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Ex. CH.]

BAXENDALE AND OTHERS v. THE LONDON, CHATHAY, AND Dover RAILWAY Co.

(Ex. Cu.

carriers are exempt from liability for the damage | the terms alleged ; secondly, that the defendants referred to."

received the goods only as forwarding agents; 9 to 12.-On the 9th Dec. 1871, an action was thirdly, that the defendants were protected by the brought by the said Harding against Messrs. provisions of the Carriers' Act; fourthly, that so Baxendale, che now plaintiffs, to recover damages long as the goods were in the defendants' care and alleged by him to bare been done to the pictures, possession they were safely carried; fifthly, that whereupon the now plaintiff's gave notice thereof at the time of the alleged injury to the goods the to the present defendants (the said company) by defendants' responsibility had ceased. letter of the 12th Dec. in the following terms: “A 17. On the 13th Jan. 1872, the plaintiffs consulted writ has now been issued. Will you kindly inform counsel as to their defence to Harding's action; us whether you will defend by your own solicitor, they themselves being under the impression that or if you wish us to do so on your account? they had a defence thereto on the ground that the It would be a great mistake to have two actions, pictures were not delivered to or received by them one against us and the other against you.” To as common carriers, but merely as forwarding which, on tbe 15th Dec., the solicitor for the de agents, and that they had a notice posted up at all fendant railway company replied as follows: “I! their receiving houses that they would not be beg to say that I am unable, on the part of this responsible for damage to goods beyond the limits company, to give you any instructions, but must of their conveyance; and also that, although the leave you to deal with the case as you think fit. | foreign consignment note contained a declaration of I am not aware whether, when the case of pictures | value, it was only for the requirements of the was delivered to you for carriage, a declaration Customs Act and not as a declaration of value was made and insurance paid; but this company under the Carriers' Act, especially having regard received it only as an ordinary parcel.”

to the course of dealing between Pickford and Co., 13. The declaration in Harding's action against and Robinson and Co., the agents for Harding in Messrs.Baxendale (the now plaintiff's) was delivered previous cases; and, further, that the accident on the 8th Jan. 1872 (a copy of it is set out in ex. happened from a peril of the sea which was under tenso in this paragraph of the case), and by it the | taken by the plaintiffs themselves. plaintiff claimed 10001. damages.

18. On the 27th April the opinion of counsel 14. The attorneys of Messrs. Baxendale sent a was given to the plaintffs during the progress of copy of this declaration to the solicitor of the de. Harding's action against them; and such opinion fendant railway company, with a letter as follows: (which is set out at length in this paragraph of the “We enclose a copy of the declaration in the action Case) was, in substance, to the effect that, though brought by Mr. Harding against our clients, the question was not free from doubt, their being Messrs. Pickford and Co., and we beg to repeat only forwarding agents could not be successfully the offer which Messrs. Pickford and Co. have relied on as a defence by the now plaintiffs, as already made, to allow them to undertake the de- they had agreed with Robinson and Co. to forfence of the action on behalf of the company on ward the goods to, and to deliver them in Paris, whom the loss must fall if the plaintiffs should be for which they had made one entire charge, and as held to be entitled to recover; or if the company between themselves and the railway company had decline to do that, we invite them, through you, treated themselves as the consignors, and that, upon to make any suggestion as to the defence which the facts, they had agreed to forward the goods to should be raised. We beg to add that the defen Paris, and had not protected themselves against dants (the present plaintiffs, Baxendale and Co.) any contingency whaterer, and were responsible will hold your clients responsible for the damages for non-delivery, even though they had not been which the plaintiff” (Harding) “may be held guilty of actual negligence. But that it by no entitled to recover, as well as for the costs which means followed that, because Harding might sucthe defendants may incur to the plaintiff, and to ceed against them, they would have any remedy their own solicitors, in defending the action.” against the railway company, for the reason that

15. The railway company's attorney replied the bargain between them (the now plaintiffs) to that letter on the 16th Jan. 1872, as fol i and Harding, was upon different terms to those of lows : — "The breach of duty on the part of the bargain between them and the railway comyour clients in their character of 'forwarding pany; and that the railway company might proagents,' upon which it would appear the plaintiff bably, under their 4th special condition, escape relies, is nothing which affects this company so liability upon the ground of the goods being more as to render it liable to your clients; and I cannot,

| than usually hazardous, and no extra payment therefore, undertake to offer any suggestions as to having been made for their carriage; the comthe defence of this action. The relative posi- pany being also protected by their 18th condition tions of the company and your clients in the against liability in the absence of actual neglimatter are, I apprehend, clear. Your clients were, gence. and in the consignment note are, described as the The now plaintiffs, however, continued to defend senders of the case of pictures, and the company, Harding's action, and a part of the brief and exas carriers, will of course, if necessary, avail penses related solely to the special desences set themselves of the provisions of the Carriers' Act." || up in the particulars. The present defendants . 16. Messrs. Baxendale entered an appearance in allege, but the now plaintiffs deny, that such Harding's action against them, and pleaded the increase of costs was substantial. The remainder general issue; and an order was obtained by con- of the briefs and expenses related solely to the sent, dated the 14th Feb. 1872, making available value of the pictures. under such plea any defences of which the particu- 1 19 and 20. On receiving notice of trial in lars were delivered in a week, and accordingly the Harding's action, the attorneys of the plaintiffs following particulars of such defences were de wrote to the attorney of the railway company, on livered. First, that the plaintiff did not deliver the 28th May 1872, informing them thereof, and nor the defendant receive the goods as carriers on repeating the intimation that their clients would

Ex. C..] BAXENDALE AND OTHERS v. THE LONDON, CHATUAM, AND DOver RAILWAY Co. [Ex. Cı.

hold the railway company liable to reimburse the railway company respectively (set out at length them, in the erent of Harding obtaining a verdict, in this paragraph of the case) with reference to the such a sum as he should recover, and their own company's indemnifying Messrs. Baxendale for the costs, as well as those of Harding, and reiterating damages and costs incurred by them in Harding's a desire to receive any suggestion in support of the | action. defence; to which letter, on the same day, the | 23 and 24. On the 18th Dec. 1872, the present company's attorney replied, referring them to his plaintiffs paid to the plaintiff Harding the 6501. previous letter of the 16th Jan. (paragraph 15). damages, together with 2481. 138. 4d., his taxed À voluminous correspondence (set out at length costs in the said cause; and the bill of costs of in paragraph 20) then followed between the their own attorneys incurred in and about their attorneys on both sides relative to the manner in de!ence to such action amounted to 2661. 48., inwhich the accident in question occurred, extending cluding counsels' fees and witnesses' expenses, but from the 29th May to the 18th June 1872, in the the same had not been taxed. course of which the attorneys of the railway com 25 and 26. On the 30th Feb. 1873, the now plainpany wrote to the attorney of the now plaintiffs tiffs brought the present action to recover the on the 4th June, asking them if they could not | three several last mentioned sums. (The copy of arrange to admit the fact of the accident, in order the writ of summons and the declaration in the to avoid the necessity of the attendance of a said action are set out at length in these paragraphs witness at the trial; and adding that he should of the case respectively). have no objection to admit, on the part of his 27 to 31. The defendants (the railway company) clients, the railway company, that, as the fact was, on the 19th March, pleaded several pleas, setting the drawings were dropped into the sea by the up several defences, namely, traversing the baiiservants of the railway company while they were ment and breach respectively; delivery of the being conveyed to the steam vessel; and subse goods on the terms of a special contract, exempt. quently the statement of the railway company's ing the company from liability unless the goods porter, as to the manner in which the accident were declared and a special rate paid, which was occurred, was sent by the company's attorney to not done; the Carriers' Act, and loss from exthe attorneys of Messrs. Baxendale, on the 17th cepted perils of the sea. Subsequently, however, June 1872.

on the 28th March, the defendants, by leave urder 21. The plaintiffs, baving delivered their briefs a judge's order, withdrew all the above pleas, and to counsel in Harding's action, were again advised | paid 6501. into court, to which the plaintiffs rethat the Carriers' Act afforded no defence, and their plied that the sum paid in was not sufficient. The attorneys informed the railway company's attorney particulars of the special damages referred to in thereof in the following letter of the 19th June the declaration and delivered to the defendants 1872:-“We have arranged with the plaintiffs' under a master's order of the 15th March 1873, attorney to admit the porter's statement in evi. consisted of the above-mentioned sums of 6501., dence so as to save the expense of bringing him 2481. 138. 4d., and 2661. 48. up as a witness. We regret to say that our 32. The cause came on for trial before Cockburn, counsel are of opinion that the defence of the C. J. and a special jury at the Lent assizes for Carriers' Act will not avail, as that only refers to Surrey, at Kingston, on the 8th April 1873, when carriage by land, and the damage did not take the case was tried by admissions, and the following place in course of the land carriage. They are of is a copy of the learned judge's note :opinion also, that even if there had been a marine

Kingston, Sth April, 1873. insurance the accident would not be a peril of the Baxendale v. The London, Chatham, and Dover Rail sea. It is clear, if these defences will not protect way Company. Consignment note between plaintiffs our clients they will not protect yours, and we are

and defendants, to be admitted. The forwarding note

between plaintiffs and Harding, ditto. All proceedings instructed to ask you whether, under the circum

in the action, Harding y. Baxendale, to be put in ; and stance, we shall endeavour to settle the action on all correspondence to be put in. The bill of costs in your client's account, on the best terms we can? | Harding v. Baxendale to be put in. The court to say We should add that one of our witnesses has in. whether the plaintiffs are entitled to the whole or any formed us that the plaintiffs would be content with

part of the bill of costs; if to part only, that part to be

Bettled by the master on direction from the coart. Copy 5001. damages. You know that this sort of commu

of the necessary documents, with a list thereof, shall be nication cannot be relied on, but if it should provo

supplied to the court. The plaintiffs to supply the decorrect, would you, on behalf of your clients, con fendants with copies of such as they require. Evidence sent to that sum being taken as the damage." In and admissions to be entered on the judge's notes. reply to that letter, the attorney of the railway 33. The bills of costs in the case of Harding v. company wrote, on the 20th June, that he could Baxendale, are to form part of this case, and the not," under the circumstances of the case, take court is to be at liberty to refer to the briefs. any course implying assent on the part of the 34. A verdict was found for the amount of the company to the settlement of the action, as they two bills of costs, but leave was reserved to the are prepared to defend any proceedings against defendants to move to enter the verdict for the them on the question of legal liability.”

defendants, cr to reduce the damages to an amount 22. The action went to trial on the 27th March to be held by the court to be recoverable, and to 1872, and resulted in a verdict for the plaintiff be settled by the master. (Harding) for the value of the pictures, viz., 6501. A rule nisi to that effect was accordingly Messrs. Baxendale, the defendants in the action, obtained by the defendants' counsel in Easter subpænaed a pumber of gentlemen as to the value | Term 1873, against which cause was shown of the pictures, but after the cross-examination of on the part of the plaintiff's the following the plaintiff's witnesses, counsel in their discretion Trinity Term, and after argument the court decided not to call evidence on the part of the (Bramwell and Cleasby, BB., sitting in the second defendants. A further correspondence then passed division of the court), took time to consider its between the attorneys for Messrs. Baxendale and I judgment, which was subsequently on the 27th

Ex. Ch.]

BAXENDALE AND OTHERS v. THE LONDON, CHATHAM, AND DOVER RAILWAY Co.

[Ex. Cu.

- June 1873, delivered as follows by Cleasby, B.:| railway company in reference to Harding's clain.

This was one of those cases in which a person | As soon as that claim was made, Messrs. Baxenincurs a liability, in consequence of the neglect or dale wrote the letter of the 11th Oct., giving default of a third person in some duty which he the railway company notice of the claim, and owes to him, and when he is brought into court asking for their advice and assistance. The himself, he has a right to expect to recover over claim goes on, and Messrs. Baxendale are placed against the person by whose default the liability | in great difficulty in knowing what to do, has arisen. In these cases a question of some and how far and on what ground to defend the difficulty arises as to how far a person is entitled action, for the railway company, by their to recover the costs which he has had to pay, and attorney, wrote to them. on the 24th Oct., as folalso the costs which he has incurred in defending lows :-“Instructed by our manager, I beg to the action which has been brought against him. / acquaint you that this company declines all Now the case before us was this. The present liability in the matter," thus leaving Messrs. Baxplaintiffs, Messrs. Baxendale, received a case of endale very much to take their own course. The pictures belonging to a Mr. Harding, to be for latter, however, do not stop there, but conwarded by them to France. They delivered the tinue to urge the company to do something in case to the London, Chatham, and Dover Railway the matter themselves, and on the 12th Dec. they Company, the defendants in the present action, write, “A writ has now been issued. Will you and one of the servants of the railway company kindly inform us whether you will defend by your negligently permitted the case to fall into the sea own solicitor, or if you wish us to do so on your at Dover, by which the pictures were seriously account? It would be a great mistake to have damaged. A claim was then made by the owner two actions, one against us and another against of the pictures upon the present plaintiffs, and an | you.” That is, unfortunately, exactly what has action was brought by him against them which they bere taken place; but certainly we cannot help defended, but unsuccessfully, and in defending it saying, not by the fault of Messrs. Baxendale. On they incurred and paid the costs, which they now the 16th Jan, the railway company write another seek to recover from the defendants in the present letter, in which they obviously keep Messrs. action. Now we should, I think, abide by the Baxendale at arm's length, and leave them to take rale acted on by the Court of Common Pleas in their own course, for they say, “ The company, as the case of Mors le Blanch v. Wilson (28 L. T. Rep. carriers, will, of course, if necessary, avail themN. S. 415; L. Rep. 8 C. P. 227; 42 L.J. 70, C. P.), selves of the provisions of the Carriers' Act." The the general idea of which is that the jury are to result then is that Messrs. Baxendale, the present give, as part of the damages, such costs as were plaintiffs, have done all that they possibly could do reasonably incurred in defending the action, if it to prevent the state of things arising which has was properly defended, or in ascertaining the arisen, namely, the having two sets of costs in the amount of liability if it was necessary that some case. It appears to us to be a case in which the thing should be done to ascertain that amount. fault was clearly that of the railway company, and Now, applying that rule to this case, we observe in which the latter might fairly and properly hare that a very large claim was made in respect of these taken upon themselves the defence of the action pictures. In the first instance, Messrs. Baxendale brought by Harding against the present plaintiffs. could obtain very little information to guide them But, instead of doing so, they chose to repudiate in settling the action or paying money into court, all liability on their part, and left Messrs. and they had no means for making any payment Baxendale to make the best they could of the case. in the case. Had it been the case of a loss of The result, therefore, as to the second part of the · ordinary goods or merchandise, of which the rule for reducing the amount of the verdict was value was known, they would have been bound to this, that there was a verdict for the full amount of pay the money into court, and so put an end to costs incurred by the plaintiffs themselves, and the matter. But it was a matter of great difficulty also those which they had to pay to Harding in to ascertain what the amount of damage done to respect of his action. Now, we do not think that the pictures was. It is obvious that damage to a it necessarily follows that the verdict ought to picture is one of those things which cannot be stand for the full amount of those costs; but the estimated commercially. It is necessary to call | present plaintiffs are entitled to recover, as skilled witnesses to speak to the original value of damages caused by the default of the railway the pictures, and to the extent of the damage company, all costs for which they became liable, done to them. That being so, we think that and which were incurred in having the amount of Messrs. Baxendale could not be expected to settle damages ascertained and in having their liability Harding's action out of court before trial, or to pay established; for though we are of opinion that the money into court. It was a necessary consequence defence of the Carriers' Act could not have been • of the defendants' neglect that Messrs. Baxendale successfully set up in answer to Harding's claim, were put to the expense of ascertaining in a yet, as the railway company to the last moment proper way the amount of their liability, in order insisted that they might claim the protection that they might recover it over against the railway of the provisions of that Act, we think that company. So far, therefore, as regards that part it was quite justifiable in Messrs. Bexendale of the rule which seeks to have the verdict entered to have their liability established, putting forfor the defendants, the rule must be discharged, ward the Carriers' Act as the ground of their because the plaintiffs are clearly entitled to defence. The result, therefore, is that the verrecover some costs. Then the question arises, was dict should be reduced to such an amount of this a case in which Messrs. Baxendale could fairly costs as are attributable to establishing the and reasonably defend the action brought against liability of Messrs. Baxendale for the amount rethem by Harding: That depends principally covered against them, having regard to the deupon two things, namely, the nature of the case, fence under the Carriers' Act, but not to the - and the conduct of Messrs. Baxendale and the 1 defence that they were merely forwarding agents

Ex. CH.]

BAXENDALE AND OTHERS v. Tue LONDON, CHATHAM, AND DOVER RAILWAY Co.

(Ex. Ch.

and not carriers, or any other defence. We can- | present action not being recoverable is, that they not deal with the figures, but, with this guide, the were not incurred by reason of or as the result of parties ought, and will, no doubt, be able to settle any breach of contract on the defendants' part. the amount.

The contract between the plaintiffs and the defen36. The Court of Exchequer having accordingly dants, and not the contract between the plaintiffs. discharged the defendants' rule, the latter appealed and Harding, which is another and different oneto the Exchequer Chamber from that decision, altogether, and which contains entirely different and the question for the opinion of the court of terms, should be the measure of damages, if any, appeal now was, whether the said rule should be in the present action. [He was here stopped by discharged or not. The court of appeal to make the court, who called on] such rple upon this appeal as it should think fit; Watkin Williams Q.C. (with him was Murphy, and to proceed therein pursuant to the provisions Q.C.), on the part of the respondent plaintiffs.of the Common Law Procedure Act 1854.

All that the plaintiffs now seek to recover from Points for argument on the part of the de the company is that part only of the costs which fendants (appellants): First, that the defendants the company, had they defended Harding's action, are not liable for more than the damage done to must themselves have incurred, namely, the costs the pictures ; secondly, that the costs sought to of the defence under the Carriers' Act, and of the be recovered are not the reasonable or necessary ascertaining the real amount of the damage done consequences of the pictures being dropped into to the pictures. The costs of the other defences the sea, and as damages are too remote; thirdly, originally raised by the now plaintiffs are admitted that the damages as between the plaintiffs and on their part not to be recoverable. (LUSH, J.-the defendants ought to be measured according to Do you say that it is a contract of indemnity or the contract between them, and not according to special damage?] The claim is for special damage, any other contract, different in its terms, between and is not founded on any contract of indemnity. the plaintiffs and other persons; fourthly, that (QUAIN, J.-On what possible principle can you the defendants' contract was not one of indemnity, then ask for more than the value of the goods ?] and that they are not liable to pay for the costs of In the case of an acceptor of an accommodation improper defence by the plaintiffs of an action bill against whom an action is brought by an in-brought against them by the owners of the pic dorsee, the drawer, being informed of the action, tures, and that such costs are not damages for not tells the acceptor there is a reasonable ground of safely carrying the pictures ; fifthly, that if this defence, and the latter therefore defends the action, action had been brought before that of Harding v. but unsuccessfully, and the result is that he has to Baxendale, the damages could only have been pay the amount of the bill and the plaintiff's costs, measured by the damage to the pictures, and that in addition to his own costs of defence; yet he the measure of damages cannot be altered by the can nevertheless recover the whole amount as circumstance of which action was brought first; | damages from the drawer, notwithstanding there sixthly, that the defence to the action against the | is no contract of indemnity. The present case is plaintiffs was unreasonable; seventhly, that under analogous in principle to that case. These costs. no circumstances can tbe defendants be liable to now sought to be recovered were the natural and pay for such of the costs of the action of Harding proximate result of the breach by the defendants 1. Baxendale as were peculiar to the contract be of their contract, for owing to the line of con: tween Harding and Baxendale; eighthly, that the duct adopted by the railway company, the plainplaintiffs ought to have paid into court, or let tiffs could not, with any safety or prudence, judgment go by default; ninthly, that the de have taken any other course than that which they fendants are not liable for the plaintiffs' costs in followed. It was only by the verdict of the jury the first action, even if they are liable for what i that they could possibly ascertain what really was was paid to Harding.

the amount of damage sustained by Harding. Points on behalf of the plaintiffs (respondents): [ARCHIBALD, J.-Why did they not at once sue the First, that the plaintiffs acted reasonably in de railway company, and by so doing throw that fending the action of Harding v. Baxendale on all difficulty upon them ?] By defending the action and each of the grounds relied upon; secondly, that they greatly berefited the company, as they no substantial saving of costs would have been thereby reduced Harding's claim from 10001. to effected if they had suffered judgment to go by de 6501. [LORD CULERIDGE, C.J.-Was it reasonable fault, and allowed the damages to be assessed under conduct on the part of the plaintiffs to incur costs a writ of inquiry ; thirdly, that through the to the amount of 5141. 178. 4d. in order to reduce course adopted by the plaintiffs a claim of 10001. 10001. to 6501., and that too after being advised by was reduced to 6501. ; fourtbly, that as the de their counsel that they had no defence to the fendants were offered the conduct of the defence of action?] It was against the wish of Messrs. the said action, and refused to interfere, the plain Baxendale that the action went on. They would tiffs are entitled to an indemnity against costs so gladly have effected a settlement, and urged the long as they acted bona fide ; fifthly, that the doing so upon the railway compony, but the comfinding of the court below is not subject to re pany would neither assent to that course nor in versal upon appeal, being a finding upon a ques

any way assist or advise the plaintiffs, but they tion of fact.

told the latter that there was a defence to the W. G. Harrison (with him were Day Q.C. and action. (QUAIN, J. — They did not tell the · Roland V. Williams) argued the case on the part plaintiffs that they, the plaintiffs, had a deof the appellant defendants.—The reasonableness fence, but that the company had one.) Whator unreasonableness of the conduct of the plain ever defence the one had the other had also. tiffs, Baxendale and Co., in defending Harding's They were alike in that respect. The liability of action, is not at all material to the present ques- the plaintiffs and of the railway company under tion, inasmuch as the true ground and reason of their several contracts respectively proved eventhe costs sought by them to be recovered in the I tually to be identical; and though the railway

Ex. C1.]

BAXENDALE AND OTHERS v. THE LONDON, CHATHAM, AND Dover RAILWAY Co.

[Ex. CH.

company bad supposed themselves to be within these costs, and that the defendants are not liable. the protection of the Carriers' Act, yet the case of | In the first place, the defence wbich the present Behrens v. The Great Northern Railway Company plaintiffs set up in answer to Harding's action (3 L. T. Rep. N. S. 863; 30 L. J. 153, Ex.; 6 H. & was not, in my judgment, a reasonable one, and it N. 366; affirmed in error 8 L. T. Rep. N. S. 328; had no fonndation in law, and of that they were 31 L. J. 299, Ex.; 7 H. & N. 950) is an authority at the first distinctly informed by their own showing that the carrier is not protected under counsel; nor were they either expressly or imsuch circumstances. The present case falls within pliedly authorised by the defendants to set up the principle of the decision of the Court of such a defence; and so there was no good cause for Common Pleas, in Mors le Blanch and another v. its adoption by the plaintiffs, either by reason of the Wilson and another (28 L. T. Rep. N. S. 415; L. soundness of their own case, or of any authority so Rep. 8 C. P. 227; 42 L. J. 70, C. P.), in which, as to do on the part of the defendants. But then the in the present case, there were two distinct con plaintiffs may say, “True it may be that we have no tracts, each independent of the other, and in which right to recover all the costs of the action, yet still the court held that the charterers could recover in we were bound to do something to ascertain onr the second action against the shipowner the liability, and by our fighting the action, Harding's amount of damages assessed against them, and the claim, which originally was for 10001., was reduced costs in the first action, not on the ground of their to 6501.; and if we had let judgment go by having defended that action at the shipowners' | default the ascertaining the amount of damages request, or with their consent, but because the by a jury, under a writ of inquiry, would bare damages and costs so incurred by them were the cost something, and we are at all events entitled natural and proximate result of the shipowners' to recover that amount." This ground, however, breach of contract. In that case Brett, J., during I think, fails the plaintiffs, because such costs are the argument, referred to a passage in the notes not, in my opinion, the natural or proximate to Lampleigh v. Braithwait (1 Sm. L. C. 6th edit. result of the defendants' negligence, and were not p. 149), which is applicable here, as follows: costs incurred at their request or for their benefit, * Where the plaintiff's claim is of an unliquidated or for the benefit of anybody except of the plainnature and needs investigation, it seems that the tiffs themselves. The court below appears to have defendant may, unless expressly forbidden, incur decided the case on the authority of Mors Le the expense of investigating it, or at least that Blanch v. Wilson (ubi sup.). The two cases, very slight evidence is enough to raise an inference I though not precisely similar, are in principle not that the person ultimately liable has assented to very easily distinguishable; but although it is his doing so: (Blyth and another v. Smith, 5 M. & difficult to point out a distinction between them, G. 405; 12 L. J. 203, C. P.) It seems to be for I am nevertheless prepared to say, though with the jury in each case to say whether, in defending | regret, that if Mors Le Blanch v. Wilson is unand incurring the costs sought to be recovered, distinguishable, then it was wrongly decided. the plaintiff pursued the course which a prudent Upon these grounds, therefore, I am of opinion and reasonable man unindemnified would do in that the judgment of the Court of Exchequer in his own case; and if the jury find that he did, the present case ought to be reversed. the costs may be recovered." (LUSH, J.-The KEATING, J.-I also concur with my Lord and difference between Mors le Blanch v. Wilson and the rest of my learned brethren in the opinion the present case is this : In Mors le Blanch v. that the plaintiffs are not entitled to recorer these Wilson the assessment of damages in the action costs as damages against the defendants, for such in the first instance against Mors le Blanch deter damages are, I think, too remote. The contract mined the amount which he had to pay in conse between the plaintiffs and the defendants was enquence of Wilson's default. If Mors le Blanch tirely distinct and separate from that between the bad brought his action, he could have determined plaintiffs and Harding, and was entered into irrethe amount of demurrage which he was liable to spectively of any knowledge on the part of the pay, that is, which he would have to pay, which is defendants as to Harding or his contract with the just as good as finding the amount actually paid. plaintiffs. The costs, therefore, which were inThe cases of Ogle v. Lord Vane (L. T. Rep. N. S.; curred by the plaintiffs in defending the action L. T. Rep. 2 Q. B. 275; 36 L. J., 75, Q. B ; in error brought against them by Harding, could not, in L. Rep. N. S.; L. Rep. 3 Q. B. 272; 37 L. J. 77, my opinion, be the natural and proximate result Q.B.), and Rolph v. Crouch (17L. T. Rep. N. S. 249; of any default with respect to the pictures on the 37 L. J. 8, Ex.; L. Rep. 3 Ex. 44), are anthorities part of the defendants. A very different question in favour of the plaintiffs if not precisely in point; might have arisen if the plaintiffs, Messrs. Baxenand Ogle's case shows that where a plaintiff bas dale, had defended Harding's action at the request not acted unreasonably, and so disentitled himself of the railway company--a question discussed in from recovering the amount of damages which he the notes to Lampleigh v. Braithwait (ubi sup.). has actually incurrred, he may recover it, apart In the present case, if the question be whether the from any ground of contract on the defendants' defence were a reasonable one or not, I am bound part to pay it. He cited also Broom v. Hall (7 | to say that I think it was entirely unreasonable. C. B., N. S., 503); and Dixon v. Fawcus (3 L. T. | But then it may be said what were the plaintiffs Rep. N. S. 693; 30 L. J. 137, Q. B.; 3 El. & El. (the then defendants) to do, they must do some537), and contended that on all these grounds thing, and the question comes, what that somothing Messrs. Baxendale, the plaintiffs, were entitled to ought to have been. It has been suggested that have the judgment of the court in their favour, they should have let judgment go by default, and affirming the decision of the court below. He re- ! have had the amount of damages ascertained on a ferred also to Mayne on Damages, 2nd edit., by writ of inquiry at a far less expense than fighting Lumley Smith, p. 43.

the action. But that suggestion touches the ques. Lord COLERIDGE, C.J. (after stating the facts).- tion of amount only, and not that of the company's I think that the plaintiffs are not entitled to recover liability. The opinion of the jury was not taken

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