Semble, affidavits in support of a writ of ne

It is sufficient that debt is in danger, without stating that it is to avoid the jurisdiction. Etches v. Lance, 7 Ves. 417.

Against a positive affidavit, the defendant's affidavit, or evidence of the plaintiff's admission, that no debt is due, will not avail. The affidavit of a threat or intention to go abroad must by positive, not upon information and belief. Jones v. Alephsin, 16 Ves. 470.

To obtain a writ of ne exeat regno, it is sufficient that the affidavit states that the debt will be endangered, without alleging that the purpose of going abroad is to avoid the demand. Tomlinson v. Harrison, 8 Ves. 32.

The writ ne exeat regno, in its application to private transactions, is confined to cases of equitable debt. The affidavit must be as positive as an affidavit to hold to bail : "information and belief" being only admitted on matters of pure account, as between partners and execuThe application for it should be as prompt as possible. Jackson v. Petrie, 10 Ves. 164; 7 R. R. 368.

tors.

To obtain ne exeat, an affidavit to information and belief of intention to quit kingdom, or circumstances making it necessary, as an order for military officers to join their regiments abroad, is not sufficient. Hannay v. M'Entire, 11 Ves. 54.

Writ of ne exeat regno on affidavit, not by the plaintiff, to information and belief of intention to quit the kingdom, according to the nature of the information, as, where received from persons of the defendant's family, that they were about to go to the Isle of Man. Collinson v. ——, 18 Ves. 354; 11 R. R. 212.

To support a ne exeat regno, which issues only on an equitable debt, as at law, to hold to bail, the affidavit must be positive, except that belief of the balance of an account is sufficient. Hyde v. Whitfield, 19 Ves. 342; 13 R. R. 215.

An affidavit from which the court can, without difficulty, ascertain the exact sum due, sets forth the amount of the debt with sufficient certainty to ground a writ of ne exeat. Waller v. Fowler, Sau. & Sc. 274.

Before issuing a writ of ne exeat regno the court requires something very explicit upon which to act, and will not grant the writ against a party on a presumed intention to be collected from ambiguous expressions, which might only mean that the party intended to quit his residence for another within the country. Darley v. Nicholson, 1 Dr. & War. 66.

Writ of ne exeat regno granted on an affidavit that the defendant, an Englishman resident in Italy, was about shortly to return to Italy. Anon., 4 De G. & Sm. 547.

For the court to grant a writ of ne exeat regno, there must be the most distinct evidence of a debt due. Mere belief on the part of the plaintiff, that if the accounts were taken, a balance would be found due to him, is not sufficient. Thompson v. Smith, 34 L. J., Ch. 412; 11 Jur. (N.S.) 276; 12 L. T. 9; 13 W. R. 422.

by the departure abroad of the party against whom the writ is prayed. Hopkin v. Hopkin, 10 Hare (App.) xxvii.; 22 L. J., Ch. 728; 17 Jur. 343; 1 W. R. 275.

The applicant for a writ of ne exeat is bound to show that the person against whom it is sought is indebted to him in a sum certain and recoverable in equity. Alder v. Ward, 5 Ir. Eq. R. 367.

On motion (after bill filed praying an account, &c.) by judgment creditor, for a writ of ne exeat regno, to prevent the defendant, who was administrator of the conusor, and threatened to leave the kingdom, from so doing, the court refused the writ, inasmuch as the debt was a legal debt, and the plaintiff's affidavit was not positive that the assets had been received by the defendant. Hill v. O'Hanlon, 2 Ir. Eq. R. 463.

Court of exchequer will grant an order in nature of ne exeat regno against an accountant of crown, sworn to be about to leave the kingdom without rendering his accounts, though no precise sum sworn to by affidavit made to support the motion, as being the amount in value of the stores unaccounted for: but they will use a discretion as to the amount of sureties, and will require notice of the order to be given before attachment issue. Att.-Gen. v. Mucklow, 1 Price, 289; 16 R. R. 724.

A writ of ne exeat regno obtained on behalf of a lunatic by his committee, on a note as given for the balance of an accountant, restraining the captain of an East Indian ship from proceeding on his voyage: that the debt will be endangered is insufficient, without stating that the object is to avoid the jurisdiction. Stewart v. Graham, 19 Ves. 313.

A ne exeat regno will not be granted on a general affidavit of belief of the defendant's intention to quit the country, the circumstances on which that belief was founded not being stated. Perry v. Dorset, 19 W. R. 1048.

Affidavits to support an application for a ne exeat regno should disclose a clear case of intention on the part of the defendant to leave the kingdom, and that some preparations had been made by him with that view. Sichel v. Raphael, 4 L. T. 114.

Upon an application for a writ of ne exeat, the plaintiff, who was a creditor of A., deposed that, according to the best of his belief, the defendant, who was the executrix of A., had received large assets and was about to proceed to America without paying A.'s debts. The court on such an affidavit refused to grant the writ of ne exeat. Boovey v. Sutcliffe, 2 Eq. R. 706.

Other Evidence. ]-There is no instance where a writ of ne exeat regno has been applied for upon admissions in the answer, but the admission would certainly do as well as an affidavit. Roddam v. Hetherington, 5 Ves. 95.

A writ of ne exeat regno granted on the application of a defendant against a plaintiff, whose bill was dismissed with costs, it being, from the declarations of the plaintiff, apprehended he would leave the country before service of the process to pay costs could be made effectual. Stewart v. Stewart, 1 Ball & B. 73.

Grounds.]-Ne exeat obtained on the filing of the bill, discharged, on the ground that the defendant had been previously arrested at the suit of the plaintiff for the same debt, and discharged. Raynes v. Wyse, 2 Mer. 472.

Writ of ne exeat regno discharged, as having issued improperly, on the affidavit of a plaintiff resident out of the jurisdiction in Scotland, sworn before a justice of the peace there; not positive to the declared intention to leave the kingdom, or circumstances amounting to it, but only to information and belief of such intention; a defect not supplied by the avowal, in the defendant's affidavit, of his intention to return to his house of business in Jamaica, where alone he has the means of settling the account. Hyde v. Whitfield, 19 Ves. 342; 13

R. R. 215.

If affidavits, on the part of the defendant, wholly displace the case made by the plaintiff when the writ was applied for, the order made thereon will be discharged with costs; and an inquiry directed as to the amount of damage the defendant has sustained in consequence of issuing the writ. Sichel v. Raphael, 4 L. T.

114.

A writ of ne exeat regno discharged with costs where, upon the affidavit of the plaintiff and the answer of the defendant taken together, there was a strong primâ facie case that nothing was due from the defendant to the plaintiff. Leo v. Lambert, 3 Russ. 417.

Where a writ of ne exeat regno issues for a larger sum than is due, the court will make an order that so much only shall be raised as is due, without quashing the writ. Pannel v. Taylor, Turn. & R. 100; 1 L. J. (o.s.) Ch. 139. Overruling Ternegan v. Glass, Amb. 62; 3 Atk. 409; Dick. 107.

The plaintiff having omitted, on motion for a writ of ne exeat regno, to state that an appeal was pending, is not such a suppression of facts from the court as to form a ground for discharging a defendant. M'Gauran v. Furnell, Sau, & Sc. 263.

Plaintiff having twice held the defendant to bail, obtained a writ of ne exeat regno, discontinuing the action; the writ was discharged. Amsinck v. Barklay, 8 Ves. 594.

Writ of ne exeat regno, upon declaration of facts, as evidence of the intention to go abroad, not discharged upon affidavit denying the intention. Ib.

Writ of ne exeat regno obtained by one French emigrant against another discharged, upon the circumstances appearing upon the affidavit in support of the bill, and upon the answer which may be read; the application not being in the nature of an affidavit to hold to bail, but to the discretion of the court applying a remedy not in its origin distinctly applicable to private

The court will always hear a defendant moving to discharge the writ; but it will only inquire whether there is reasonable ground to suppose that the plaintiff will succeed in the suit. Exemption from arrest for a debt of the same nature by the laws of Russia is not a sufficient ground for discharging the writ, when one of the parties is an Englishman, and was resident in this country. Flack v. Holm, 1 Jac. & Walk. 405; 21 R. R. 202.

A writ of ne exeat and the proceedings taken under it discharged with costs, on the ground that the affidavits had been taken before the solicitor of the plaintiff in the cause; and the court refused to impose upon the defendant, as part of the terms of such dismissal, that an action should not be brought against the plaintiff in respect of the arrest. Hopkin v. Hopkin, 10 Hare (App.)_xxvii.; 22 L. J., Ch. 728; 17 Jur. 343; 1 W. R. 275.

A writ of ne exeat was granted against a defendant upon facts alone which evidenced an intention in him to leave the kingdom, and thereby endanger the recovery of the plaintiff's claim, under a decree; and although the defendant denied by affidavit that he had any such intention, the court refused to discharge him until he would give security for the amount of the writ. M'Gauran v. Furnell, Sau. & Sc. 263.

Where a defendant, against whom a writ of ne exeat has been issued, obtains his discharge under the act for the relief of insolvent debtors, the writ will be discharged. James v. North, 28 L. J., Ch. 374; 5 Jur. (N.S.) 84; 7 W. R. 150.

Order for Issue of Writ discharged before Arrest.]-An application for the discharge of an order directing the issue of a writ ne exeat regno may be made before the person has been arrested. Lewis v. Lewis, 3 R. 346; 68 L. T. 198.

Effect of not Moving to discharge Writ.]—A writ of ne exeat was obtained by the plaintiff immediately after the commencement of an action. The defendant was arrested, but was discharged upon payment to the sheriff of the sum for which the writ was marked. By his statement of defence the defendant alleged that the writ had been improperly obtained, and claimed damages for his arrest, and at the trial he insisted upon this claim :-Held, that, as he had not moved to discharge the writ, it must be taken to have been properly issued, and, consequently, that he was not entitled to any damages. Lees v. Patterson, 47 L. J., Ch. 616; 7 Ch. D. 866; 38 L. T. 451; 26 W. R. 399.

Security.]-Ne exeat till answer and further order. Writ discharged after answer on security for want of cause. Boon v. Collingwood, Dick. 115.

Writ of ne exeat regno, obtained by one inhabitant of Antigua against another casually in this country, upon a bond stated in the bill to be lost, discharged on giving security to abide by the decree. Atkins v. Leonard, 3 Bro. C. C. 218.

On motion to prevent defendant going out of the kingdom till he has put in his answer, the court ordered he should give security to abide

right, it not being shown that the ladder was under the control of the defendant or his servants. Higgs v. Maynard, 1 H. & R. 581; 12 Jur. (N.S.) 705; 14 L. T. 332; 14 W. R. 610.

The plaintiff, being a scholar at school, was injured by the fall of a black-board that was being used by a teacher in charge of the plaintiff's class:-Held, that the mere fall of the blackboard was not evidence of negligence on the part of the teacher. Crisp v. Thomas, 63 L. T. 756;

55 J. P. 261—C. A.

While a passenger was waiting at a railway station, under a covering or portico, he received an injury from a plank and roll of zinc which fell through the covering, and upon looking up he saw the legs of a man protruding through the covering :-Held, that there being nothing to show that the railway company knew that the covering was insecure, or that the man who was upon it was employed by them, there was no evidence of negligence to go to the jury. Welfare v. L. B. & S. Č. Ry., 38 L. J., Q. B. 241; L. R. 4 Q. B. 693; 20 L. T. 743; 17 W. R. 1065.

In an action against a railway company for negligence, the fact of the occurrence of an injury not necessarily importing negligence, even if it is primâ facie proof, is not conclusive proof of negligence. Bird v. G. N. Ry., 28 L. J.,

Ex. 3.

Mere proof of an accident having happened to a train does not cast upon the railway company the burthen of showing the real cause of the injury. Hammack v. White, 11 C. B. (N.S.) 594; 31 L. J., C. P. 129; 8 Jur. (N.S.) 796; 5 L. T. 676; 10 W. R. 230.

When an accident happens to a passenger on a railway, either by the carriage breaking down or running off the rails, that is prima facie evidence of negligence on the part of the company. Such evidence, if not rebutted by evidence on the company's part, will justify a verdict against the company. Dawson v. Manchester, Sheffield and Lincolnshire Ry., 5 L. T. 682.

Plaintiff was a servant of a railway company, and defendants were builders employed by the company in repairing their station. Plaintiff, in course of his usual duty at night, closed some gates between this station and a warehouse also belonging to the company, and in doing so was struck by a heavy plank and seriously injured. Defendants' servants were seen at work upon the wall just above these gates a few hours before the accident, and it was suggested they had placed this plank across the gates whilst open for the purpose of a scaffolding, and left it there when they finished their day's work. One of the gates was fastened back by a rope, which the plaintiff had to untie before he could shut it. There was no evidence that defendants or their servants knew these gates were usually shut at night. Plaintiff was nonsuited:-Held, that this nonsuit was right, as the evidence fell short of raising any presumption of negligence against the defendants. Pearson v. Plucknett, 20 L. T.

662.

It is evidence of negligence in the conduct of the carrying, that the train was run over a rail known to have been defective and fractured; the jury considering that this was the cause of the accident. Pym v. G. N. Ry., 2 F. & F. 619.

A declaration against a railway company alleged that the plaintiff, at the request of the company, became a passenger for hire in one of their trains; and that in consequence of the carelessness, negligence, and want of skill of the

company and their servants, the train ran against another train on the line, whereby he was injured. At the trial it appeared that the train in question was hired of the company by a society for an excursion, the tickets of which were sold and distributed by the secretary of the latter body, from whom the plaintiff purchased his, and that the accident was occasioned by the train running, in the dark, against another train which was standing still at an intermediate station on the line :-Held, that the mere fact of the accident having occurred was primâ facie evidence of negligence on the part of the company. Skinner v. L. B. & S. C. Ry., 5 Ex. 787 ; 15 Jur. 299.

A goods train and a passenger train met, and were passing each other on a double line of railway. Some timber on a truck in the goods train projected and struck the passenger train, injuring a passenger. The timber had been loaded on the truck without stanchions, and was secured by a chain only, which broke, and there was evidence that the breakage was caused by a latent flaw in the chain. There was also evidence that it would have been safer to load the timber with stanchions, but that the use of them for that purpose was comparatively recent, and there was no evidence of any accident having happened from not using stanchions. In an action by the passenger against the railway company to recover for the injury-Held, that it was for him to show that the accident was caused by the negligence of the company, and that the company was not bound to show how the accident happened. Hanson v. Lancashire and Yorkshire Ry., 20 W. R. 297.

Where a plaintiff sustained injuries in conse quence of a portion of the train in which she was travelling having left the rails, and the railway, the engine and the carriages were under the management of the company :-Held, that the fact of the accident was sufficient evidence to cast upon the company the burden of showing that there was no negligence on their part; and that as they declined to afford any explanation of the cause of the accident, there was a case for the plaintiff proper to be submitted to the jury. Flannery v. Waterford and Limerick Ry., Ir. R. 11 C. L. 30.

In an action against a proprietor of a stagecoach for negligence, whereby the coach broke down, and the plaintiff, travelling by it as a passenger, was hurt, to prove negligence, it is primâ facie enough to give evidence of the coach having broken down; from which negligence will be presumed. Christie v. Griggs, 2 Camp. 79; 11 R. R. 666.

Eight cows having been safely loaded in a truck at D. for conveyance to B., on the arrival of the train at B. it was found that of these one had a leg broken, and that three others were injured about the hips and rump. The owner of the cows having brought an action for negligence against the railway company, and having proved the injuries, and given his opinion that they were caused by undue shunting and jerking of the train :-Held, that the onus of proof being on the plaintiff and no affirmative evidence having been given by him of negligence on the part of the railway company, the defendants were entitled to judgment. Smith v. Midland Ry., 57 L. T. 813; 52 J. P. 262.

Exclusive Management.]-A passenger injured on a railway proves a primâ facie case of

Where the instrument or machinery causing the injury is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. Scott v. London Dock Co., 3 H. & C. 596; 34 L. J., Ex. 220; 11 Jur. (N.S.) 204; 13 L. T. 148; 13 W. R. 410-Ex. Ch.

In an action against a dock company for injury to the plaintiff by their alleged negligence, the plaintiff proved that he was an officer of the customs, and that whilst, in the discharge of his duty, he was passing in front of a warehouse in the docks, six bags of sugar fell upon him :Held, reasonable evidence of negligence. Ib.

Wrongful Act of Stranger.]—Ir an action for injury to a horse by a pony and chaise running against it, it was shown on the part of the defendant, that his wife was holding the pony by the bridle, and a showman came by and frightened the pony, and it ran off with the chaise-Held, that, if true, this was a defence. Goodman v. Taylor, 5 Car. & P. 410.

Assuming it is primâ facie evidence of negligence on the part of a railway company that a train has got off the line, such evidence is entirely rebutted by proof that the accident arose from the wilful and wrongful act of a stranger. Latch v. Rumner Ry., 27 L. J., Ex. 155.

2. IDENTIFICATION WITH WRONGDOER. Claim by Person not responsible for Negligence.]-A passenger on board the "Bushire" and one of the crew lost their lives by drowning in consequence of a collision with the " Bernina." Both vessels were to blame but neither of the deceased had anything to do with the negligent navigation of the "Bushire":-Held, that their representatives could maintain actions under Lord Campbell's Act against the owners of the "Bernina," and could recover the whole of the damages: s. 25, sub-s. 9 of the Judicature Act, 1873, not being applicable to such actions. Thorogood v. Bryan (8 C. B. 115) and Armstrong v. Lancashire and Yorkshire Ry. (L. R. 10 Ex. 47) overruled. Mills v. Armstrong, The Bernina, 57 L. J., P. 65; 13 App. Cas. 1; 58 L. T. 423; 36 W. R. 870; 6 Asp. M. C. 257; 52 J. P. 212H. L. (E.).

In an action under Lord Campbell's Act for loss of life occasioned by a collision:-Held, that the breach of the rules for preventing collisions, to which the deceased was privy, and for which the court would be bound to hold the ship to blame under s. 17 of the Merchant Shipping Act, 1873, constitutes legal contributory negligence on the part of the deceased, even where there is no reason to believe that such breach of the regulation actually contributed to the accident. The Vera Cruz, 53 L. J., P. 33; 9 P. D. 88; 51 L. T. 104; 32 W. R. 783; 5 Asp. M. C. 254. Sce S. C., in H. L., post, col.

114.

In an action for negligence, it appeared that the plaintiff was a passenger on an omnibus which was racing with the defendant's omnibus, and in trying to avoid a cart, a wheel of the defendant's omnibus came in contact with the step of the omnibus on which the defendant was driving, which caused the latter to swing towards the kerbstone, and the speed rendering it impossible to pull up, the seat on which the plaintiff sat struck a lamp-post, and he was thrown off:-Held, that the jury was properly directed that the plaintiff was not disentitled to recover merely because the omnibus on which he sat was driving at a furious rate, and that the collision took place from the negligence of the defendant's omnibus, so that the other omnibus was not in fault in not endeavouring to avoid the accident, and that the defendant was liable. Rigby v. Hewitt, 5 Ex. 240; 19 L. J., Ex. 291.

In an action by a passenger on an omnibus, against the owners of a tramway car, for compensation for injuries sustained in a collision, the direction to the jury since the decision in Mills v. Armstrong, The Bernina (13 App. Cas. 1), should be, "Was there negligence on the part of the tramway-car driver which caused the accident? if so, it is no answer to say that there was negligence on the part of the omnibus driver" the plaintiff in such a case not being disentitled to recover by reason of the negligence of the driver of the omnibus on which he was a passenger. Mathews v. London Street Tramways Co., 58 L. J., Q. B. 12; 60 L. T. 47; 52 J. P. 774.

3. CONTRIButory NEGLIGENCE. Effect of.]-The proposition that a plaintiff in an action for negligence cannot recover if he has been guilty of negligence or want of ordinary care contributing to the injury complained of is subject to this qualification, namely, that if the defendant could, by the exercise of reasonable care and diligence, have avoided the injury, he is not excused by the plaintiff's contributory negligence. Radley v. L. & N.-W. Ry., 46 L. J., Ex. 573; 1 App. Cas. 754; 35 L. T. 637; 25 W. R. 147—H. L. (E.)

In all actions for negligence, where there is evidence of negligence on the part of the plaintiff, the proper question to be left to the jury is, whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary and common care and caution, that, but for such negligence or want of ordinary care and caution on his part, the misfortune would not have happened. Walton v. L. B. & S. C. Ry., 1 H. & R. 424; 14 L. T. 253; 14 W. R. 395.

The general rule of law respecting negligence is, that although there may have been negligence on the part of the plaintiff, yet, unless he could, by the exercise of ordinary care, have avoided the consequence of the defendant's negligence,