CASES ARGUED AND DECIDED IN THE COURT OF COMMON PLEAS, AT THE SITTINGS IN BANCO AFTER Michaelmas Cerm, IN THE TWENTIETH YEAR OF THE REIGN OF VICTORIA. 1856. The Judges present were: MINOR v. THE LONDON AND NORTH-WESTERN RAILWAY COMPANY. Dec. 2. A railway company does not "carry on business” (within the meaning of the 9 & 10 Vict. c. 95, s. 128), at a receiving-house or booking-office kept by an agent for the receipt and booking of parcels and packages for all the railways generally. THIS was an action charging the defendants as common carriers of goods for hire from London to Bradford, for the loss of a box of artificial flowers belonging to the plaintiff, which had been delivered to and received by the defendants for the purpose of being carried by them from London to Bradford. At the trial before Jervis, C. J., at the sittings in Middlesex after last Trinity Term, the jury returned a verdict for the plaintiff with 51. damages, the defendants delivering up to the plaintiff the box of flowers in court, which was proved to be of the value of 81. 148. Upon an affidavit stating, that the goods the *subject-matter of this action were booked to and for the defendants and de [*326 livered to them at the receiving-house of Messrs. Pickford & Co., who then were the agents of the defendants, at their booking office in Union Street, Southwark, and within the district of the Southwark county court of Surrey, and such delivery was the delivery mentioned in the declaration, and proved at the trial; that the defendants neglected to deliver at Bradford, in Yorkshire, which is within the jurisdiction of the Bradford county court of Yorkshire, and that the non-delivery of the said goods at Bradford was the breach laid in the declaration in respect of which the damages were recovered; and that the defendants do not' and never did either reside or carry on business within the jurisdiction of either the said Southwark county court or the Bradford county court, Horn, in Michaelmas term last, obtained a rule calling on the defendants to show cause why the plaintiff should not recover his costs of the action, pursuant to the 15 & 16 Vict. c. 54, s. 4. He submitted that the whole cause of action did not arise within the jurisdiction in which the defendants carried on their business, for that the "cause of action" consists of the contract and the breach: Wilde v. Sheridan, 21 Law Journ. Q. B. 260. Bovill, Q. C., and Giffard, showed cause, upon an affidavit of a clerk to Messrs. Pickford & Co., stating, that, at the time the cause of action arose, he was in the employ of Pickford & Co., at their office in Union Street, Southwark; that Pickford & Co. acted as the agents for the defendants in respect of goods conveyed by their luggage-trains, and that public notice of that fact appeared in the office in Union Street; that the company carried on their business as carriers at the said office in Union Street, Southwark, though not the whole of *their busi*327] ness, they having several other places where they also carried on business; that the said office in Union Street was one of the receivinghouses of the company as carriers, where they received goods to be carried by their luggage-trains; that, whilst the deponent was acting as such clerk in Union Street, he was in the daily habit of receiving goods for the defendants there to be conveyed on the defendants' lines of railway, and of giving receipts to the senders of the goods for and on behalf of the company, and that many letters, notices, and other papers directed to or intended for the company were during that time left at the said office in Union Strect, and received by the deponent and the other clerks there for and on behalf of the company; that the box of goods in question in this action was received and a receipt for the same given by another clerk of Pickford & Co. for and on behalf of the company, and that the box was in due course forwarded from the said office to another place where the defendants also carried on their business as carriers; that the said Union Street office of the said Pickford & Co., and where the defendants carried on their business, was within the district and jurisdiction of the Southwark county court of Surrey; and that the contract which formed the subject of the action for the carriage of the said box to Bradford, was made at the said office in Union Street upon the occasion of its being received there by the said clerk as aforesaid. The only question is, whether the defendants carried on their business in Union Street, Southwark: 9 & 10 Vict. c. 95, s. 60. Now, they can only carry on business by means of agents; and it is sworn that the office in Union Street is one of the places where their business is carried on through the agency of Pickford & Co.: and the plaintiff recovered upon the footing that the delivery of the box at that place was a delivery to the company. [COCKBURN, C. J.-Is the office in Union Street the office *of the company? And are the people employed there the servants of the company?] No doubt, the office is one where [*328 Pickford & Co. receive goods for all the railway companies; it is not a place where goods are received exclusively for the defendants' railway; nor are the persons employed there the servants, in the ordinary sense, of the company. But it is a place where the business of the company is carried on by Pickford & Co. as their agents: and the notice required by the carriers' act, 11 G. 4 & 1 W. 4, c. 68, is stuck up there. A corporation "dwells" at the place where its business is carried on: Taylor v. The Crowland Gas and Coke Company, 10 Exch. 288, n:,† 24 Law J. Exch. 233. [CROWDER, J.-That does not advance your argument much. Where does this company carry on its business?] At Euston Square, in Union Street, Southwark, and at every other place where goods are received for them by their agents. [WILLIAMS, J.— Would service of a summons or an order upon the company at the place in question be good service?] It is submitted that it would; service at "the place of business" being by the rules sufficient. (a) [COCKBURN, C. J.-*Could a manufacturer at Manchester be said to carry on business at the warehouse of his agent in London ?] He might. [*329 In Stephens v. Derry, 16 East, 147, where a question arose under the London court of requests act 39 & 40 G. 3, c. civ., as to whether a husband domiciled in Middlesex, where his wife carried on business, though he was employed as a clerk in the office of solicitors in London, was privileged to be sued only in London for a debt under 51., as a person "seeking his livelihood" there,-Le Blanc, J., said: "This person may fairly be said to seek his livelihood where he resides with (a) By s. 45 of the rules framed pursuant to the 19 & 20 Vict. c. 108, s. 32, it is provided that "the service of the summons, except in the cases hereinafter specially provided for, shall be either personal, or by delivering the same to some person, apparently sixteen years old, at the house or place of dwelling or place of business of the defendant; but no place of business shall be deemed the place of business of the defendant, unless he shall be the master or one of the masters thereof." And s. 51 provides that "service of the summons may be effected on a railway company or other corporation by delivering the summons to a secretary, station-master, or clerk of the defendant, at any station or office of the defendants within the district of the court in which the summons is to be served." The order, being the judgment of the court, it seems, need not be served at all: Ely v. Moule, 5 Exch. 918,† 20 Law J. Exch. 29; Robinson v. Gell, 12 C. B. 191 (E. C. L. R. vol. 74), 21 Law J., C. P., 155. his wife in Middlesex; for, the trade carried on by her agency is his trade." Who is liable in respect of contracts made at this place,Pickford & Co., or the company? The persons dealt with clearly are, the company, and not Pickford & Co. [COCKBURN, C. J.-Is there anything at the office to indicate to persons coming there that they are directly dealing with the company? Are Messrs. Pickford & Co. authorized to make contracts for the company?] It appears from the affidavit of Pickford & Co.'s clerk, that receipts are given there in the name of the company. [COCKBURN, C. J.-That would be so if Pickford & Co. were authorized as agents of the company. Are Pickford & Co. in fact put forward as the persons contracting, though as agents for the company?] It would seem that they are. In Mitchell v. Hender, 23 Law J., Q. B., 273, the defendant was a surgeon, apothecary, and accoucheur, residing at Callington, in the district of the county court of Liskeard. He daily attended persons seeking his advice, residing in the district of the Launceston county court: and it was held, that he "carried on his business" within the jurisdiction of the Launceston county court, within the meaning of the 9 & 10 Vict. c. 95, s. 128. Horn, in support of his rule.-This is clearly a case of con*330] current jurisdiction. Every reasonable intendment will be made to prevent the exclusion of the plaintiff from the right of suing in the superior court. It is not every agency that constitutes a carrying on of business. "Residence" or "dwelling," and "carrying on business," in this act, are almost identical. Mitchell v. Hender, 23 Law J., Q. B., 273, is rather an authority in favour of the plaintiff. The defendant there was also a partner in a mine worked on the cost-book principle in the district of the Lauceston county court: he never attended to the mine personally, but the business was conducted by an agent: and the court inclined to think that he did not carry on the business of a miner within the jurisdiction of the Launceston county court, within the meaning of the statute. "I do not think," says Coleridge, J., "that it would be enough for a man who never came near the place, to carry on business by an agent. Dwelling must be a personal act; and so, I think, must the carrying on business be." Here, no personal act was ever done by the defendants at the office in Union Street. [COCKBurn, C. J.-As applied to a corporation, what is a personal act?] An act done by their secretary or clerk or other servant. This place, in truth, is a mere receiving or booking-office, where Pickford & Co. receive goods on behalf of all the railways. In Shiels v. Rait, 7 C. B. 116 (E. C. L. R. vol. 62), 18 Law J., C. P., 120, it was held, that one who resides in Scotland, and carries on business in London by means of an agent, is not bound to sue in the city small debts court established under the 10 & 11 Vict. c. lxxi., for a debt not exceeding 207. Residence and carrying on business, for the purpose of this act, are synony mous. Could it be said that an attorney at Exeter carries on business in London, because a portion of his business is conducted by his London agent? These people have agents in every town through or near which their railway passes: where *are they to be sued? They pay no rent for the office in Union Street. In no sense, therefore, [*331 can it be said to be their place of business. They carry on their business in London at the terminus in Euston Square. COCKBURN, C. J.-The point involved in this case is one of some nicety, therefore we will take a little time to consider it and to look into the affidavits. Cur. adv. vult. WILLIAMS, J., now delivered the judgment of the court:This was a rule calling upon the defendants, the London and North Western Railway Company, to show cause why the plaintiff should not have his costs of suit, under the County Court Act of 15 & 16 Vict. c. 54, s. 4. The rule came on to be argued on the last day of Michaelmas Term, before Cockburn, C. J., my Brothers Crowder and Willes, and myself. Having considered the case, the court is of opinion that the defendants did not carry on business in the borough of Southwark, at the office of Messrs. Pickford & Co., within the meaning of the act of parliament in question for, that the only business carried on at that office was that which Pickford & Co. themselves carried on there, viz. the business of railway agency to the defendants and several other companies. The rule must, therefore, be made absolute. Rule absolute. COWDELL v. NEALE. Dec. 2. [*332 The mere fact that an action is pending upon an attorney's bill does not give a common law judge jurisdiction to refer the bill for taxation after the lapse of a year, without special cir cumstances. Whether charges for attendances, &c., in attempting to procure bail for a person who has been committed by a single magistrate for a breach of the peace, constitute charges for business done in a court of law, so as to enable a judge to refer the bill for taxation,—quære? THIS was an action upon an attorney's bill for business done for the defendant in the months of January, February, and March, 1853. The bill was duly delivered in May, 1853, amounting to 251., and the action was commenced on the 29th of September last. Notice of trial was given, and the cause set down for the second sitting in the last term. On the 13th of November, the defendant took out a summons to tax the bill, which summons came on to be heard before Willes, J., on the following day, when, notwithstanding it was objected on the part of the plaintiff that the bill was not taxable, inasmuch as it had been delivered more than twelve months, and there were no special circumstances shown, so as to bring the case within the exception in the 37th section of the 6 & 7 Vict. c. 73, and that there was no item in the bill for any business |