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WILLES, J.-The Act of 1794 dealt with tithes 2nd Count. That the defendants were owners and generally, and was not intended to interfere with the proprietors of the said railway, and of the said trucks, general law that the lands of the tithe owner are &c., used by them to carry cattle on the said railway rateable. The Act says, not that such rent shall be for hire and reward, and the plaintiff thereupon em. clear of rates, &c., but shall be paid clear, &c. : ployed the defendants at their request, and for hire showing that the burden of the rate, in respect of the and reward to them, to provide for the plaintiff a cer. rent, was to be on the person paying.

tain truck or carriage as aforesaid to be used upon the Judgment for the appellant, with costs against said railway for the conveyance of a cow of tho plain. J. Andrews and C. Andrcus.

tiff's from Abergavenny to Newport by the defendants, and safely and securely to carry the said cow from Abergavenny to Newport aforesaid, and the defendants

provided the said truck, &c., and all things were Ex.


GREGORY v. Tie West-MID- done, and all things happened, &c. Yet that the 14, 22 Jan. 1864. LAND RAILWAY COMPANY.

said truck, &c., so provided by the defendants, and in Railway and Canal Traffic Act, 17 & 18 Vict. which the said cow was carried on the said railway, c. 31, s. 7-Conditions made by Railway

under the aforesaid contract, was not at the time of

the defendants' providing the same reasonably fit and Company exempting themselves from Liability proper for the conveyance and carriage of the said cow for Negligence.

on the said railway, and the defendants did not The plaintif having sent a cow for conveyance by the safely or securely carry the said cow in the said truck, defendants' railway, signed a ticket containing the fol.

&c., from Abergavenny to Newport, whereby, &c. lowing conditions (inter alia] :

The only pleas material to the case were the 3rd

and 7th. That the defendants were to be free from responsibility for any damage arising in the loading or unloading,

The 3rd plea to the first count stated that the cow from suffocation, or from the animal's being trampled to be carried from Abergavenny to Newport, as in

was so delivered to and was received by the defendants upon or bruised, or otleerwise injured in the transit that count alleged, under a special contract ; to wit, from fire or any other cause, it being thereby agreed between the plaintiff and the defendants

, for carriage that the animal should be carried at the owner's risk. Also, that the owner, or his representative, should see

as aforesaid, whereby the said receipt and carriage to the efficiency of the waggon before allowing his stock and reasonable condition referred to by and embodied

thereof were made, and were subject to a certain just to be placed in it, and should make complaint in in the said contract ; that is to say, that the defen. writing to the inspector or clerk in charge before the dants should be free from all risk and responsibility waggon left the station. Owing to the sides of the truck in which the plaintif's | which should arise in the loading or-unloading, from

with respect to any loss or damage to the said cow cow was placed being too low, the animal got out during suffocation, or from its being trampled on, bruised, or the journey and was killed :

Held, that the conditions were not reasonable and otherwise injured in the transit from fire or from any just within 17 & 18 Vict. c. 31, s. 7, and that the other cause whatever. And that, as the charge for defendants were liable, notwithstanding their contract conveyance was for the use of the waggon and locowith the plaintif:

motive power, the owner of the said cow, or his repro

sentative, was required to see to the efficiency of such DECLARATION.—That the defendants were owners waggon before he allowed his stock to be placed and proprietors of the West-Midland Railway, and of therein, and that complaint in writing must be made certain trucks and carriages used by them to carry to the station-master as to all alleged defects, either at cattle on the said railway for hire and reward, and the the time of booking or before the waggon left the plaintiff thereupon delivered to the defendants, at station, and that the owner or his drover should ride their request, a cow to be by them safely and securely free in the waggon in which his stock was loaded, and carried in the said trucks, &c., on the said railway, should have the care thereof; but as no fare was to wit, from Abergavenny to Newport, for reasonable charged, it was agreed that such owner or his drover reward to them in that behalf, and it became the should so ride entirely at his own risk; and all condiduty of the defendants to use due and proper care tions were performed and fulfilled, and everything and skill in and about the carriage of the said cow happened to entitle the defendants to the benefit and on the said journey, and in and about the manage- protection of the said special agreement and condi. ment of the said trucks, &c. Yet the defendants tions. And the defendants say that the injury to and so negligently and carelessly conducted themselves in deterioration in the value of the said cow, and the and about the carriage of the said cow, and in and supposed causes of action in the first count mentioned, about the management of the said trucks, &c., that were not occasioned nor did the same happen or arise by reason thereof the said cow was greatly injured by the neglect or default of the defendants or their and deteriorated in value during the said journey.


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The 7th plea was similar to the 3rd, and was pleaded 14, 22 Jan. 1864. to the second count.

A. S. Hill and H. Matthews showed causea The case was tried before Byles, J., at the Mon. It may be taken for granted that no conditions of mouth Summer Assizes, 1863, when it appeared that this kind made by a railway company are valid under the plaintiff had booked a cow for conveyance from the 17 & 18 Vict. c. 31, s. 7, unless they are just and Abergavenny to Newport by the defendants' railway, reasonable ; and the question, whether they are reasonand had signed a ticket, which the clerk presented able or not must be decided by a Judge or the Court. to him, and which contained the following condi. The view taken of that statute by Erle, C.J., and tions :

Keating, J., in the case of The Newport, Abergavenny, and Hereford Railway Harrison v. The London, Brighton, and South Company give public notice that they undertake Coast Railway Company, 2 B. & S. 152 ; 31 the conveyance of horses in waggons, oxen, cows, L. J. Q. B. 113, sheep, calves, or pigs, upon the terms and condi- which was, that the operation of the 7th section is contions hereafter stated, and by such only they will be fined to injuries occasioned by the misconduct of the bound.

company, and not to those occurring through pure 1st. They are to be free from all risk or responsi. accident, cannot now be maintained. The present case bility with respect to any loss or damage arising in must be governed by the loading or unloading, from suffocation or from McManus v. The Lancashire and Yorkshire Rail

. being trampled upon, bruised, or otherwise injured in

way Company, as decided in Error, 4 H. & N. the transit from fire or from any other cause whatso- 327 ; 28 L. J. Ex. 353; and by ever, it being hereby agreed that the same is to be Peek v. The North Staffordshire Railway carried at the owner's risk.

pany, 32 L. J. Q. B. 241. 2nd. They are not to be responsible for carriage or According to the former of those cases such a condition delivery within any certain or definite time, or in time as the present is unreasonable ; and the company, for any particular market.

therefore, are not protected by their contract. 3rd. That as the charge of conveyance is for the [MARTIN, B.---Can a condition be always, and under use of the waggon and locomotive power, the owner or all circumstances, reasonable, or the reverse, as to the his representative is required to see to the efficiency of same kind of cattle ?) such waggon before he allows his stock to be placed In McManus's Case, Williams, J., in delivering the therein, and complaint in writing must be made to judgment of the Court, appears to be of opinion that a the station inspector or clerk in charge as to all alleged condition must be reasonable, or the reverse, on the defects, either at the time of booking or before the face of it; and this view is adopted by Blackburn, J., waggon leaves the station.

in Peck's Case. 4th. The owner or his drover shall ride free in the [Martin, B.-Suppose a condition which, on the waggon in which his stock is loaded, and shall have face of it appears to be perfectly reasonable, turns out, the care thereof; but as no fare is charged, it is agreed from some peculiar circumstances, to be unreasonable" that such owner or drover shall ride entirely at his own It is submitted that the Court must take all the risk.

circumstances into consideration, in order to decide The plaintiff did not himself see the truck in which whether the condition is reasonable. But it is nnjë the cow was, as the animal had been placed there cessary to consider that point, inasmuch as these conbefore his arrival at the station, he having sent it ditions are plainly unreasonable. The first exempts the on before with a drover.

company from all responsibility of any kind, according During the journey the cow got out of the truck to the construction put on a similar condition by the and was killed, a heifer which was in the same truck Court in McManus's Case. arriving safely.

(BRAMWELL, B.-Can any case ever decide, as a The plaintiff stated in evidence that the two matter of law, that a particular condition is unreasonanimals had been placed in what is called a sheep able ? Must not everything depend upon varying facts truck, the sides of which were not sufficiently high to which may render the same condition reasonable iz prevent a cow from getting out.

one case and unreasonable in another ?) A verdict was entered for the plaintiff with 301. McManus's Case was cited as a matter of construction damages, leave being reserved to move to enter the to show what the Court held a railway company to verdict for the defendants, if the Court should be of mean by such a condition as the present; namely, opinion that the special contract was binding on the absolute exemption from responsibility, however causel. plaintiff.

It has been suggested that such conditions are subject On the 2nd of November (Michaelmas Term, 1863), to an implied proviso, that the company shall be H. James obtained a rule nisi to set aside the verdict liable for gross negligence or misconduct, but this is for the plaintiffs, and to enter it for the defendants, on erroneous, as shown by the ground that the plaintiff was bound by the special Carr v. The Lancashire and Yorkshire Railway contract entered into with the defendants,

Company, 7 Exch. 707 ; 21 L. J. Ex. 261 ;

C. 31.


the case which led to the passing of the 17 & 18 Vict. [His Lordship read the first condition.]

It appears

to me impossible for the company to say more plainly [BRAMWELL, B.— It is to be regretted that we that they will not be liable for any kind of injury to should have to administer a law which appears to me the cattle than they do by this condition. It seems to impossible. I do not see how a Judge can determine have been thought, however, that, notwithstanding whether a contract between A and B is reasonable.] this, the company might still be responsible for injuries

As to the third condition, that was probably in occasioned by placing the cattle in a truck or carriage, serted in consequence of the decision in,

not fit to convey them, and, therefore, the third conShaw v. The York and North-Midland Railway dition was added to supplement what was wanting in the Company, 13 Q. B. 347.

first, and to oblige the owner to see to the efficiency of Is it reasonable that the railway company should the truck. Taking the two conditions together, it is throw upon the owner the duty of seeing to the effi- plain that the company do not intend to be liable for ciency of the truck? It is submitted that these con. any loss or injury, however caused; the reason is ditions were both unreasonable, and that the contract stated ; namely, that the charge made is merely for is therefore void.

the use of the waggons and for the locomotive power,

and I do not see how words can more plainly express A. James, in support of the rule.

the intention of the company not to be responsible Even if the first condition were held to be intended under any circumstances for injury done to the cattle. to exempt the company from responsibility for all such being the meaning of the conditions, it appears injury however caused, and to be, therefore, unreason.

to me that the language used by Williams, J., in deliable, they would still not be liable, as here they are vering the judgment of the majority of the Court in protected, not by the first, but by the third condition. McManus's Case, applies here. That learned Judge In the present case the cow was taken to the station says (4 H. & N. 349 ; 28 L. 359), “It remains to by the owner's drover and placed in the truck under consider whether the condition or special contract in his superintendence, after which the owner signed the the case before us is just and reasonable, and we are of

It is now said that the truck was unfit to opinion that it is not. In order to bring the defendant carry a cow, being intended for the conveyance of within its protection, it is necessary to construe it as sheep; but the owner's drover should have seen to excluding responsibility for loss occasioned, not only this. There is nothing unreasonable in the com

by all risks of whatever kind directly incident to the pany's requiring the sender to see to the efficiency of transit, but also for that caused by the insufficiency of the truck with regard to such a matter as this

, which the carriages provided by the defendants, though occahe can perfectly well do if he thinks fit, while it may sioned by their own negligence or misconduct. Tho be very difficult for the company to find porters who sufficiency or insufficiency of vehicles by which the can judge of the fitness of a truck for the conveyance companies are to carry on their business, is a matter, of various kinds of cattle; the proper construction of generally speaking, which they, and they alone, have, this condition would be, that the company would be

or ought to have, the means of fully ascertaining. liable for a latent defect in the truck, but not for a And it would, we think, be not only unreasonable, patent one. The owner is bound by the assent which but mischievous, if they were to be allowed to absolve his agent has given to the animal's being placed in the themselves from the consequences of neglecting to truck in the same way as a declaration of value has perform properly that which seems naturally to belong been held to bind senders by railway in the cases of

to them as a duty. It is unreasonable that the comMcCann v. The London and North-Western Rail.

should stipulate for exemption from liability way Company, 31 L. J. Ex. 65 ;

from the consequences of their own negligence, howPardington v. The London and South-Western

ever gross, or misconduct, however flagrant, and that Railway Company, 1 H. & N. 393.

is what the condition under consideration professes POLLOCK, C.B.—If the judgment given by this to do.” Court in McManus's Case were undisputed, the defen

I do not see how the present conditions can be disdants might possibly succeed, but that decision was tinguished from those before the Court in McManus's overruled in the Exchequer Chamber, and we are Case, for I do not think that the fact of the owners bound by the law as laid down by the superior Court. being specially required to see to the efficiency of the Our judgment must, therefore, be for the plaintiff. truck in any way assists the defendants. Whether

this law is satisfactory, I do not pretend to say. I Martin, B.-I am of the same opinion. I still confess that it appears to me very difficult to answer think the view I originally took of the statute when the question put by my Brother Bramwell during the McManus's Case was in this Court was the correct one, argument; but we are bound by the law as its stands, but we are bound by the judgment of the Court of and our judgment must, therefore, be for the plaintiff. Exchequer Chamber, and must therefore give judgment for the plaintiff.

BRAMWELL, B.-I am of the same opinion. The What is the real meaning of these conditions ? House of Lords has decided that a particular contract


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may be reviewed by the Court or a Judge. I do not This was an action of ejectment brought for the reexactly understand how in some cases that doctrine covery of the Long Close and Short Close and two is to be applied, for I cannot see how the Court is cottages in Heage, in the county of Derby. to determine whether a contract is reasonable or not; Joseph Jepson, being seised in fee simple of the but such is the law, and we are bound by it. I abide, lands and cottages next hereinafter mentioned, made however, by what I said at the trial, that no autho- his will, dated the 10th of March, 1840, of which the rity can show as a matter of absolute law that a following is a copy :particular contract is under all circumstances rea- “ This is the last will and testament of me, Joseph sonable or the reverse; that must depend on the facts, Jepson, of the City of London. In the first place, I which may vary.

will and direct that all my just debts, funeral, and With regard to our decision in the present case, testamentary expenses be paid, and I give and devise I have, however, little doubt, as it appears to me clear to my dear wife Elizabeth all my part, share, estate, or that McManus’s Case should govern the present one. The interest of and in the dwelling-house or tenement, and first condition is clearly unreasonable, and indeed Mr. likewise the several closes or parcels of land hereinafter James had to give it up, while it is not very easy to mentioned, and now in the occupation of Charles Stopmake sense of the third condition. On the whole, 1 pard : that is to say, the Pear-tree Close, the Mille agree with the construction put on this condition by Close, the Roe Close, and the clover piece, situate at Mr. Baron Martin, that it was intended to supplement Heage, in the county of Derby devolved to me at the the first by extending to an injury arising from the death of my father, John Jepson the younger; anil state of the truck, for which the company might pos- also give and bequeath all my goods and chattels sibly be held responsible, in spite of the first condi- freeholds, dwelling-house, or tenement heretofore mcntion. This goes even further than the condition which tioned unto my said wife Elizabeth, for her use and the Court of Exchequer Chamber held to be unrea interest, during the term of her natural life ; and aft: sonable in McManus's Case, and the contract must her decease I give and devise all my property, real an! therefore be held void, and the plaintiff entitled to personal, unto my heir or heirs, to be equally dividel recover.

among them, and as joint heirs of this my aboveCHANNELI, B.-I am of the same opinion. Taking and appoint my two brothers-in-law, my said wile's

mentioned property. Lastly, I nominate, constituti, the first and third conditions together or separately, brothers, William Booth, grocer, &c., of Green Hill they appear to me unreasonable. The cases of

Lane, in the parish of Alfreton, and in the county of McManus and Peek, in my opinion, govern the pre- Derby, and Job Booth, junior, of Pentrich, in the sent one.

of Derby, as joint executors or trustees of this Rule discharged.

my will, 'and, revoking hereby all former and other

wills by me at any time heretofore made, I do hereby

declare this only to be my last will and testament." 25 Jan. 1864.

Several years subsequent to the date of his will, ani

prior to the 9th of June, 1850, an aunt of the testator Will_Construction-General devise-Estate for devised to him the above-mentioned property, called life by implication-Wills Act, 1 Vict. c. 26, the Long Close, Short Close, and two cottages, the

subject-matter of this action. The testator, by his will, made in 1840, gave, devised, I will was proved on the 24th of March, 1851.

The testator died on the 9th of June, 1850, and Lis and bequeathed as follows :-I give and devise to my

The plaintiff is the eldest son of the testator. The dear wife E all my part, share, estate, or interest of and in the dwelling-house or tenement, and likewise the defendant's wife, Elizabeth Key, is his widow. several closes or parcels of land hereinafter mentioned,

The question is, whether the Long Close, Short Close, (describing them,) "and I also give and bequeath all my and the cottages passed by the will of the testater to goods and chattels, frecholds, dwelling-house, or tene- his widow for her life, or descended to the plaintits as

his eldest son ? ment heretofore mentioned unto my said wife E, for her use and interest during the tern of her natural life ;

If they descended to the plaintiff, judgment shall be and after her decease I give and devise all my property, entered up for him. If they passed by the will to the real and personal, unto my heir or heirs, to be equally

testator's widow, judgment shall be entered for the

defendant. divided among them, and as joint heirs of this my

abovementioned property.Subsequently to the date of his

Fitzjames Stephen, for the plaintiff. will the testator acquired land by devise :Held, that the after-acquired properly passed by the

The first clause of the will gave the wife a fee ir will, and that the testator's widow took a life estate in it.

the property specified; the second clause cuts down

that fee to an estate for life. Is the second clause SPECIAL CASE stated by consent, and under a Judge's more extensive than the first? I contend that it is not, order for the opinion of this Court.

It is obvious enough that the whole object of the second

8. 24.

clause is to reduce to a life estate what was given in Then he goes on :-"Thus, if a testator devises Whitethe first. At the date of the will the testator had no acre to his heir-apparent or heir-presumptive after the other property than that mentioned therein. Now, death of his wife, and in the same will devises the although since the Wills Act (1 Vict. c. 26), a will residue of his real estate to A (a stranger), since the speaks from the death, still you must look to the state estate for life not included in the devise to the heir of things at the date of the will. The devise contained would, if no implied gift were raised, pass to A as real in the third clause, to his heirs jointly, does not pass estate not otherwise disposed of, which might possibly the property in question. In putting a construction be intended, the residuary devisee, and not the wife, upon that clause, the words "above-mentioned" must would, it is conceived, take the estate during her life.” be taken into account. Those words refer back to the The only question is-Do the words “all my property first clause, which is the key to the whole. But even real and personal” include after-acquired property ? if it be a general devise, it gives the wife no estate for I am of opinion that they do. life by implication. It must be a necessary implica

MARTIN, B.--I am of the same opinion. We must tion to exclude the heir.

construe the will in obedience to section 24 of the [MARTIN, B.-The 24th section of the Wills Act

Wills Act. It is incumbent on the plaintiff to estaprovides, “That every will shall be construed with

blish that an intention appears on the face of the will reference to the real and personal estate comprised in

that the testator's wife should not take. If there it, to speak and take effect as if it had been executed

were room for speculation, I should guess that he immediately before the death of the testator, unless a contrary intention shall appear by the will." You meant her to take a life estate in all his property. must make sense of it consistent with the Act of Par

But it is plain that the testator meant all his goods

and all his freeholds. In my judgment, Mr. Stephen liament.)

has failed to show us that an intention to the contrary I say that, considering he had mentioned the

property before, which he intended to pass, the devise in appears; and I am therefore of opinion that the the third clause is to be limited to what was so men

after-acquired property passed. tioned. He cited,

CHANNELL, B.-I am of the same opinion. It is Simpson v. Hornsby, Prec. in Ch. 439, 452 ; em- not disputed that section 24 of the Wills Act applies.

bodied in judgment in Rex v. Inhabitants of The foundation of the plaintiff's claim is, that he is Ringstead, 9 B. & C. 228 ;

heir-at-law. It is said that the three devises in the Webb v. Bing, 1 Kay & J. 580 ;

first, second, and third clauses all relate to the same 1 Jarman on Wills, c. 10, 299–307 (3rd ed.). subject matter, and that there is such a specific de

scription in the first clause that the property subseField, for the defendant.

quently acquired by the testator did not pass by his The subsequently-acquired property passes under the will. I do not think so. will, "unless a contrary intention appear by the will." | devises land in Berkshire, and afterwards acquires

I agree that if a testator Where is the contrary intention ? The intention is the land in Cornwall, you cannot say that the after

acquired property passes.

In the first clause the [MARTIN, B.-I should guess with you that he did

testator devises (reads first clause). In the second mean his wife to be benefited.]

clause he introduces personal property, and uses the The point as to the estate for life by implication words “heretofore mentioned.” I think, however, comes to the same question.

that the devise is not limited as contended by Mr. Fitzjames Stephen, in reply.

Stephen. It appears to me that section 24 governs

this case, and that we are bound to apply the rule. POLLOCK, C.B.- It appears to me that the defend

Pigott, B.- I am of the same opinion. I think ant is entitled to judgment. The will speaks from the death of the testator; he gave and devised "all that the testator intended his widow to enjoy all his

estate, real and personal, for her life. We have been my property, real and personal.” He uses language which would include any quantity of real and personal i do not think that the devise is limited, as was

pressed with the words “heretofore mentioned.” But estate. An ordinary unlearned person would have no

contended. doubt whatever as to the intention of the testator.

Judgment for the defendant. In 1 Jarman on Wills (452, 2nd ed. ; 505, 3rd. ed.), there is this passage :-“The position that a devise to


MARCHMAN v. HUGHES, the heir after the death of A creates in A an implied

} 27 Jan. 1864.

Sued with Others. estate for life, supposes that the will does not contain a residuary devise ; for a devise of this nature would, Administration bond-Breaches-Unliquidated by disposing of such intermediate estate, and thereby

damages--Bankruptcy before 24 & 25 Vict: intercepting the descent to the heir, clearly exclude all

c. 134. ground for the implication.” It is assumed there that there would otherwise be an estate for life implied. Declaration on an administration bond given by an

other way.

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