FOWLER v. LOCK. Cab Proprietor and Driver-Bailment-Warranty of Fitness of Horse to be driven in a Cab. The plaintiff, a cab-driver, obtained from the defendant, a cab-proprietor, a horse and cab upon the usual terms, viz. that the driver on bringing them back at the end of the day should hand over to the proprietor 18s., retaining for himself all the day's earnings over that sum,-the day's food for the horse being supplied by the owner, and the latter having no control over the driver after leaving the yard. The horse with which the plaintiff was furnished, which was fresh from the country and had never before been harnessed to a cab, overturned the cab and injured the driver. In answer to questions put to them by the judge, the jury found that the horse was not reasonably fit to be driven in a cab; that the plaintiff did not take upon himself the risk of its being reasonably fit to be so driven; that the defendant did not take reasonable precautions to supply the plaintiff with a reasonably fit horse; and that the horse and cab were intrusted to the plaintiff as bailee, and not as servant. A verdict having been thereupon entered for the plaintiff,- THIS was an action by a cab-driver against a cab-proprietor to recover damages for injuries sustained by the plaintiff by reason of his having been supplied with an untried and vicious horse. The cause was first tried before Byles, J., at the sittings in London after Michaelmas Term, 1871, when a verdict was found for the plaintiff with 507. damages. In the ensuing term, a rule nisi was obtained to enter a verdict for the defendant on the ground that the plaintiff was the servant of the defendant, and not a bailee; and that, if a bailee for hire, there was no implied promise that the horse was reasonably fit for the purpose for which it was let; or for a new trial, on the ground that the verdict was against the weight of evidence. This rule was argued in Easter Term, 1872, when the verdict was upheld by Byles and Grove, JJ. (Willes, J., dissenting), on the ground that the relation between the defendant and the plaintiff was not that of master and servant, but that of bailor and bailee, and consequently that the defendant was under a legal obligation to furnish the plaintiff with a horse that was reasonably fit to be driven in a cab: see Fowler v. Lock. (1) (1) Law Rep. 7 C. P. 272. The defendant appealed against this decision, and the Court of Error, being divided in opinion, upon the imperfect statement before them, as to whether the horse and cab were intrusted to the plaintiff as servant or as bailee, and those of the judges who inclined to the latter opinion not being satisfied that it followed necessarily that there was a warranty that the horse bailed was fit for the purpose for which it was bailed, and that it might be that the plaintiff took upon himself the risk of its fitness, awarded a venire de novo. (1) The cause again came on for trial before Denman, J., at the sittings in London after Trinity Term last. The facts proved were substantially the same as upon the former occasion. The learned judge left the following questions to the jury : --- 1. Was the horse reasonably fit to be driven in a Hansom cab? 2. Did the defendant take reasonable precautions to supply the plaintiff with a reasonably fit horse upon the occasion in question? 3. Did the plaintiff take upon himself the risk of the horse being reasonably fit to be driven in a cab? 4. At the time of the accident, did the plaintiff take the horse and cab wrongfully, or were they entrusted to him by the defendant? 5. Were the horse and cab intrusted to the plaintiff as bailee, or as servant? The jury answered the first three questions in the negative. In answer to the fourth, they found that the cab and horse were intrusted to the plaintiff by the defendant; and in answer to the fifth they found that they were intrusted to him as bailee, and not as servant. Upon these findings the learned judge directed a verdict to be entered for the plaintiff; and the jury assessed the damages at 507. Francis moved, pursuant to leave, to enter a verdict for the defendant, or a nonsuit, or for a new trial on the ground that the verdict was against the weight of evidence. [DENMAN, J. By agreement at the trial the findings of the jury (1) Law Rep, 9 C. P. 751, n. 1874 FOWLER v. LOCK. 1874 FOWLER v. LOCK were not to prejudice the finding of the Court as to the relation of the parties.] That is raised as a question of law for the Court. For the purpose of this motion it must be treated as a misdirection. The second question presented an immaterial issue. To render the defendant liable, there must be something amounting to knowledge in him of the vicious character of the animal; and that was negatived on both trials. LORD COLERIDGE, C.J. The answer of the jury to the second question virtually amounts to a finding of personal negligence on the part of the defendant; and, as there was evidence to support that finding, and the learned judge is not dissatisfied with the verdict, there will be no rule. KEATING, J. The second finding clearly amounts to a finding of personal negligence. BRETT and GROVE, JJ., concurred. Attorney for defendant: W. H. Orchard. Rule refused. Nov. 6. STRACHEY v. LORD OSBORNE. Costs-Certificate under 30 & 31 Vict. c. 142, s. 5—Review of Judge's In dealing with s. 5 of the County Courts Amendment Act, 30 & 31 Vict. c. 142, the question is not simply whether the action should have been brought in the superior Court; but the judge is justified in declining to certify for costs, if he is reasonably satisfied that the action should not have been brought at all. His discretion in this respect is open to review. Where, therefore, the judge, although a substantial claim of right was put in issue by the pleadings and contested at the trial, refused to certify for costs under that section, because he thought that the action was not bonâ fide brought to try the right, but merely to gratify an angry feeling against the defendant, the Court,-Denman, J., doubting,-declined to interfere, not being satisfied that the judge's discretion had been wrongly exercised. Hinde v. Sheppard (Law Rep. 7 Ex. 21) observed upon. THE plaintiff was lord of the manor of Great Eden, in the county of Somerset. The defendant was the rector of the parish church. The declaration charged the defendant with, amongst other things, breaking and entering a close of the plaintiff called the Green, digging up and destroying the turf thereof, and destroying and carrying away a stone seat. The defendant pleaded twenty pleas; amongst others, that the locus in quo was not the soil of the plaintiff, that it was the soil and freehold of the defendant, leave and licence, and pleas claiming respectively a prescriptive right of way for twenty, thirty, and forty years. In consequence of these pleas it became necessary for the plaintiff to prove his title to the manor, and for the jury to have a view. The trial, which took place before Brett, J., and a special jury, at the last Somerset assizes, lasted two whole days; and in the result the plaintiff obtained a verdict on several of the issues, the jury assessing the damages at 50s., avowedly as the cost of replacing the stone seat on the village green. The plaintiff admitted that the rector had a right of way to his house over the village green, but contested his right to make a stone road, as claimed by the defendant. The judge was asked to certify for costs under 30 & 31 Vict. c. 142, s. 5 (1), but he refused to do so. Cole, Q.C., moved for an order for costs under the statute, notwithstanding the refusal of the judge to grant a certificate. He submitted that the action having been brought, not for the purpose of recovering damages, but to try a right which was disputed by the defendant, the case was clearly not of that frivolous nature which the legislature intended to discourage, nor one which could have been tried in a county court. He referred to Hatch v. Lewis (2) to shew that it is competent to the Court or a judge at chambers to grant costs under this statute, although the presiding judge has declined to certify; and also to Hinde v. Sheppard (3); and he read a long correspondence which had taken place between the parties and their respective attorneys before the commencement of (1) See the section, ante p. 34, n. (1). (2) 7 H. & N. 367; 31 L. J. (Ex.) 26. (3) Law Rep. 7 Ex. 21. 1874 STRACHEY V. LORD OSBORNE. the action, which shewed that the defendant throughout was disSTRACHEY puting the plaintiff's right to the village green. 1874 v. LORD OSBORNE. [BRETT, J. The result shewed that the plaintiff had no right to bring the action except in respect of the stone seat. The action was evidently the result of angry feeling. I therefore thought it was not a case in which I could certify that there was sufficient reason for bringing the action in a superior Court.] It is not a case for a county court, where there can be neither special jury nor view: and, if the action had been brought in the inferior court, the defendant would have removed it. The consequence of refusing this application will be, that, although the plaintiff will get no costs, the defendant will have the costs of the issues found for him. LORD COLERIDGE, C.J. I am of opinion that there should be no rule. The application is under s. 5 of 30 & 31 Vict. c. 142, which enacts that, "if in any action commenced after the passing of the Act in any of the superior Courts of record, the plaintiff shall recover a sum not exceeding 207. if the action is founded on contract, or 107. if founded on tort, whether by verdict, judgment by default, or on demurrer, or otherwise, he shall not be entitled to any costs of suit unless the judge certify on the record that there was sufficient reason for bringing such action in such superior Court, or unless the Court or a judge at chambers shall by rule or order allow such costs." The 30 & 31 Vict. c. 142 is the last Act dealing with this matter; and it comes as a continuation of two or three Acts, in one of which the language was not quite the same. I pronounce my opinion upon the words of s. 5 alone. There may be ground for saying that, where the state of facts is such as to bring the case, not within this section, but within the enactment in 15 & 16 Vict. c. 54, s. 4, the discretion of the judge is taken away. But that is not this case. The section upon which this application is grounded expressly casts it upon the judge who presides at the trial to certify or not that there was sufficient reason for bringing the action in the superior Court. The judge here has refused to certify. It might be enough to say, holding as I do that the discretion should be absolute, that I cannot see that the discretion in this case was wrongly exercised. But the Courts |