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Judgment was (on July 5) delivered by WILLES, J.-This was a rule to enter a nonsuit argued before my brothers Byles, Keating, and myself, whose judgment I am to pronounce.

The action was for an assault committed upon the plaintiff by a porter in the employment of the defendants, who wrongfully removed the plaintiff from a railway carriage. No objection was raised as to the form of action. The jury found for the plaintiff and the only question is, whether there was evidence upon which the jury might find such an authority to the porter as would make the defendants liable.

The plaintiff having his ticket and being in a carriage on the line, enquired of the porter whether he was in the proper train for his destination. The porter fancied that he was not and so informed him, and the train having either started or being about to start, the porter pulled the plaintiff out of the carriage, and in doing so seriously hurt him. In fact, the porter was wrong and the plaintiff was in a right carriage. The porter, in order to exculpate the company, contradicted the plaintiff's statement and also said that he had no authority to do what was alleged. The jury, however, disbelieved him and believed the plaintiff, and the leave reserved is founded upon his evidence. Evidence was given of the rules of the

(5) 40 Law J. Rep. (N.s.) Q.B. 55.

(6) 7 Exch. Rep. 36; s. c. 21 Law J. Rep. (N.S.) Exch. 9.

(7) 8 B. & S. 616; s. c. 36 Law J. Rep. (N.s.) Q.B. 294.

(8) 39 Law J. Rep. (N.s.) C.P. 241.

(9) 10 Bing. 385; s. c. 2 Law J. Rep. (N.s.) C.P. 79.

(10) 42 Pen. Rep. 365.

(11) 15 New York Rep. 445.

company as to the employment of their servants. The general rule relating to porters was the following:-" 92. Porters are to act under the orders of the clerks in charge, station-masters, station-inspectors and foremen. They are to do the work and attend to whatever business they may have assigned to them, exerting themselves for the good order, regularity and cleanliness of the trains and stations where they are placed and do all in their power to promote the comfort of the pas sengers and the interests of the company." By the byelaw "1. No passenger will be allowed to enter any carriage on the railway or to travel therein upon the railway without having first paid his fare and obtained a ticket, &c.," and then follow regulations for the production of the ticket.

It was argued that there was nothing in the rules or byelaws to give a power of removal, but who is to prevent the pas senger in a wrong carriage from being "allowed to travel therein upon the railway"? Can no officer remove him? The same question might arise as to a person trespassing upon the railway and upon the question being put during the argument to the counsel for the company, who is to remove such a trespasser? the answer was "send for a policeman." That policeman, however, would have no more power than the porter, indeed, not so much, for against wilful trespassers the porter would have a power of removal under the Act for Regulating Railways, 3 & 4 Vict. c. 97. s. 16. If the rules do not impliedly give such a power, which it seems they do, it is at least a question for the jury, whether a porter, who is to turn his band to anything, exercising upon a railway, in the supposed "interests of the company," the power of removing a passenger from the train, did so under a general authority to remove trespassers.

If the jury found in the affirmative, then the company are liable for an abuse of the authority. It is not sufficient in order to excuse a master to shew that the particular act was wrongful, or even that the servant was warned not to do what . was wrong. In any case of collision in which the master takes no part, he has his remedy against the servant for miscon

duct and breach of authority as between them; although a third person injured by the wrongful manner of an act done by the servant in the course of his employment has his remedy against both the servant and the master. A person who puts another in his place to do a class of acts in his absence, necessarily leaves him to determine, according to the circumstances that arise, when an act of that class is to be done, and trusts him for the manner in which it is done; and, consequently, he is held answerable for the wrong of the person so intrusted, either in the manner of doing such an act or in doing such an act under circumstances in which it ought not to have been done; provided that what was done, was done not from any caprice of the servant, but in the course of the employment. The authorities are collected in the case of The Thetis (12).

The case of Lyons v. Martin (4), was relied upon for the defendants, as furnishing an appropriate illustration. There the master was held not answerable for the act of a servant employed to impound sheep found upon his master's land, but who thought proper to impound sheep found upon a highway out of the land. If he had improperly impounded sheep found upon his master's land, the decision I would have been different.

This comparison of passengers to trespassers, or supposed trespassers, in the form of sheep or otherwise, does not however justly represent their condition. They are for valuable consideration entitled to use the company's line and to be waited upon by the company's servants on their way, and it did sound startling to hear it argued, that because of this right and because of its being wrong to interfere with or injure them, an act done by a servant of the company, though of a class authorised as against a trespasser, gives no remedy to a person in the right. If a porter, roughly and negligently shewing or helping a passenger into a carriage, were to mislead or injure him, he would be acting in the course of his employment within the scope of rule 92,

(12) 38 Law J. Rep. (N.s.) Adm. 42. NEW SERIES, 41.-C.P.

and the company would be liable; and why not for the passengers being, by the same servant acting in the supposed interests of the company, roughly and negligently put out of a carriage where he was entitled to be? The distinction would be a refinement for which the law as yet furnishes no precedent.

There was evidence of an authority to remove a person in a wrong carriage abused by a blundering servant of the company in pulling the plaintiff out of the right one, in the supposed "interest of the company," and the rule to enter a nonsuit ought to be discharged. Rule discharged.

Attorneys-Lewis & Son, agents for Higginbotham & Barclay, Macclesfield, for plaintiff; Cunliffe & Beaumont, agents for Lingards & Rowell, Manchester, for defendants.

1872. Feb. 10, 12. May 27. July 5.

REYNOLDS (appellant) v.

THE LORD OF THE MANOR

OF WOODHAM WALTER (respondent).

Copyhold-Enfranchisement—Timber-

Custom-Deferred Payment-Hardship4 & 5 Vict. c. 35; 15 & 16 Vict. c. 51 21 & 22 Vict. c. 94.

Where the lord of a manor takes proceedings under the Copyhold Acts to compel a tenant to enfranchise, and sets up a special custom entitling him to one-third of the timber, if there be evidence, it is the exclusive province of the Copyhold Commissioners to determine whether the custom is proved, and the Court will not interfere with their decision.

The valuers acting under the second part of 8. 8 of 21 & 22 Vict. c. 94, are not bound to state in their award what proportion of the rent-charge should be deferred, or such particulars as might enable the Commissioners to defer payment of the whole rent-charge or any part thereof.

Though the pecuniary circumstances of the tenant ought not to be taken into account in determining whether there is special hardship under 15 & 16 Vict. c. 51. s. 35, and though the Commissioners inquire into them, and

20

though the Court think, looking to the particular interest, &c., of the tenant, that there is hardship, yet the Court are not at liberty to interfere with the decision of the Commissioners that there is no such hardship.

This was a CASE stated for the opinion of the Court by the direction of the Copyhold Commissioners under 15 & 16 Vict. c. 51. s. 8, and 4 & 5 Vict. c. 35. s. 40, of which the facts are sufficiently stated in the judgment of the Court.

Hurlstone argued for the appellant. Manisty (Herschel with him) for the respondent.

The arguments of counsel are so fully recapitulated in the judgment of Brett, J., that it is unnecessary further to set them forth. Besides commenting on the statutes 4 & 5 Vict. c. 35; 15 & 16 Vict. c. 51; and 21 & 22 Vict. c. 94, counsel referred to Scriven on Copyholds, 5th ed. 293, Co. Lit. 55, Ashmead v. Ranger (1), The Queen v. The Lord of Woodham Walter Manor (2), Whitechurch v. Holworthy (3), Roe v. Jeffery (4), The Earl of Kent v. Waters (5), Crisp v. Bunbury (6), Macdoughall v. Paterson (7), Morrisse v. The Royal British Bank (8), The Queen v. The Tithe Commissioners (9).

Cur. adv. vult.

The judgment of the Court (10) was (on July 5) delivered by

BRETT, J.-This was a CASE stated for the opinion of the Court by direction of the Copyhold Commissioners.

The plaintiff, Jessie Reynolds, was the widow of one Frederick Mansell Reynolds, who had been seised in fee of about 107

(1) 1 Ld. Raym. 551. (2) 10 B. & S. 439. (3) 4 M. & S. 340.

(4) 2 M. & S. 92.

(5) 12 Mod. 317. (6) 8 Bing. 394.

(7) 11 Com. B. Rep. 755; s. c. 21 Law J. Rep. (N.S.) C.P. 27.

(8) 1 Com. B. Rep. N.S. 67; s. c. 26 Law J. Rep. (N.S.) C.P. 62.

(9) 14 Q.B. Rep. 459; s. c. 19 Law J. Rep. (N.S.) Q.B. 177.

(10) Coram Byles, J.; Brett, J.; and Grove, J.

acres of agricultural land and about ten acres of wood, of copyhold tenure, parcel of the manor of Woodham Walter, in the county of Essex, and who had by his will devised the lands to his wife for life, and after her decease to his daughter, her heirs and assigns, for ever.

On the 30th of September, 1869, the testator being dead, the plaintiff was admitted as tenant, and paid upon her admission a fine of 2801., assessed at two years' improved value of the lands. In this manor the admission of a tenant for life is the admission of all tenants in remainder, and there is no special custom; so that, in this case, no fine whatever could be due again until after the death of both tenant for life and tenant in remainder, unless they agreed to alienate. The plaintiff was forty-six years of age, and her daughter was twenty-six. The plaintiff had no interest whatever in the land except her said life interest.

On the 2nd of October, 1869, the lord of the manor commenced proceedings under the Copyhold Acts to compel the tenant to enfranchise the lands. Valuers were duly appointed by the lord and the tenant, and they proceeded to their valuation. The lord claimed to be allowed in the valuation in respect of his interest, as lord, in the timber, and was content that the allowance should be on the basis of his being interested to the extent of onethird of the value of the timber. The tenant's valuer disputed the claim, unless and until the Copyhold Commissioners should decide that there was a special custom in the manor entitling the lord to onethird of the timber. The lord's valuer estimated the compensation to be paid to the lord at an annual rent-charge of 291. 10s., or a present money payment of 754l. 13s. 6d. The tenant's valuer dissented from this, for several reasons which he gave.

1.

Under the above circumstances, the following questions arose, which the Commissioners were requested by the plaintiff to inquire into, ascertain and determine: Whether in the said manor there is any special custom which entitles the lord to claim one-third part of the timber growing and being in and upon the lands of the said manor.

2.

Whether the valuers were not bound to state in their award what proportion of the rent-charge to be paid should be deferred until the next act or event in which a fine would become due to the lord, and also to state such particulars as may enable the Commissioners to defer payment of the whole rent-charge, or of any part thereof.

3. Whether the amount of the fine paid on admission of the plaintiff ought not to form the basis of the commutation of the rent-charge to be paid in respect of the enfranchisement.

The Commissioners met, and the parties were before them. The Commissioners examined the court-rolls, several entries in which are set out in the case (11). No evidence was adduced on the part of the tenant as to the alleged custom. It was contended on her behalf that this was a case in which the Commissioners were bound to prevent hardship and injustice; that a remedy was provided either by s. 28 of 4 & 5 Vict. c. 35, or by s. 35 of 15 & 16 Vict. c. 51; that, under s. 28, they might defer payment of all or part of the rent-charge until the next act or event in which a fine would become due; but the Commissioners would have no juris

(11) The following is an abstract of the entries -13 Car. 1. (1637) two licenses to cut trees, professing to be for fines, which, however, did not appear; 23 Car. 1. (20 June) a license to cut trees; 27 Car. 2. (13 Oct. 1675) an enrolment of a deed licensing a customary tenant within three years to fell timber on his lands for 40s. fine; 10 Ann (4 Apr. 1711) a license to a customary tenant to cut wood to repair tenement; 3 Geo. 1. (19 Mar. 1716) a pardon for cutting without license; 5 Geo. 1. (2 Apr. 1719) a license to cut for a fine, which, however, did not appear; 11 Geo. 1. (12 Oct. 1724) an order to seize lands for cutting trees; 11 Geo. 1. (12 Jan. 1725) a return of seizure; 3 Geo. 3. (19 May, 1730) a license to cut for a fine, which did not appear; 12 Geo. 3. (3 May, 1772) a license to cut on payment of one-third of value, and a payment of onethird value of other timber cut; 18 May, 1790, license to fell for 50l.; 20 May, 1801, license to fell for fine 2l. 188. 2d.; 9 July, 1822, a license to cut on payment of one-third value; 18 Dec. 1840, a license to cut for one-third value as a fine.

diction to do so unless the valuers first found the facts; and that if the valuers found those facts, it was imperative on the Commissioners to defer the payment. It was contended for the lord that s. 28 of the Act of 1841 never applied to enfranchisements; that if it did, it was repealed by s. 2 of the Act of 1858; that the remedy, if any, in this case was under s. 35 of the Act of 1852; but that this was not a case in which hardship or injustice would unavoidably result from the compulsory enfranchisement. It was also contended on behalf of the tenant, but denied on the part of the lord, that the lands were not capable of improvement after enfranchisement in any way in which they might not be improved while they continued copyhold, and that the tenant would not derive any gain, profit, benefit or advantage whatever from the compulsory enfranchisement.

The Commissioners inquired where the tenant resided, what rent she paid, how many servants she kept, and whether she had any other property, and generally into her circumstances, to assist them in determining whether the case was one in which they ought to suspend the proceedings.

The Commissioners decided, first, that there was the special custom alleged; secondly, that the valuers were not bound to state the particulars required; thirdly, that the amount paid by the plaintiff ought not to form the basis of the computation of the rent charge; fourthly, that the evidence which had been laid before them did not establish such a case of special hardship as to justify the suspension of the proceedings under s. 35 of 15 & 16 Vict. c. 51.

The questions for the opinion of the Court were then set out,-1. In case the Court should be of opinion that it is matter of law, whether in the said manor there is any special custom which entitles the lord to claim one-third part of the timber, &c.; 2.-Whether the valuers are not bound to state what proportion of the rent-charge to be paid should be deferred until the next act or event in which a fine would become payable to the lord, and also to state such particulars as may

enable the Commissioners to defer payment, &c.; 3.-Whether the amount of the fine paid by the plaintiff on admission ought not to form the basis of the rentcharge to be paid in respect of the enfranchisement; 4.-In case the Court should be of opinion that it is a matter of law on which the party dissatisfied is entitled to appeal, whether this is a case where any special hardship or injustice would unavoidably result, within the meaning of s. 35 of 15 & 16 Vict. c. 51, and whether the Commissioners were bound to suspend the proceedings for enfranchisement.

It was contended before us by Mr. Hurlstone, on behalf of the plaintiff, as to the first point reserved for the consideration of the Court, that the question whether the alleged custom as to timber was proved was a question of law which this Court must determine; that it was not proved, and that the decision of the Commissioners was wrong; that the lord had no property in the timber; that he was, therefore, entitled to no remuneration in respect of it, unless by the custom of the manor he was entitled to a fine in respect of it; and that there was no evidence or not sufficient evidence to prove such a custom in this case, for that the entries were contradictory and that modern entries could not be relied on. As to the second point, he argued that the valuers were bound to set forth the particulars mentioned in the second question, by reason of s. 28 of 4 & 5 Vict. c. 35, which section, he said, was compulsory and applicable. The statute 4 & 5 Vict. c. 35, he said, provided machinery for commutation of fines and for voluntary enfranchisement of lands within manors; that although section 28 was found in that part of the statute which treated of commutation, and was primarily enacted with regard to commutation, yet that the machinery of it was introduced into the scheme for voluntary enfranchisement by section 63. He then urged that all the enactments of 4 & 5 Vict. c. 35, applicable to voluntary enfranchisements, were made applicable to compulsory enfranchisements by 15 & 16 Vict. c. 51. s. 53. That being so, he said that, although the

c. 51.

application of section 28 to the cases of commutation and of voluntary enfranchisement might be repealed by 21 & 22 Vict. c. 94. s. 2, yet that its application to compulsory enfranchisements was not repealed, because it must be treated as written into the statute 15 & 16 Vict. If section 28 was applicable, he said that it was compulsory, and that the valuers were bound to set forth the particulars mentioned in it. If section 28 was not applicable, he insisted that the Commissioners were bound to act under s. 35 of 15 & 16 Vict. c. 51, because it also was compulsory. As to the third point reserved, Mr. Hurlstone admitted that he could not support the plaintiff's contention. As to the fourth, he urged that the plaintiff, being tenant for 'ife only, could not possibly obtain any advantage whatever by the enfranchisement; that, without enfranchisement, she could not have been called upon to pay any other fine than the one she had paid; that, by the enfranchisement, therefore, she escaped no future fine,-nay more, that she had already paid a fine as for the admission of the tenant in remainder, and was by the enfranchisement virtually made to pay it again; that agricultural land was not more capable of improvement after than before enfranchisement; that she could gain nothing under the circumstances by alienation; that it followed that there was necessarily and inevitably a special hardship in the compulsory enfranchisement; that the Commissioners were therefore bound to act as upon such hardship; that they had refused; and that the matter was a question of law, which the Court must now determine.

It was contended by Mr. Manisty on behalf of the defendant, the lord of the manor, as to the first point reserved, that this Court cannot entertain any question of fact by way of appeal, but only questions of law; that the question whether the custom was proved, was a question of fact; that the only question of law there could be was whether there was evidence of the custom, and that there was evidence of the custom; that the entries were not contradictory, and, if they were, the tribunal which was to try facts must deter

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