action of damages-Held that the Railway Companies were liable for the conduct of their servants, and damages awarded with costs.

This was an action to recover damages from the railway companies, defenders, on the averment that the pursuer, having purchased a third class railway ticket at Helensburgh for Glasgow, had been put into a carriage with third class painted thereon by the railway officers-that at Cowlairs, where the tickets are collected, additional fares had been demanded, on the allegation that he had travelled in a different class from that for which he had paid that he was, on his refusal to leave the carriage, forcibly ejected, and taken to the police-office at Springburn, and afterwards tried before the Police Court at Glasgow, on the charge of obstructing the officials, but acquitted.

The record was closed on the summons and a minute. To save time and expense, a joint minute was given in, admitting certain averments of the pursuer, and the formality of certain documents founded on.

Thereafter a proof was led, and parties' procurators heard thereon, and the Sheriff-Substitute pronounced the following Interlocutor:

Having heard parties' procurators on the concluded proof and whole cause, and made avizandum, Finds, in point of fact, that, on 10th July, 1862, the pursuer, along with James Scott, an acquaintance, purchased and received tickets at the Helensburgh Station of the line of railway formed between that town and Glasgow, to be conveyed thence as passengers by the train which started for Glasgow on said day, at half-past one o'clock afternoon, for which tickets ninepence each was paid, and entitled them to travel by an open thirdclass carriage: Finds it admitted by the defenders, in the joint minute No. 12 of process, that the Helensburgh line unites with the Edinburgh and Glasgow Railway at the Cowlairs Station, and that they form one system, and are known and described as the Edinburgh and Glasgow and Helensburgh Railway, and are managed and wrought by the two companies who are called as defenders to this action: Finds that the pursuer and Scott arrived at the platform of the Helensburgh Station when said train was starting, and they at once approached a third-class carriage, which they endeavoured to enter, but, the doors being locked, they were unable; whereupon a railway servant in attendance opened one of the doors and admitted them: Finds that said train consisted of first-class, third-class close, and third-class open carriages, but it is not proved that the third-class carriages were distinguishable by any classifying title of name, or otherwise than by their construction, and that into which the pursuer and Scott were admitted was a third-class close carriage, and the cost of each ticket for which was fifteenpence: Finds that the defender Hunter was guard of said train, and it was his duty, before starting it, to have examined that each passenger was furnished with a proper ticket, and that duty he had performed before the pursuer and Scott appeared on the platform, at least before they were admitted to said carriage; and not having observed them enter it, he did not ask to see their tickets: Finds that the pursuer and Scott continued in said carriage during the journey, and they were seated in it when the train reached Cowlairs about half-past two o'clock: Finds that the defender Patmore, who was principal ticket-collector at this station, proceeded to collect tickets from the passengers, and on applying to the pursuer and Scott he received from them the tickets with which they had provided themselves; but seeing that they had arrived in a superior description of carriage to that for which they had apparently paid, he demanded the difference of fare, which, however, was refused, the pursuer and Scott both explaining under what circumstances they happened to be there: Finds that Patmore desired them to leave said carriage, which request they also declined to comply with; whereupon, in terms of the second bye-law for the guidance of passengers, No. 7/4, and as authorised by sec. 67 of the Act 17 and 18 Vic., cap. 58, assisted by the defenders Hunter and M'Math,

whom he called to his aid, he forcibly extruded the pursuer and Scott from the carriage, and then kept them in custody while the train moved onwards towards the Glasgow Queen Street Station; but, in a few minutes afterwards, the defenders had the pursuer and his friend removed as prisoners to the police office at Springvale, when the circumstances which had occurred were related to the inspector of police there, and a charge of disorderly conduct, and for resisting the railway servants, at Cowlairs, in the discharge of their duty, was entered in the police-books against them; and they were only liberated on leaving a pledge of 10s 6d each, that they would appear and answer this accusation: Finds that the pursuer, in consequence of the information so lodged against him, was on the 11th of said month of July charged on the complaint of the Procurator-Fiscal, acting in the Glasgow Central Police Court, with said offences, and was then, and on the 17th and 24th of said month, at successive continuations of the diet, tried before the magistrate presiding in said Court; but after hearing evidence, the magistrate found the pursuer not guilty: Finds that, in respect of the said forcible extrusion from the carriage, and of the pursuer's apprehension, detention, and trial, the pursuer instituted this action, in which he claims damages from the railway companies, and from the individual said proceedings and charge were illegal, oppressive, unwardefenders, all jointly and severally, or severally, in respect rantable, malicious, and groundless: Finds it admitted in said minute that the individual defenders were, on the occasion libelled, the servants of the defenders, the railway companies, and acted for behoof of both: Finds it pled in defence that the individual defenders, for whose conduct it is alleged that the railway companies are responsible, were warranted in all they did by the facts, and were authorised by the provisions of said statute, which defence the defending railway companies have also urged: Finds, in point of law, that the defenders, Patmore, Hunter, and M'Math, had reasonable cause for their share in the matters complained of; and having lodged information of the particulars of the occurrence with the inspector of police at Springvale, they were not answerable for the subsequent proceedings at the instance of the Procurator-Fiscal of the Glasgow Police Court: therefore sustains the defences for these defenders, and assoilies them from the conclusions of the action; but in the circumstances finds no expenses due: and with respect to the remaining defenders, the Edinburgh and Glasgow, and Glasgow, Dumbarton, and Helensburgh Railway Companies, Finds that their station-master, or other servant at Helensburgh, having sold and received payment for two tickets by which the pursuer and Scott were entitled to travel to Glasgow, it was incumbent on the defenders, or their servants, to see that they were accommodated in the description of carriage for which they had contracted; and as the locked door of a thirdclass carriage was opened, and the pursuer and Scott having been shown into, or allowed to take, their seats for the journey, without inspection asked, or inquiry made, concerning the description of tickets which they had procured, and that being superior to the kind of carriage for which they had taken tickets, the neglect and cause of mistake lay with the defenders' said servants at Helensburgh, and not with the pursuer or his fellow-traveller: Finds that neither the pursuer nor Scott acted fraudulently in travelling in said carriages, and were justified in maintaining their places when challenged by the railway companies' servants at Cowlairs, because they had been admitted to take their seats at starting by others of said servants, whose duty it was to see the passengers appropriately accommodated; and the occurrences at Cowlairs, of which the pursuer complains, were the result of misunderstanding occasioned by said original neglect and fault: Finds that the defenders are liable for their servants' said neglect and fault, and in reparation and damages to the pursuer for the injurious treatment which he experienced at Cowlairs, and until the charge was made against him at Springvale Police Station; but these defenders are not responsible for the steps pursued by the Procurator-Fiscal: Finds that ten pounds ten shillings, in name of reparation and damages, is a fair and reasonable amount for such injuries; and in that sum accordingly finds the defenders, the Edinburgh and Glasgow, and the Glasgow, Dumbarton, and Helensburgh Railway Companies liable to the pursuer jointly and severally: Finds them also liable in his expenses; allows an account thereof to be lodged, and remits the same to the auditor to tax and report, and decerns.

NOTE.-The failure of the railway company's servants at Helensburgh to attend to their duties occasioned the unfortunate incidents out of which this action has arisen.

The proof has shown this sufficiently. In the first place, it is plain that the pursuer and his acquaintance, Scott, reached to the railway station so late that the train was on the eve of starting before they purchased their tickets or appeared on the platform. They may or may not have had good reason for being late, for that does not appear; but it was one of the railway rules that passengers should have had their tickets taken out at least five minutes before the time stated for starting. If that was a useful and necessary rule, it was in the power of the defenders' servants to have enforced it, by issuing no tickets after that, and thus they would have avoided what followed. In the next place, by reason of this irregularity, the doors of the carriages of the train had already been locked, and Hunter, the guard, had examined passengers' tickets before the pursuer and his friend arrived, but when they did come, he failed to examine their tickets, although he was bound, under the railway rules, before leaving a terminal station, to be most particular in this respect (No. 14, § 13, p. 45). He and the station-agent were also culpable in permitting the pursuer and Scott to travel without having the proper ticket for the carriage in which they rode (No. 14, $ 14, p. 10). And in the third place, the defenders' servant, Manson, was to blame for opening the locked door of a wrong carriage, and admitting the pursuer and Scott, without ascertaining by what description of carriage they were entitled to travel, and without seeing that they possessed proper tickets. No doubt Manson excused himself for this omission, by say ing that was not his business, because he was a pointsman; but he wore the railway uniform-he was in possession of a carriage door-key--he was on the platform assisting in the preparations for starting, and interfered with the guard's duty; so that if he did not himself examine the tickets, he was bound to have acquainted Hunter, that he might have done so.

These are acts of inattention to rules established by the defenders themselves, the observance of which was calculated to prevent passengers falling into mistakes about the carriages into which they might enter, and so save them from rough treatment and merciless extrusion at the hands of other servants of the company at the ultimate terminus, who might be ignorant of the circumstances, and inclined to regard as a fraud the accidental presence of passengers in higher-classed carriages than they had paid for or intended to travel in. But it was contended that closed carriages and open carriages are, from their construction, easily distinguishable; and as the pursuer's ticket bore on its face that he was to travel in an open carriage, it was his duty, being late in arriving, at once to proceed to the proper description of carriage, and he was culpable in not doing so.

This argument, however, is untenable. It is proved that the carriages composing the train had only two titles painted on them-"First Class" and "Third Class." Some of the third-class carriages were enclosed externally by wood-work and windows, but the interior compartments were open from end to end; others were unenclosed externally, and into one of these it appears the pursuer and his friend should have gone. The difference between third-class carriages would be very noticeable by the defenders' servants or by passengers who often travelled on the line, but to strangers it might not have been so perceptible. In fact, it is within the experience of most railway travellers, that on some lines there happen much dissimilarity even in carriages of the same class; old first-class carriages, for example, presenting appearances of inferiority to new, so obvious, as aptly enough to mislead inattentive passengers into the belief that they belonged to a lower grade.

On the Helensburgh line errors had often occurred, and of the same kind into which the pursuer and his friend were suffered to fall.

The defender Patmore depones that before the occurrence in question it frequently happened-indeed, scarcely a day passed that passengers who ought to have travelled by the open carriages and had tickets for such carriages, were found in the third-class closed carriages; and no wonder, for the nice distinction of open and close carriages, when both were titled "third-class," was not so apparent as to avoid the accidental blunders of passengers, who were left to judge for themselves, stumbling into the one description of carriage instead of the other. Such mistakes, however, should not have taken place,

and would not if the defenders' servants had properly attended to their duties, and had seen, before starting, what tickets the passengers possessed and in what carriages they had taken seats.

The frequency of these errors forms an unpleasant comment on the careless performance, by their own servants, of the railway company's regulations; and as the ticket-collector depones that he always compelled passengers found in wrong carriages (except the pursuer and his friend) to pay the difference, the remissness referred to became a serious public wrong, and humble passengers must thus have been forced to pay, whether convenient or not, extra fare, which at the outset they did not contemplate.

In making these strictures the Sheriff-Substitute is not insensible that frauds by unprincipled passengers are occasionally committed or attempted on the companies in the course of journeys, and he fully concurs in the justice aud necessity of stringent regulations and of ample powers being allowed railway officers to enforce them, and so repress such frauds. But while this is conceded, a moment's thought will show that frauds by passengers travelling in superior carriages will be very rare indeed, if the guards at starting do their duty by examining the tickets; and during the journey, where there is reasonable ground of suspicion, occasionally requiring production of tickets, especially when there are intermediate stations at which passengers are taken up. If proper exactness in this respect is given, and it is known that the companies' servants are attentive to the regulations, few, if any, instances of this kind of fraud would or could happen. It is also satisfactory to learn, from the proof, that a better mode of making the difference between open and closed third class carriages had been adopted since the occurrence in question, and what formerly were open third class carriages, are now titled “fourth class.”

The defenders who were stationed at Cowlairs have been relieved of liability for their conduct on the occasion libelled, because they were not participant in any act of carelessness leading to the occurrences complained of. The ticket-collector having found the pursuer and his friend in a wrong carriage, did no more than his duty (however hurtful to passengers) in demanding the additional fare; he could not, of course, know under what circumstances they happened to be there, and having, or at least exercising, no discretion, he was entitled to assume that the pursuer and Scott were wilfully travelling in the superior carriage, and to act accordingly, dealing with it as a case of fraud, and in defence, that is the interpretation the defenders give to the pursuer's conduct, and as authorised by the provisions of the Edinburgh and Glasgow Railway Company's Act, 7 and 8 Vict., c. 58, s. 67, on finding that the pursuer and his friend would neither pay the additional fare, nor leave the carriage. Patmore was not in bad faith, and he did not act illegally in calling the other defenders to his assistance, and they were bound to aid him in forcing the pursuer and Scott from the carriage. Thus far they seem to have been protected, and however reasonable the pursuer's proposal was, that they should be allowed to complete their journey, and at the terminus explain the circumstances to the company's superior officers, and if that did not satisfy them, to resign themselves into the hands of the police. Yet Patmore and the Cowlairs officers were empowered by the statute cited to arrest the pursuer and his friend there. Having taken this course, and had fraud been still the offence which Patmore thought of charging, he was bound, under that statute, to have taken the pursuer, with all convenient despatch, before a magistrate to have the complaint heard and determined; but on removing the pursuer and Scott from the carriage, Patmore and his assistants conveyed them to the Springvale Police Station, and accused them, not of fraud, but of disorderly conduct, and annoying and obstructing the railway officers at Cowlairs in breach of the peace. Now this was not the offence for which they were extruded from the carriages, if guilty of any offence, that had been committed before the pursuer was asked to leave. The disorderly conduct and obstruction happened in removing them. If there was no fraud committed, or intended on the defenders, the railway companies, then Patmore and his assistants had no authority from the statute, nor were they otherwise authorised, to force the pursuer out of the carriage; and in resisting the extrusion, the pursuer acted on the defensive, and the railway officers were unlawfully invading him. If guilty of fraud, then, of course, the pursuer and his friend had super

added to that the additional offence of disorderly conduct, and obstructing officers, and probably a breach of the peace. The Sheriff-Substitute is of opinion that before the latter offence could have been competently entertained, the primary question, whether there had been an act of fraud completed or attempted, ought first to have been settled. At any rate the charge made by Patmore was as stated, and he left the police authorities to entertain it, or leave it alone. The Fiscal, in the exercise of his judgment, prosecuted the offence; but the magistrate, after trial, found the pursuer not guilty -having, as it appears, incidentally entered on an investigation of the circumstances attending the alleged fraud. For the trial and its consequences, after lodging the information, neither Patmore nor the other individual defenders are responsible; and in making the charge of breach of the peace and disorderly conduct, it cannot be said that either of the individual defenders represented their employers, the railway companies; but for their actings at Cowlairs the companies are responsible. It is true that these officers are not themselves personally answerable, because they acted in good faith, and in the discharge of the duties assigned to them (from which construction of conduct probably the geard Hunter ought to be excepted); but the defenders, the railway companies, are liable for the original remissness and fault of their servants at Helensburgh, which was the origo mali, and also for the consequences flowing from that fault, when their other servants, performing their duties at Cowlairs, were the instruments of injuring the pursuer, as complained by him.

The only way by which this responsibility could be avoided was by showing that their defence was true, and that the pursuer and his friend, Scott, were found, as alleged, in defraud of the railway company travelling in a "third-class closed carriage." But beyond the fact that they were in the wrong carriage-which is a statement made by the pursuer himself in the summons-no proof whatever of fraud has been offered.

The mere circumstance of being in a wrong carriage does not necessarily infer fraud; and servants of a railway company stationed as Patmore was, and having his powers, ought to possess and exercise much discretion in dealing with such

cases.

Instances may be conceived of a passenger travelling without any ticket at all, yet who could not be regarded as acting in defraud of the company. One such instance happened in Hamilton v. The Caledonian Railway Company, 18th Feb., 1857, 19 Sess. Cases 457; and there the Lord President's language is appropriate and just. "If a person is in use to travel," his Lordship observes, "without a ticket, and the officers of the company know it, he is no doubt travelling in violation of the regulations, because they say that no person shall enter a carriage without a ticket; yet if he is so allowed to travel, and pay for his ticket at the end of his journey, and if there is a usage to that effect, he is a lawful passenger in the sense of this issue." In the course of an argument addressed to the Court, in which counsel contending for the railway company, that a passenger without a ticket was like a trespasser who got up behind a coach, was asked by the Court whether, in determining what a lawful passenger was, the railway carried its principle of law to the case of a person having a third-class ticket going into a first-class carriage? To which the counsel replied, that he was unable to answer that. There was a difficulty about it, H. p. 459. This suggestion of the Court covers an extreme case of the same description as occurs in the present. To apprehend, as guilty of fraud, a passenger either in the circumstances of Hamilton's action or the instance suggested by the Court, would have been perilous to the railway company. The intention of the passenger is the element to be considered; and that, in general, could best be judged of by a prudent and cautious servant on the spot, enjoying a power of discretion from the company. Illustrations of instances where fraud was not inferred from apparent violation of bye-laws and regulating statutes, will be found in Glen v. Hall, 23d May, 1857, 2 Hurleston & Norman's Exch. Reports (vide Lord Campbell's speech, p. 388), where a passenger travelled with a ticket accidentally stamped with a different date from that on which he travelled; and Goff v. The Great Northern Railway Company, Queen's Bench, 13th Feb., 1861, 7 Eng. Jurist, New Series, p. 286, where a passenger who had inadvertently used a wrong return ticket, and was arrested as for a fraud, but found entitled to damages,

Looking to the proved circumstances, therefore, and what is required to justify an imputation of fraud, the Sheriff-Substitute is of opinion that there did not exist any such charge to the pursuer or his friend.

No expenses have been awarded the individual defenders, because, although they have been found exempt from legal liability, yet they were the hands by whom wrong was done the pursuer, and the pursuer was warranted in including them in his action, their powers and authority being undisclosed and unknown.

Besides the arresting and removal from the carriage of the pursuer and his friend for one description of offence, and delivering them to the police on a different charge, gave the pursuer sufficient reason to believe that their whole proceedings were irregular and unauthorised.

In the case of Hunter, the guard, he is, if possible, less entitled to costs, as there existed grounds which, on the appli cation of strict principles, might have involved him personally in reparation.

The case was appealed to Sheriff Sir Archibald Alison, who issued an interlocutor, adhering to the interlocutor and dismissing the appeals.

SHERIFF COURT OF FIFE-CUPAR. (MR SHERIFF TAYLOR.)

JOHN MILLER AND JOHN M'GREGOR-Competing for Trusteeship on the sequestrated estate of John Ronald, merchant, St Andrews.

Sequestration-Competition-Trustee-Personal Objections. AT the meeting of creditors for electing a trustee, Messrs Miller and M'Gregor were nominated, but previous to the vote being taken, Mr Miller stated the following personal objections to Mr M'Gregor:

"That the said John M'Gregor is conjunct and confident with the bankrupt, and otherwise so mixed up with the bankrupt's obligations as to render him ineligible for the duties of trustee." Notwithstanding this objection, there voted for Mr M'Gregor, and Mr Ireland, banker, St Andrews, as trustee in succession, creditors with claims to the amount of £1399 5s 14d, and for Mr Miller to the amount of £696 10s 23d, giving an apparent majority in favour of M'Gregor of £702 14s 11d. Caution was not offered for Mr Ireland, the trustee nominated in succession to Mr M'Gregor. Both parties lodged notes of objections in terms of the statute:—

MR MILLER'S OBJECTIONS.

Personal Objections.-The said John M'Gregor is personally disqualified for the office of trustee under the present sequestration, in respect―

1. He is conjunct with the bankrupt.

2. He is confident with the bankrupt, and vice versa. He has identified himself generally with the conduct of the bankrupt's business, and in particular he appears as joint obligant with the bankrupt on bills claimed under the sequestration, which ex facie are joint bills, and has been in the habit of receiving consignments of the bankrupt's goods and selling the same by public auction. The bankrupt has been in the practice of acting as clerk to him.

IV. The vote of Ruthven & Grange, general merchants, Trongate, Glasgow, is objected to on the following grounds:

2. There is no mention in the oath or relative state of an arrestment used by the claimants, in the hands of the agent for the Commercial Bank, St Andrews, on the

2. The bill of £41 17s founded on is not held by the said firm, it bearing to have been negotiated, the term of maturity not having arrived, and its indorsation not being cancelled.

was granted. No valuation of said arrestment. XII.-The vote of Charles Greenwood & Co., of London, is objected to, because—

1. No account of the goods said to be sold and delivered, amounting to £32 8s 6d, are given,

2. The account produced not only gives no particulars

V.-The vote of D. Miller & Son, stationers, Edinburgh, is objected to.

1. Because the bill of £10 1s produced, falling due at 13th December, 1863, is not identified as the bill of similar amount contained in the account annexed to the oath. 2. Because (assuming that the bill is the one founded on in the account) discount from the date of sequestra tion to the date of maturity has not been deducted.

VI.-The vote of J. & J. Fleming, hardware merchants, Dundee, is objected to because

1. The date of the affidavit is partly in figures. 2. The account referred to is not summed up. 3. The bill of £6 6s 9d produced is neither described in the oath or relative account so as to be identified, nor is docquetted as relative to the claim.

3. The bill of £34 10s referred to is not produced. 4. The said bill is not held by the deponent.

5. The oath has been altered so as to be insufficient. Mr Nicholson for Mr Miller, and Mr Mitchell for Mr M'Gregor, were heard at length upon these objections; and in answer to the personal objections stated against Mr M'Gregor, Mr Mitchell gave the following explanations:

1. Mr M'Gregor is not conjunct with the bankrupt, in respect that he is only his nephew-in-law.

2. Denied that Mr M'Gregor is confident with the bankrupt. The only obligation of the bankrupt's upon which the candidate appears, ex facie, a joint obligant, is a promissory note for £200 by Mr M'Gregor and the bankrupt, held by the Clydesdale Bank. In the claim

5. The sum of £4 16s in the account is not an entry, being perfectly blank except as regards the date. VII.-The vote of Thomas Duncan & Son, brush manufacturers, Edinburgh, is objected to.

Because the acceptance founded on is not produced. VIII.—The vote of Crowden & Garro, brush manufacturers, Falcon Square, London, is objected to.

is made of Mr M'Gregor's obligation, in respect that the bankrupt, to the "deponent's knowledge," is the primary obligant. At the date of the amalgamation of the Eastern with the Clydesdale Bank, the bankrupt had a cash credit with the former upon which M'Gregor and another party were cautioners. The second cautioner having become bankrupt, it was agreed by the agent for the Clydesdale Bank to accept Mr M'Gregor's and the

IX.-The vote of Thomas Bickett Merry, importer and warehouseman, Glasgow, is objected to because—

1. The particulars of the goods alleged to have been furnished at 29th October, 1863, and amounting to £3 14s, are not given.

due under the cash credit. In support of this explanation, a copy of the cash credit bond was produced, and Mr Mitchell, for Mr M'Gregor, offered to lead evidence in proof of his explanation. As to the consignment of goods made by the bankrupt to Mr M'Gregor, it was explained that goods to the amount of about £50 had,

rupt to Mr M'Gregor, who was the only auctioneer in St Andrews, and a regular account of these sales was given by Mr M'Gregor in a claim he had lodged in this sequestration. The bankrupt had on ten occasions

1. The whole account is for general entries for goods or interest on bills without any particulars.

2. There is no connection in point of amount, or otherwise, between the two bills produced and the

account.

3. The true state of accounts between the claimant and the bankrupt cannot be discovered or checked, if wrong, from the claim produced.

4. The date of the oath is partly in figures. XI.-The vote of John Sewell & Co., merchants, London, is objected to, because-

ceased to act thus for the last three years or thereabouts. 3. The explanation given above is sufficient answer to the objection contained under this head.

4. No count and reckoning necessary between the trustee to be confirmed and Mr M'Gregor, there being no dispute that the account of the sales of these consignments, as rendered by Mr M'Gregor, is correct. There are no obligations on which the bankrupt and Mr M'Gregor are jointly liable.

additional and totally different objections.