H. T. 1865. Not only did the defendant not seek payment from the Drogheda Exchequer.

WAUGH

v.

DENHAM.

and Kells Company, who committed the parcel to his custody, but he actually paid, to that Company, the fare of the parcel from Drogheda to Kells; and that fare formed one-half of the sum which he demanded from the plaintiff's agent M'Bride, and without the payment of which he refused to give up the parcel. Again, when he was desired by M'Bride, after the first parcel, similarly addressed, was brought by the defendant to Virginia, not to bring any more parcels, the defendant's reply (according to the statement of M'Bride) was, that his car was for that purpose, and that he would bring all the parcels he could get." M'Bride then told him, that if he persevered, he would try what the law of the land would say to him for persevering in interfering with their goods. M'Bride stated this in his evidence, and the defendant did not deny it. In effect, he testified a determination to bring the parcels, and to charge for them, against the positive desire of the plaintiff, conveyed through his authorised agent, to the defendant. I am aware of no principle of law which can warrant a carrier in thus forcing upon the owner of goods a service which the owner repudiates, and in then claiming to keep the goods until he shall have been paid for the repudiated service.

The LORD CHIEF BARON then proceeded to observe, in detail, upon the evidence as to the second ground of objection, and stated, that the Court were of opinion that there was not any evidence to sustain the allegation that the direction given to the defendant not to bring the plaintiff's parcels had been withdrawn; and that, notwithstanding the finding of the jury upon the question submitted to them as to that matter, at the desire of the defendant's Counsel, the direction to the jury, upon their answers to the other questions, to find a verdict for the plaintiff was right. The judgment of the Court, therefore, being, that the defendant had failed on both the points which had been argued, the Court allowed the cause shown, against the conditional order to enter a verdict for the defendant.

FITZGERALD, B.

I am of opinion that there was no evidence in the case which

Exchequer.

WAUGH

v.

warranted the leaving to the jury the question, whether the plaintiff H. T. 1865. had withdrawn the direction given to the defendant? There was evidence of the fact of parcels having been paid for subsequent to the direction, but no evidence of what passed at the time such payments were made, except that of the plaintiff himself, which was, if believed, inconsistent with a withdrawal.

There being on the parcel carried by the defendant, which was the subject of the action, an express direction that it should be carried by another conveyance than his, I do not think it was any part of his duty as a common carrier to convey it so as to give him a lien on the parcel for his fare as against the plaintiff.

HUGHES and DEASY, BB., concurred.

DENHAM.

CONDON v. THE GREAT SOUTHERN AND WESTERN

RAILWAY COMPANY.

THIS was an action, under Lord Campbell's Act (9 & 10 Vic., c. 93), by a mother, to recover damages for the loss incurred by the death of her son, a boy fourteen years of age. Plaintiff's husband had been killed by a locomotive engine of the defendants at the same time as her son; and she had recovered £400 damages for the

T. T. 1865.
May 29, 30.

In an action,

under Lord
Campbell's
Act (9 & 10
Vic., c. 93), by
a widow, for
damages upon
the death of
her son, aged
fourteen, who

had never

loss of her husband. The action was tried before Mr. Sergeant Armstrong, acting as Judge of Assize at the Spring Assizes for the earned county of Limerick 1865. The case turned upon the seventh

issue, "Whether the plaintiff, or any or either of the persons for

"whom or on whose behalf she had brought the action, did sustain

wages, but whose сара

bilities were

valued at sixthe probability pence per day,

that he would

"any pecuniary loss whatsoever by reason of the matter in the said have enabled

his mother to

earn more, or would have devoted part of his earnings to her support, is evidence to go to the jury upon the question of damages. The probability is increased by the past filial conduct of the deceased.

There is no analogy between the nature and amount of the services whose loss will sustain an action for seduction and one under Lord Campbell's Act.

T. T. 1865. "writ complained of." Ellen Condon, the plaintiff, stated “That Exchequer. "her husband and her son Michael were killed crossing the "defendant's line, on the 26th of July 1863. Two children

CONDON

บ.

G. S. AND W.

RAILWAY.

66

are living. Witness was milkwoman to Mr. Hewson.

Her Her son was

"deceased husband was herd to Mr. Hewson.
"fourteen years of age. He was able to do the business in his
"father's absence; to go four miles to bring a load of hay, and
"fodder the cows; to take the calves to the butcher's; and bring
"the cows back and forward, and count them, and look after them
"all whenever his father was away. He would go with the donkey-
"cart for coals. We had £12 pounds a-year wages, a house,
"firing and candles, and support-i. e., finding for selves' family.
"I finished the year, and settled the amount at end of the year.
"Michael would be of use to me to assist me to carry on any
"business. He would be now nearly as useful as his father. One
"of the children is going on eleven and the other nine. I have a
"house taken. I am selling a little bread." On cross-examination
Mrs. Condon stated that her deceased son got no wages from Mr.
Hewson. "He used to help his father, and I was sending him to
school. I never sent Michael to earn anything." Mr. Hewson
stated that he knew the deceased but slightly. He was away for a
long time; he had been only a short time on the farm when he
was killed; he was a very small boy; he might drive a donkey
or pick stones off a field; he might be worth sixpence a day.
He never earned anything from me.

At the close of the plaintiff's case, his Lordship refused to direct a verdict for the defendants, at the request of defendants' Counsel. His Lordship told the jury that he did not consider it necessary, in order to maintain the action, that the deceased should have been in the receipt of wages which he handed over to his father or mother, and which went into a common fund, or was applied to the general purposes of the family. The jury were at liberty to consider whether in the changed condition of the mother (occasioned by the father's death), it was reasonably to be expected that if the boy had lived he would have been of some appreciable and substantial benefit to his mother, by sharing his labour, and thereby

enabling her to earn the more for herself and her other children (as to which the jury ought to consider his past conduct and the services he had rendered), or by actually earning something which he would have allowed her to have the benefit of. There was no evidence that he was undutiful or undocile, but rather the contrary; and they might consider whether if he were able to earn, he would have helped his mother by those earnings. But, in this view, if they chose to adopt it, they should allow and deduct for his reasonable support and maintenance, and consider only the surplus profit, if any, possibly derivable from his earnings.

His Lordship told the jury not to consider with a view to damages the mother's feelings in the loss of comfort, but solely her loss in moneys numbered actually sustained by his death.

His Lordship also directed the jury to bear in mind the age of the deceased; the chance of his life dropping; probability that if he had lived he would ere long have been doing for himself, and not for his mother or the other children; and further, that the deceased would not have been under any legal obligation to contribute to their support, even though able to do so.

The jury found for the plaintiff, with £10 damages.

No objection was made to the charge.

Leave was reserved to the defendants to move to enter the verdict for defendants, upon the ground that there was no evidence to go to the jury of any damage having been sustained by the plaintiff. A conditional order to that effect having been obtained_

Exham (with whom was Cleary) now showed cause.

The probability of the future value of the services of the deceased.
is the true test of action under Lord Campbell's Act: Duckworth v.
Johnson (a); Franklin v. The South Eastern Railway Co. (b);
Pyne v. The Great Northern Railway Co.(c).

J. Coffey (with whom were Jellett and Neligan), contra.
There is no case in the books in which damages have been given
(b) 3 Hurl. & N. 211.

(a) 4 Hurl. & N. 653.

T. T. 1865.
Exchequer.

CONDON
v.

GT. S. AND W.
RAILWAY.

T. T. 1865. under Lord Campbell's Act, where the deceased was not in receipt Exchequer. of money or wages at the time of his death: Duckworth v. Johnson CONDON -per Watson, B. The evidence of Mrs. Condon and of Mr. Hewv. GT.S.AND W. son do not supply any basis upon which a jury could calculate the value of the services of the deceased, and the loss incurred by his mother. Their evidence comes simply to this, "that he might drive "a donkey-cart-he might be able to earn sixpence a-day; but he never had received any money wages."

RAILWAY.

May 30.

There must be some scintilla of evidence to go to the jury: Avery v. Bowden (a); M'Mahon v. Leonard (b). It lay upon the plaintiff to prove the affirmative; but the evidence is consistent with the deceased aiding or refusing to aid his mother, when he came into the receipt of wages. Some actual benefit from the deceased to the plaintiff must be proved. Annual presents of tea and sugar were held sufficient in Dalton v. The South Eastern Railway Co. (c). The deceased was not bound to support his mother.

PIGOT, C. B.

The only

The rule of law to be applied in this case is clear. question is as to the application of it. It is now established by a series of decisions, first, that, in such an action as the present, the damages must be estimated with reference to pecuniary loss alone; and, secondly, that, in estimating such pecuniary loss, the jury are to consider, when the evidence warrants their so doing, the reasonable probability of pecuniary benefit accruing to the party claiming the damages, if the death of the deceased had not occurred. Such is the rule adopted from former decisions, and laid down in the last of the cases decided on this subject-Pyne v. The Great Northern Railway Co. (d).

In substance the law in the abstract was stated by the learned Judge (Sergeant Armstrong, acting as Judge of Assize) in his charge to the jury, at the trial of this action, in entire conformity

(a) 6 Ell. & Bl. 973.

(b) 6 H. of L. Cas. 993.

(c) 4 Com. B., N, S. 296.

(a) 2 B. & S. 759; S. C., 4 B. & S. 396.