ableness of time. There may be circumstances affecting the safety of the vessel, or the convenient prosecution of the voyage, which may justify some delay. But that must be a question for the jury, having regard to all the facts laid before them. We have the evidence of a captain in the French navy,-the skill and courage of whose officers we have had too many opportunities of appreciating,-who stated he thought it but reasonable that the Papin No. 6 should wait until the other two vessels were ready. He gave as his reason, that he would not like to sail in one of these vessels without having the others in company; intimating that they were somewhat crank, and such as to the mind of a sea-going man of experience suggested such an amount of peril as he would not be willing to encounter without *144] having assistance at hand. If that was the opinion of a man

*

of such a character as used to be called in the old books a man of a constant mind, not of mere caprice or timidity, but having a due regard to the safety of the vessel and the lives of her crew,-I cannot say that there was no evidence upon which a jury might properly hold that a prudent man uninsured would have waited the time that the captain of the Papin No. 6 did wait. I cannot, when I come thoroughly to consider the matter, bring myself to say that there was no evidence from which the jury might fairly come to the conclusion that there was no unreasonable delay. It is not desirable to withdraw questions of that sort from a jury, who, from their habits and general knowledge of business, are well qualified to deal with them.

Upon that point, therefore, as upon the others, I feel bound to come to a conclusion in favour of the plaintiffs, and to hold that the rule should be discharged.

BYLES, J.-I am entirely of the same opinion. My Brother Willes has gone so fully into the various points which were raised in this case, that it is unnecessary for me to say more than that I entirely concur in every part of his judgment. There is, however, one observation which may be made as to Papin No. 6. In addition to the consideration for the lives of the crew, which is an element which, I think, might fairly guide the judgment of the captain, I think it is plain upon the face of the policies that it was the intention of the parties that these three vessels should sail in company. I think the stipulation that the assured should have leave "to tow and be towed,"bearing in mind that they are all steam-vessels,-necessarily imports *145] that they are to proceed in company; at all events, if *no ex traordinary or unreasonable delay is to be occasioned thereby. Again repeating my adhesion to all that has fallen from my Brother Willes, I must say that I do not entertain any doubt as to the propriety of our decision. Rule discharged.(a)

(a) See Burges v. Wickham, 32 Law J. Q. B. 17.

COLLINGWOOD v. BERKELEY and Others.

June 6.

A prospectus of a projected company for the conveyance of emigrants to British Columbia contained statements calculated to induce intending emigrants to believe that arrangements had been perfected for the object in view, and inviting them to take tickets for their passage and the public to purchase shares. This prospectus was shown by the secretary to the defendants, and they were asked to allow their names to be inserted therein as directors; to which they consented, on being qualified (that is, presented each with 200 paid-up shares of the nominal value of 107. each) and indemnified. Their names were accordingly inserted, and the prospectus published and advertised in the Times :

Held, that, from these facts, the jury were warranted in inferring that one who contracted with the secretary for a passage, and paid his money, upon the faith of the representations contained in the prospectus, did so upon the credit of the defendants, and consequently that he was entitled to sue them for a breach of such contract.

THIS was an action for the breach of an alleged contract by the defendants to carry the plaintiff from London to British Columbia.

The first count of the declaration stated that the defendants were directors of a certain company called The British Columbia Overland Transit Company, and that they falsely and fraudulently represented to the plaintiff that the said company would, in the month of May, 1862, despatch a party of passengers from England per steamer to Canada and over the Grand Trunk railway to Chicago and St. Paul's, and viâ the Red River Settlement, in covered wagons, four-horsed, to British Columbia; also that a large escort would accompany the passengers, and due provision would be made for victualling, and that the fare or passage-money for each passenger from England to British Columbia aforesaid would be the sum of 421., and that *one James Henson was secretary of the said company: Averment, [*146 that, believing the said representations to be true, and relying thereon, the plaintiff was induced to pay to the said James Henson, as such secretary of the said company, and the said James Henson, as such secretary, accepted and received from the plaintiff, the sum of 421. as and for the fare or passage-money for the conveyance of the plaintiff from England to British Columbia by the means and in the manner herein before set forth; and that all conditions were performed and fulfilled, and all things happened and were done, and all times had elapsed necessary to entitle the plaintiff to be conveyed to British Columbia aforesaid by the said company, and to maintain this action: Breach, that the defendants did not convey the plaintiff to British Columbia or to any other place beyond St. Paul's aforesaid, and no covered or other carriages, four-horsed or otherwise, were provided by the defendants for the conveyance of the plaintiff to British Columbia aforesaid, nor was there any escort provided to accompany the plaintiff as such passenger as aforesaid, nor was any provision made for victualling the plaintiff as such passenger as aforesaid, as the defendants well knew.

The second count stated that the defendants and divers other persons issued, published, and circulated, and caused to be issued, published, and circulated certain prospectuses or advertisements, in which it was, amongst other things, stated and represented that the defendants and divers other persons were directors of a certain company called The British Columbia Overland Transit Company, Limited, and that one James Henson was the secretary of the said company, and that the

promoters of the said company had organized a certain route from Canada to British Columbia, and would forthwith organize a perfect *147] land-transport train of horses and spring-carts adapted for passengers and goods traffic, and that instructions had been sent out to its agents, by which the route would be placed in a perfect state, and would in the month of May, 1862, despatch a party of first and second-class passengers by the said route from England to British Columbia: Averment, that, believing the statements and representations in the said prospectuses or advertisements, and relying thereon, the plaintiff was induced to enter into a certain contract or agreement with the said James Henson as the secretary and on behalf of the said alleged company, for the conveyance by the said alleged company of the plaintiff to British Columbia by the route aforesaid, and to pay to the said James Henson as such secretary the sum of 427. as and for the passage money or fare of the plaintiff: Breach, that the defendants, in and by the said statements and representations therein before mentioned, deceived and defrauded the plaintiff in this, that, at the time of making the said statements and representations, no company had been established called The British Columbia Overland Transit Company, Limited, and no route had been organized from Canada to British Columbia by the alleged promoters of the said alleged company, and no means had been taken or were intended to be taken to organize a land-transport train of horses and spring-carts, and instructions had not been sent out to the agents of the said alleged company, by which the said alleged route would be placed in a perfect state, all which the defendants well knew; and that the plaintiff was not conveyed to British Columbia aforesaid in pursuance of the said contract or agreement with the said James Henson as such secretary as aforesaid, but only to St. Paul's aforesaid.

The third count stated, that, on the 17th of May, *1862, in *148] consideration of the sum of 427. then paid to the defendants by the plaintiff, the defendants agreed with the plaintiff to carry and convey the plaintiff from England to British Columbia, by way of St. Paul's, and that from St. Paul's aforesaid to British Columbia aforesaid a large train of horses and wagons, accompanied by a numerous escort, should and would start with the convoy; also that parties should and would be sent in advance to collect at stated points extra provisions, while cattle would be driven to those stations; and that all conditions were performed and fulfilled, and all things happened and were done, and all times elapsed necessary to entitle the plaintiff to a performance of the said agreement by the defendants and to maintain this action for the breach thereof hereinafter alleged: Breach, that the defendants did not carry and convey the plaintiff from England to British Columbia aforesaid by way of St. Paul's aforesaid or otherwise, and no train of horses and wagons accompanied by a numerous or any escort were provided by the defendants or any other person or persons to start from St. Paul's aforesaid to British Columbia aforesaid, and the defendants did not send any person or persons from St. Paul's in advance, for the purposes above stated or any of them; whereby and by means whereof the plaintiff was compelled to remain and stay at St. Paul's aforesaid for a long time, to wit, seven days, and was unable to proceed to British Columbia afore

said, and lost divers large profits and gains that he otherwise would have made at British Columbia aforesaid, and was compelled to leave St. Paul's aforesaid, and was put to expense, to wit, the sum of 1007, in returning to England.

There was also a count for money paid, money received, and money found due upon accounts stated.

The defendants severally pleaded in substance as *follows,first, to the first and second counts, not guilty,-secondly, to [*149 the first count, that they were not directors as alleged,-thirdly, to the third count, that they did not agree as alleged,-fourthly, to the third count, that the plaintiff did not pay the said sum, or any part thereof, to them as alleged,-fifthly, to the residue of the declaration, never indebted. Issue thereon.

The cause was tried before Erle, C. J., at the sittings in London after last Hilary Term. The facts which appeared in evidence were in substance as follows:

In the Spring of 1862, a gentleman who called himself Colonel Sleigh proposed to form a company, with limited liability, for the conveyance of emigrants to British Columbia, appointed a secretary, took offices in the city, and issued a prospectus to the following effect,

"British Columbia Overland Transit Company, Limited (with anticipated legislative, colonial, and government postal subsidies or guaranties of 6 per cent.). To be incorporated under the provisions of the Joint-Stock Companies Acts of 1857 and 1858. Capital, 500,0001. sterling (with power to increase to one million), in 50,000 shares of 101. each. Deposit, 17. per share on application, and 17. 10s. on allotment. No further call without three months' notice, except by consent of a general meeting of the shareholders.

"Board of Directors,-The Hon. F. H. Fitzhardinge Berkeley, M. P., Henry Fenton Jadis, &c., &c.

"Bankers, Bank of London, Threadneedle Street, E. C.; Robarts, Lubbock, & Co., 11 Mansion House Street, E. C.

"Solicitors,-Messrs. Prichard & Collette, 57, Lincoln's Inn Fields. "Offices,-6, Copthall Court, Throgmorton Street. "Secretary,-Jaines Henson, Esq.

[*150

"The only drawback to the future greatness of the country, is, the distance by sea from Europe,-five months viâ Cape Horn, and forty to fifty days by steam viâ Panama. To obviate this and at once give an impetus to immigration, and by which a continuous stream of settlers will hasten to British Columbia, the overland route from Canada, passing direct through British territory, has been arranged by the promoters of the Overland Transit Company. Several surveys have resulted in tracing a direct road, which, with a perfect organization of land transport, is at once available. From Europe, settlers will proceed to Canada, and thence direct by steam to Fort William, or, as afterwards explained, to Fond du Lac, Lake Superior. From thence the route proceeds to the Red River Settlement, and onwards direct through a lovely prairie country to British Colum bia by the route indicated in the following extract from the report of Governor Douglas, printed in the Blue Books of 1860, and laid before parliament, From Lytton, a central point in British Columbia, a

natural road now exists, leading to Red River Settlement, by the Contannais Pass, through the Rocky Mountains, and from thence following the Valley of the Saskatchewan, chiefly over a prairie country of great beauty, replete with game. A settler may take his departure with his cattle and stock, and reach British Columbia by that road. This is no theory; the experiment having been repeatedly made by parties of Red River people travelling to Colville, British Columbia, from whence there is a good road to Lytton; so much so, indeed, that persons assured me that the whole distance from Lytton to Red River may be safely travelled with carts. Lytton is a town situated in the centre of the gold district of British Columbia, near Fort Hope on the Frazer River.'

*151] "This corporation will forthwith organize a perfect landtransport train of horses and spring-carts adapted for passengers and goods traffic, and erect log-shanties for light stabling and refreshment at stated intervals along the entire route. Cattle and provisions will be collected at these stations, and armed mounted escorts will be formed for convoy. By the arrangements already in a state of forwardness in Canada from instructions sent out to agents, there can be no question but that the route will be placed in a perfect state, ready to meet the requirements of an enormous immigrant traffic. Applications have been made direct to the legislative council of British Columbia, and to the government in Canada, for local charters which shall secure for this company exclusive privileges for several years to come. Both Canada and British Columbia have offered large inducements to the promoters of an overland route such has been organized by this company. It is estimated that by the express carts of this corporation, the distance from Lytton or Fort Hope on the Frazer River, British Columbia, to Lake Superior, the head quarters of steam navigation, will be performed in twelve days. Hence, Europe could be reached from British Columbia in, say, twenty-five days. As the route from Fort William, Lake Superior, to Red River Settlement, would require some delay to be put in a state for cart traffic, the Overland Transit Company propose for the first twelve months that passengers should proceed by steamer to Fond du Lac, Lake Superior, and thence up the St. Louis river, and thence by express carts to the junction of the Sioux Wood and Red River (two hundred miles), from thence in small river steamers to Assiniboine, Red River Settlement (one hundred and eighty miles). Small steamers, especially adapted for this navigation, can be constructed for 5000l. a piece. *152] From Assiniboine to Elbow Forks of the S. Saskatchewan(a) (five hundred miles), from Elbow to Fort Hope, on the Frazer River, British Columbia, viâ the Vermillion Pass of the Rocky Mountains (seven hundred miles). Hope Town is connected by steamers with Victoria. Total distance from Fond du Lac, fifteen hundred and eighty miles, about two hundred miles of which will be travelled in steamers; and probably more steamers will ultimately be put upon. the S. Saskatchewan, by which three hundred miles more could be travelled in steamers; thus reducing land travel by five hundred miles, being about one thousand miles for the express carts. While (a) Sir George Simpson, the governor of the Hudson's Bay Company, travelled between Rei River and the S. Saskatchewan on a well-defined track over the plains with a cart.