to the 28th November, 1850; beyond this the main facts were not altered by their testimony, which principally went to the questions of account and some items paid the plaintiff in error.

His HONOUR adopted the view taken by the plaintiff's attorney, that the engagement was renewed year by year, and gave a verdict for the plaintiff for, 131. 68. 1d. and costs, being the balance of three months salary from the date of the notice, deducting the sums paid the plaintiff for a month, and some other items previously paid him

in error.

Estate Agents.

A house and estate agent is not entitled to his commission on the letting of a house which he had been employed to let, if it is, in fact, let by another person, and not by himself.

Child, who appeared for the plaintiff in court, a broker and appraiser, stated that the action was brought to recover 11. 118., commission on the letting of a public-house.

It appeared that the defendant had, at the plaintiff's request, furnished him with the particulars of good-will, &c, and had also given him a sovereign to advertise. In consequence of the advertisement a party applied to plaintiff, and was referred by him to defendant, and ultimately became the purchaser. The defendant employed another broker to make the valuation, but it was contended that, having once placed the matter in the plaintiff's hands, the defendant had no right to employ another party to effect the sale and make the appraisement, and that, notwithstanding the defendant had done so, the plaintiff was entitled to the usual commission in

like manner as he would have been had he been the party so employed.

His HONOUR was of opinion that the plaintiff was not entitled to recover as broker, the sale not having been effected by him, but thought him entitled to something. He would therefore award him

27. in addition to 17., which he had already received.

As it now stands, the Bill is, indeed, one to which the attention, not only of all now interested in the County Courts, but of every Practitioner, who must ere long practice there, should be directed, with the assurance that it is a measure that more extensively and vitally affects the pecuniary interests and posi tion of the Profession, than any that has been submitted to the Legislature during the present gene have now been introduced into it, the question will depend whether the business of the County Courts, certain as it is to be enormously extended, and to absorb a large portion of the business of the Superior Courts both of Law and Equity, shall yield a fair professional remuneration, or whether three-fourths: of the legal business of the country shall be transacted, either without legal assistance, or with that aid so ill rewarded that no respectable Attorney could sell his time and education at such journey man wages: the question is also now to be decided, which depends upon that former one, whether the Profession is to maintain its status, or to be degraded to the position which it holds on the Continent and in America: for if the remuneration be not such as: " to reward the services of a gentleman, the courts will be left in the hands of an inferior class of: lawyers, in whom the character of the whole Pro fession will speedily be degraded, and gentlemen will cease to belong to it.

So strongly did we feel the importance of seizing this opportunity to make an endeavour to procure a more just and sufficient system of professional remuneration in the County Courts, that we took the liberty of addressing to Lord BROUGHAM an earnest remonstrance against the existing system, to show what practical injustice it works, how entirely it fails in its purpose of protecting the suitor, and at the same time to suggest the introduction into the new bills provisions which should empower the Judges of the Superior Courts to frame Tables of Fees to be charged to suitors in the County Courts, and to regulate the costs as between party and party, such fees not to be fixed, as now, but proportioned to the work required to be done in each case: costs to be taxed by the Clerk of the County Court with an appeal to the Judge.

We suggested that this regulation as to profes

T