the sender of the cattle whereby, in consideration of the carriage at the reduced rate, he undertook to relieve the company "from all liability in case of damage or delay, except upon proof that such loss, detention, or injury arose from wilful misconduct on the part of the company's servants," and he also agreed to the "conditions and regulations on the back of this note." The first of those conditions was, "That the company are not to be liable in respect of any loss or detention of, or injury to the said animals, or any of them, in the receiving, forwarding, or delivery thereof, except upon proof that such loss, detention, or injury arose from the wilful misconduct of the company or its servants."

In the ordinary and usual course of business, cattle under the above circumstances would be delivered at Gloucester station after their arrival directly the consignee applied for them.

The cattle arrived at Gloucester late in the evening of the 7th of April, and were unloaded by the defendant's servants and placed in cattle pens. On the following morning a drover in the employment of the consignee duly applied for the cattle, but in consequence of the defendants' servants at Waterford, who received the amount paid by the plaintiff for carriage, having negligently omitted to enter the cattle on the consignment note as "carriage paid," the defendants' servants refused to deliver the cattle, alleging that the carriage was not paid.

During the time the cattle were detained at Gloucester station they were exposed to the inclemency of the weather and damaged to the amount of 351.

On the 9th of April the plaintiff demanded the cattle. The defendants' manager then said there had been a mistake by reason of the negligence of the defendant company's clerk at Waterford about the carriage, but that the plaintiff could have the cattle, and they were accordingly handed over to him at Gloucester station.

At the conclusion of the plaintiff's case, the counsel for the defendants submitted that, having regard to the terms of the consignment note, the plaintiff should be nonsuited.

The judge declined to nonsuit, and the defendants' counsel calling no witnesses, judgment was given for the plaintiff for 35., on the ground, that although no wilful misconduct on the part of the defendants' servants was proved, their conduct amounted to a refusal to deliver, which was not covered by the terms of the consignment note.

The question for the opinion of the Court was, whether, upon the facts, the judgment was erroneous in point of law.

Page, for the defendants. First, the cattle were carried on the terms of the consignment note, which was duly signed. The plaintiff is therefore bound by the conditions. They are in consideration of an alternative reduced rate, and are fair and reasonable. Peek v. North Staffordshire Ry. Co., 10 H. L. C. 473; Lewis

v. Great Western Ry. Co., 3 Q. B. D. 195; Haynes v. Great Western Ry. Co., 41 L. T. (N. S.) 436; Ashenden v. London, Brighton and South Coast Ry. Co., 5 Ex. D. 190. In Lewis v. Great Western Ry. Co., 3 Q. B. D. 195, Bromwell, L.J., suggested that even without the exception of wilful misconduct the conditions would be good, as there is an alternative rate. The delay in delivering the beasts was "detention" within the terms of the conditions, and the railway company are therefore not liable. The most common cause of such delay is a dispute about charges, as in the present case. The conditions would certainly have covered detention pending a dispute whether 67. or 77. was due for carriage. The word "detain" includes any kind of detention, for it means "to keep that which belongs to another" (Johnson's Dictionary). This form of consignment note has been held to apply to a case where the transit was ended and there was misdelivery of the goods. Hoare v. Great Western Ry. Co., 25 W. R. 631. The "detention" was "in delivering" the beasts. The 7th section of the Railway and Canal Traffic Act, 1854 (17 & 18 Vict. c. 31), under which the conditions are made, is not confined to transit only. Hodgman v. West Midland Ry. Co., 6 B. & S. 560; 33 L. J. (N. S.) Q. B. 233. The words "receiving, forwarding, and delivering" in that section are used in this consignment note. If the plaintiff contends that although he might not be able to sue on contract he may sue in tort, the answer is found in Morritt v. North Eastern Ry. Co., 1 Q. B. D. 302, where the Court of Appeal decided that a carrier is not deprived of the protection of the Carriers Act (11 Geo. 4, and 1 Wm. 4, c. 68, s. 1) by the fact that the loss of or injury to the goods happens after they have been negligently taken by him beyond their point of destination. The conditions here would cover misdelivery, à fortiori, a mere temporary detention. Secondly, the detention was caused by a mistake, and no "wilful misconduct." The misconduct, if any, was in the clerk at Waterford; the wilfulness, if any, in withholding delivery at Gloucester. But the two acts cannot be so combined as to be "wilful misconduct" within the meaning of the exception. There is no evidence of it. Haynes v. Great Western Ry. Co., 41 L. T. (N. S.) 436.

Jelf, Q. C., for the plaintiff. The conditions do not apply to this case. If they do they are unreasonable. It may even be admitted that conditions such as these, when they do apply, may extend to something beyond the transit of the goods. But in Hoare v. Great Western Ry. Co., 37 L. T. (N. S.) 186; 25 W. R. 631, that point was given up, there being evidence of wilful misconduct. Moreover the word "detention" did not occur there. The authorities do not govern this case, which is simply that of a company setting up an unfounded claim of lien, and then seeking the protection of a note having in it the word "detention," which they would construe so as to cover every kind of withholding.

Misdelivery by mistake, and refusal to deliver under a wrongful claim, are totally different. Misdelivery is a not uncommon incident of carriage which well may happen, and be anticipated by conditions. But the parties cannot be said to have contemplated and stipulated against liability for such an act as the blunder of a clerk, followed by an unjustifiable withholding of goods after they arrived safely at their destination. [He was stopped.]

GROVE, J.-I put out of the question for a moment the words "wilful misconduct" used in the consignment note, because although mere honest forgetfulness such as that of the clerk at Waterford, if he had simply forgotten to write "carriage paid" on the note, might not be "wilful misconduct," yet I am not prepared to say that there was no "wilful misconduct" in the company refusing to deliver the cattle. That would be a different question. But I rest my decision at present on the words used in the condition, and do not think that, if fairly and reasonably read, the case comes within it. The condition is that the company are not to be liable in respect of any loss or detention of or injury to the said animals, or any of them, in the receiving, forwarding, or delivery thereof, except upon proof that such loss, detention, or injury arose from the wilful misconduct of the company, or its servants. Does the word "detention" there apply-not merely to some stoppage in transit, or mistake by which the cattle truck had been sent into a wrong siding or delivered in course of transit to the wrong person, or any such mistake causing delay, but-to the withholding of the cattle by the company under claim of a supposed right on which they insisted? I think that is not "detention" within the meaning of the condition, or that anybody would naturally suppose that it was so. It was not any "detention," which had delayed or prevented their arrival. The word "detention" alone may, no doubt, apply to an absolute refusal to deliver, grounded on some cause which is supposed to give a right to refuse delivery. But I think that the word "detention" as used in this condition does not mean any detention by absolute refusal, but by something that prevents the company from delivering the cattle at the proper time. The learned counsel who argued for the defendants candidly, fairly, and well, did not stop short of saying that, under the conditions, the company would not be liable for any loss however occasioned, for any withholding, though wilful and determined, for any injury, though by reckless and intentional acts of the company's servants. I think that would be an extravagant meaning to put on this clause; with such a meaning the condition would be unreasonable. It is suggested that Bramwell, L.J., has said that where there are alternative charges it might be reasonable. But I do not think that he could then have had in his mind such a meaning as is now sought to be put on the word "detention" in this case, viz., withholding under a groundless claim to

retain the chattels after they have arrived at their destination, and are ready for delivery. I do not think that is detention "in the receiving, forwarding, or delivery." It was not in the course of delivery, but an absolute refusal to deliver at the end of the transit, the beasts having arrived and being ready for delivery, and the company having, perhaps, nothing more to do than to let the consignee take them. I do not think that such a ground for withholding goods as that alleged is imported in the meaning of the condition. It is the first time this point has been decided. Perhaps it might be said that it is the first time a railway company have had the courage to raise it. As to the cases cited, they may be distinguished. I was a little embarrassed by the case of misdelivery. But I think there is a distinction. If the servants of the company took the goods to the wrong person, either in the transit or at the end of it, that, I think, might be "detention" or delay" within the meaning of the condition. But this is no such

66

case.

LOPES, J.--I am of the same opinion. What was the act of the defendants? It was not an act which could be called a misdelivery of the cattle. It was not an act committed by sending the cattle along the wrong line, or into the wrong siding. It was an unjustifiable refusal by the defendants to deliver the cattle at the proper time. Can that possibly be a "detention in the delivery" within the meaning of the condition? [The learned judge read it.] I quite admit that misdelivery or delay in transit would come within the condition, but I think that what happened in this case was altogether dehors that clause. It is unnecessary to decide the question as to misconduct; if we had to do so, I think we should be bound to take into consideration not only what happened at Waterford, but the conduct of the company when the cattle reached Gloucester. Although, on the application for them, it would have been easy at once to ascertain by telegraph that the carriage was in fact paid, the company do not seem to have done so, and the cattle were obstinately withheld during at least a day and a night.

Judgment affirmed.

A testator devised his residuary real estate (which comprised land in respect of which a notice to treat had been given by a railway company) to trustees in trust for his wife for life, and after her death to assure the same to his two married daughters, in equal shares, for their separate use as tenants in common, with a gift over in favor of their issue in events which did not happen; and "for the purpose of division" he empowered his trustees to sell his residuary estate; and declared that his trustees might receive payment for all business done by them in relation to the estate.

The testator's wife, his two daughters and their husbands, survived the testator: and after the death of the widow the trustees sold and conveyed the lands to a railway company for a price which had been determined by the valuation of two surveyors, as provided by the 9th section of the Lands Clauses Act, 1845, the trustees having first, for the purposes of such valuation, appointed one of themselves as the surveyor on their behalf. One of the testator's daughters disputed the validity of the sale, and brought an action to restrain the company from taking or using the land:

Held, first, that whether the power of sale under the will was still in existence or not, the trustees did not exercise it, but professed to convey the land under the provisions of the Lands Clauses Act, and therefore the validity of the sale must be determined without reference to the power.

Secondly, that the trustees, being trustees of the land for femes coverts who were absolutely entitled for their separate use, were not persons competent to contract with a railway company for the sale of the land under the 7fh section of the Lands Clauses Act, 1845, and that the sale was for that reason invalid.

Thirdly, that the sale was also invalid by reason of the appointment by the trustees of one of themselves as surveyor to value the land under the 9th section of the Lands Clauses Act, 1845.

Per Jessel, M. R.: The mere fact of trustees having the price fixed by two surveyors, and then agreeing to sell for that price, instead of first agreeing to sell for a certain price and then testing the price by the valuation of two surveyors, would not in itself invalidate a sale under the 9th section of the Lands Clauses Act.

Per Jessel, M.R.: The power of sale given to the trustees by the will did not determine on the death of the tenant for life, but might have been exercised within a reasonable time afterwards for the purpose of dividing the property.

THIS was an appeal from a decision of Vice-Chancellor Hall, 16 Ch. D. 703. [S. C. 1 Am. and Eng. R. R. Cas. 583.

Thomas Hopkinson, by his will, dated in May, 1874, appointed J. Gaines, W. R. M. Glasier, and G. H. B. Glasier, his executors and trustees, and gave his residuary real and personal estate unto and to the use of his trustees, upon trust to pay the income to his wife Caroline during her life, and after her death to transfer, assign, or otherwise assure the same unto his two daughters, Caro