C.P.D. Manzoni v. Douglas. 1880 was said that the driver was guilty of negligence, because he did not call out. The words "without any warning," in the statement of claim were not inserted as a substantive allegation of negligence. Besides, there was no evidence we could rely on as to that, or that the omission to call out was the cause of the accident. All that appears upon that subject is the plaintiff's statement on cross-examination that he did not hear it. The whole thing would necessarily take place in a moment; and there could be no inference of negligence from the absence of warning. And we could not on that ground distinguish the case from Hammack v. White ('). The nonsuit was right, and this rule must be discharged. LINDLEY, J.: I am of the same opinion. The plaintiff was lawfully. walking on the foot pavement of a [153 public thoroughfare, and was knocked down by a horse drawing the plaintiff's brougham. If the case had been left there, it might be that the defendant was liable for negligent driving of her servant. But the explanation was given by the plaintiff's witnesses, viz., that the horse had bolted and the defendant's coachman had lost all control over it. We do not know what it was that caused the horse to bolt; and therefore we have no evidence that it was caused by the driver's negligence or want of care. said that negligence is to be inferred from the fact that the driver did not call out or give warning. I cannot see that that per se affords any ground for inferring negligence. The coachman himself was in fear for his own life; and the probability is that in such circumstances even a cool man might abstain from calling out. Then it is said that the fact of the horse having cast one or two shoes was some evidence of negligence: but I cannot see that the fact of a horse having cast a shoe after he has bolted affords any evidence of negligent driving. To hold that the mere fact of a horse bolting is per se evidence of negligence would be mere reckless guesswork. To entitle him to recover in an action of this kind, the plaintiff must make out a clear prima facie case by evidence which will warrant an inference of negligence. This, I think, the plaintiff has failed to do here. It is then said that Cotton v. Wood (*) and Hammack v. White () have been overruled. In my opinion. they are quite consistent with the principle laid down by Erle, C.J., in Scott v. London Dock Co. ("); and I find no (*) 8 C. B. (N.S.), 568; 29 L. J. (C.P.), 333. (2) 11 C. B. (N.S.), 588; 31 L. J. (C.P.), 129. (3) 3 H. & C., 596; 34 L. J. (Ex.), 226. 1880 In re Lacey. C.P.D. case which has expressly overruled them. If upon the evidence as reported to us a verdict had been found for the plaintiff, it would, in my opinion, have been perfectly unwarrantable.. Rule discharged. Solicitors for plaintiff: Farlow & Jackson. See 26 Eng. R., 306 note. Small pox is not actus Dei in such a sense as to excuse a school district from liability on a contract with a teacher, the performance of which the district has prevented by closing the school. The act of God, which will release one from the obligation of a contract, is one which renders its performance impossible, Dewey v. Union School District of Alpena, 43 Mich., 480. Inability, through sickness, to fulfil a contract for personal services, excuses further performance, and the party may recover as upon a quantum meruit, for the services rendered up to the time he is disabled. This is upon the familiar principle that the perform ance of a condition is excused when it is prevented by the law, or by the act of God: Requa v. Bulkley, 1 City Courts Rep., 153. Where defendants purchased two hundred casks of Seltzer waters, packed in Prussia, in casks, of one hundred stone jugs each, and it is shown that such casks cannot be transported with out some breakage of the jugs; held, that these circumstances have entered into the contract, and where the actual breakage is not beyond what is usual, the vendee cannot refuse to receive the property and rescind the contract: Hays e. Smith, 1 McGloin (La.), 193. A. agreed with B., the owner of a hotel, to furnish the same with water by and through the same pipes then used for said purposes. B. afterwards leased the hotel to C. and covenanted that the house should be supplied with spring water in the same manner as then supplied under the agreement with A. B. was to keep certain pipes in repair, and C., others and B. was to see that the covenants made by A. should be kept. In a suit by C. against B. for breach of covenant, the court instructed the jury that B. was bound to supply water, whether the spring from which it was drawn kept up or not. Held, that this was error; that although the water of the spring had always been the source of supply of the house, yet if it failed from drought or other natural cause it was no breach of any covenant express or implied for its supply: Ward v. Vance, 93 Penn. St. Rep., 499. [6 Queen's Bench Division, 154.] Dec. 20, 1880-C.P.D. . 154] *In the Matter of MARY GERALDINE LACEY, an Infant. Married Woman-Acknowledgment of Deed under 3 & 4 Wm. 4, c. 74, 8. 84-Varying the Certificate by omitting the Words "of full Age." By order of a Vice-Chancellor indentures of settlement were directed to be executed by a married woman who was an infant. This court allowed the certificate of acknowledgment under 3 & 4 Wm. 4, c. 74, s. 84, to be varied by omitting the words "of full age." NASH moved for an order under the act for the abolition of fines and recoveries (3 & 4 Wm. 4, c. 74), s. 84, that the 1880 form of the certificate therein prescribed of the due taking of an acknowledgment of Mrs. Lacey before special commissioners at Waterford might be varied by omitting therefrom the words "of full age.' It appeared that by an order made by Vice-Chancellor Hall in the Matter of The Estate of Maurice Fitzgerald, deceased, wherein Mary Geraldine Fitzgerald and others were plaintiffs, and Richard Ryder and Annie Fitzgerald defendants, and in the Matter of the act of Parliament, 18 & 19 Vict. c. 43, upon the petition of Mary Geraldine Fitzgerald (an infant) by her next friend, after reciting that by the certificate of the chief clerk of the judge it was found that a valid marriage had been solemnized between the said Mary Geraldine Fitzgerald and Claude William Lacey, and the judge being of opinion that the settlement proposed to be effected by certain indentures therein mentioned was a proper settlement to be made upon the said marriage of the property of the said infant_comprised therein, it was ordered that Claude William Lacey and the said infant Mary Geraldine Lacey and the trustees therein named should execute the therein-mentioned indentures. Certain of the indentures to effect the settlement required to be acknowledged by Mary Geraldine Lacey, and, she being resident at Waterford, a special commission had issued to take her acknowledgment, but, she being still an infant, it was necessary to obtain the order of this court to vary the form of the certificate to meet the case. * He referred to In re Sarah Luke ('). In that case, Mrs. Sarah Luke, an infant trustee, had before her marriage been ordered by the Court of Chancery of the Duchy [155 of Lancaster to convey the trust estate to other trustees pursuant to 11 Geo. 4, c. 60, s. 6. Before the conveyance could be drawn up, and while she was still an infant, the lady married, and it became necessary that she should make an acknowledgment under 3 & 4 Wm. 4, c. 74, the 84th section of which requires that the person or persons taking the acknowledgment shall sign a certificate stating amongst other things,-"subject to any alteration which may from time to time be directed by the Court of Common Pleas," that the lady appeared before them, and that she was at the time of acknowledging the said deed of full age and competent understanding. The court under the circumstances made an order authorizing the commissioners to take the acknowledgment without certifying that the lady was of full age. (1) 1 N. C., 165. 1880 Watson v. Great Western Railway Co. C.P.D. GROVE, J.: The only distinction between that case and this is that there the person whose acknowledgment was to be taken had no beneficial interest, she was a mere naked trustee; here she is beneficially interested in the property to be conveyed. But, there being an order of the Chancery Division for the execution of the deeds by the lady, and we being asked only to remove a formal difficulty as to the mode of execution, it is not a case where any advantage could possibly be taken of her, and therefore I think the order may go. LOPES, J.: The order of the Chancery Division removes all difficulty; and the case of In re Luke ('), subject to the remark of my Brother Grove, is an authority in point. Order made. Solicitors for applicant: Davidson, Burch & Whitehead. (1) 1 N. C., 265. And see Ex parte Wallis, 7 C. B. (N.S.), 303. [6 Queen's Bench Division, 163.] Nov. 27, 1880-C.P.D. 163] *WATSON and Another v. THE GREAT WESTERN RAILWAY COMPANY. Costs-Shorthand Notes of Evidence at Trial-Special Direction. It is competent to this court to make an order for the allowance, on taxation between party and party, of the expense of the shorthand notes of the evidence given at the trial, as part of the costs of a rule for a new trial on the ground that the verdict was against the weight of evidence, in a case where from the nature and extent of the evidence it is manifest that the matter could not have been properly disposed of without their aid, THIS was an action against the Great Western Railway Company for so negligently keeping a dock at Millbay, Plymouth Sound, under their control, regulated by an act of 9 & 10 Vict. c. ccclxxxiii, that a steam vessel belonging to the plaintiffs, whilst entering the dock under the guidance of a licensed pilot, struck upon a submerged reef and was damaged. The cause was tried before Lord Coleridge, C.J., at the last Hilary Sittings at Guildhall, when a verdict was found for the plaintiffs. A rule nisi for a new trial on the ground (amongst others) that the verdict was against the weight of evidence, was obtained in the following Easter Sittings. Cause was shown on the 6th and 9th of November; and on the 27th judgment was given, discharging the rule, with costs. Watson v. Great Western Railway Co. C.P.D. 1880 A. L. Smith (Benjamin, Q.C., with him), thereupon asked for an order that the expense of the shorthand notes of the evidence given at the trial should be allowed on taxation of the plaintiffs' costs, on the ground that they were essential for the information of the court upon the argument of the rule as to what passed at the trial, and to enable them to determine whether or not a new trial should be granted. He referred to Kirkwood v. Webster ('), where it was held that the costs of making for the use of counsel copies of a shorthand writer's notes of evidence taken at the trial will not be allowed as between party and party unless a special direction to that effect is given by the judge at the trial; and he relied on Hill v. Metropolitan Asylum District Board () as an authority to show that the expenses [164 of shorthand notes may be allowed in the Court of Appeal if asked for at the time the judgment is pronounced. Bramwell, L.J., there says: "I have doubts if we have power to allow as costs of the appeal costs which were not incurred for the purpose of the appeal, as, for instance, notes of the evidence." The application there, being made long after the judgment had been entered, was held to be too late. Here, no special direction was given, nor was it asked for, at the trial; because, until the rule nisi for a new trial was obtained, it could not be foreseen that copies of the shorthand notes of the evidence and summing up would be necessary. W. G. Phillimore (J. C. Mathew, with him), for the defendants: It may well be that, under the Judicature Acts, 1873, 1875, the Court of Appeal (which has the whole matter before it) may have power to allow the expense of shorthand notes, where such expense is necessarily incurred for the purpose of the appeal; and possibly here the Lord Chief Justice might have made a special order upon the subject. But there is no authority for saying that this court has, or has ever attempted to exercise, such a power. LINDLEY, J.: I have no doubt whatever that we have full power to make the order prayed, and that the allowance of these expenses as costs of the rule is properly asked for at this stage of the proceedings. The case was one of very grave importance; and, from the quantity of evidence given at the trial, it was impossible that the court could have come to a satisfactory conclusion without the aid of the shorthand notes. LOPES, J.: I also think we have power to make the order as prayed. The taking copies of the shorthand notes of (2) 28 W. R., 664; 49 L. J. (C.L.), 668. (1) 9 Ch. D., 239; 26 Eng. R., 81. |