Wood v North British Railway Company

JurisdictionScotland
Judgment Date17 October 1899
Date17 October 1899
Docket NumberNo. 1.,No. 90.
CourtCourt of Session
Court of Session
2d Division

Lord Young, Lord Trayner, Lord Moncreiff, Lord Justice-Clerk.

No. 1.
Wood
and
North British Railway Co.

PropertyTrespassRailwayRailway StationRight of railway servants to remove trespasser by force.

Held that when a cabman in a railway station has concluded the business which brought him there and refuses to leave, and persists in refusing to leave, he becomes a trespasser, and the railway servants are at common law entitled to remove him by force if necessary.

ProcessJury TrialJudge's Charge.

Observed by Lord Young that when a Judge at a jury trial is asked to lay down a certain proposition in law, he has not merely to consider the soundness of it as an abstract proposition, but also whether it is right and proper that such a direction should be given to the jury in the particular case before them.

This case is reported ante, February 14,1899, 1 F. 562. It was tried before the Lord Justice-Clerk, with a jury, on 19th June 1899, on the issue,Whether, on or about 10th September 1898, the pursuer was wrongfully and forcibly taken into custody, and removed from said railway station to Waverley Market Police-Office, in custody, by Walter Wilson and Thomas Hulse, while acting in the course of their employment by the defenders at said railway station, to the loss, injury, and damage of the pursuer?

At the trial the pursuer's case was to the effect that, having gone to the defenders' Waverley Station with a passenger, he was moving out when he was hailed by a man who wished to hire his cab and to place a box on it; that the railway constables refused to let him take the box upon his cab, and after a dispute took him into custody forcibly, and took him to a police station.

The Lord Justice-Clerk gave, inter alia, the following direction to the jury:That when a cabman in a railway station has concluded the business which brought him there and refuses to leave, and persists in refusing to leave, he becomes a trespasser, and the railway servants are at common law entitled to remove him by force if necessary.

The pursuer excepted to this direction as wrong in law, and further asked the Lord Justice-Clerk to give the following direction:That the pursuer, if lawfully in the station premises with his cab, did not wilfully trespass within the meaning of the 16th section of the Railways Regulation Act, 1840,* by accepting an engagement from a passenger to drive the passenger and his luggage from the station.

The Lord Justice-Clerk refused to give this direction, whereupon the pursuer's counsel excepted.

The jury returned a verdict for the defenders.

The pursuer presented a bill of exceptions.

Argued for pursuer;(1) The direction given was erroneous. Assuming the station to be private property, it was a place at which a cabman was invited to be and had a right to be. But be it ever so much private, a man did not become a trespasser by refusing to leave private property. He could be interdicted from returning, but could not be forcibly removed. [Lord Trayner.The notion, often expressed, that there is no such thing as trespass in the law of Scotland, and that if a man is, contrary to the desire of the proprietor, on private property he cannot be removed, seems to me to be a loose and inaccurate one.] (2) The direction which the Judge declined to give was good law. In the circumstances he should have given it. No sound objection to it in law could be stated.

The defenders' counsel were not called on.

Lord Young.I thought from the first, and I have seen nothing to affect the impression, that the bill of exceptions is quite unfounded. I observed in the course of the discussion that when a presiding Judge at a jury trial is asked to lay down a certain proposition in point of law, he has not merely to consider the soundness of it as an abstract proposition, but also whether it is right and proper that such a direction should be given to the jury in the particular case before them. It may be a proper direction to give, qualified by a great number of explanations which it is inconvenient to give, and which might lead to undesirable results. I say that with reference to the second exception herethe exception to the refusal of the Judge to lay down a certain proposition in point of law which he was asked to do. I think myself that the learned Judge was quite right in refusing to give that direction.

On the first exception, which is an exception to a direction which was given, I am of opinion that the exception cannot be sustained. I think it was a perfectly sound directionthat a cabman, or indeed any other person,

but especially a cabman with a carriage and horse, must obey the orders of a railway company's authorised servants as to leaving the station, and when he is ordered to leave it he must leave it, and if he refuses and persists may be turned out. He is not to remain there until it has been settled by some disinterested tribunal whether he had right to remain, and whether the servant of the railway company was wrong in ordering him out. If he were wrong in ordering him out, his duty was to obey, and there would be a remedy for any injury which had been sustained on account of his having been turned out by order in circumstances in which he ought not. I am therefore of opinion upon the bill of exceptions that it must be disallowed.

Lord Trayner.I agree.

Lord Moncreiff.I am of the same opinion.

The Lord Justice-Clerk.I am of the same opinion.

The Court refused the bill of exceptions.

* The Railway Regulation Act, 1840 (3 and 4 Vict. c. 97), sec. 16, enacts,If any person shall wilfully obstruct or impede any officer or agent of any railway company in the execution of his duty upon any railway, or upon or in any of the stations or other works or premises connected therewith, or if any person shall wilfully trespass upon any railway or any of the stations or other works or premises connected therewith, and shall refuse to quit the same upon request to him made by any officer or agent of the said company, every such person so offending, and all others aiding or assisting therein, shall and may be seized and detained by any such officer or agent, or any person whom he may call to his assistance, until such offender or offenders can be conveniently taken before some Justice of the Peace for the county or place wherein such offence shall be committed, and on conviction shall be liable in a penalty.

Court of Session
2d Division

Lord Kincairney, Lord Justice-Clerk, Lord Young, Lord Moncreiff.

No. 90.
Wood
and
North British Railway Co.

ReparationMaster and ServantScope of EmploymentAssaultIllegal ArrestRailwayRailway Regulation Act, 1840 (3 and 4 Vict. cap. 40), sec. 16Issues.

In an action by a cabman against a railway company for damages for assault and illegal arrest, the pursuer averred that after he had set down a person whom he was engaged to drive to one of the defenders' stations, he was ordered to move on by one of the constables in the defenders' employment, who told him that only cabs belonging to a particular firm were allowed to ply for hire in the station; that while he was driving towards the exit from the station he was engaged by another passenger, and while he was putting a box belonging to the passenger on the cab the constable came up and knocked it out of his hands; that the passenger having gone off, the pursuer then mounted his cab with the intention of driving off from the said railway station, when the said constable along with another constable, also in the defenders' employment, jumped up on the pursuer's cab, seized him, and dragged him heavily to the ground, and then, without any warrant marched him in their custody to the police station, and there charged him with committing a breach of the peace, upon which charge he was subsequently tried and convicted; that in assaulting the pursuer and in taking him into custody the constables acted wrongously and oppressively, since, even assuming that he had committed a breach of the peace, it was their duty to have taken his name and cab number, after which he could have been proceeded against in the ordinary way by being cited to answer to the charge; in acting as they did towards the pursuer, the constables were acting in the course of their employment, although they grossly exceeded what was necessary or proper.

The defenders pleaded that the action was irrelevant on the ground that, according to the pursuer's own shewing, the constables were not acting in the course of their employment when they seized the pursuer and took him into custody; and alternatively, on the ground that the pursuer had not alleged that the constables had done anything which they were not entitled to do under the Railway Regulation Act, 1840, sec. 16.

Held (aff. judgment of Lord Kincairney) that the pursuer's averments were relevant.

In the foregoing action the Lord Ordinary allowed two issues, one founded on the alleged assault and the other on the alleged illegal arrest.

Held (reversing the judgment) that only a single issue fell to be allowed.

Form of issue approved by the Court.

Res JudicataSummary ConvictionSubsequent civil action for damages.

A person who had been convicted...

To continue reading

Request your trial
229 cases
  • St. Elizabeth Home Society v. Hamilton (City) et al., [2005] O.T.C. 1074 (SC)
    • Canada
    • Ontario Superior Court of Justice of Ontario (Canada)
    • 19 Abril 2004
    ...pure economic loss in tort law generally appears to find support in the following excerpt (Jamie Cassels, Remedies: The Law of Damages , c. 2 (F)(1)): The law of tort allows recovery of economic losses only in limited situations. Most prominently, the law permits recovery of any economic lo......
  • Sons of Gwalia Ltd v Margaretic
    • Australia
    • High Court
    • 31 Enero 2007
    ...259, but not directly, except in certain circumstances, the creditors, for what may well have occurred here, insolvent trading. 234 Part 2F.1 of the Act confers important rights on members to prevent, or remedy the oppressive conduct of the affairs of companies. Section 232 provides as foll......
  • Request a trial to view additional results
106 firm's commentaries
  • Does the operation of a pyramid scheme necessarily involve fraudulent activity?
    • United States
    • JD Supra United States
    • 13 Mayo 1999
    ...racketeering act sufficient for the Omnitrition plaintiffs to invoke civil RICO]." Omnitrition, 79 F.3d at 786 & n. 7; see also USSG § 2F1.1, comment. (n.3) (commenting on § 2F1.1(b)(2)(B), a section that requires a two-level sentence enhancement for "a scheme to defraud more than one victi......
  • Ontario Court Of Appeal Summaries (September 4-September 8)
    • Canada
    • Mondaq Canada
    • 19 Septiembre 2017
    ...SCC 22, Double Aspect Doctrine, Canada Post Corp. v. Hamilton (City), 2016 ONCA 767, Taxation, Tobacco Tax Act, R.S.O. 1990, c. T.10, s. 12(2)(f. 1), Guindon v. Canada, 2015 SCC 41, Indian Act, R.S.C. 1985, c. I-5, ss. 87(1) and (2), Statutory Interpretation, Rizzo & Rizzo Shoes Ltd. (R......
  • What is the proper method of accounting the amount of loss by victims of a Ponzi scheme?
    • United States
    • JD Supra United States
    • 23 Enero 1996
    ...to the way the district court calculated the amount of the loss used to determine the offense level enhancement pursuant to U.S.S.G. § 2F1.1(b)(1). [FN1] This appeal raises the issue of how "loss" should be determined under § 2F1.1 for cases involving a "Ponzi" or pyramid scheme, [FN2] wher......
  • ONTARIO COURT OF APPEAL SUMMARIES (SEPTEMBER 4-SEPTEMBER 8)
    • United States
    • LexBlog United States
    • 8 Septiembre 2017
    ...SCC 22, Double Aspect Doctrine, Canada Post Corp. v. Hamilton (City), 2016 ONCA 767, Taxation, Tobacco Tax Act, R.S.O. 1990, c. T.10, s. 12(2)(f. 1), Guindon v. Canada, 2015 SCC 41, Indian Act, R.S.C. 1985, c. I-5, ss. 87(1) and (2), Statutory Interpretation, Rizzo & Rizzo Shoes Ltd. (Re), ......
  • Request a trial to view additional results
191 books & journal articles
  • False statements and false claims.
    • United States
    • American Criminal Law Review Vol. 44 No. 2, March 2007
    • 22 Marzo 2007
    ...of the [bank's] closing"). But see United States v. Sarno, 73 F.3d 1470, 1502 (9th Cir. 1995) (rejecting enhancement under former section 2F1.1(b)(6)(A) because defendant's actions, although totaling $11 million, represented small fraction of financial institution's $500 million (126.) U.S.......
  • Antitrust violations.
    • United States
    • American Criminal Law Review Vol. 36 No. 3, June 1999
    • 22 Junio 1999
    ...States v. Hayter Oil Co., 51 F.3d 1265, 1273 (6th Cir. 1995). (235.) U.S.S.G. [sections] 2R1.1(b)(2) (1998). (236.) U.S.S.G. [subsections] 2F1.1, 2R1.1, 5K2.0 (1998); see also Thomas E. Holliday et al., Tilting the Balance: The Effect of the Sentencing Guidelines on Organizational Defendant......
  • False statements and false claims.
    • United States
    • American Criminal Law Review Vol. 46 No. 2, March 2009
    • 22 Marzo 2009
    ...increase, to minimum of level ten); see United States v. Cheek, 69 F.3d 231, 233 (8th Cir. 1995) (holding enhancement under former section 2F1.1(b)(3)(B) for abusing bankruptcy process did not constitute impermissible (130.) U.S.S.G. MANUAL [section] 3B1.1 (requiring an increase of four lev......
  • False statements and false claims.
    • United States
    • American Criminal Law Review Vol. 47 No. 2, March 2010
    • 22 Marzo 2010
    ...2X1.1(a)); cf. United States v. Zagari, 111 F.3d 307, 325 (2d Cir. 1997) (dismissing defendant's two-point enhancement under former [section] 2F1.1(b)(4) for allowing landfill to contaminate water wells and recklessly risking serious bodily injury because offense took place in 1989, thereby......
  • Request a trial to view additional results
4 forms
  • Application for Change in Accounting Method
    • United States
    • United States Forms Treasury Department
    • 1 Enero 2022
    ...35 Nonaccrual-experience method (section 448)—for an applicant changing: to a safe harbor method provided in Regulations section 1.448-2(f)(1) (the revenue-based moving average method), (f)(2) (the actual experience method), (f)(3) (the modified Black Motor method), (f)(4) (the modified mov......
  • Application for Status as a Temporary Resident Under Section 245A of the Immigration and Nationality Act
    • United States
    • United States Forms Citizenship and Immigration Services
    • Invalid date
    ...(mm/dd/yyyy) 26. Authorized Stay in U.S. Expired (mm/dd/yyyy) 27. Class of Admission (Student, Visitor, etc.) 24. Type of Visa Issued (B-2, F-1, 28. Did you violate your legal status prior to January 1, 1982? No Yes 29. Was your status violation known to the Government prior to January 1, 1......
  • Exclusion of Income for Bona Fide Residents of American Samoa
    • United States
    • United States Forms Treasury Department
    • 1 Enero 2019
    ...resident. For details, see Special Rules for Gains From Dispositions of Certain Property in chapter 2 of Pub. 570, Regulations section 1.937-2(f)(1), and Examples 1 and 2 of section Filing Form 1040 or 1040-SR To exclude your qualifying income from American Samoa, complete Form 4563 and att......
  • Allocation of Individual Income Tax to Guam or the Commonwealth of the Northern Mariana Islands (CNMI)
    • United States
    • United States Forms Treasury Department
    • 1 Enero 2023
    ...For details, see Special Rules for Gains From Dispositions of Certain Property, in chapter 2 of Pub. 570, Regulations section 1.937-2(f)(1), and Examples 1 and 2 of section Form 5074 (2022) Page 4 Part II—Adjustments to Income From Guam or the CNMI Note: See Schedule 1 (Form 1040), Part II,......
377 provisions
  • IL Register Vol. 43 Issue 1. Issue 1 - January 4, 2019 - Pages 1-938
    • United States
    • Illinois Register
    • 1 Enero 2019
    ...adult's resources by another to the disadvantage of that adult or the profit or advantage of a person other than that adult. [320 ILCS 20/2(f-1)] "Follow-up" means the monitoring of substantiated cases of abuse, neglect, financial exploitation, or self-neglect for clients of the "Guardian" ......
  • IL Register Vol. 37 Issue 4. Issue 4 - January 24, 2014 - Pages 2,469-3,240
    • United States
    • Illinois Register
    • 1 Enero 2014
    ...disadvantage of that adultthe older person and/ or the profit or advantage of a person other than that adultthe older person. [320 ILCS 20/2(f-1)] "Follow-up" means the monitoring of substantiated cases of ANE for clients of the "Guardian" means a person appointed by a court of competent ju......
  • Town and Country Planning General Development Order 1988
    • United Kingdom
    • UK Non-devolved
    • 1 Enero 1988
    ...of plant or machinery; (f)any other development carried out in, on, over or under the operational land of the public gas supplier. SCH-2.F.1 F.1. Development not permitted Development is not permitted by Class F if— (a) in the case of any Class F(b) development involving the installation of......
  • The National Health Service Superannuation Scheme (2008 Section) (Scotland) Regulations 2013
    • United Kingdom
    • Scotland
    • 1 Enero 2013
    ...an offence within regulation 2.J.8(2)(b) (forfeiture of rights to benefits) is committed.CHAPTER 2.F TRANSFERS Transfers-outTransfers-out S-2.F.1 Introduction: rights to transfer value paymentIntroduction: rights to transfer value 2.F.1.—(1) This Chapter supplements the rights conferred by ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT