sidings near Wakefield, and of divers trucks, used by them for the conveyance of goods on and over the railway and the sidings, and the sidings crossed an occupation road near Wakefield on a level, yet the defendants so carelessly and negligently managed their railway and sidings and the trucks that the trucks were suddenly driven down upon and against certain cattle of the plaintiffs, while the cattle were lawfully passing over the crossing along the occupation road without any notice or other warning having been given by the servants of the defendants to the persons then in charge of the same or other precaution having been taken; and by reason of the premises some of the cattle were divided from the persons in charge of them, and were frightened and escaped on to another part of the railway, and were killed by a passing train, and others of the cattle, being so frightened and divided from the persons in charge of them, ran along the occupation road to a place where the fences dividing the road from the railway were imperfect, and escaped through a fence on to certain land, and thence through another place on to the railway and were killed by a passing train, and were lost to the plaintiff; and the plaintiff has been deprived of the profits which would have accrued to him from the sale of the cattle. Second count for breach of duty by the defendants in not maintaining, according to the Railways Clauses Consolidation Act, a proper fence between land taken by them and an occupation road, whereby the plaintiff's cattle escaped on to the railway, and were killed by a passing train. Pleas-Not guilty; that the cattle were not the plaintiff's; to the first count, that the cattle were not lawfully passing on the crossing; to the second count, that the cattle were not lawfully passing on the occupation road; and, secondly, that the defendants were not, so far as the railway was concerned, subject to the Railways Clauses Consolidation Act. Joinder of issue. At the trial before the late Bovill, C.J., at the Leeds Spring Assizes, 1873, the following facts were admitted. The plaintiff was a cattle dealer, carry ing on business at Sheffield, and regularly attending the Wakefield cattle market. On the night of the 24th of September, 1872, a drove of twenty-nine fat beasts, belonging to the plaintiff, were driven by four or five persons through an archway under the main line of the defendants' railway, and then along an occupation road which crossed a branch line of the railway on a level. Near this levelcrossing there were sidings, and while the cattle were crossing the railway a number of trucks were shunted by the defendants down the sidings in a negligent manner so as to frighten the cattle and cause part of them to escape from those in charge of them. The drovers were unable to overtake six or seven of them, and they were not seen till four o'clock in the morning, when they were found dead or dying on the main branch of the defendants' line, which they had reached by passing through a garden and orchard in the occupation of a tenant of the defendants, and adjoining the railway. The fence of this garden was not sufficient to keep the cattle from getting in, or from going on to the railway after they had gone in. The Chief Justice directed a nonsuit, with leave for the plaintiff to move to enter a verdict for 1537. 13s.; the Court to draw inferences of fact. A rule having been obtained accordingly, Price and Beasley shewed cause.-The plaintiff has no cause of action. Assuming that the manner in which the trucks were pushed down the siding was an act of negligence, the fact remains that the cattle were not injured by the trucks. The cattle got on to the main line by running along the occupation road, and breaking through the fence of the garden and orchard. It may be that this fence was insufficient, but the company were under no obligation to maintain it. By the Railways Clauses Act, 1845 (8 Vict. c. 20), s. 68, "The company are to make sufficient posts, rails, hedges or other fences for separating land taken from the use of the railway from the adjoining lands not so taken . . or the cattle of the owners and occupiers thereof from straying thereout." But this section has been construed to mean that the company are only bound to maintain the fence as between themselves and the owner of the ground, but that there is no correspending obligation towards the public The Manchester and Sheffield Railway Company v. Wallis (1). It cannot be doubted that if the cattle had been frightened by the servants of a different company there would have been no cause of action against the present defendants. Field (J. W. Mellor with him) in support of the rule.-Assuming that the cattle were trespassing in the orchard, they were driven there by the negligence of the defendants' servants in shunting the trucks upon them, and causing them to escape from the care of those who had charge of them. In Holbach v. Warner (2) the plaintiff and defendant were possessed of adjoining closes, and the cause of action was that the occupiers of the defendant's close had been accustomed from time immemorial to make the hedges and fences between his close and the river Avon which ran between the closes, so that the cattle in the plaintiff's close should not come into the defendant's close, and the defendant did not repair the hedges, &c., whereby the plaintiff's cattle went out of his close into that close, and from thence into the close of one Wilcocks, who sued and recovered against him in trespass; and in Powell v. Salisbury (3), where the plaintiff declared in against the defendant for not repairing his fences, by which the plaintiff's horses escaped into the defendant's close, and were there killed by the falling of an haystack, it was held that the damage was not too remote, and that the action was maintainable. case [QUAIN, J., referred to Sedgwick on Damages, 4th ed., p. 98, where the case is mentioned of a shopkeeper who was held liable for selling spirits to a slave, by means of which the slave became intoxicated, lay out and died. BLACKBURN, J.It could scarcely be said that a publican who sold brandy to a railway guard would be responsible to the widows of (1) 14 Com. B. Rep. 213; s. c. 23 Law J. Rep. (x.s.) C.P. 35. (2) Cro. Jac. 665. (3) 2 Y. & J. 391. passengers killed by the guard's negligence.] The case of Lee v. Riley (4), where, through the defect of a gate which the defendant was bound to repair, the defendant's horse got out of the defendant's farm into an occupation road, and strayed into plaintiff's field, where it kicked the plaintiff's horse, and the damage was held not to be too remote, is, if anything, stronger than the present case. If it had not been for the mismanagement of the trucks the cattle would have escaped uninjured. He also cited Hill v. The New River Company (5) and Lawrence v. Jenkins (6). BLACKBURN, J.-This is a case which I think we may decide at once. I am of opinion that the defendants, the railway company, are liable, and that the rule must be made absolute. It appears that a drove of cattle belonging to the plaintiff became frightened owing to the negligence of the company's servants in allowing some trucks to run down an incline. The cattle were scattered in different directions, and although the drovers recovered control over some of them, the rest escaped, and were not found till the afternoon of the next day upon another part of the defendants' railway when they were dead or dying from injuries which they had received. Now it seems that the cattle after escaping from control got on to the railway through a defective fence in a garden and orchard in the occupation of a tenant of the defendants, but I think that we must look at the case, and I will treat it, as if the cattle had gone off on to another unfenced railway and had been there injured. The question is, are the defendants responsible for the death of the cattle? The well-known rule as to the liability for damage is causa proxima non remota spectatur, and Lord Bacon says " It were infinite for the law to consider the causes of actions and their impulsions one of another, therefore it contenteth itself with the immediate cause, and judgeth of acts by (4) 34 Law J. Rep. (N.s.) C.P. 212. that without looking to any further degree." Bac. Max. Reg. 1. The rule is occasionally difficult of application, but in the present case I think it clear that when the cattle got off and escaped from control without the fault of the plaintiff, that whatever reasonably resulted from their being unprotected was the causa proxima of the escape. In earlier times it might have been held that one who frightened a tame falcon so as to cause it to escape from its owner was answerable to the owner, for there the loss of the falcon is the direct result of anything which causes it to escape from custody. But in the case of tame animals like cattle, the question will be, was their loss or death the natural result of their being deprived of control ? Now it is quite natural that such animals, if left at large, should wander about and fall into ditches, and a cow if uncontrolled would quite naturally make its way on to a line of railway and run the risk of being killed there. In the present case it is admitted cattle were driven out of the control of the plaintiff by the defendants' negli gence, and as I think that the accident which subsequently befell them was the natural result of their being deprived of control, the defendants must be held to be responsible. I do not think that any of the cases which have been referred to are in point, except that of Lawrence v. Jenkins (6), which, so far as it goes, is an authority in favour of the plaintiff. QUAIN, J.-I am of the same opinion. I think that the death of the cattle was the proximate and natural result of the defendants' negligence. The rule causa proxima non remota spectatur, has been often stated, but there is considerable difficulty in applying it. All that can be said is that in actions of tort the defendant is liable for all the natural and reasonable consequencs of his carelessness. Examples of this rule are to be found in the case of the squib thrown among a crowd of persons, and then being tossed about till it exploded and injured the plaintiff. The distinction always is between those cases in which the damage immediately results from the incautious and illegal act and those where it has no direct connection with any such act. Ap plying this principle, I think that the damage to the plaintiff was not so remote from the injurious act as to prevent him from recovering. Here the injurious act was, that about eleven o'clock at night the plaintiff's cattle were frightened by an accident which was the result of the defendants' carelessness, and escaping from control wandered into a dangerous place, where they were killed by a passing train. I think these facts are sufficient to bring the case within the authorities, and to shew that the damage is not too remote from the defendants' breach of duty. ARCHIBALD, J.-I am of the same opinion. I think that as soon as the facts are understood, there can be no doubt as to the application of the law. It seems clear that it was impossible to regain the control of the cattle before the accident happened, for there is nothing to shew that every proper effort was not made by the drivers to overtake them. The death of the cattle would not have occurred unless they had been removed from control, and it was therefore the result of the negligence which was the original cause of their escape. Rule absolute. Attorneys-Clarke & Son, agents for Wainwright & Mander, Wakefield, for plaintiff; Clarke, Woodcock & Ryland, agents for T. A. & J. Grundy & Co., Manchester, for defendants. 1874. Jan. 17, 31. THE QUEEN ON THE PROSE- Quarter Sessions - Appeal-Power to state Case. Upon an application to enter and respite an appeal, the Court of Quarter Sessions has no power to state a special case; and the Court of Queen's Bench will take no notice of the facts of a case so stated. [For the report of the above case, see 43 Law J. Rep. (N.S.) M.C. 57.] 1874.1 } Jan. 29. J RAEBURN v. ANDREW. Security for Costs-Plaintiff resident in Scotland Judgment Extensions Act (31 & 32 Vict. c. 54), s. 2. By s. 2 of 31 & 32 Vict. c. 54, a certificate of a judgment obtained or entered up in any of the Courts of Queen's Bench, Common Pleas, or Exchequer, may be registered in Edinburgh, and from the date of registration shall be of the same force and effect as a decreet of the Court of Session, and all proceedings shall and may be had and taken on an extract of such certificate, as if the judgment of which it is a certificate had been a decreet originally pronounced in the Court of Session, &c.:-Held, that the effect of this enactment is that the reason for the old practice of staying proceedings unless a plaintiff who permanently resides in Scotland gives security for costs, has now ceased, and that proceed ings will not be now stayed on such grounds. This was an application for a rule calling upon the plaintiff to shew cause why the proceedings in the action should not be stayed, unless the plaintiff gave security for costs in case a verdict was given against him. The plaintiff resided in Scotland, and a summons was taken out by the defendant to compel the plaintiff to give security. The Master refused to make any order, and upon appeal to Martin B., at Chambers, the learned Judge referred the matter to the Court. Lanyon moved for the rule.-There is no reason why the prevailing practice should be altered. The defendant has a right to call upon the plaintiff to give costs, because although the 31 & 32 Vict. c. 54. s. 2, enables him, on production at the office in Edinburgh of a certificate of the judgment which he has obtained, to register such certificate, he is not thereby placed in the same position as he would be if the plaintiff had been resident in England, in which case they would be on equal terms. The practice is described in 2 Ch. Arch. Pr. 12 ed. p. 1,414, as follows-"If the plaintiff, whether sueing in an individual or in a representative capaNEW SERIES, 43.-Q.B. city, and whether for his own benefit or that of another, permanently reside abroad, or even in Ireland or Scotland, or Court, the Court or a Judge will stay the elsewhere out of the jurisdiction of the proceedings in the action until he give security for costs to the satisfaction of one of the Masters." All the cases are there referred to. So here the master should have stayed the proceeding. The defendant has not the same security as the plaintiff has. The 31 & 32 Vict. c. 54 in itself affords some evidence that it was not intended to deprive the defendant of his right to have the proceedings stayed, unless the plaintiff gave security for costs. The fifth section refers to the certificate mentioned in s. 2, and provides that it shall not be necessary for any plaintiff in any of the aforesaid Courts in England, resident in Ireland or Scotland, or any plaintiff in any of the aforesaid Courts in Ireland resident in England or Scotland, in any proceeding had or taken on such certificate, to find security for costs in respect of such residence, unless on special grounds a Judge or the Court shall otherwise order. There being a special provision as to the security for costs in this matter, it must be presumed that it was not intended that the old practice should be altered. There is no actual decision on the point. Lewis appeared to shew cause in the first instance. BLACKBURN, J.-I think that there is no occasion to grant a rule nisi. This seems to be plain when we look to the origin of the rule of practice which is to be found in Pray v. Edie (1). In that case a rule had been obtained to shew cause why the proceedings in the cause should not be stayed till the plaintiff, who resided in Georgia, in North America, gave security for the costs, in case a verdict was given against him. Cause was shewn against the rule on the ground that such a rule was never granted unless under very peculiar circumstances, and some cases were referred to, but Buller, J., said: "There have been several late cases to the contrary, and for this reason, (1) 1 Term Rep. 267. L that if a verdict be given against the plaintiff he is not within the reach of our law so as to have process served upon him for the costs," and the rule was made absolute. And the practice was applied in Fitzgerald v. Whitmore (2), where the plaintiff was an Irishman, residing in Ireland. But now the question is whether the reason for the practice, as explained by Buller, J., has not ceased. By the 31 & 32 Vict. c. 54, plaintiffs resident in Ireland and Scotland are brought within the reach of our law. The substance of the enactment in s. 1, as to Ireland, and in s. 2, as to Scotland, is that where a judgment has been obtained in England for costs, upon the production of a certificate of such judgment in the office in Edinburgh or Dublin respectively, registration may be had and process issued in the Courts in those countries respectively. The practice is thus assimilated to that which prevailed in the county palatine of Lancaster, into which, until the passing of the Common Law Procedure Act, 1852, s. 122, our writs did not run; it has not been the practice to require a plaintiff resident in the county palatine to give security for costs. Mr. Lanyon contends that the defendant has not the same remedy as the plaintiff has, because the process of the Courts in Scotland is not identical with the process of our Courts, but I think that we must take it to be as effective as our process is. I think, therefore, that the reason for the old practice having ceased, cessante ratione cessat lex. The Master was right in refusing to stay proceedings. I do not think that upon the enactment in the fifth section any sound argument can be founded to shew that the Legislature intended the old practice should continue in use. QUAIN, J.-I am of the same opinion. The reason for the old practice is that which is given by Buller, J., in Pray v. Edie (1). That reason is now gone, and the practice founded upon it is no longer applicable to the case now before us. A defendant has now the power of issuing process against an Irishman or Scotchman bringing an action against him in our Courts, and the rule of (2) 1 Term Rep. 362. practice is abolished so far as such plaintiffs are concerned. I was at first struck at what has been said upon the fifth section. Probably there was some doubt whether security for costs might not be required in cases coming within the proviso in s. 3, which provides for certicates of extracts from decreets obtained in the Court of Session being registered in England, but at any rate the fifth section does not shew that the old practice in our Courts is to be kept up. ARCHIBALD, J.-I am of the same opinion. The practice of staying proceedings, unless security for costs is given, has grown up gradually. In 1 Tidd's Practice, 8th ed. p. 579, we find how it has grown up, which is there stated as follows: "But, now, although a plaintiff is not compellable to give security for costs merely as a foreigner if he reside in this country, yet, whether he be a foreigner or native, if he reside abroad out of the reach of the process of the Court, the proceedings may, in general, be stayed till his return, or security be given for the payment of costs. The reason, therefore, is that the process of the Court will not reach him as he is resident abroad. But we find that a remedy is given to the defendant by the 31 & 32 Vict. c. 54, and the reason having ceased, so also does the practice cease. I agree with what my brother Quain has said as to the fifth section. The third section provides that no certificate shall be registered more than twelve months after the date of the decreet, &c., and the fifth section provides that it shall not be necessary for any plaintiff under the circumstances mentioned therein to find security for costs. Rule refused. Attorneys-Lewis, Munns & Co., for plaintiff; Hollams, Son & Coward, for defendant. |