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plaintiff's claim, but not one where the cause was ought to affect our decision. That was so in Cooper v. referred after trial. Here a verdict was entered for Pegg. In my opinion, the case comes within the the plaintiff before the reference.

County Court Act. I am glad to find that there is no impediment to our

Rule discharged. giving the fullest effect to that clause of the County Court Act which deprives a plaintiff of costs where he


} SOWERBY V. WADSWORTH. recovers under 201. This case, in my opinion, is

24 Nov, 1863. within the spirit of that Act.

Outlawry of Plaintiff in an ActionPleading. BRAMWELL, B.--I am of the same opinion. The The plaintif in an action of trespass obtained a ver. rule may be discharged without technicality. The dict against the defendant and signed judgment; the plaintiff has recovered by verdict, qualified by award defendant moved to set the judgment aside on the ground less than 201. If the jury had found a verdict for him of the plaintiff's outlawry. The plaintiff had been for this amount, it is clear that he could not have had outlawed in a civil suit, in the year 1836, and the his costs, but it is contended here that he recovers the outlawry had never been reversed :sum in question under the award, and that he is Held, that the defendant should have taken adranentitled to costs by the clause in the order of reference tage of the plaintiff's outlawry by pleading it in which states that costs are to abide the event of the abatement of the action ; and that, not having arailed award. On this question, the remarks of Willes, J., himself of the plaintiff's disability to sue at the proper in delivering the judgment of the Court in Robertson time, he could not now set the judgment aside :v. Sterne (31 L. J. C. P. 362 ; 7 L. T. (N. s.) 462), Held, also, that application should have been to stay are well worth attention. The learned Judge was proceedings on the judgment, not to set it aside. there speaking only of a reference by consent, but I dissent from him as to the distinction he draws

This was an action of trespass, which had been tried between a reference by consent and a compulsory

before Bramwell, B., at the Herts Summer Assizes, reference. On that point I still abide by the opinion 1863, when the plaintiff obtained a verdict, with 40s.

Just before I expressed in Frean v. Sargent. Though the refer- damages

, the Judge certifying for costs. ence was by consent, the plaintiff must sign judg. the trial, the defendant had applied to Bramwell, B., ment to get his costs, and the statute says, that in for leave to amend the pleadings by adding a plea of such a case as this he shall not have judgment for

the plaintiff's outlawry.

This application was refused. Judgment was signed In my opinion, the proper rule on this subject is to for the plaintiff in August, and on the 6th of Novemmake no distinction between subinissions by consent,

ber, Michaelmas Term, 1863, Woollett obtained a rule and compulsory submissions.

to show cause why the judgment signed in the action Wigens v. Cooke and Jones v. Jones have been cited should not be set aside on the ground that the plainfor the plaintiff. The first of these was under Lord tiff had been outlawed, and that the outlawry was not Denman's Act; in the second, the action had been originally brought in the County Court, but was

It appeared from the affidavits, that the plaintiff removed by certiorari, and thus the County Court Act had been outlawed in 1836, at the suit of one Beavan. did not apply. But, to tell the truth, I do not quite absent from England from 1831 to 1838, that he had

The plaintiff, in an affidavit, stated, that he had been understand that case as reported, but, at any rate, it had various transactions with Beavan, and that shortly is rightly decided. To sum up, where a plaintiff is entitled to judgment, and gets damages, and the case

after his return to England in 1838, that person is such that, had the case been tried in Court, he applied to him for payment of a sum due. That he would have lost his costs under the County Court had no doubt that he had paid it, as he was at that Act, he still loses them if he recovers by a verdict time discharging all his debts, and as he had never qualified by an award.

received any further application from Beavan, or any

one on his behalf. CHANNELL, B.- I agree with the Lord Chief Baron and my brother Bramwell. The plaintiff here has

Hawkins, R.C., Sir G. Honyman, and Archibald,

now showed cause. “recovered” the sum awarded within the meaning of

The granting or refusing of this the County Court Act. When the authorities are

application lies entirely in the discretion of the Court, examined, it appears that they do not differ on this

as it is an appeal to their equitable jurisdiction to set point. All the cases cited for the plaintiff are cases of

aside a judgment duly obtained. There are several reference before verdict. Here the reference was after grounds for discharging this rule. verdict, which makes all the difference.

1st. The present plaintiff was abroad at the date of

his outlawry, which was, therefore, erroneous, and Pigott, B.- I am of the same opinion. I do not could have been reversed at any time ; and, besides, he think that the fact of all matters in difference having has long since paid the money to Beavan, at whose suit been referred to the arbitrator by the order of reference he was outlawed.



2nd. It is now too late for the defendant to make An outlaw may, in some respects, be said to be this application. The outlawry of the plaintiff in an civilly dead, and cannot enforce his legal claims. action must be pleaded, and if the defendant neglects to plead it at the proper time he cannot be allowed to

POLLOCK, C.B.-- This is an application by motion take the objection afterwards,

to set aside a judgment obtained by the plaintiff in

the action. Vin. Abr. tit. “Outlawry," I. A.

The granting or refusing of such an The case there cited of

application is a matter which lies in the discretion of Puttenham v. Morris, Bendl. 206, pl. 242,

the Court, their jurisdiction in such cases being to a is in point. In

certain extent equitable. Persons in the position of

the defendant here have never been allowed to say I Aldridge v. Buller, 2 M. & W. 412, the Court refused to set aside a judgment of nonsuit have a right to the interference of the Court, however obtained by a defendant who was an outlaw. The old frivolous and objectionable my own conduct may have authorities on the subject show that outlawry in a civil been. In this case a verdict has been found for the suit works no forfeiture of land ; and, in such an action plaintiff, and judgment duly signed, and now the as the present, cannot be pleaded in bar ; but affords defendant attempts to set aside that judgment on the matter for a plea in abatement only,

ground of the outlawry of the plaintiff. The answer Bac. Abr. tit. “Outlawry,” D 2;

to this application is that the defendant should not Com. Dig. tit. “Abatement,” E 2;

have allowed the action to go so far, but should have Coke Lit. 128 B;

taken the objection at the proper time by pleading in Copley v. Delanoy, 2 Ld. Raym. 1055.

abatement that the plaintiff was an outlaw; for in my The defendant should have raised this objection to the opinion he could not have pleaded it in bar of this plaintiff's suing in the proper way, by means of a plea action. Having neglected to do this at the proper time, of abatement. Having neglected to do so he cannot the defendant applied to add the plea just before the now be allowed to set all the proceedings aside.

trial; leave to do this was refused by the learned Judge, (BRAMWELL, B.—May it not be said that an outlaw in my opinion very properly, for the Courts look with

no favour on such pleas, and will not in any way assist having shown his disregard for the law, cannot be allowed to avail himself of it ?]

a defendant in pleading them. Now the defendant Not exactly. It is a disability on the part of the desires to set the judgment aside. I am of opinion that

this should not be allowed ; the rule should have been plaintiff, which the defendant can only set up by

to stay proceedings on the judgment, not to set it means of a plea in abatement.

[BEAMWELL, B. — That is hardly correct; the Courts aside, for it would be grossly unjust to allow a man will sometimes set aside proceedings on the ground of to try a cause, and when he had signed judgment to the outlawry of one of the parties. In the case of set all the proceedings aside on the ground of an outAldridge v. Buller, which has been cited, the Court lawry which might be reversed at any time. refused to set aside a judgment of outlawry obtained by to exercise our equitable jurisdiction in the matter.

is nothing, in my opinion, in this case, to induce us an outlawed defendant; but they did set aside a habeas This outlawry is thirty years old, the plaintiff was corpus ad satisfaciendum, which the defendant had obtained to charge the plaintiff in execution for costs.] debt due from him has long since been paid.

abroad at the time he was made an outlaw, and the In that case the defendant's disability could not have

These outlawries were at one time very common, been taken advantage of at any earlier stage in the and obtained a certain sanction, to which, I think, no proceedings. Here, the defendant might have pleaded the plaintiff's outlawry in abatement. Having neglected for the reasons I have stated, I am of opinion that

enlightened lawyer can now look back without regret. to do this he cannot now be allowed to set the judg. this rule should be discharged with costs. ment aside.

BRAMWELL, B.-I am of the same opinion. A Shee, Serjt., and Woollett, in support of the rule. more thoroughly frivolous and vexatious proceeding An outlaw cannot enforce his legal rights. It would than this could not be. The defendant is attempting bave been better, no doubt, to have pleaded the to set aside all the proceedings in an action on the plaintiff's outlawry; but though that has not been ground of an outlawry of the plaintiff thirty years done, the plaintiff cannot be allowed to avail himself of old. The defence might have been pleaded in abatethe law. Several cases show this,

ment, and as the defendant has not taken the objection In re Mander, 6 Q. B. 867 ;

at the proper time, he cannot be allowed to set aside Regina, on the prosecution of the Duke of Bruns- the judgment now, the rule in such cases being that wick, v. Lowe, 8 Exch. 697.

you cannot take advantage of matter except at the [Hoyman.-In the latter case the outlawry was a proper time. It has been contended for the defendant criminal one.]

that this judgment should be set aside, not on account [POLLOCK, C.B.-I doubt whether in old cases the of any merit in the applicant's case, but because outdistinction between civil and criminal outlawries is to lawry produces legal disability, and because an outlaw be found.]

therefore should not be allowed to avail himself of any

There his

legal rights he may have. I think that this rule has dant, brought into Court by a plaintiff, cannot defend been stated rather too broadly. The legal disability of himself, although perhaps he would not be allowed to an outlawed plaintiff must be taken advantage of by take a distinct proceeding on his own behalf. In that the defendant at the proper time. It is said for the case, the plaintiff could not have raised the objection defendant that he was not aware of the outlawry of at any earlier stage in the proceelings. Here, the the plaintiff at the time of pleading. That might be defendant might have pleaded the plaintiff's outlawry. a matter for us to consider if the defence now raised | We are not called on to decide whether it should have by the plaintiff was one of a fair and equitable nature, been pleaded in abatement or in bar. I am inclined to but, under the circumstances, I do not think we are think that a plea in abatement would have been the called upon to pay any attention to this fact. Several proper one. cases have been cited in argument, but most of them

Pigott, B.,

concurred. do not appear to me to assist us in the decision of the question now before us. Aldridge v. Buller most

Rule discharged with costs. resembles the present case.

There the defendant, an outlaw, obtained judgment of nonsuit against the


} BYRNE V. BOODLE. plaintiff, and afterwards sued out a habeas corpus ad

6, 25 Nov. 1863. satisfaciendum to charge the plaintiff in execution for

Negligence—Primâ facie Evidence. costs. The Court refused to set aside the judgment, as the

The happening of an accident may be, in some cases, plaintiff did not apply to have this done soon enough, primâ facie evidence of negligence. Where a barrel of but they afterwards set aside the habeas corpus. This flour being lowered from a warehouse slipped, and jell case appears to me to have been rightly decided, upon a passer-by :though, with all due deference to the authority of the Held, that the fact of its falling was primâ facie learned Judges who considered it, I do not quite agree evidence of negligence. with the reasons given for the decision. The defendant This was an action against a flour-dealer for injuries there having been brought into Court by the plaintiff's occasioned to the plaintiff while passing along a street act, was surely entitled to defend himself, and could in front of the defendant's warehouse, throngh the therefore sign judgment, the plaintiff having been non- negligence of the defendant's servants in lowering a suited. But the defendant, an outlaw, could not be barrel of flour. allowed to take a distinct proceeding for the enforce- The declaration alleged that the defendant ment of his legal rights. The position of the plaintiff servants so negligently and unskilfully managed and in that case differed from that of the defendant here, lowered certain barrels of flour by means of a certain inasmuch as there the plaintiff had no earlier oppor- jigger-hoist and machinery attached to the shop of the tunity of availing himself of the defendant's disability. defendant, situated in a certain highway along which The defendant must take adrantage of the plaintiff's the plaintiff was then passing, that, by and throngh disability at the first opportunity, as otherwise the the negligence of the defendant by his servants, one defendant might come in at any time, and set all the of the said barrels of flour fell upon and struck against proceedings aside.

the plaintiff, whereby the plaintiff was thrown down Another ground for discharging this rule is, that and permanently injured, &c. the application should have been to stay proceedings The defendant pleaded Not Guilty, whereupon issue on the judgment, and not to set the judgment aside, was joined. as when the plaintiff has reversed the outlawry he can The cause was tried before the Assessor of the Court sign judgment again. The substantial answer to the of Passage of the borough of Liverpool in October defendant's application is, that the plaintiff's outlawry last, when the following facts appeared in evidence :should have been pleaded in abatement, and that the On the 18th July, 1863, the plaintiff

, a cork-cutter motion should have been to stay proceedings on the and commission agent, was passing along a public judgment.

street in Liverpool, in front of the shop of the de

fendant, a grocer and flour-dealer. At the same time, Channell, B.- I am of the same opinion. The there was a cart at the defendant's shop-door, and defendant applied just before the trial to be allowed some barrels of flour were being delivered into the to add a plea of the plaintiff's outlawry. This was cart from a warehouse over the defendant's shop. One refused ; and he now comes to the Court to set aside of the barrels of flour slipped, while in the act of being the judgment signed in the action. I am of opinion lowered, struck the plaintiff on the shoulder, and that this should not be done. The case of Aldridge v. threw him down. No warning was heard, and the Buller, cited in argument, is not exactly parallel to plaintiff saw nothing to indicate danger. His left foot the present case.

The defendant was there an outlaw, was partially dislocated, and a surgeon deposed that and having been brought Court by the plaintiff's the injury would be permanent. The plaintiff' was an act, it would be pushing the doctrine with regard to old man, and suffered great pain for some time. outlawry to a monstrous extent to say that a defen- At the close of the plaintiff's case, the learned Assessor being of opinion that there was no evidence to the act of being lowered, and the barrel falls upon him. Warrant the jury in finding that the defendant had I think that the fact of its falling, is primâ facie evibeen guilty of negligence, directed a nonsuit; but dence of negligence. reserved leave to the plaintiff to move in this Court to

BRAMWELL, CHANNELL, and Pigott, BB., enter a verdict, the damages having been contingently

curred. assessed at 501,

Rule absolute.


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6 Nov. 1863.


Flowers and Others v. Allan. Littler moved, pursuant to leave reserved, to set 25 Nov. 1863. aside the nonsuit, and to enter a verdict for the plain. PracticeWrit of SummonsDefendant Resitift, on the ground that the learned Assessor was wrong

dent out of Jurisdiction-Order to Proceedin ruling that there was no evidence of negligence on the part of the defendant.

Setting Aside Order— Reasonable Efforts to

Rule nisi. Serve-Common Law Procedure Act, 1852 25 Nov. 1863.

(15 & 16 Vict. c. 76), ss. 2, 17, 18. Charles Russell showed cause.

The defendant, a native of and resident in Scotland, There was no evidence given to connect the de- had a branch establishment in the city of London. fendant or his servants with the negligence. It is A copy of the writ of summons was left at the London open to the defendant so to contend, under the plea branch, to be forwarded to the defendant in Scotland. of Not Guilty,

A letter was also written by the plaintiff's attorneys to Mitchell v. Crassueller, 13 C. B. 237.

the defendant, stating that the writ had been issued. There was no evidence that those who were lowering the defendant, in reply, referred the plaintiff's' attorneys the barrels were the defendant's servants.

to his solicilors in Glasgow, who, on being written to, (BRAHWELL, B.-If flour is being delivered at or replied that they had received no instructions : from a dealer's warehouse, is it not a reasonable pre- Held (rescinding an order of MARTIN, B., giving the sumption that it is done by the dealer or his servants ?j plaintiffs liberty to proceed as if personal service had

Taking the facts to have connected the defendant been effected), that reasonable efforts to serve the deand his servants, they do not make out a case of negli- fendant had not been made ; and, per BRAMWELL, B., gence. There is no case in which it is laid down that that substantial service supposes the possibility of rightthe mere fact of an accident occurring is evidence of ful service. negligence.

In this case Watkin Williams had obtained a rule [BRAUWELL, B., cited,

calling on the plaintiffs to show cause why an order of Skinner v. London and Blackwall Railway Com

Martin, B., of the 26th of October, 1863-giving the pany, 5 Exch. 787.] The cases usually cited to support the proposition do sonal service of the writ of summons had been effected

plaintiffs liberty to proceed in the action as if pernot bear it out. It lies on the plaintiff to make out a

-should not be rescinded, on the ground that the declear affirmative case of negligence. He also cited,

fendant was resident out of the jurisdiction of the Carpue v. London and Blackwall Railway Com

Court when the action was comnienced, and so conpany, 5 Q. B. 747 ;

tinued until the order to proceed was made. Christie v. Griggs, 2 Camp. 79 ;

The writ of summons was in the form prescribed for Bird v. Great Northern Railway Company, 28

service within the jurisdiction by the 2nd section of L. J. Ex. 3;

the Common Law Procedure Act, 1852, and was Cotton y. Wood, 8 C. B. (N. s.) 568 ;

addressed to the defendant as of Nos. 3 and 4, Upper Hammack v. White, 11 C. B. (N. S.) 588.

Thames Street, in the City of London.

In support of the summons, upon which the order Litller, in support of the rule, was not called upon.

had been obtained, an affidavit was made on the part of POLLOCK, C.B.–We are all of opinion that this the plaintiffs, by the plaintiffs' attorney and his clerk, mle to enter a verdict should be made absolute. It is in which it was stated that the defendant carried on quite right to say that there are many cases in which business as an ironfounder and iron merchant at Rutthe mere fact of the accident occurring affords no pre- land Wharf, Upper Thames Street, but resided prinsumptiou of negligence either way ; but it would be cipally in Scotland, and that the action was brought wrong to say that there are no cases in which a pre- to recover 3,215l. 128. 5d., the balance upon an sumption of negligence would arise. It is clear that account current with the plaintiffs, who are merchants in some cases the happening of the accident may be in London and Australia. primâ facie evidence of negligence, as where an article, It appeared from the affidavit, that the clerk to the calculated to damage, happens to be in a wrong place. plaintiffs' attorney had made frequent calls at the The present case comes to this : a man happens to be warehouse in Upper Thames Street, with the view of passing the defendant's warehouse while a barrel is in serving the defendant with the writ of summons, and


had seen the manager and two of the clerks on Hesketh v. Fleming, 24 L. J. Q. B. 255; different occasions, and spoken to them on the subject. Ablett v. Basham, 5 El. & Bl. 1019 ; It also appeared from the same affidavit, that a copy Attorney-General v. McLean, 32 L. J. Ex. 101; of the writ had been left, in an envelope addressed to Attenborough v. Thompson, 2 H. & N. 559 ; the defendant, with one of the clerks, to be forwarded Lush's Practice, 258 (2nd ed.). to the defendant in Glasgow ; and that the clerk to

Lush, Q.C. (Walkin Williams with him), in support the plaintiffs' attorney was told that the envelope had

of the rule. been forwarded, but that no instructions had been received respecting it.

Substituted service must be of a service that could It was also sworn that the plaintiffs' attorney had written to the defendant at be effected. Because a man cannot be sued under the Glasgow, informing him that the writ had been issued, 18th section, is that any reason for bringing him within and requesting to be referred to the defendant's the 17th section ? Hesketh v. Fleming, decides this attorney, who would accept service for him ; that the

He referred to defendant replied, referring to his solicitors in Glasgow ;

Common Law Procedure Act, 1852, ss. 2, 17, 18. that the plaintiffs' attorney then forwarded the writ to the defendant's solicitors in Glasgow, but received a

POLLOCK, C.B.–We are all of opinion that this reply returning the writ, and stating that they had rule must be made absolute. It is not necessary to no instructions to appear for the defendant.

decide in this case what constitutes residence, or what On the part of the defendant there was an affidavit would be the effect supposing the defendant to have made by the manager of the warehouse in Thames had a branch firm in England, though residing out of Street and one of the clerks, in which it was stated the country. There must be reasonable efforts to serve ; that the clerk of the plaintiffs’ attorney did not ask and when you come to know all the facts, it appears after the defendant when he called at the warehouse, that the efforts to serve in this case were not sufficient. but requested that the paper which he left should be forwarded ; and that such clerk was informed that the BRAMWELL, B.- I am entirely of the same opinion. defendant resided in Scotland. It was also sworn in It was not intended that that should be done which the same affidavit that the defendant was a native of has been attempted to be done in this case. The 18th Scotland and always resided there, and that the section would be the same as the 19th but for the alleged claim of the plaintiffs was not in respect of any exception as to Scotland and Ireland. Suppose that transactions with the warehouse in Upper Thames exception had not been made, the case would have been Street. There was also an affidavit of the defendant comprehended within the 17th section. himself, in which he deposed that he was a resident in Mr. Lush that substituted service supposes the possi. the city of Glasgow, and a native of Scotland, and had bility of rightful service. My brother Pigott was right always been resident there, and never in England ; in not setting aside the writ. The writ in itself is and an affidavit of the defendant's solicitor in Glasgow, regular. Then as to reasonable efforts to serve. Sapto the same effect.

posing all the facts known, it could not be said that Upon these affidavits the order referred to, and now there were reasonable efforts to serve the defendant. sought to be rescinded, was made by Martin, B. Is the plaintiff, then, better off for his ignorance? I

An application was subsequently made to Pigott, B., think not. He could not make a proper affidarit at Chambers, to set aside the writ and all proceedings, honestly. Reasonable efforts to serve must mean, but this application was refused.

reasonable according to the actual facts. Hesketh v. In support of the motion for the rule nisi, additional Fleming is in point, and the case in the Common affidavits were made by the defendant himself and his Pleas is no authority. solicitor in Glasgow, in which it was sworn that the

CHANNELL, B.-I am of the same opinion. The defendant's principal place of business was, and always

case in the Common Pleas was decided upon the had been, in Glasgow, where his foundry was also

insufficiency of the affidavits. situated ; that the business carried on by the defendant in London was only a subordinate branch of his

Pigott, B.,

concurred. principal business ; and that at the time this action

Rule absolute. was commenced he was not in England, and that he had not been in England at any time since.

I agree with

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