1905 VINDEN V. HUGHES. Warrington J. shall be the person to receive payment, is it doing violence to language to say that the payee is a fictitious person? I think not. I do not think that the word 'fictitious' is exclusively used to qualify that which has no real existence. When we speak of a fictitious entry in a book of accounts, we do not mean that the entry has no real existence, but only that it purports to be that which it is not that it is an entry made for the purpose of pretending that the transaction took place which is represented by it." Then again, later on, he says: "It seems to me, then, that where the name inserted as that of the payee is so inserted by way of pretence only, it may, without impropriety, be said that the payee is feigned or pretended, or, in other words, a fictitious person." Now those passages which I have read, which were the passages mainly relied upon by the defendant, would be satisfied entirely by the case in which the drawer drawing the cheque puts into it the name of the person who exists, but whose name is inserted by mere pretence. In the present case let us test it. Take those words of Lord Herschell. Did Mr. Vinden draw this cheque in favour of T. H. Graves and the others as a mere pretence? It is impossible to come to that conclusion on the facts of this case. It was not a mere pretence at the time he drew it. He had every reason to believe, and he did believe, that those cheques were being drawn in the ordinary course of business for the purpose of the money being paid to the persons whose names appeared on the face of those cheques. That seems to me really to answer the defendant's case. I confess that I was much impressed by those passages in Lord Herschell's judgment and in Lord Halsbury's judgment; but when you come to see what it is they are directing their minds to, I think one appreciates that they are not really expressions which govern, or were intended in any way whatever to govern, such a case as that which I have now before me. I come to the conclusion, therefore, that in this case the names of the payees were not fictitious, or rather, to use the expression in the Act, which curiously enough says nothing about names, I come to the conclusion that the payees in these cases are not fictitious or non-existing persons; that the bills, therefore, cannot be treated as payable to bearer; that the forged indorsement, therefore, did not entitle the defendant to receive payment of the amounts of the cheques; and that accordingly he is liable to the plaintiffs for the loss that has been sustained. In the view I take of the law it is unnecessary to say whether or not the defendant is a holder in due course; but, as I have heard the evidence on that point, I think it is desirable that I should express my view upon it, which is, that there was nothing here which I can see, so to put the defendant upon inquiry as to render his payment to Cross anything but bonâ fide. If that is so, then he would be a holder in due course; but as I say, it is unnecessary for me, in the view I take of the law, to decide that point. The result will be that there will be judgment for the plaintiffs for the amount claimed, less the 201. paid into court, and costs. Solicitors: Hervey, Smith & Co.; John T. Lewis. 1905 VINDEN V. HUGHES. Warrington J. W. C. D. C. A. 1905 April 4. [IN THE COURT OF APPEAL.] WILLIAMS v. MERSEY DOCKS AND HARBOUR BOARD. Action for Damages for Death of Deceased Person—Statute of Limitations— An action can only be maintained by the representative of a deceased person under the Fatal Accidents Act, 1846, where that person could, if alive, have himself maintained an action in respect of his injuries against the defendant. The husband of the plaintiff, having in 1902 sustained injuries, as it was alleged, through the negligence of the defendants, a public authority, ultimately died of those injuries in 1904. The plaintiff having commenced an action against the defendants under the Fatal Accidents Act, 1846, to recover damages for his death:: Held, that the action could not be maintained, inasmuch as the right of action of the deceased, if alive, would have been barred by the Public Authorities Protection Act, 1893, s. 1(a). APPEAL from a judgment of the judge of the Liverpool Court of Passage as after mentioned. The action was brought by a widow under the Fatal Accidents Act, 1846, to recover damages in respect of the death of her husband, which resulted from injuries occasioned by falling into a lock belonging to the defendants, as was alleged, through the defendants' negligence in not keeping the lock properly fenced while certain repairs were being done to the lock gates. The accident happened in December, 1902, and the plaintiff's husband died of the injuries thereby caused in December, 1904. The action was commenced in February, 1905. An order had been made for the determination of a preliminary point of law, namely, whether the defendants, as a body coming within the meaning of the Public Authorities Protection Act, 1893, were protected by s. 1 (a) of that Act, by reason of the action not having been commenced within six months next after the neglect alleged against the defendants. The learned judge gave judgment for the plaintiff. The defendants appealed. The Carver, K.C., and Leslie Scott, for the defendants. decision of the learned judge in favour of the plaintiff was founded on the view that the cause of action arose upon the death of the plaintiff's husband. By the Fatal Accidents Act, 1846, formerly called Lord Campbell's Act, s. 1, “whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured." At the time of the man's death in this case, he could not have maintained an action owing to the limitation in s. 1 (a) of the Public Authorities Protection Act, 1893, as no action was commenced within six months after the act, neglect, or default complained of. A series of cases shew that, where the deceased person never had or has lost in his lifetime the right to bring an action, his death confers no new right on any one. In Senior v. Ward (1) it was held that, where a servant, who was killed in the course of his employment, if alive, could not have sued his master for negligence because he had been guilty of contributory negligence, the representative of the servant could not sue under the Fatal Accidents Act, 1846. In Haigh v. Royal Mail Steam Packet Co. (2) exemptions from liability in a passenger ticket, which would have bound the deceased, were held to prevent his executors from suing under the Fatal Accidents Act, 1846. In Read v. Great Eastern Ry. Co. (3) acceptance of satisfaction by the deceased was held to be an answer to an action by the widow. In Griffiths v. Earl of Dudley (4) it was held that a contract by the workman not to claim compensation bound his representatives. In Markey v. (1) (1859) 1 E. & E. 385. (2) (1883) 49 L. T. 802. (3) (1868) L. R. 3 Q. B. 555. C. A. 1905 WILLIAMS v. MERSEY DOCKS AND HARBOUR BOARD. C. A. 1905 Tolworth Joint Isolation Hospital District Board (1) death arose from the negligence of the defendants' servants, and an WILLIAMS action brought within the twelve months' period mentioned in the Fatal Accidents Act, 1846, s. 3, failed on the ground that DOCKS AND it was brought after six months from the death of deceased. 10. MERSEY HARBOUR BOARD. Rigby Swift, for the plaintiff. The Fatal Accidents Act, 1846, gives a wholly new cause of action to the representatives of the deceased, namely, for damages for his death. The only element common to that cause of action, and that which the deceased had in his lifetime, is that they both arise out of the negligence of the defendants. The parties to the two actions are different, and the damages would be different: see observations of Selborne L.C. and Lord Blackburn in Seward v. "Vera Cruz" (2); Pym v. Great Northern Ry. Co. (3); Blake v. Midland Ry. Co. (4) Markey v. Tolworth Joint Isolation Hospital District Board (1) is an authority to some extent in plaintiff's favour. The plaintiff's cause of action only accrued when her husband died in 1904. Her cause of action is not the neglect of the defendants to keep their lock properly fenced, and the consequent injury to her husband, but the death of her husband. Therefore the plaintiff's cause of action is not barred by the Public Authorities Protection Act, 1893, s. 1 (a). That Act did not destroy the husband's cause of action, but only barred the remedy by action. [He also cited Crumbie v. Wallsend Local Board. (5)] Carver, K.C., was not called upon to reply. MATHEW L.J. This is an appeal against the judgment of the learned judge of the Liverpool Court of Passage upon a preliminary point of law which was ordered to be disposed of before the trial of the action, namely, whether under the circumstances the plaintiff could maintain an action against the defendants by reason of the death of her husband. The action was brought under the Fatal Accidents Act, 1846, by a (1) [1900] 2 Q. B. 454. (2) (1884) 10 App. Cas. 59, at pp. 67, 70. (3) (1863) 4 B. & S. 396, at p. 406. (4) (1852) 18 Q. B. 93, at p. 110. (5) [1891] 1 Q. B. 503. |