of the Company will be considered to have ceased, when such carriers shall have received the goods for further conveyance. And the Company hereby give notice that any money which may be received by them as payments for the conveyance of goods by other carriers beyond their said limits, will be so received only for the convenience of the consignors, for the purpose of being paid to such other carriers, and will not be received as a charge made by the Company upon the goods in the capacity of carriers beyond the extent of their own railway and the Company hereby further give notice that they will not be responsible for any loss, damage, or detention that may happen to goods so sent by them, if such loss, damage, or detention occur beyond their said limits.

"Eleventhly, and in respect of all goods suffered to remain upon the Company's premises, or placed in shed or warehouse, or not removed from the Company's wagons, whether so remaining by direction of the consignor or consignee, or while awaiting an opportunity of further transmission, or until the consignee can receive the same, the Company hereby give notice that such goods will, after forty-eight hours from their arrival (except bricks, ashes, coal, or coke, and suchlike mileage goods, which are to be chargeable from twenty-four hours after their arrival), be subject to a charge of 4s. per diem for demurrage, Sundays not included. Goods will be warehoused at a reasonable rate, at owner's risk; the goods, nevertheless, being so held by the Company at the risk as aforesaid of the consignors, consignees, or owners thereof.

*793] *Twelfthly, that the Company will not carry acids in carboys, baskets (light), boilers (iron), castings (light), chains, furniture, glass (plate), glass (stained), gunpowder, hats, iron (wrought and castings), jewellery, joiners' work, lace, lucifer matches, machinery, money, musical instruments, naptha in carboys, organs, pictures, picture-frames, prints or engravings, statuary, straw (manufactured), sulphuric acid, teazels, toys, turpentine in carboys, upholstery, vitriol in carboys, goods (light), except upon a special agreement, and at the risk of the owners.

"Thirteenthly, that the above conditions apply to all goods received by the above-named Company at all or any of their offices or warehouses, wherever situated; and, as to all goods intrusted to them, they will only agree to carry them subject to the above conditions and to all other the rules and regulations of the said Company.

Fourteenthly, that the Company will not undertake, excepting by special agreement, to convey any less number at one time than three beasts, ten calves, fifteen pigs, or twenty sheep to any Bristol and Exeter station; and not less than three calves, six pigs, or ten sheep to any Great Western or South Devon station; nor will they convey cattle, pigs, or sheep in any number for a less distance than seventeen miles on their railway, except by special agreement. And they hereby give public notice that they will not be responsible for any loss, accident, or injury in respect of any animal conveyed upon their railway.

"Fifteenthly, goods conveyed at special or mileage rates must be loaded and unloaded by the owners or their agents, and the Company will not be responsible for any risk of stowage, loss, or damage, how

ever caused, nor for discrepancy in the delivery as to either quantity, number, or weight, nor for the condition *of articles so carried, nor for detention or delay in the conveying or delivery of them, however caused.

[*791

"Sixteenthly, that they will not consent to carry any goods, unless at the time of their being delivered at either of their stations for conveyance a declaration or receiving-note be presented to the Company's clerk or officer of the station, setting forth the goods to be carried, according to their correct denomination, their weights and number, and the address of the party to whom the same are to be delivered. And, if any goods shall be untruly or incorrectly declared or described in any such declaration or receiving-note, so as to affect the rate to be charged for the carriage thereof, the Company will not be responsible for any loss or damage to such goods."

The affidavit then went on to state, that the deponent on behalf of the complainants objected to sign such papers; but that, as the defendants refused to receive or forward the complainants' goods unless the complainants or their servants signed the said papers, the deponent, on behalf of the complainants, and in order to prevent the stoppage of their trade, had been compelled to sign them or allow the complainants' porters to sign them on their behalf; and that the deponent was informed and believed that the Company did not require persons who delivered their goods at the Company's receiving-offices at Bristol to sign the said conditions, or any other conditions,-the Company's object being to induce persons to deliver their goods at the Company's receiving-offices instead of at their railway station, in order to get the profit of the cartage from such receiving-offices to their said station, and that there is a considerable profit to the complainants in the cartage of goods to the said station.

The affidavits of George Jones, John Jones, and Arthur Williams stated that the deponents had been *in the habit of delivering goods at the receiving-offices of the Bristol and Exeter Rail [*795 way Company situate in High Street, Bristol, for the purpose of being carried to various places on the Bristol and Exeter Railway, and had never been required to sign any paper containing the conditions referred to in Marston's affidavit, or any other conditions.

The affidavits filed in answer to the application consisted of those of Henry Dykes, the traffic superintendent, William Harwood, the secretary, and John Barry Marwood, the chief accountant of the Bristol and Exeter Railway Company, and of James Cresswell Wall, described as a common carrier, and John Goodland, a clerk in his employ. The three former denied in general terms that any preference or advantage was given by the Company to any person over Messrs. Baxendale, that the Company were not in any way interested in nor had they any control over the office in High Street, Bristol, kept by Wall, and described as "the receiving-offices of the Bristol and Exeter Railway Company," but treated Wall as the "sender" of all goods coming to the railway from that office; and that the complainants, when bringing goods to the railway for carriage on the line, were not required to sign any conditions or to conform to any regulations which were not enforced against all other persons bringing goods there.

Wall's affidavit was to the following effect:-I carry on the business of a common carrier for hire in, amongst other places, the city of Bristol, and, in connection with my so carrying on such business, I have an establishment in High Street, in the city of Bristol, known as "The Universal Goods and Parcel Office and City Cloak Room." A portion of my business is, to receive at such establishment goods and parcels intended for transmission by the Great Western, the *796] *Midland, and the Bristol and Exeter Railways, and for shipment, and to cart the goods and parcels so received to railway stations or to the ship's side. I seek and obtain a profit by the cartage of the goods so received and intended for transmission by railway or for shipment. The sums received by me for the cartage of any goods intended for transmission to any station on the railway or branch railways of the defendants, are paid entirely by the owners of such goods, and not in any way directly or indirectly by the defendants. The defendants, in respect of any goods carried from and to any station on their railway or branches, make a railway charge from station to station which does not include any sum for cartage to or from such stations. The defendants do not in any way participate in the moneys so received by me for cartage; and, in respect of all goods carted by me to the Bristol station of the defendants' railway, I am required to send a forwarding note or special contract precisely similar in all respects to that required from the complainants; and damages and losses are settled between the Company and me upon the footing of the conditions of the said forwarding note. For the convenience of the public, and in order to protect them from excessive charges by carriers for the cartage of goods to and from the railway stations, it is the practice of railway Companies to arrange with parties to cart goods to and from the railway stations at moderate charges, not exceeding certain fixed rates, and to allow the parties so arranging to describe themselves as agents, and their establishments as receiving-offices of such Companies. I have heard and believe that the London and North Western and the Midland Railway Companies adopt this practice, and, having entered into some such arrangement with the complain

ants, allow them to describe themselves as agents, *and their *797] establishments as receiving-houses, of such Companies. The defendants adopt this practice, and have made an arrangement with me, under which I agree not to charge for the cartage of goods to or from the defendants' stations at (among other places) Bristol, more than moderate charges, not exceeding certain fixed rates; and the defendants allow me to describe myself as agent, and my establishments, including the one in High Street, Bristol, as receiving-houses of the defendants; and I do so describe myself and some of my establishments. The defendants have not anything whatever to do with my establishment in High Street, either as to expense, management, or in any manner whatsoever.

This was confirmed by the affidavit of John Goodland.

The rule having been enlarged, further affidavits were filed on both sides. On behalf of the complainants, John Marston, a clerk in their employ at Bristol, deposed that he had been in their employ as their sole agent at Bristol for five years; that, during the whole of such time, communications coming from the goods department of the Bris

tol and Exeter Railway Company in respect of the complainant's business had been made by James Cresswell Wall, who acted as sole agent and manager of the Company for their goods traffic at Bristol and at all the other stations upon the line, and all letters written to the deponent on behalf of the Company in relation to the goods traffic had always been signed by Wall or by a clerk or servant in his employ on behalf of the said Company; that, in communicating as agent of the complainants with the Company, the deponent had never known or communicated with any other person as manager of the goods traffic on their line than Wall, and, whenever he had made verbal complaints to or inquiries of either Mr. Dykes, *who he believed was the superintendent of the passenger traffic only upon the line, Mr. Harwood, the secretary, Mr. Marwood, the chief accountant, or any other official of the Company, in respect of goods traffic, he had generally been referred to Wall, who thereupon acted on behalf of the Company: and that the deponent had been informed and believed that Wall employs and pays all the clerks and porters in the goods department of the Bristol and Exeter Railway Company, and that the control and management of the said department was left solely to Wall at Bristol and at all other stations on the line, and that he alone makes all arrangements for the receiving and forwarding goods.

[*798

The statements contained in the last-mentioned affidavit were corroborated by William Garton, a carrier at Bristol, John Parsons, a timber merchant, and others: and they were not controverted by the counter affidavits.

Kinglake, Serjt., and Montague Smith, Q. C., now showed cause.The affidavits in answer to this application show distinctly that all goods received by the Company to be carried on their line are received subject to the same conditions as those exacted from the complainants. The only question therefore remaining, is, whether the receiving-house of Wall is the office of the Company. This is distinctly denied by the affidavit of Wall, and that of his clerk, Goodland. What gives rise to the ambiguity, is, that Wall acts for the Company in the capacity of superintendent of the goods traffic, as well as being an independent carrier. But his duties and liabilities in each character are totally distinct. [ERLE, C. J.-Suppose goods were burnt whilst at the receiving-office of Wall, against whom would the remedy of the owner be?] If against the *Company, Wall would be bound [*799 to indemnify them. [KEATING, J.-Do your affidavits show that the Company derive no pecuniary advantage from allowing Wall to hold himself out as their agent and traffic manager?] Not in distinct terms: but there is enough upon the affidavits to show that the Company do not participate in the profits derived from the cartage from the receiving-office in High Street to the railway station.

Bovill, Q. C., and C. Pollock, in support of the rule. It is sworn, and not denied, that Wall is held out as the agent, and his office as the receiving-office, of the Company, and that he employs and pays all the clerks and porters connected with the goods department at all the stations on the line. No explanation being given of this, as between the public and the Company, the office in High Street must be assumed to be their office, or at all events they are estopped from C. B. N. S., VOL. XI.-30

saying that it is not. At this office, then, the Company receive goods to be carried on their lines without requiring the consignors to sign the conditions which they impose upon the complainants. A delivery at the receiving-office of the Company is a delivery to the Company. A clear case of undue preference, it is submitted, is therefore made out, and the rule must be made absolute.

ERLE, C. J.-I am of opinion that the complainants are entitled to have their rule made absolute. The contest between the parties was one of fact, viz., whether Wall was the agent of the Company for receiving and forwarding goods on their line,-whether persons delivering goods at his office or receiving-house for that purpose had the security of the Company's liability or only that of Wall. It is clear to all of us, that, if Wall *was authorized by the Company to *800] hold himself out as their agent, as between the consignors of the goods and the Company, the goods are received by the Company. The passage in Wall's affidavit, in which he says "the defendants allow me to describe myself as agent and my establishments, including the one in High Street, Bristol, as receiving-houses of the defendants," compels me to come to the conclusion that the Company are liable. The question is whether Wall was a carrier distinct from the Company, or really their agent for receiving and forwarding their traffic. Reading that passage, it seems to me that Wall's office is, as to third persons, to all intents and purposes the office of the Company, and that the effect of the arrangement was to give Wall an advantage over Messrs. Baxendale as to the carriage of goods which the law does not warrant. On that ground, I think the rule must be made absolute.

The rest of the Court concurring,

Rule absolute, with costs.

*801

DAWSON v. HARRIS and Another.

Jan. 21.

In an action for the wrongful dismissal of a clerk, with a count for wages, the plaintiff obtained a verdict on the first count, and, no claim being urged on the second count, the verdiet on that was entered for the defendants. A rule for a new trial was afterwards granted, the plaintiff's costs of and occasioned by the trial already had, and of and occasioned by this application, to abide the event of this cause." On the second trial the defendants obtained a verdict on the first count, and the plaintiff (who had then discovered that there had been a mistake in the calculation of the wages due to him at the time of the dismissal) had a verdict on the second count, for 41. 198. :

Held, that the event contemplated by the rule being the event in respect of which the contest took place upon the first trial, the plaintiff was not entitled to the costs mentioned in the rule.

THIS was an action against the defendants for the wrongful dismissal of the plaintiff, a clerk in their employ. Besides a count for the alleged wrongful dismissal, there was a count for money due to the plaintiff for wages.

The cause was tried before Erle, C. J., at the sittings in London after Trinity Term, 1859, when a verdict was found for the plaintiff, with 1427. 18s. 4d. damages, on the count for the wrongful dismissal, no claim being insisted upon on the second count, on which therefore a verdict was entered for the defendants.