The declaration,-which was on a bond, dated the 8th of June, 1861, by which the obligors, the defendants, bound themselves to the trustees for the time being of the Queenshead Industrial Society, as sureties for the good behaviour of William Pickles while acting as salesman in the service of the society,-contained an averment that "afterwards the said society were duly registered by their then name of the Queenshead Industrial Society (Limited), under and by virtue of the Industrial and ProviNEW SERIES, 35.-EXCHEQ.

dent Societies Act, 1862; and thereupon the Registrar of Friendly Societies of England gave his certificate of such registration; and thereupon the said society. became a body corporate by the name described in the said certificate. That thereupon the name of the society became, by due course of law altered, and the plaintiffs then became incorporated by the name whereby they sue in this action; and the plaintiffs further say, that at the time of the giving and issuing of the said certificate of registration as aforesaid, the said bond and causes and rights of action were then vested in the said trustees, in trust for the said society; and thereupon all things and conditions having happened, &c., the same then became and still are vested in the plaintiffs, under and by virtue and in pursuance of the said act."

The defendants pleaded, inter alia, that the plaintiff's did not become incorporated as alleged, and that the property in the said bond and the right to maintain an action thereon did not vest in the plaintiffs. Issue thereon.

The 6th section of the 25 & 26 Vict. c. 87. (the Industrial and Provident Societies Act, 1862,) enacts, that "the certificate of registration shall vest in the society all

B

the property that may at the time be vested in any person in trust for the society, and all legal proceedings then pending by or against any such trustee or other officers on account of the society, may be prosecuted by or against the society in its registered name without abatement."

The action was tried, at the Leeds Summer Assizes, 1865, before Mellor, J., when a verdict was entered for the plaintiffs for 100, with leave for the defendants to move to enter a nonsuit, on the ground that the action was not properly brought in the name of the society.

Manisty now moved accordingly, contending that the action was wrongly brought, -on the authority of Dean v. Mellard (1) and Linton v. the Blakeney Co-operative Industrial Society (2). In those cases the question was as to the defendants being sued in the name of their newly-incorporated body, but the same principle is to be applied in this case where the new corporation are plaintiffs; for it cannot be supposed that the statute has provided for the transfer to the new corporation of the rights of the trustees without at the same time transfering their liabilities. In any case, the right of action upon this bond is not "property" within the meaning of the 6th section of the act.

POLLOCK, C.B.-We are all of opinion that there should be no rule in this case.

BRAMWELL, B.-The contention on the part of the plaintiffs is, that at the time the action was brought the statute had given them a right to bring in their own name an action upon a bond that had been given to trustees for their benefit. That is denied

by the defendants. For my own part, I cannot see any reason why the statute should not give the plaintiffs this right. What reason can there be why the beneficial owners of a thing-I will not call it property-cannot bring the action in their own names? But it is said that we must not interpret the act of parliament according to our notion of what it should be, but according to what it is. And what is it? The 6th section says, "The certificate of registration shall vest in the society all the

(1) 15 Com. B. Rep. N.S. 19; s. c. 32 Law J. Rep. (N.S.) C.P. 282.

(2) 34 Law J. Rep. (N.s.) Exch. 211.

property that may be at any time vested in any person as trustee for the society." That must mean that it should give them something more than they had before; and on the supposition that before they had an equitable interest, it must be that they should now have a legal interest.

Then we are told that this bond, or the cause of action upon it, is not a "property." Now, "property" is not a term of art, but it is an ordinary English word. It is to be understood in its popular sense, and it is quite certain that "property" includes the debts and claims that a man has upon others, which the law calls "choses in action"; and when one sees that all legal proceedings pending by the trustees are to be continued in the name of the company, it is impossible to suppose that they cannot initiate proceedings in their own name, the property having been vested in them. It is clear that an action brought by the trustees upon a bond before the act might have been continued in the name of the company.

The two cases cited, in my opinion, have no application. If there had been a provision in the statute that the certificate of registration shall impose upon the society all debts formerly due by any person on account of the society, then those two cases would have been in the same situation as the present one is. But there is no such provision. There is no general imposition of liability on the society for the debts due from individuals on account of it, as there is a general vesting of the property in the society.

But I also think that the question arises upon the record, for if this debt is not a property within the statute, it could not vest as alleged in the declaration, which therefore contains an erroneous proposition of law, and ought to have been demurred to, rather than traversed. It seems to me, therefore, that the learned Judge at the trial was quite right in directing the verdict for the plaintiffs, and that the defendant's objection is not a well-founded one.

CHANNELL, B.-I am very much disposed to think that, if there be any objection at all, it is an objection upon the record. To decide the case on that view, however, would be taking a very narrow ground. I think the broader view may be

the railway did not cross the highway as alleged. Issues thereon.

At the trial, before Blackburn, J., at the Leeds Summer Assizes, 1865, the following facts appeared in evidence. Near the Batley Station, between Leeds and Dewsbury, on the defendants' railway, the line crosses a footpath on the level; and this footpath the deceased was using at the time when she met with her death. Before stepping on the line the foot passengers have to pass through a swing gate on a bank some few yards from the railway, and at this gate a person cannot see more than thirty yards along the line in the direction of Leeds, the view being somewhat obstructed by the pier of an arch by which the Great Northern Railway is carried across the defendants' railway; but at the point where a passenger would step on the line after approaching it from the swing gate, there is a clear view of 300 yards up and down the line in either direction.

On the 9th of December, 1864, the deceased, having passed through the swing gate, was seen by one Joseph Dean waiting at the side of the railway till a goods train from Dewsbury to Leeds had passed the crossing; he called out to her twice that there was a train coming in the other direction (which she could not see for the passing train); but she did not hear, and crossed immediately after the goods train had gone by, and was at once knocked down and killed by the express train from Leeds which passed at that moment along the other line of rails.

It was proved that caution-boards were erected near the crossing; also that thirtysix passenger trains passed the spot daily, besides goods and other trains. There was no person stationed there by the company to warn foot passengers of trains being due.

The Judge asked the jury whether, assuming that the law cast upon the defendants the obligation of taking all reasonable precautions, the defendants ought reasonably to have stationed a man at the crossing to warn people of the danger; and, secondly, if they thought that a reasonable precaution, whether the absence of such a man was the cause of the accident. The jury found a verdict for the plaintiff, and Blackburn, J. having reserved leave to move to enter a nonsuit if the Court should think there

was no reasonable evidence to go to the jury,

Overend obtained a rule accordingly, and

Manisty and Kemplay now shewed cause. -There was evidence of negligence in the company in not taking reasonable precautions to protect the public footway, for although the legislature has authorized them to cross it on the level, they are not thereby exempted from their common law liability. If they abuse their privileges so as to endanger life, they are guilty of negligence. In Bilbee v. the London, Brighton and South Coast Railway Company (1), where a foot passenger was killed under circumstances very similar to those of the present case, the defendants were held liable. The company must not be allowed to set a trap for the public-see Ford v. the London and South-Western Railway Company (2), per Erle, C.J. No general rule of law can be laid down as to when the state of things is such as to call for unusual precautions; that must be in each case a question for the jury.

Overend (Maule with him), in support of the rule. It was the duty of the Judge, if he saw no reasonable evidence of negligence, to tell the jury so. There is no obligation cast upon the company to guard the footpath. There is a difference in this respect between a footway and a turnpike road. Bilbee's case (1) was that of a carriageway, although the case did not turn upon that (3). The danger here was obvious, and the case is governed by Wilkinson v. Fairrie (4). The company used all necessary precautions, and there was nothing undone by them which they ought to have done. They cannot prevent the public from crossing the line. (He was then stopped.)

POLLOCK, C.B.-In this case it is said that the learned Judge should not have left the matter to the jury, as if there was any negligence on the part of the company. Now the railway appears to have been in a straight line for 100 yards on either side

(1) 18 Com. B. Rep. N.S. 584; s. c. 34 Law J. Rep. (N.S.) C.P. 182.

(2) 2 Fost. & F. 730.

(3) The 8 & 9 Vict. c. 20. s. 47. refers to turnpike roads. See note (6) to the next case, page 9. (4) 32 Law J. Rep. (N.S.) Exch. 73.

of the crossing; and we must take it that the legislature saw there was no mischief in allowing a footway to be crossed on a level by the railway at that point. Then there does not appear to me to be anything in the circumstances and the occasion to make it incumbent on the defendants to have a watchman at the spot, or to take any other special precaution, and I therefore think there is no evidence of negligence, and that the rule ought to be made absolute to enter a nonsuit.

BRAMWELL, B.-I am entirely of the same opinion. It is very easy to use general expressions, and to impute "negligence" (which is the word commonly used) or "wrong" generally to the defendants, and to say that they ought to have had some person stationed for the purpose of actually detaining the deceased when there was imminent danger to her, as one should restrain a person from committing suicide. But let us look at the actual facts of the case, and see whether there is any reason why a person should be placed in danger from the circumstance of the gate being where it is. It is said, that a man standing at the gate (which is on a bank), he cannot see a train unless it is within 30 yards of the level crossing; well, but when at the gate the passenger has to go some yards further down the bank before he reaches the railway, and when he gets on a level with the line, he then, before stepping on the line, as I understand, sees 300 yards in each direction. That is a little more than the sixth of a mile, and a train running at 30 miles an hour would take twenty seconds to traverse the sixth of a mile. Now, having regard to the width of the line, is it necessary that there should have been anybody there to tell the deceased that she would be quite safe if she would only take common caution? Why warn people of that which they can see if they will only take the trouble to look about them? Then, it is said, here the trains are double, and they meet each other at this very point, and therefore there should be somebody to warn people. To warn people to do what? If they will not take the trouble to think, not only on railways, but on ordinary roads, that when on one side of the road they must have their eyes open to what is going on on the other side of the road-if people forget for

the moment what they are about, are they to be warned? To me, it seems too much to say that the community at large can, by reason of their own folly and carelessness, impose such a duty on a company. It would be a very mischievous thing if they could do so. The consequence would be, that at every part of a railway or a canal or a road, wherever people's improvidence might put them into danger, somebody ought to be stationed to say, "Exercise your common sense, and do not cross, or you will cross at your peril if you do!" I am very much inclined to think that all regulations and provisions framed for the purpose of taking care of people when they ought to take care of themselves, are mischievous.

The deceased, supposing it was all safe when the first train had passed on one side, and without looking to see whether another train was coming on the other, stepped down, as though she believed there was no danger in the way. Now, it is manifest to me that the deceased brought this on herself: not only was there no negligence on the part of the company in this case-nothing wrong; not only was there not anything that they could reasonably have provided with a view of preventing the mischief; but, had the deceased used the ordinary caution that I have suggested, I doubt whether she would have been hurt. I am therefore of opinion that this rule should be made absolute.

I do not treat Bilbee v. the London and Brighton Railway Company (1) as an authority. I do not mean that it was not rightly decided; but it establishes no precedent, and lays down no principle. The learned Lord Chief Justice there seems to have intended to guard against its being cited as an authority. One can readily understand that if a railway is made with a curve so abrupt that a person cannot see the approach of a train, or if there be a tunnel in a curve, so that one could not see through the tunnel, in such a case a passenger might say, "No care on my part would warn me of the danger.' He must stop there for ever unless there is somebody to tell him. That is all the case of Bilbee v. the London and Brighton Railway Company (1) seems to have decided.

Here it is manifest to me that if this