Commissioners acting under the enclosure Act; and manifestly the upper part of the brook would not be public to all persons. I doubt whether the widening and deepening it, or altering the sides of the banks, was a making of it. But if it were a sewer made by the Commissioners, it was made by them under the local Act; in one part of the case it is said that the Commissioners set it out. As a juryman I should find that means that it was made by their authority; but if they did it themselves, a jury would say that it was done with the sanction of the landowners. If therefore it comes within the 43d section as a sewer, it also comes within one of the exceptions, either as made by persons for their own profit, or as made and used for the purpose of draining or improving land under a local Act.

SHEE, J.-This stream was not, for its whole length at any rate, a *903] sewer within the meaning of sect. 43 of *stat. 11 & 12 Vict. c. 63; and, if it were, I should be clearly of opinion that it was within one of the exceptions in that section.

Judgment for the defendants. (a)

(a) Error has been brought upon this judgment.

ALLDAY v. The GREAT WESTERN Railway Company. Nov. 2. Railway Company.—Railway and Canal Traffic Act, 1854, 17 & 18 Vict. c. 31, s. 7. -Unreasonable condition.-Delay.—Over-carriage.

1. A railway Company issued a consignment note for the carriage of cattle from 0. to B., one of the conditions of which was, "the Company are not to be amenable for any consequences arising from detention or delay in or in relation to the conveying or delivery of the said animals however caused:" held an unreasonable condition within the first proviso in sect. 7 of The Railway and Canal Traffic Act, 1854, 17 & 18 Vict. c. 31. 1 C. P. Rep. 97.

2. Semble, a condition that a railway Company shall not be amenable for any damage arising from over-carriage, however caused, is also unreasonable.

THIS was an action against the defendants as common carriers for not delivering within a reasonable time certain beasts which had been bailed to them. There was a second count for conversion.

Pleas. First. Not guilty. Second. To the first count, denial of the bailment.

On the trial, before Keating, J., at the Warwick Summer Assizes for 1864, it appeared that, on the 13th November, 1861, the plaintiffs delivered some beasts to the defendants at their station at Oxford, to be carried to the Bordesley Station, Birmingham, for the market there, under the following consignment note, signed by the plaintiff.

"Consignment note signed by sender.

"Cattle, Sheep, Pigs, (reduced rates).

"To the Great Western Railway, Oxford Station.

*904]

"Received from Allday of

"November 13, 1861.

the undermentioned *animals

on the conditions stated below, and at special reduced charge below the rates authorized by law.

"To be sent to Bordesley Station.

"Special conditions.

"The loading and unloading is to be performed by the sender, and

any assistance voluntarily given by the Company's servants to be at the risk of the owner. The Company are not to be subject to any risk in receiving, loading, forwarding on transit, and unloading, nor to be amenable for any damage actual or consequential arising from suffocation, from being trampled on, bruised or otherwise injured, from fire or any other cause whatsoever, nor for any consequences arising from overcarriage, detention or delay in or in relation to the conveying or delivery of the said animals however caused.

"The Company is not bound to send the animals by any particular train, or to carry or deliver them within any certain or definite time, or in time for any particular market. If on the arrival of cattle and other animals at their destination no one shall be ready to receive the same on behalf of the consignee, the Company will, at the discretion of the superintendent of any station, send such animals into yards or other convenient places at the expense and risk of the sender or consignee, and if not claimed within seven days the same will be sold to defray expenses and pay charges. In order to guard against disappointment the public are recommended to give two clear days' notice of their intention to send cattle from any station, so that the Company may if possible provide trucks. And, to afford time for receiving and loading such cattle and stock, they should be at the station not less than two hours before the departure of the train by which they are intended to be conveyed.

"Free passes for drovers to take charge of cattle and other animals will be allowed according to the Company's regulations.

"N. B. The conditions cannot be altered or dispensed with by any person whomsoever, and are applicable to the whole distance carried over the Great Western, the Bristol and Exeter, the South Devon and the South Wales Railways, and any other railway in connection therewith or either of them."

Instead of delivering the cattle at the Bordesley Station, the train by which the defendants sent them did not stop there, but took them to the Hockley Station, Birmingham, which is farther on, in consequence of which delay the plaintiff, who ultimately found them there, did not receive them until it was too late to bring them to the market at Birmingham, and the cattle were injured by having been kept for several hours in the trucks without food or water.

It was objected by the defendants' counsel that they were protected

by the condition in the consignment note, but the learned Judge, holding it an unreasonable one, directed a verdict for the plaintiff, with leave to the defendants to move to enter a verdict. The damages were taken by consent at 157.

*Field moved accordingly.-The defendants are protected by *906] their contract from the consequences of any injury that may have occurred to these cattle. "The Railway and Canal Traffic Act, 1854," 17 & 18 Vict. c. 31, s. 7, enacts, "Every such Company as aforesaid shall be liable for the loss of or for any injury done to any horses, cattle, or other animals, or to any articles, goods, or things, in the receiving, forwarding, or delivering thereof, occasioned by the neglect or default of such Company or its servants, notwithstanding any notice, condition, or declaration made and given by such Company contrary thereto, or in anywise limiting such liability; every such notice, condition, or declaration being hereby declared to be null and void: Provided always, that nothing herein contained shall be construed to prevent the said Companies from making such conditions with respect to the receiving, forwarding, and delivering of any of the said animals, articles, goods, or things, as shall be adjudged by the Court or Judge before whom any question relating thereto shall be tried to be just and reasonable: &c.' The section then provides, that the Company are not to be liable beyond a limited amount, in the event of loss of or injury to animals, unless the value be declared at the time of the delivery to the Company and extra payment made, the proof of the value to be on the person claiming compensation; and no special contract respecting the receiving, forwarding, or delivering of any animals, articles, goods, or things as aforesaid shall be binding unless signed by the person delivering such animals, &c. Here was no injury from delay, as the plaintiff received the cattle after they arrived. The statute provides for injury done to the animals by the default of the Company, who in this case only carried them a little too far. [CROMPTON, J. *907] -Then how much farther than their destination may a Company carry cattle or goods with impunity? In the present case could they have carried the cattle to Newcastle or Edinburgh?] That would not be reasonable. [He cited Peek v. The North Staffordshire Railway Company, 10 H. L. C. 473.] [COCKBURN, C. J.-Here the mischief is the immediate consequence of the neglect of the defendants. Suppose they left some perishable commodity exposed to the rain on a wet night, that would be an injury to the thing, and occasioned by the fault of the Company. CROMPTON, J.-Suppose fruit sent to the North is spoiled before it comes there. COCKBURN, C. J.-The construction of the defendants would indeed cripple the statute.]

COCKBURN, C. J.-There ought to be no rule here. If the question had rested on the point as to how far the statute applies in case of loss in consequence of over-carriage, I should have been strongly disposed to grant a rule. But it is not necessary to go into that question, for the defendants' counsel admits there was evidence of injury to the cattle from delay. He relies, however, on the special contract, signed no doubt by the plaintiff, and then the question arises, is that contract reasonable? Certainly not: for it is not merely that the Company will not be responsible for delay, not only from over-carriage generally, and not limited to accidental circumstances independent of delay caused by the

Company, but they claim absolute immunity from all injury arising from delay caused by their own negligence. This I take to be an unreasonable condition, unless something appears which might make it inequitable in the sender to seek to exact from them the full extent of the ordinary carrier's liability. Suppose a Company say, "We are entitled to charge a certain rate of carriage:" if so, of course [*908 they are liable to the liability of common carriers. But then this Company say, "We make this special contract, we will carry these animals for a lower price if you will release us from the liability attached to carriers, and will take your chance of the goods arriving at their destination." If a man enters into such a contract as that, it is unreasonable to say he is not bound by it. But although the expression "reduced charge" occurs in this contract, it does not appear to have been used with reference to a greater rate by which the sender might have gained additional security. The condition is, on the face of it, therefore, unreasonable, and the learned Judge at the trial was right in so holding.

CROMPTON, J.—I am of the same opinion. It is the most unreasonable thing ever heard of for a Company to say to a party, "Although you agree with us to take your cattle to A. B., we will send them two hundred miles farther." To sustain his argument, Mr. Field must go the length of contending that the Company have a right to say this. Then it is argued here was no loss or injury done to the cattle. But I am clearly of opinion here was an injury done to them directly and proximately from the act of the Company. MELLOR and SHEE, JJ., concurred.

Rule refused.

*The QUEEN v. PURDEY. Nov. 12.

[*909

Quarter Sessions.—Appeal.—Costs.--Convicting justices.—5 G. 4, c. 83.—12 & 13

Vict. c. 45.

A person convicted as a rogue and vagabond under stat. 5 G. 4, c. 83, s. 4, appealed to the Quarter Sessions under sect. 14 of the Act, having given notice of appeal to the convicting justices as required by that section. No one appearing to support the conviction, it was quashed. Held, that the Quarter Sessions were authorized by stat. 12 & 13 Vict. c. 45, s. 5, to award costs against the person who prosecuted the appellant, and could not award them against the convicting justices.

WILLIAM ASHLEY having been convicted before certain justices of the peace, as a rogue and vagabond, under stat. 5 G. 4, c. 83, s. 4, for having been found upon a certain enclosed yard in the occupation of James Purdey for an unlawful purpose, gave the convicting justices notice of appeal to the Quarter Sessions of Yarmouth, under sect. 14, which enacts"Any person aggrieved by any act or determination of any justice or justices of the peace out of Sessions, in or concerning the execution of this Act, may appeal to the next General or Quarter Sessions for the county, riding, division or place in and for which such justice or justices shall have so acted, giving to the justice or justices of the peace, whose act or determination shall be appealed against, notice in writing of such appeal, and of the ground thereof, within seven days after such act or determination, and before the next General or Quarter Sessions, and entering within such seven days into a recognisance, with sufficient surety

before a justice of the peace for the county or place in which such person shall have been convicted personally to appear and prosecute such appeal; and upon such notice being given, and such recognisance being *910] entered into, such justice is hereby empowered to *discharge such person out of custody; and the Court at such General or Quarter Sessions shall hear and determine the matter of such appeal, and shall make such order therein as shall to the said Court seem meet, and in case of the dismissal of the appeal, or the affirmance of the conviction, shall issue the necessary process for the apprehension and punishment of the offender, according to the conviction.'

No one appearing to support the conviction the Quarter Sessions quashed it, with costs to be paid by James Purdey to the appellant under stat. 12 & 13 Vict. c. 45, s. 5, which enacts, "Upon any appeal to any Court of General or Quarter Sessions of the peace the Court before whom the same shall be brought may, if it think fit, order and direct the party or parties against whom the same shall be decided to pay to the other party or parties such costs and charges as may to such Court appear just and reasonable."

Keane, in Easter Term, 1864, obtained a rule to quash the order of Quarter Sessions on the ground that that Court had no jurisdiction to award costs against the prosecutor, but should have awarded them against the convicting justices.

Bulwer showed cause. The decision of Hill, J., in Reg. v. Smith, 29 L. J. M. C. 217, is expressly in point against the present application, and is based on a previous decision, also in this Court, of Rex v. The Justices of Hants, 1 B. & Ad. 654 (E. C. L. R. vol. 20). [COCKBURN, C. J.-The decision of the justices is appealed against, not the justices themselves. CROMPTON, J.-It would be curious if the Judges of every Court whose decision is appealed against should be looked on as parties to the appeal.]

*911]

Keane, in support of the rule.-The respondent was no party to the appeal, unless for the purpose of costs, but the order is not divisible, and must be affirmed or disallowed in toto. Here the justices are the real parties to the appeal, and as such are entitled to be heard on it. [He mentioned that in Middlesex there is a fund set apart for the payment of costs awarded against justices on appeals.] Sects. 1 and 2 of stat. 12 & 13 Vict. c. 45, only apply to notices of appeal, not to summary convictions. [CROMPTON, J.-There is this difficulty in your way. Purdey was the person who laid the complaint, and therefore the real prosecutor. Sect. 18 of stat. 11 & 12 Vict. c. 43, enacts that in all cases where there is a summary conviction the justices of the peace may in their discretion inflict the costs of the complainant on the party charged, and in case they dismiss the information or complaint they may award costs to the defendant to be paid by the prosecutor or complainant. Stat. 12 & 13 Vict. e. 45, s. 5, gives the same power to the Quarter Sessions as to the costs of an appeal.] Sects. 5 & 6 show that costs are only given to the person entitled to receive notice of appeal. [He also referred to sect. 7.] [COCKBURN, C. J.-The former statute is expressly referred to in sect. 5 of stat. 12 & 13 Vict. c. 45.] Rex v. The Justices of Hants, 1 B. & Ad. 654 (E. C. L. R. vol. 20), was a conviction under The General Turnpike Act, 3 G. 4, c. 126, s. 55, for taking too large a toll; there the informer was the person appealed against, and by that