Motion for remittal to County Court.-The action was brought to recover damages for illegal seizure by the defendant as high sheriff of Antrim. The notice of motion applied to have the action remitted to the Civil Bill Court in Belfast.

A. H. Bates, in support of the motion.

R. F. Todd objected in limine.-The affidavit relied on for defence shows that the residence of the sheriff is within Ballymena Division of the county. The notice of motion deals with remittal to Belfast. This is fatal; there is no jurisdiction in the Court to amend such an error: Moloney v. Duane, 10 I. L. T. 73; Ferguson v. Burrowes, 16 I. L. T. R. 93.

A. H. Bates, contra.-There have been cases deciding in the Court of Appeal, and the rule has been since followed in the Exchequer Division, that as a matter of practice the Court has jurisdiction to amend in cases such as these: Sayers v. Quinn, 23 I. L. T. Rep. 79.*

R. F. Todd. In Sayers v. Quinn there was an affidavit that a clerical error had been made by the solicitor. It is improbable that there was such an error here. The sheriff's office is in Belfast. The affidavit, after setting out the residence of the sheriff as in the Ballymena Division of the County of Antrim, goes on designedly to state the dates of the forthcoming Quarter Sessions both at Ballymena and Belfast in each division respectively. There is no jurisdiction to amend a mistake in practice deliberately committed.

WARREN, J.-I am of opinion that the Courts, at their discretion, have jurisdiction to give leave to amend errors of this description. I shall permit the defendant to amend.

Order accordingly.

EXCHEQUER DIVISION.

Reported by H. MACAULAY FITZGIBBON, Barrister

at-Law.

[Ex.

A point on the Stamp Act should not be raised for the first time on a new trial motion.

The action was brought to recover £100, a part payment made by the plaintiff to the defendant for 180 barrels of barley sold by the defendant to the plaintiff and alleged not to have been delivered. The defendant counterclaimed for £31 12s. 6d., balance of the price, alleging delivery. On the 21st October, 1889, the plaintiff verbally agreed with the defendant that the latter should sell to the former, and the former should buy, 180 barrels of barley at 14s. 7 d. per barrel. This agreement was entered into in Cork. The plaintiff alleged that he told defendant he did not require the barley till the end of the following week, but this was disputed by the defendant. The barley was bought freight paid by the defendant to Cork. The defendant lived at Thurles. On the 22nd October the plaintiff received a letter from the defendant, stating that he (the defendant) had that day sent the barley to the plaintiff per rail, and endorsing a delivery order, carriage paid. He also asked for a cheque on account for £100 or £120, the balance to be sent "as soon as you see delivery." The delivery order enclosed was as follows: "Great Southern and Western Railway. Consignment receipt for goods to be received and forwarded at the reduced rate, at owner's risk, on the conditions specified on the counterpart hereof, agreed to by the sender or by his agent on his behalf. Thurles Station, Oct. 22, 1889. Received the undermentioned goods from J. Dywer, of Thurles, to be forwarded to consignee order of James Dwyer, Cork. Description of goods, 180 barrels of barley." This memorandum also contained a statement that "goods consigned to be kept till called for can only be delivered on production of this receipt, and [obscured by railway stamp] to order the receipt must be endorsed by the owner across a penny Inland Revenue [obscured by railway stamp] of the person to whom they are transferred." The document had a penny impressed stamp. The defendant signed this delivery note on the back and filled it up. On the receipt of this letter and enclosure, before

SUGRUE v. DWYER.

May 9, 12, 1890-Vendor and purchaser-Shipping goods by rail-Delivery order-Endorsement-When possession of the property passes—Stamp Act, 33 & 34 Vic., c. 97.

A vendor, in pursuance of a verbal agreement entered into in Cork, shipped goods to the value of £131 by rail from Thurles to Cork, and sent to the purchaser, by the same day's post, a delivery order in the vendor's own name, bnt endorsed to the purchaser, who, on receipt thereof, sent the vendor £100 in part payment. The purchaser did not call for the goods for some days, and, meantime, the railway company, in error, delivered them to a third person:

Held, that possession of the property passed from the vendor to the purchaser on its being put on the rail at Thurles, and that the contract was completed on the arrival of the goods in Cork, and that, therefore, the vendor was entitled to payment of the balance, £31, due to him by the purchaser.

* See M'Keevery v. Mullan, 24 I. L. T. Rep. 8.-[Rep.]

had arrived, the plaintiff wrote to the defendant enclosing him a cheque for £100, and adding, “will send balance and sacks when we have the barley started.” On the 2nd November the plaintiff's clerk took the consignment note to the Cork station and asked for the barley. The railway company's clerk informed him that the barley in question arrived there on the 23rd October and was delivered in error, on 24th October, to the Cork Distillery Company. The defendant admitted the receipt of the cheque for £100. On the 4th November the plaintiff's clerk wrote to defendant that there was no barley at the Cork station to defendant's order. The next day the plaintiff wrote again to defendant asking a return of the cheque for £100. He again wrote to the same effect on the 8th Nov. To this the defendant replied that on the receipt of his letter of the 22nd October and the consignment order the plaintiff had become the owner of the barley, and requesting the plaintiff to remit to him the balance due-£31 12s. 6d. After some further fruitless correspondence between the parties, the plaintiff issued the writ in the action, claiming £110 money payable by the defendant to the plaintiff, also damages for breach of contract entered into, whereby the defendant undertook to deliver to the plaintiff 180 barrels of barley. In his defence the defendant counterclaimed for the £31 12s. 6d. balance due, and £50 damages; and at

[Ex.

Ex.]

the trial got leave to add a plea that the plaintiff had waived the term in the contract that the barley was not to be delivered till the end of the week after it was ordered. At the trial of the action, before Andrews, J., and a jury, counsel for the defendant asked for a direction for the defendant in the original action on the ground that the delivery at Cork upon rail, accompanied by sending the delivery or ler, was a delivery to the plaintiff under the contract, and on the ground that the letter of Oct. 24th, and the sending of the £100 amounted to an acceptance of the goods, and counsel also asked for a direction for the defendant on the counterclaim for £31 12s. 6d. balance of the price. The learned judge directed accordingly, and gave judgment, with costs, reserving leave to the plaintiff to move to change the verdict on the ground of misdirection; and also granting a stay of execution. Both sides agreed that the Court should have power to draw inferences of facts when the motion came to be heard. The plaintiff having obtained a conditional order for a new trial:

Carson, Q.C. (O'Connor with him), showed cause.

They cited Salter v. Woolams, 2 M. & Gr. 650; Davis v. M'Lean, 21 W. R. 264; Dunlop v. Lambert, 6 Cl. & 600; Wood v. Manley, 3 P. & D. 5, 11 A. & E. 34, 3 Jur. 1028; Hopkins v. Warre, 4 Ex. 268.

Roche, Q.C. (Sugrue with him), for the plaintiff,

contra.

They cited Farina v. Home, 16 M. & W. 119; Benthol v. Burns, 3 B. & C. 423; Chapman v. Rogers, 1 East. 194: Pooley v. Great Eastern Ry. Co., 34 L. T. N. S. 537; M'Ewen v. Smith, 2 H. L. 309; 33 & 34 Vic., c. 97, ss. 15, 16, 89.

Cur. adv. vult.

PALLES, C B.-The questions which arise in this case can, in my opinion, be most conveniently discussed on the counterclaim, and our ruling on the counterclaim will include all the questions raised in the argument. The first question arises on the count for goods bargained and sold. It is whether or not the property in the goods passed? It is common case on both sides that there was a contract for sale. There is a question as to the time when the barley was to be delivered. The evidence on that point is conflicting, and we have to draw an inference of fact in favour of the plaintiff and take it, as he alleges, that the delivery was to be postponed. On the 22nd of Oct. the plaintiff sent by rail 100 barrels of barley, and by the night post of that day he sent to the plaintiff the delivery order, carriage paid, and asked the plaintiff for a cheque on account for £100 or £120. The delivery order was made out payable to the order of Dwyer and not to Sugrue, but when sent it was endorsed by Dwyer to Sugrue or order. That letter, with the order, was sent on the same day as the goods were put on the rail. Upon the 24th it was answered by Sugrue [reads reply]. On the question of intention no jury could doubt that Sugrue intended to accept and make his own that particular barley. It appears that on a subsequent day after the 22nd the railway company improperly dealt with the barley, and gave it to some person who had no title to receive it. Under these circumstances there is a question-Does the action for goods bought and sold lie at all? The goods were not specific or ascertained. I am willing to treat the case that the goods would not have answered the description in the contract until they arrived in Cork. The first act should have been done by Dwyer. Once he, in a binding way, sent the goods and gave notice to Sugrue, the contract should

have been treated as a contract of specific goods. It is not, I think, necessary in point of law so to regard it. The other point necessary for the purpose of specific contract is that the goods were to be delivered by rail in Cork. This, also, happened before the wrongful act by the railway company, and it is clear that were it not for the form of the delivery order there is no question but that the property in the barley passed the moment it arrived in Cork. What is the effect of the fact that the delivery order was drawn in the name of Dwyer or order in place of being in the name of Sugrue or order? It is assumed that the mere fact of the order being made out in that way in itself was conclusive and prevented the property from passing. It is right to ascertain how it is that the fact of drawing the order or bill of lading in that mode does prevent the property passing. It depends upon the act of the vendor how he will consign the goods. He may make the order in such a shape that not only will the right of possession not pass till payment, but that even the property in the goods is retained until some particular act is done. Therefore, if the order is made out to the consignor instead of the consignee, that is done to preserve the right of control over the property, and prevents the property passing from one to the other. The question of intention is not to be solely gathered from the form of the order, but is also a question of fact for the jury. On this point I would wish to refer to two cases not cited in the argument. In Browne v. Hare (3 H. & N. 484, 4 H. & N. 829) certain merchants at Bristol contracted with merchants at Rotterdam for the sale of some oil at a certain price to be shipped free on board at Rotterdam. The oil was shipped on the 8th, the master signed a bill of lading by which the oil was deliverable "to the shipper's order," and the plaintiffs endorsed it specially to the defendants, and wrote a letter to them inclosing a bill of lading, in voice, and a bill of exchange. This reached the defendants on the morning of the 11th. The ship had been lost on the 9th. The defendants knew of the loss before the 11th. They returned the documents to the broker in two hours on the ground that they were not liable to pay for the oil. In an action for not accepting the bill of exchange, and for goods sold and delivered, it was held that the property in the oil vested in the defendants on its delivery on board, and that the plaintiffs were, consequently, entitled to recover on both counts. Poliock, C.B., there says, "Several cases were cited on behalf of the defendants. We think they are all clearly distinguishable. If, at the time the oil was shipped at Rotterdam, the plaintiffs had intended to continue their ownership, and had taken the bill of lading in the terms in which it was made for the purpose of continuing the ownership and exercising dominion over the oil, they could, in our opinion, have broken their contract to ship the oil free on board,' and the property would not have passed to the defendants; but if, when they shipped the oil, they intended to perform their contract and deliver it free on board' for the defendants, we think they did perform it, and the property in the oil passed from them to the defendants. If, when the bill of lading was made out, they of purpose and design had the oil made deliverable to shipper's order' for an advantage and benefit to themselves, it would be a different case; but if they had no object in the matter and they clearly had none, for upon the same day they endorsed it specially to the defendants and transmitted it to Bristol-we think it is exactly the same thing as if the bill of lading had originally been made out deliverable to the defen

Ex,]

dants" (p. 498). This last sentence is exactly in point. If the jury at the trial, and we sitting here, could infer that, in having his own name in the delivery order, the defendant intended any special control over the barley, then the intended property did not pass. But, having regard to the fact that he sent the indorsed delivery order to the plaintiff, the purchaser, by a later post on the same day, I am of opinion that the present case is even stronger than Brown v. Hare, and that the property in the barley passed-if not when put on the rail at Thurles-at least when it arrived by rail in Cork. Surely, no one doubts that the object with which Dwyer shipped these goods was when they arrived at Cork in pursuance of his contract and sending the delivery order with them, was that he might fulfil it. In Brown v. Hare the documents were repudiated, here they were received and adopted by Sugrue as nothing unusual, and as carrying out the intention of both parties. The same view was acted on in Joyce v. Swan, 17 C. B. N. S. 84. The facts in that case were very complicated. [His Lordship stated the facts and judgment of Williams, J., p. 101.] It was there held, following Browne v. Hare, that it was not a question of law but of intention, and that the property had passed and the insurer was entitled to recover. Admitting the difference from a bill of lading there is no difference that the question to be determined is a question of intention solely, and the same reasoning applies in the present case as in Browne v. Hare and Joyce v. Swan, and warrants the conclusion that Dwyer intended this particular transaction should be in performance of the contract, and should be so as soon as the barley arrived in Cork. In this case it is not necessary to complicate ourselves with the question whether there was such a delivery of goods as would prevent the right of the vendor to stop the goods in transition or would amount to acceptance and receipt under the Statute of Frauds. In my opinion, none of the class of cases cited have the most remote bearing on the question here, viewed in the sense in which I have now stated it. In Farina v. Home the question was whether there was a valid enforcible contract. There could not have been within the meaning of the Statute of Frauds unless there was an acceptance as well as a receipt of goods. [His Lordship cited the judgment of Williams, J.] That cannot touch the question where, as here, the Statute of Frauds has no application. M'Ewan v. Smith and Benthol v. Burns are cases which deal not with property passing but with whether property has passed. The judgment of Cotter, J., in the former case, deals with possession and nothing else. The other cases cited do not touch the present case, because I do not express an opinion as to whether there was evidence of actual change of possession.

That decides the entire case except the question on the Stamp Act. That point was not made at the trial; it was made for the first time in the argument before us. The Common Law Procedure Act, 1853, provides that there shall be no new trial on the ground of an erroneous ruling of the judge in reference to stamps. If no point was taken on it below it cannot be made in a new trial motion. It has been held in England that a judge cannot even reserve a question on his ruling as to a stamp on a document. The chief exception from the rule is if the document itself would have no legal validity whatever if not stamped and could not be stamped afterwards. I have not dealt with this as an order passing property within the Act, but merely indicating an intention whether the property

[Ex.

should pass or not by putting it on the rail at Thurles or go to Cork. It could be used for other and collateral purposes. Moreover, on the true construction of the Act, the objection would have been based on the Stamp Act, ss. 15, 16. There is no provision in the statute that prevents a warrant of this kind being stamped after its execution, and therefore, if the objection had been made, the judge could have ruled the question. Pooley v. Great Eastern Ry. Co. decides that instruments of this kind may be stamped after execution. The stamp objection cannot prevail. There was a duty on Dwyer to cancel that stamp in the mode provided by the Act. On the entire case the inference of fact is that the property was intended to pass by being put on the rail at Thurles, and did so pass, and that on its arrival in Cork the contract was concluded and the price became payable. No question of delivery arises.

ANDREWS and MURPHY, JJ., concurred.

Cause shown disallowed.

Solicitor for the plaintiff : R. N. Byrne.
Solicitor for the defendant: J. O'Dwyer.

JOYCE v. MONAGHAN.

June 19, 1890.-Libel-Evidence-Pleading-Fair

comment.

The plaintiff in an action of libel having deposed, on his examination before the "Parnell Commission," that the defendant was a “land-grabber,” the defendant published letters denying the plaintiff's statement and accusing him of perjury. In an action of libel brought by the plaintiff, to recover damages for this accusation, the defendant pleaded a defence of fair comment, and did not justify. At the trial, evidence having been given, on behalf of the defendant, not that the plaintiff had committed perjury, but, that what the plaintiff stated was in fact

untrue:

Held, that such evidence was admissible under the defence of fair comment, while, in the absence of a plea of justification, evidence that the plaintiff had committed wilful perjury would not have been admissible.

Action for libel. The plaintiff and defendant were both members of the "National League," the plaintiff being a member of the committee and the defendant being treasurer of the local branch at Oughterard. The plaintiff was examined at the Parnell Commission in London, and on cross-examination he was asked whether they had any "land-grabbers" at Oughterard. He replied that they had none, except the treasurer of the local branch of the "National League." The defendant thereupon wrote to the Irish Times and to the Tuam News denying the plaintiff's statement and attributing to him wilful falsehood and perjury. To recover damages for this statement the plaintiff brought the present action. The defendant pleaded fair comment, and lodged 10s. in Court. At the trial at the Galway Assizes, before Murphy, J., and a special jury, evidence was admitted to prove that the charge made against the defendant at the Commission was false in fact. The jury found for the defendant generally. A conditional order having been obtained by the plaintiff to set aside the verdict on the ground that illegal evidence had been admitted at the trial:

Ex.]

Trench, QC. (Bodkin and Taylor with him), for defendant, showed cause. Joyce, in his defence, did not justify, because he could not; but he pleaded fair comment. The defendant proceeded at the trial to prove that he was not a "land-grabber; 'the plaintiff objected to this evidence being given, because the plea of justification had not been pleaded. The libel consists in saying "you said this wilfully and maliciously, knowing it to be false."

They cited Fairman v. Ives, 5 B. & Ald.; Hunter v. Sharpe, 4 F. & F. 983; Bell v. Park, 11 Ir. C. L. 430; Somerville v. Hawkins, 10 C. B. 583; Spill v. Wall, L. R. 4 Ex.

Nolan, Q.C. (Bird, Q.C., and Joyce with him),

contra.

They cited Odger on Slander, pp. 46, 212; Hedley v. Barlow, 4 F. & F. 224; Campbell v. Spottiswode, 3 B. & S. 769; Smith v. Richardson, Willes' Rep. 21; Lefroy v. Burnside, 13 Ir. L. T. Rep. 108, 4 L. R. Ir. 751; Mayne on Damages, p. 428.

PALLES, C.B.-This matter is quite clear. The only question is whether the evidence objected to was, in fact, admissible. The only evidence objected to was evidence in reply to a question by Mr. Bodkin. The question was allowed. The defendant stated that he was no "land-grabber." That is a short point. The circumstances were equally short. The action of libel was the statement, "you perjured yourself." There was no plea of justification on the record. The judge and jury were bound to assume that the plaintiff had not committed perjury. There was an admission there on the record that the plaintiff had not perjured himself; it was equivalent to "I do not say you perjured yourself, but your conduct was such that it was fair comment to say you had perjured yourself." It is too late to question it. In a plea of fair comment it is not necessary to set out facts as facts on which you purport to comment, but it is sufficient to set out generally. I still think, as a matter of pleading, it is more satisfactory that the matter should be set out, but that is not the law either here or in England. That being the nature of the plea, the very essence is to show what was the evidence given on that particular occasion. Perjury involves in its very essence evidence of the truth of the statement. If the plea is capable of being framed that the logical outcome of these statements may amount to defence, the party is entitled to prove it. In the case of Lefroy v. Burnside, ubi supra, this Court drew a distinction between matters of fact which could be justified under the plea of fair comment and matters of evidence. As to matters of fact, it has been held that the fact proved should be a fact from which the jury might reasonably draw an inference of fact intended to be excused. It is essential to prove some fact from which the jury might draw the conclusion that it was perjury. The fact of actual untruth is a fact of that nature, and I hold the plea to be open under those general words. What he has to prove is that this allegation of perjury was fair comment on what actually took place. That the fact of the statement of "wilfully or knowingly" was matter of fact. I think the evidence, therefore, is admissible, and that the verdict should stand.

ANDREWS and MURPHY, JJ., concurred.

Cause shown disallowed. Solicitor for the plaintiff: R. J. Connolly. Solicitor for the defendant: P. J. B. Daly.

[Ex.

Reported by R. W. LUCAS, Barrister-at-Law. HULL v. GREAT NORTHERN OF IRELAND RAILWAY COMPANY.

May 8, 9, 1890.-Negligence-Damages-Pecuniary loss occasioned by death_Evidence-Onus of proof-Lord Campbell's Act (9 & 10 Vic. c. 93, 27 & 28 Vic. c. 95).

In an action under Lord Campbell's Act (9 & 10 Vic. c. 93) by a daughter, who was a laundress, for injury resulting from the death of her mother, it appeared that the deceased had resided with the plaintiff, by whom she was boarded and lodged, and that she assisted in the laundry, and in looking after the house. There was no evidence that the pecuniary value of the cost of the support of the deceased or of the services rendered by her exceeded the cost of her support:

Held, that as there was no evidence from which the jury could reasonably come to the conclusion that the value of the services rendered by the deceased was greater than the cost of her support, the plaintiff had not proved pecuniary loss, and that the verdict should be set aside.

In order to entitle a plaintiff to succeed in an action under Lord Campbell's Act, the existence of pecuniary loss must be affirmatively established, and it is not sufficient to prove a state of facts which is as consistent with the absence as with the existence of such loss. Duckworth v. Johnston (4 H. & N. 653) disapproved.

This action was brought under Lord Campbell's Act, to recover damages for the death of the plaintiff's mother, Margaret M'Clure, occasioned by the negligence of the defendants. The defence was that the plaintiff sustained no pecuniary loss thereby. At the trial of the action, before Mr. Justice Andrews and a special jury, it appeared that up to the time of her death the deceased lived with her daughter (the plaintiff), who had carried on a laundry business in the city of Armagh for eight or nine years previous to the accident-the plaintiff and the deceased did all the working business in the laundry, except carrying the water, which was done by a little daughter of the plaintiff. The mother was supplied with board and lodging, but no money was paid to her in return for her assistance in the laundry. In addition to this, the deceased cooked meals and made herself useful, and during the absence of the plaintiff, who occasionally did work at the Beresford Arms Hotel, attended to the house and washing. It was stated by the plaintiff that she earned over £5 a year by her work in the hotel, and that owing to the death of her mother she had to discontinue that work. It appeared that the husband of the plaintiff was a coachman, earning 8s a week and his chances. He had four children living at the time of the accident-the eldest boy, aged sixteen, being an attorney's clerk in Aughnacloy, and the second, aged fourteen, was from home all day. One daughter, who gave some little assistance at the laundry, was killed in the accident. The plaintiff swore that her health had been failing from the time when her mother and daughter were killed, and that she had given up the laundry. The deceased, at the time of her death, was aged fifty-seven, and for eleven years previously had lived with the plaintiff. It was proved that in 1888 £40 was paid to the plaintiff by the proprietor of the hotel for washing, and £20 in 1889.

The learned Judge, in charging the jury, told them

Ex.]

that the pecuniary loss, which was necessary to sustain the action, must be the loss of pecuniary benefit or advantage arising out of the relationship between the plaintiff and her mother, and not the loss of benefit or advantage derived from any contract between them, and that if they believed that the assistance and services rendered to the plaintiff by her mother were rendered by reason of and under contract they should find for the defendants, but if they found that the assistance and services so rendered were rendered by reason of the relationship of mother to daughter and not under any contract they should consider whether the loss of her mother's assistance and services under the circumstances disclosed by the evidence occasioned any pecuniary loss to the plaintiff, and, if so, they should estimate what they considered reasonable compensation in damages for such loss, and give the plaintiff a verdict accordingly.

The jury found for the plaintiff, with £125 damages.

A conditional order having been granted to set aside the verdict, or for a new trial on the ground of misdirection, as being against the weight of evidence, and because the damages were excessive:

M'Loughlin, QC. (with him Gerrard, Q.C., and Bates), showed cause. Legal liability to render the service is not the real test. The real test is, was there a reasonable expectancy of a benefit coming to the plaintiff if the deceased had lived: Condon v. The Great Southern and Western Railway Co., 16 I. C. L. R. 415; Hetherington v. North-Eastern Railway Co, 9 Q. B. D. 160; Burke v. The Cork and Macroom Railway Co., 4 L. R. I. 682; Holleran v. Bagnell, 6 L. R. I. 333. The Act covers ascending as well as descending relations. Actual receipt of benefit at the time of the death is not necessary. In Sykes v. North-Eastern Railway Co, 14 L. J. C. P. 191, the deceased was a bricklayer, and received the wages of a skilled workman. But in this case the services were not rendered on account of a contract but on account of relationship, and if on account of relationship the plaintiff here is entitled to succeed. In Duckworth v. Johnston (4 H. & N. 653) the plaintiff upheld his verdict for damages for the death of his son, who at the time of his death was out of employment but had earned 4s. a week for a year or two. No evidence was given in that case of the cost of boarding and clothing the boy. The father of the deceased employed him and paid him the full amount of wages. The basis of the action must be the loss of a benefit, which benefit consists in the reasonable expectation of the continuance of the life of the person who confers it. The services here were rendered on account of relationship, not on account of contract. They also cited Pym v. The Great Northern Ry. Co., 2 B. & S. 759.

Walker, Q.C.(with him Orr, Q.C., and R. E. Meredith), contra.-Pecuniary damage is the basis of the action, and this pecuniary damage must be capable of being estimated. No estimate of the value of the services is given. All the cases cited are distinguishable. In every case in which damages were held recoverable there was something tangible; there is nothing tangible here. The board and lodging given the mother were a full and complete compensation for any small services she rendered, and unless the services exceed the value of the board and lodging the plaintiff cannot succeed. No such evidence was given in this case. Even assuming that there was any evidence of the value of the services over and above the support of the deceased, the verdict cannot stand as the da uages are excessive.

[Ex.

There can be no pecuniary loss in reference to services rendered in pursuance of a contract, and as the evidence stands it is consistent with the services being rendered in pursuance of a contract. The services must be rendered on account of the relationship of the parties, and these must be proved in addition—a state of facts out of which pecuniary advantage arose or had arisen, and was likely to arise again. In this case the weight of evidence would rather show that the services rendered by the deceased were more than compensated by the support and maintenance afforded to her in her daughter's house. Suppose the daughter had been killed, can it be contended that the mother would not have had a substantial cause of action for the loss of her maintenance and support?

PALLES, C.B. It is unnecessary to determine whether there is evidence that the loss, if any, of the plaintiff accrued by reason of the relation of mother and daughter which subsisted between her and the deceased. Even were the services of the deceased rendered in pursuance of a contract, the reasoning of the judges in Sykes v. Great Northern Ry. Co.-in which I concur-seems to leave it still open for consideration whether discontinuance, through death, of services which, although contracted for, are of greater value than the price stipulated for them, may not (if the jury believe that the relationship between the parties was the motive of the contract) amount to a pecuniary loss, within Lord Campbell's Act. Upon this question I offer no opinion, but, for the purposes of my judgment, I assume that the decision on it would be in favour of the plaintiff. Even, however, upon this assumption [ entertain a clear opinion that the verdict cannot stand, having regard to the ordinary principles as to onus of proof. In order to maintain the action there must have been pecuniary loss to the plaintiff caused by the death. The existence, therefore, of such loss must be affirmatively established. To do so it is not sufficient to prove a state of facts which is as consistent with the absence as with the existence of such loss. It follows that, if that loss depends upon something which may or may not exist, but which has not been proved, and cannot reasonably be inferred from the facts in proof, the plaintiff must fail, and if the fact in question be one peculiarly within the knowledge of the plaintiff, and not of the defendants, the difficulty of inferring it, when not directly proved, is increased.

Now, unless the value of the services rendered by the deceased to the plaintiff was greater than the cost of her support, then, even upon the assumption I have made, the death would not have caused the plaintiff any pecuniary loss. But if a jury can be supposed to have some knowledge of the ordinary rate of wages of washerwomen in Armagh, or even of washer women of the age of 59-which is going rather far-they could not, otherwise than by speculation, form any idea of the value in this particular case of the services of the deceased, who was not in the position of a servant, the amount and extent of whose work is not proved, and who probably did very much what she wished, and as she wished. If the jury had sufficient data to determine this amount, the value of the deceased's support might perhaps afford less difficulty. As she, her daughter, son-in-law, and four children-7 persons in all were maintained as one family out of earnings, as to the amount of which there was some evidence, a jury might, perhaps, without difficulty arrive at an approximation to the cost of the maintainance of one of the seven. Whatever certainty, however, there may be in this respect cannot aid the inherent vagueness as