M Mahon v. Field (App.), Excн. not be liable; but I do not think that the evidence points to that, the evidence is that the horses caught cold because they remained three hours in the defendant's yard. Now it is difficult to say that the defendant is liable for this. Did the defendant cause the horses to be in the yard for three hours without clothing? The plaintiff without doubt must be taken to have acted reasonably; but the case is something like Clayards v. Dethick (3)—a case which, I may observe, I think was wrongly decided, for the criterion is not. whether the plaintiff behaved reasonably. I daresay he did, just as one who leads a forlorn hope may act reasonably, for the risk may be one which he may act reasonably in thinking it fit to run. So here, if the plaintiff had exercised the horses, or had had them trotted up and down, perhaps the result might have been different; but he chose to leave them stand. ing in the defendant's yard, and so they caught cold. If this case were left to me alone I should say that the plaintiff was not entitled to recover this sum of 501., but, knowing the opinion of the two other Lords Justices, I think I ought not to say so, for I am not prepared to dissent from their opinion. I think the case of Hobbs v. The London and South Western Railway Company (1) does not govern this case. It was there said the measure of damages was to be judged, not by the mere excess of the walk, but by the casualties which might occur. The illustration was given of a person walking home who made a false step in the dark. I must say I doubt whether in such a case the passenger delayed by the fault of the railway company till it was dark might not recover. The event which occurred might, I should think, be expected to occur, or at all events, it was not unexpectable. The same thing may be said of a cold caught in the circumstances of that case; but it would be otherwise if in a civilised country the passenger so delayed till dark were assaulted and robbed by footpads. However, I think the one case does not govern the other: here without a breach of contract the damage would not have arisen; what happened could not have occurred without that breach, and although that breach may not imVOL. 50.-Q.B., C.P. & EXCH.

mediately have caused it, it was, however, the event, without which the damage could not happen. I do not, therefore, dissent, and agree that the plaintiff must recover, and this appeal be allowed.

BRETT, L.J.-Since the case of Hadley v. Baxendale (2) this question is, in my opinion, a very difficult question, and that because the Court and not the jury has to decide and answer a question of fact. The rules in Hadley v. Baxendale (2) are that it must be considered, first, whether the damages were the necessary consequence of the breach; secondly, whether they were the probable consequence; and, thirdly, whether they were in the contemplation of the parties when the contract was made.

The two last questions are matters of fact which the Court has to determine as a matter of law. The question here is whether the catching cold by these horses is within any of these rules. It is clear that it was not the necessary consequence of the breach of contract, but it was the probable consequence, and, if so, it was a consequence which was in the contemplation of the parties. The facts of this case induced the jury to find that the contract had been broken, and that the damage incurred was a result of that breach. The antithesis is, Was the damage the result of any breach of contract, or of the conduct of the plaintiff? -and the facts here caused the jury to say that it was the result of the breach of contract. Can it be said that that question ought not to be left to the jury? Consider the facts. The plaintiff brought twelve horses to Rugeley by rail from Ireland. He had taken stabling, and probably the stabling was well known to both parties. The time was fair-time, and the defendant then let the stables to some one else, and when the plaintiff arrived he turned the other horses out and put the plaintiff's horses in. As was the inevitable consequence, the other man returned, and with the assistance of one of the defendant's servants, turned the plaintiff's horses out. No other stabling could be at once procured for that number of horses, so that these horses which had arrived from a feverish railway journey

4 B

M Mahon v. Field (App.), Excн. were thus put into the stable and remained there just long enough to have their clothes removed, and then were turned out. Now this is a way in which no one would treat horses if he understood anything about them, as it was probable and almost certain that they would catch cold whether they had or had not their clothing on. As a matter of fact this was a probable consequence, and so the jury have said. Then it is said that the case of Hobbs v. The London and South Western Railway Company (1) governs this case. One is unwilling to say that one can distinguish the facts of the two cases; but I must say that if I acquiesce in that decision I yet cannot agree with it.

If the facts of that case are considered they must be considered with regard to the nature of the station, the nature of the neighbourhood, and the accommodation, whether of conveyances or lodging, to be found at hand. In that case the Judges thought that the cold caught by the passenger was not the natural consequence of the breach of contract, and that it was too remote? Why was it too remote ? If there had been at the station in question accommodation which the passengers had rejected, then it would have been their own fault, but there was no such accommodation at Esher station, so that they did what it was reasonable and necessary they should do. Suppose that a man let lodgings to a woman and they turned her out in the middle of the night without warm clothing would it not be a natural consequence that she should catch cold?-and if he were to use any force and she died, he would be guilty of manslaughter. However, in the case of Hobbs v. The London and South Western Railway Company (1) the Judges held that the consequence was so improbable that the question ought not even to be left to the consideration of a jury. Perhaps some more special knowledge of that station was required. It is, however, not necessary to say more than that one is not content with the decision. But still there is a difference, as it is a fact that people do get out and do walk home at night and do not catch cold; therefore it is not so probable or inevitable a consequence of the breach of contract

that the passenger should catch cold as that the horses in the case now before us should be injured. There is a difference between turning a female out at night at a station some distance from home and turning out horses just off from a feverish journey after putting them for a short time into warm stables.

It is, therefore, not necessary to say that I should not have decided Hobbs v. The London and South Western Railway Company (1) as it was decided; but that case is certainly so near the line as to lead one to find, if possible, some distinction. The appeal must be allowed; but I do not consider that we are overruling Mr. Justice Fry, save in form, as he and the jury both were of opinion that the plaintiff should recover this sum.

COTTON, L.J.-I also agree that the plaintiff should recover this sum of 501. The question is, whether the damage suffered is too remote. It has been said that it is almost impossible to lay down a line, just as it is impossible to draw a line between twilight and night. The rule has been stated to be that the injury is one that may fairly have been contemplated as the possible result of a breach of contract. I must except to that statement of the rule as the parties to a contract do not contemplate a breach of that contract. I should rather ask whether the damage is the natural and probable result of the breach of contract without an accident intervening. It was said in Hobbs v. The London and South Western Railway Company (1) that catching cold is an accident. In some sense it may be, but also in many circumstances it cannot properly be said to be an accident. The question here then arises, Is the damage here complained of the probable result, without accident, of the breach of contract? The weather in May, and the difficulty at fair-time of getting stable room, are circumstances known to all, and so ought to be considered as having been in the contemplation of the parties to the contract; and that horses would, if exposed, catch cold without any accident intervening may also be considered to be in the same category.

A doubt occurred to me whether the

M'Mahon v. Field (App.), Excн. absence of clothing was the cause of the horses catching cold, and whether the defendant can be held liable for that; but that case was not made in argument, and I am of opinion that it could not be, for the servant of the defendant helped to turn out the horses, and so the defendant would be answerable. Whether the conduct of the plaintiff was reasonable must be considered with reference to the thing to which it relates. The plaintiff has done nothing unreasonable, and the damage suffered by him is the natural and probable consequence of the act of the defendant, so that the defendant is responsible. I do not consider it necessary

to enter into a minute examination of Hobbs v. The London and South Western Railway Company (1). I do not, however, concur in the conclusions of fact which the Court there drew.

Appeal allowed.

County Court-Rules regulating-Practice-Effect of Nonsuit-19 & 20 Vict. c. 108. s. 32-County Court Rules, 1875, Order XVI. rule 17.

A nonsuit in a County Court is a bar to a subsequent action in the High Court for the same cause of action.

By the County Courts Act, 1856 (19 & 20 Vict. c. 108), s. 32, five County Court Judges may be appointed "to frame rules and orders for regulating the practice of the Courts, and forms of proceedings therein," and the rules so framed are to be approved by the Lord Chancellor.

By Order XVI. rule 17 of the County Court Rules, 1875, " any judgment of nonsuit, unless the Judge otherwise directs,

* Coram Bramwell, L.J.; Baggallay, L.J.; and Lush, L.J.

shall have the same effect as a judgment upon the merits for the defendant."

The plaintiff sued in a County Court while abroad, without giving security for costs, as required by the rules, and was nonsuited, the nonsuit not to be a bar to the re-entry of the cause. He afterwards sued in the High Court for the same cause of action. The Judge held that the above rule applied only to nonsuits on the merits, and gave judgment for the plaintiff :

Held (by the Court of Appeal), that the rule applies to all nonsuits. Held (by BAGGALLAY, L.J., and LUSH, L.J., BRAMWELL, L.J., dissenting), that the County Court Judges had power to make the rule, and that the defendant was entitled to judgment.

This case was tried before Mr. Alfred Wills, sitting as Commissioner. At the trial judgment was given for the plaintiff, and the defendant appealed.

The question on which the judgments in the Court of Appeal turned was whether a nonsuit in a County Court is a bar to an action for the same cause of action, subsequently commenced in the High Court of Justice. The circumstances under which the question arose, the words of the material sections and rules, and the documents, are set out in the judgment of Lush, L.J.

April 9 and 11.-Jelf and Archibald, for the defendant, in support of the appeal. Bosanquet and Darling, for the plaintiff.

Poyser v. Minors (App.), Q.B. minute book of judgments in the County Court was put in evidence, and from this it appeared that the plaintiff was represented at the trial by counsel, and the defendant by his solicitor; that judgment of nonsuit was given with costs, but accompanied with an order that such judgment was not to be a bar to a re-entry of the cause for trial.

No application to re-enter the cause pursuant to such leave, or to set aside the nonsuit as irregular, was made until long after the time limited for this purpose by the Consolidated County Court Orders, so that the nonsuit has, according to the terms of Order XVI. rule 17 of those Orders, the same effect as a judgment for the defendant upon the merits-that is, it is a bar to this action.

When the plaint was entered in the County Court, and the summons applied for, nothing was said to the Registrar to the effect that the plaintiff was out of the country, consequently no security for costs was given or required, but the summons was given out as to an ordinary suitor residing in England at the time, whereas, in fact, the plaintiff had gone to America to reside, and had left his wife to wind up his affairs. The 4th of the Consolidated Orders (rule 2) prohibits the summons being issued under such circumstances until security for costs has been given, either by a deposit of money or otherwise, or by the undertaking of a solicitor to see them paid.

When it was disclosed at the trial that the plaintiff was out of the country and security had not been given, the learned Judge of the County Court considered that he had no alternative but to nonsuit the plaintiff; but he reserved leave to re-enter the cause upon security being given. No further step was taken by the plaintiff in the County Court, but eight months afterwards this action was brought.

The learned Judge who tried this action, and whose judgment we are called on to review, held that the nonsuit mentioned in the rule in question was a nonsuit on the merits, and that although the failure to give security for costs might be a good reason why that action should fail, it was not a bar to this action; and he gave

judgment for the plaintiff, but stayed execution for a time to give an opportunity of appealing.

We are unable to agree with the learned Judge in his construction of the rule. It does not in any way suggest that any enquiry is open as to the ground on which the nonsuit proceeded, or whether the plaintiff was rightly nonsuited or not. The words are any judg. ment of nonsuit shall have the same effect as a judgment for the defendant upon the merits." We think we cannot go behind the record. The judgment, if erroneous, stands on the same footing as an erroneous judgment for the defendant, and should have been appealed against, or set aside in the County Court. But as nothing was done to test its validity, we think it cannot now be impeached.

On the argument before us a new point was started, and this ultimately became the point mainly relied on. It was, that the County Court Order XVI. rule 17 was ultra vires, and that, supposing that to be out of the way, the plaintiff was only exercising his common-law right in bringing a second action. We reserved our judgment in order to look into the statutes under and in connection with which the Consolidated County Court Orders were made.

These Orders were issued in 1875, and supplemented in 1876. Many of these were taken from the Orders which were framed under the Judicature Act, 1873, and which were incorporated into the Judicature Act, 1875. The rule in question is a copy of rule 6 of the 41st of such Orders, and, like many others of the Consolidated Orders, it was intended to assimilate the practice of the County Courts to that of the High Court. were framed by a committee of County Court Judges appointed by the Lord Chancellor under the County Courts Act, 1856.

They

The words of the 32nd section of that Act are, "The Lord Chancellor may appoint five County Court Judges, and from time to time fill up any vacancy in their number, to frame rules and orders for regulating the practice of the Courts, and the forms of proceedings therein, and from time to time to amend such rules and

Poyser v. Minors (App.), Q.B. orders and forms, and such rules, orders and forms, or amended rules, orders and forms, certified under the names of such Judges, or any three or more of them, shall be submitted to the Lord Chancellor, who may allow or disallow or alter the same, and the rules, orders and forms, or amended rules, orders and forms so allowed or altered shall, from a day to be named by the Lord Chancellor, be in force in every County Court."

The five Judges unanimously certified the rules, and the Lord Chancellor certified his approval of them and directed them to come into force on the 2nd of November, 1875, being the day after that on which the Judicature Acts came into operation.

A nonsuit at common law was nothing more than a declaration by the Court that the plaintiff had made default in appearing at the time to prosecute his suit. The entry on the postea was, that "the said A B, being solemnly called, comes not nor does he further prosecute his suit against the said C D." It decided nothing as regards the matters in dispute, but merely got rid of the pending action, leaving the plaintiff at liberty to begin de novo, and this he might have done either in the same or a different Court, subject only to having the proceedings stayed till he had paid the costs taxed against him on the nonsuit.

The first County Court Act (the 9 & 10 Vict. c. 95) authorised the Court to nonsuit the plaintiff or to give judgment for the defendant, if the plaintiff should appear and not make proof of his demand to the satisfaction of the Court, and in either case to award costs (section 79); and the 89th section says that " every order and judgment shall be final and conclusive between the parties, but the Judge shall have power to nonsuit the plaintiff in every case in which satisfactory proof shall not be given to him entitling either the plaintiff or the defendant to the judgment of the Court." A nonsuit under these sections would undoubtedly have left the plaintiff at liberty to bring another action.

The rule in question puts a restriction upon this liberty, and subjects it to the discretion of the Judge, to be exercised

at the time when he pronounces judgment of nonsuit. "Any judgment of nonsuit, unless the Judge otherwise directs, shall have the same effect as a judgment upon the merits for the defendant; but when he does not otherwise direct, the rule goes on to declare that he may set aside the nonsuit "in any case of mistake, surprise or accident"-words large enough to embrace every contingency to which the failure may be attributed, which reasonably entitles the plaintiff to have the validity of his demand effectually tried. It is more beneficial to both parties to have a second trial in the same action than to waste the costs already incurred and begin the litigation de novo.

Is a rule which has this effect covered by the authority given to the committee of Judges by the Act of 1856, "to frame rules and orders for regulating the practice of the Courts and the forms of proceedings therein "? This is the question we have to decide, and although we are not precluded from forming our own opinion by the consideration that these rules were framed by five Judges of great experience, and deliberately and formally adopted by the Lord Chancellor, and that they have been accepted and acted upon in all the County Courts in England for more than five years without any such objection having been taken before, but are bound to form our own opinion notwithstanding, we cannot but hold that these considerations ought to have great weight, and that nothing short of strong conviction that the Act has been strained and that it will not bear such a construction would justify us in declaring the rule to be ultra vires.

After the best consideration I can give to the case, I am not only not convinced that the Act has been misconstrued, but am of opinion that the Lord Chancellor and the learned Judges were right in the view which they have taken of their authority under the Act of 1856.

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Practice," in its larger sense- -the sense in which it was obviously used in that Act-like "procedure," which is used in the Judicature Acts, denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right