Robson v. North Eastern Rail Co. (App.), Q.B. ing up of a train to a final standstill for the purpose of the passengers alighting, amounts to an invitation to alight; at all events, after such a time has elapsed that the passenger may reasonably infer that it is intended that he should get out if he purposes to alight at the particular station." It seems to me that the circumstances of the present case bring it distinctly within the rule laid down in these two sentences; and they are leading sentences in the judgment referred to. In that case, Siner v. The Great Western Railway Company (1) is explained and distinguished as I now distinguish it, and we are warranted alike by authority and by common sense in making the distinction. We are therefore justified in coming to the conclusion that in this case there was evidence of negligence to go to the jury.

MELLISH, L.J.-I am of the same opinion. It is clear law (though Mr. Herschell seemed to argue against it) that a railway company is bound to find reasonable means for passengers to alight at every public station. Also it is law that if an invitation to alight has been given, and an accident ensues from those means being insufficient, there is a prima facie case of negligence on which the jury must decide. Here the plaintiff was invited to alight, and on accepting the invitation was injured; and the fact that the train had gone beyond the platform was in itself, I think, some evidence of negligence. Then the question arises, was the defendant justified in alighting when she did so? If she had got out as soon as the train stopped, and without assistance, the facts would have been the same as in Siner's case. But even then, I should have had great difficulty in saying that the jury were not justified in bringing their own knowledge to bear upon the matter, and it would have been a difficult question whether that case ought to be overruled or not. But here there is evidence that the defendant got upon the step of the carriage, and waited to see whether assistance would come. She saw the station master, who was the only official present, taking out the luggage; and she thought that probably when

that was done, the train would go on. Then was there evidence of such a state of circumstances as might have led, at all events, some reasonable men to suppose that the train would go on as soon as the luggage had been taken out? If there was any evidence of that kind, the question was one for the jury. If the defendant waited for some time, knowing that, in point of fact, trains do not stop long at the stations, it seems to me that she might reasonably suppose that if she did not get out, she would be carried on to the next station. I think, therefore, that there was a question proper for the decision of the jury, and that our judgment should be for the respondent.

BRETT, J.A. The judgment of the House of Lords in Bridges' Case (2) has put an end to a controversy not so much on a question of law, as on the mode of conducting the trial in a case of this description. Some of the Judges thought it right to withdraw the question as much as possible from the jury, and to leave it to the Court to say what is a reasonable amount of care on the part of railway companies. Others thought that, inasmuch as the conduct of passengers and railway officials in these cases is a matter of ordinary life and experience, a jury of ordinary men was the proper tribunal to decide them. The case of Siner v. The Great Western Railway Company (1) was decided in the height of the controversy, and it is sufficient to say of that case that it was decided by Judges who thought the Court was the proper tribunal. But the decision in the House of Lords shews that if there exist any facts affording reasonable evidence for the jury to consider, the case ought to be left to the jury to decide. The facts of this case bring it within that rule. The carriage in which the plaintiff was seated was drawn up outside the platform. If it was reasonable for her to suppose that she must either get down or be carried on to the next station, then, unless there was manifest danger to life, the inconvenience justified her in getting down. The jury might say that the danger was not so transparent but that she was justified in running that not

Pleading-Contract-Illegality or Insufficiency-Statute of Frauds-Judicature Act, 1875-Order XIX. rule 23.

The effect of Order XIX. rule 23, is to require that in all cases where a party intends to rely on the illegality, or insufficiency in law of a contract, whether with reference to the Statute of Frauds or otherwise, he must specially plead such illegality or insufficiency, and it is not sufficient to traverse allegations of the opposite party made in anticipation of objections to the contract upon such grounds.

This was an action tried before Field, J., at Oakham summer assizes, 1876. It was brought to recover a sum of 1247. 168. for sixty-four quarters of barley sold by the plaintiff to the defendant.

The statement of claim alleged a contract for the sale of the wheat by the plaintiff to the defendant, and also (paragraph 3) that the defendant had`" cepted and actually received the said barley."

ac

The statement of defence traversed the contract, and also traversed the acceptance and receipt.

At the trial a verbal contract for the sale of the barley was proved, but the jury found that the defendant had not received it. Thereupon, the learned Judge directed a verdict and judgment

for the plaintiff, ruling that the issue as to receipt, which had been found in favour of the defendant, was immaterial, as the Statute of Frauds had not been specially pleaded, and consequently no question under that statute arose.

The defendant moved the Queen's Bench Division for an order nisi to set aside the verdict for the plaintiff and enter judgment for the defendant, on the ground that there was no contract between the parties within the Statute of Frauds. The Divisional Court refused the order.

On an ex parte application by way of appeal from this refusal,

Merewether (Tapping with him), for the defendant. The plea in this case is not a bare denial of the contract. The plaintiff has asserted in his statement of claim that there was an acceptance and receipt of the barley on the part of the defendant, so as to take the case out of the Statute of Frauds. Practically he introduces the question of the Statute of Frauds, thereby anticipating the defence; and the statement of claim and the defence taken together sufficiently raise the issue under that statute upon the pleadings.

KELLY, C.B.-There is really no substantial difference between the nature of a record under the ancient forms of pleading, and that of a record under the new law. In each case the statement or declaration consists of a series of distinct allegations on the part of the plaintiff, which are met by a series of denials, confessions and avoidances or responsive allegations, as the case may be, on the part of the defendant. From these successive allegations, denials and responsive allegations, are deduced the successive issues which have to be tried. Here the first issue (and it would clearly have been the same under the old law) is, whether or not there was a contract between the plaintiff and the defendant for the sale of sixty-four quarters of barley. That is the first statement of the plaintiff's claim, and the first statement made by the defendant in answer to it is a denial of that allegation. There are several other statements, and that being the form of

Clarke v. Callow (App.), Q.B.

the record, whether under the old law or the new, the first question is whether such a contract was made. If it turned out that the contract was by parol, then suppose there were no such things as pleadings in the case, no doubt the law says that such a contract, not being in writing, cannot be enforced. But the case must be decided on these pleadings, and the law says that if the defendant wishes to avail himself of the defence offered by the Statute of Frauds, he must plead that statute specially-he must allege that he intends to rely on the statute. Here there is no such allegation, therefore the principal issue is found at once for the plaintiff. Going over the other issues we come to that raised on the third paragraph of the statement of claim. There the plaintiff alleges that there has been an acceptance and actual receipt of the goods or part of them. The defendant says that this is not true, and thereupon the Judge says (and is right in saying) that this is merely the allegation and traverse of an immaterial fact.

It is urged on the part of the defendant that the plaintiff has anticipated the defence of the Statute of Frauds in his statement of claim, and that therefore the defendant need not avow his reliance on the statute as that is already understood. But this would introduce into the system of pleading a fiction which would always be inconvenient, and sometimes extremely unjust. No doubt the plaintiff introduces an allegation of acceptance and receipt, which the defendant denies. But it does not necessarily follow that the defendant intends to take advantage of the Statute of Frauds. This is the whole question that we have to determine on this interlocutory application; and I think that the decision come to in the Court below is a correct one, and that this application should be refused.

MELLISH, L.J. Before the passing of the Judicature Acts there was a difference between the practice at law and the practice in equity, in cases like the present.

At law, if the contract was denied, it was a matter of evidence whether the

contract were one which could be sued upon, or whether the remedy was barred by the statute. But in equity, if the defendant intended to rely upon the Statute of Frauds or any other special statute, he was compelled to make a specific averment of his intention. The 23rd rule of the 19th Order was intended to introduce in all the Courts the practice of the Court of Chancery, and I see no reason why the rule should not apply in this case, notwithstanding the allegation by the plaintiff of acceptance and receipt, and the denial of that allegation by the defendant.

BRETT, J.A.-I am of the same opinion. As a general rule all that is required in pleading is that the plaintiff and defendant should state clearly and concisely the facts upon which they rely. But in the case of some particular defences where it is admitted, or cannot be denied, that a contract was entered into by the parties, the defendant may wish to evade his liability by setting up the Statute of Frauds, or by asserting that the engagement he made, the nature of which he perfectly understood when he made it, was illegal, and therefore not binding. In such a case the defendant must state specifically the statute on which he intends to rely. Order XIX., rule 23, is in my opinion, intended partly as an enunciation of the jealousy with which the law regards that class of defences, and partly to assimilate the practice at law and in equity. If rule 23 is to be obeyed, if the defendant intends to insist on the defence that though he undoubtedly entered into a contract, yet as that contract was not in writing, he does not intend to observe it; then he must clearly state his intention, or if he means to deny the legality of a contract he has entered into, he must say so in plain terms. Here the defendant admits that there is a contract unfulfilled between him and the plaintiff, but he says that he is exempted from the operation of rule 23, because the plaintiff put forward an allegation to shew that the contract was a binding one under the Statute of Frauds.

But the plaintiff has not put forward

Clarke v. Callow (App.), Q.B.

all the facts that are available for that purpose. He has not averred that the contract was in writing. It is quite consistent with these pleadings that there was a binding contract within the Statute of Frauds. But even if the plaintiff had avowed that the contract was in writing or that there had been acceptance and receipt, and the defendant had taken issue, so that there could be no doubt as to the meaning of the plea, yet if he traversed the averments without stating the statute on which he relied, the defence under the statute was not admissible; for he must set forth his intention to use that defence in clear terms. And I am of opinion that the Judge at Nisi Prius was right in saying that under the new practice there was no issue to be tried with respect to the Statute of Frauds.

AMPHLETT, J.A.-I am of the same opinion.

Order refused.

:

On the 5th of May, J. Wilcockson being the tenant of one Munslow, was in arrear with his rent, and under pressure from his landlord and to avoid distress, Wilcockson and his partner agreed to sell to Munslow certain furniture, the purchase money to go in discharge of the rent due. Munslow accordingly bought the goods, the following document was drawn up :66 Bought of Messrs. D. & J. Wilcockson. [A list of goods and prices was here set out.] Memorandum.-We acknowledge that we have this day sold and delivered to Mr. Wm. Munslow the above articles and effects for the prices above-named, 1631. 13s., and that payment therefor has been made to us of that amount in account between us and under the agreement arranged to be made with respect to the amount owing by us to him for rent, interest and expenses."

Munslow took possession of the goods, and then let them, at a weekly rent, to his tenant, J. Wilcockson, who remained in enjoyment of the use of them until the 30th of October, when the sheriff, acting for the plaintiff, an execution creditor of J. Wilcockson, seized them for a judg ment debt of 1217. 12s. 3d. Munslow claimed the goods.

Glyn appeared for the sheriff.

A. L. Smith, for the claimant.-The execution creditor insists that the document given at the sale of the goods amounts to a bill of sale needing registration, and not being registered is void,

Graham v. Wilcockson, ExcH.

under the 17 & 18 Vict. c. 36; but it is a mere receipt.

The Court then called on

Hughes, for the plaintiff.-If it be a receipt and not a bill of sale, the execution creditor must fail. But the document is an assignment of chattels, it is a record of a transfer and therefore within the Act. Byerley v. Prevost (1), cited for the claimant at chambers, is distinguishable, for the instrument in that case was in the terms of an ordinary receipt, with no addition thereto, as here, of a memorandum which is something more. In Horsfall v. Key (2), a memorandum that A. B. "has sold to C. D. all the goods, stock in trade and fixtures" in a certain shop for 501., was held to be a record of the "transfer' of fixtures, and therefore a conveyance within the Stamp Act, and, but for the express exception of goods, wares and merchandises from the operation of that Act, it would seem from the judgment of Parke, B., that the instrument would have been equally liable to duty as a transfer of goods. His Lordship said, "It is termed a memorandum, but that can make no difference if it operates as a conveyance. Then the objection is made that it cannot operate as a conveyance, because the words are in the past tense. That, however, is immaterial. If the parties have so expressed themselves as to make it apparent on the face of the instrument that the writing was intended to be the record of the transfer, it is immaterial whether the words used be in the past tense or the present.' Those observations equally apply to transfers within the meaning of the Bills of Sale Act, which is not confined to mortgages, but comprises "every bill of sale of personal chattels made, either absolutely or conditionally." And by section 7," the expression bill of sale shall include bills of sale, assignments, transfers," &c. This memorandum would have been made without object if it was not meant to record a transfer.

A. L. Smith referred to Allsop v. Day (3).

(1) 36 Law J. Rep. M.C. 84; s. c. Law Rep. 6 C.P. 144.

(2) 2 Exch. Rep. 778; s. c. 17 Law J. Rep. Exch. 266.

(3) 7 Hurl. & N. 457; s. c. 31 Law J. Rep. Exch. 105.

CLEASBY, B. A transaction between the landlord and tenant was followed by a receipt given for money paid as part of that transaction. The transaction was a sale for valuable consideration, and, at the time, this document was given, which is said to embody and give effect to the transfer, and therefore to be a bill of sale within the terms of 17 & 18 Vict. c. 36. The question is, whether this transaction, intended to pass the property in the goods, is void as against creditors, because it appears in a document which might require registration. But the cases, especially Byerley v. Prevost (1), shew that the Courts treat such a document as a receipt, and I do not think that the additional memorandum makes any distinction between the present case and that case. Rent being due, it was arranged that these goods should be taken for the debt. Stopping short of the memorandum, the document is a mere invoice, although in one sense it may be a record of the transaction. Does the memorandum alter its character? I think not, for the memorandum is only to shew how the sum is to be satisfied, namely, by a deduction from the larger amount of rent. In Byerley v. Prevost (1), as in the present case, no money passed at the time. The receipt, indeed, began, "Received of Mr. John Byerley the sum of ninety pounds," &c., whereas the present document is, "We acknowledge that we have sold," and that payment therefor has been made. But what is the difference? Nor do I think that the fact of the transaction being referred to in the past tense here makes any distinction.

On the sole question referred to the Court, namely, whether this document is a receipt or a transfer, I hold that it is a mere receipt, and that the execution creditor should withdraw.

Order accordingly, no costs for sheriff or claimant.

Solicitors-W. A. Holcombe, for execution creditor; Phelps & Sedgwick, for claimant; Makinson & Carpenter, for sheriffs.