v. Joseph(); Gurney v. Key ('); St. Leger v. Di Nuovo ('); Swinbourne v. Carter (); Westenberg v. Mortimore (); Raeburn v. Andrews (); Ogilvie v. Herne (') ;

-- (*); Drummond v. Tillinghist (').

Cur. adv. vult.

V.

May 27. TIESIGER, L.J.: Although it is proposed that I should deliver my judgment first, yet there is no difference of opinion amongst us.

The question raised in this case is whether the plaintiff ought, under the circumstances, to give security for costs. The action was brought by a foreigner to enforce payment of an annuity from the executors of one Foster, under an alleged agreement. The statement of claim alleges that since the agreement the plaintiff has been resident abroad until she temporarily came to England to enforce her claim. On the facts stated in the affidavits, it is enough to say that I am of opinion that the plaintiff is really in the country merely for the purpose of the suit, and probably will go abroad if she obtains a judgment in her favor, and if judg ment is given against her she will leave the country, under circumstances which will prevent the defendants from availing themselves of any process by which they can recover costs, and consequently unless there is a settled rule of practice to the contrary, there is some reason why the plaintiff should be called upon to give security. But the Common Pleas Division has decided that, whether the plaintiff be an Englishman or a *foreigner, if at the [455 time of the application by the defendant the plaintiff is within the jurisdiction of the court, though only for a temporary purpose, the court have no power to order him to give security, merely on the ground that he is usually resident abroad.

To show that there is such a settled rule of practice, it is necessary to go into the cases in detail. We there find that in favor of the view that such security ought not to be given there are five distinct decisions. In 1815 there was the case of Ciragno v. Hassan (1o); in 1819 of an Anonymous Case ("); in 1827 the case of Willis v. Garbutt ("); in 1840 Dowling v. Harman (1); and lastly, in 1852, that of Tam

1879

QUEEN'S BENCH DIVISION.

Redondo v. Chaytor.

[Vol. IV.

bisco v. Pacifico ('). So far I have mentioned only common law authorities. In addition to the decisions we have the opinions of the text books; Chitty's Archbold and Lush's Practice are to the same effect, though they seem to leave the matter in some doubt, founded on a supposition that though the general current of authority is in favor of the view taken by the Common Pleas Division, yet there are some decisions to the contrary. There are three decisions which appear to be in conflict with the authorities I have mentioned, but two of these are really of no authority on the point, viz., Naylor y. Joseph (2) and Gurney v. Key (). For, when we look into these cases, it appears that though the plaintiff may have been within the jurisdiction at the time of action brought, he was clearly out of the jurisdiction when the application was made; so that those two cases are not inconsistent with the general rule. There is therefore, in point of fact, only one case which can fairly be cited in favor of the defendants, that of Oliva v. Johnson (). It is to be observed that though that case was decided after the case of Ciragno v. Hassan () and the Anonymous Case (), neither of these two cases was cited; whereas although Oliva v. Johnson (') was not actually cited in Dowling v. Harman ('), yet, as Martin, B., says in Tambisco v. Pacifico ('), it is clear that it must have been before the mind of at least one of the judges who 456] decided Dowling v. Harman (), *because he was counsel in Oliva v. Johnson (). And in Tambisco v. Pacifico () the case of Oliva v. Johnson (') was discussed, notwithstanding which the general rule was followed. those cases it may be observed that the decisions were founded on the well-settled and established practice or cursus curiæ. In all It is impossible, in the face of the authorities, to hold that the practice at law was other than what I have stated it to be. But then it is said that a conflict of authority arises if the decisions in equity are examined. The first of these is the case of Ainslie v. Sims ("), decided by Lord Romilly in the year 1852. In that case the rule I have laid down was not followed by the Master of the Rolls, and it is to be observed that none of the above mentioned authorities were cited. But it is remarkable that in the same year Tambisco v. Pacifico (') was decided, and in the same year again there was a contrary decision by Wood, V.C., in the case of Cambollie v. Inngate ("). He calls attention to the fact that the (1) 7 Ex., 816; 21 L. J. (Ex.), 276.

(2) 10 Moo., 522.

() 3 Dowl., 559.

(*) 5 B. & A., 903.

(6) 8 Taunt., 737.

(7) 6 M. & W.. 131.
(8) 17 Beav., 57.
() 1 W. R., 533.

(5) 6 Taunt., 20.

authorities were not cited before the Master of the Rolls in Ainslie v. Sims ('), and says: "By the comity of nations a foreigner was entitled to the same relief in a court of justice as a British subject; on quitting the country the same security could be demanded from both of them. In Willis v. Garbutt (2) Alexander, C.B., says: No one can have security for costs until his opponent has quitted the country. We can only enforce an order by staying proceedings until the security is given, and that may be done just as well after he has quitted the country as before."" But it is said that though Wood, V.C., took that view in 1852, he was of a different opinion in 1858, when he decided the case of Swanzy v. Swanzy (). But it seems to me that he did not withdraw from his former position, nor did he give any opinion that the Master of the Rolls was right, but decided the case on a different principle, viz., that where an action has been brought by a foreigner temporarily resident in England, who for the purpose of misleading the court gives a false description of his residence, or conceals his true residence, or gives a false name, that is in the *nature of a fraud [457 on the court, and the court can order the plaintiff to give security for costs. This is shown by the further observations of Wood, V.C., in Cambottie v. Inngate ("), who, after referring to the case of Fraser v. Palmer (), justifies this decision by remarking that it was not alleged that any fraud upon the court was contemplated by the plaintiff. Fraser v. Palmer () was a case decided by the Court of Exchequer in equity, in which Alderson, B., said: "If a plaintiff gives a right description of his place of abode when he files his bill, his circulating about afterwards is immaterial unless he goes abroad. He is still open to the process; it is a different thing if he gives a false statement of his residence, he is then guilty of a fraud upon the court, and on that ground is made to give security for costs." This explains what Wood, V.C., said in Swanzy v. Swanzy (), and the latter part of the judgment shows that the case of Calvert v. Day () is no authority on this question.

So stands the question of authority; and in the face of these authorities we have no course open to us but to dismiss the appeal. We are not called upon to say what, if the matter were now res integra, ought to be the rule, but whether the court below were right or wrong as to the settled rule of practice. But as there is a strong feeling on the

(1) 17 Beav., 57.

(2) 1 Y. & J., 511.

(3) 4 K. & J., 237; 27 L. J. (Ch.), 419.

(4) 1 W. R., 533.

(5) 3 Y. & C. (Ex.), 279.
(6) 2 Y. & C. (Ex.), 217.

part of one member of the court that the settled rule is unreasonable, I should like to add a few words on that subject. No doubt in one view of the matter where the plaintiff is a foreigner, and will probably leave the country if unsuccessful, so as to avoid paying costs, it seems rather hard that he should not be called upon to give security, more especially as it is clear that there is no hard and fast rule in the converse case, and when a person usually resident in the jurisdiction is temporarily out of it, the courts will not compel him to give security. Again, if a person is permanently resident without the jurisdiction, but has property within it, no security will be required; therefore it may be said it would be reasonable that the converse should hold good, and if the plaintiff is only temporarily in England, and will probably go abroad before process can issue against him, he shall be made to give security. But, on the other hand, it 458] may not be convenient to extend the *number of cases in which security for costs can be demanded, and in which the plaintiff can be deprived of his remedy until and unless he can find such security. It may, no doubt, be a hardship on a foreigner, who has come into this country for the bona fide purpose of trying a right, to be unable to do so because he cannot give security for costs. And although there are, no doubt, strong reasons on which a change of the law could be urged, I do not wish to be understood as giving an opinion in favor of the change.

BAGGALLAY, L.J.: The authorities on the question before us have been so fully examined and explained by Thesiger, L.J., that I propose only to add a few words on the case of Swanzy v. Swanzy ('). It is well known that in all proceedings in chancery, whether commenced by bill or petition, it was necessary to state fully in the bill or petition the name and residence of the person instituting the proceedings, and quite independently of whether that person was a foreigner or not or was resident within the jurisdiction or not. If the plaintiff did not correctly state his name and residence in his bill or petition, it was enough to enable the court to order him to give security for costs. In Swanzy v. Swanzy () residence was incorrectly stated. The plaintiff had taken lodgings at one place under one name and at another place under another name. This was enough to make her liable to give security for costs, independently of any question of residence abroad. The principle always acted on in the Court of Chancery was that laid down by Wood, V.C., in the case of Cambollie v. Inngate (3).

(1) 4 K. & J., 237; 27 L. J. (Ch.), 419.

(2) 1 W. R., 533.

1879

Adamson v. Newcastle Steamship Freight Insurance Association. BRAMWELL, L.J.: I think it is impossible to dissent from the elaborate exposition of the law by Thesiger, L.J., as to the practice of the courts. I think the rule ought to be different, for the present rule seems to me to work injustice, and is therefore not a proper rule of practice; still, no doubt, it is the settled rule, and this appeal must be dismissed. Appeal dismissed.

Solicitors for plaintiff: G. S. & H. Brandon.
Solicitors for defendants: T. W. Denby & Co.

[4 Queen's Bench Division, 462.] ·

July 3, 1879.

*ADAMSON and Another v. THE NEWCASTLE STEAM- [462 SHIP FREIGHT INSURANCE ASSOCIATION.

Insurance (Marine)—Chartered Freight-Restraint of Princes-Charterparty void or voidable in event of War.

The plaintiffs chartered the ship Edgar to C. by charterparty in which it was agreed that the ship after completing intermediate employment (which she was to be at liberty to take) should proceed to Galatz for orders to load there, &c., and being so loaded proceed to Malta for orders. Upon the margin of the charterparty were the words, " In the event of war, blockade, or prohibition of export preventing loading, this charterparty to be cancelled." The plaintiffs then effected a policy with the defendants for the insurance of the freight of the ship against perils of the seas, restraint of princes, &c. The Edgar sailed for Genoa under the charterparty on the 1st of May, 1877, war having been declared by Russia against Turkey on the 24th of April. Before her arrival at Genoa, the plaintiffs ascertained that Russia had closed the ports of loading mentioned in the charterparty. The Edgar, however, discharged her cargo and took in ballast at Genoa and sailed for Constantinople, and upon her arrival there on the 28th of May, found that the loading ports were closed, and that there was no reasonable probability of their being open in time for her to load her chartered cargo. She therefore did not proceed further towards Galatz, but obtained a homeward cargo at a freight less than that stipulated for by the charterparty. In an action upon the policy:

Held, by the majority of the Court (Cockburn, C.J., and Manisty, J., Lush, J., dissenting), that the plaintiffs could not recover, for according to the true construction of the charterparty the act of closing the ports by the Russian government was a prohibition of export preventing loading, and that upon the happening of that event the charterparty came to an end-without any election by either party.

By Lush, J., dissenting, that the effect of the memorandum in the margin was to make the charterparty voidable only at the option of either party, that neither party having elected to avoid it the charterparty continued in force up to the time when the loading became impracticable, and that the plaintiff's had sustained such a loss of the chartered freight as to entitle them to recover.

SPECIAL CASE stated by an arbitrator under a submission, no action having been brought.

*The facts and arguments sufficiently appear in the [463 judgment of Manisty, J.