cretion of the Court to grant or refuse relief claimed on motion for judgment upon the admissions in pleadings under Ord. 40, r. 11.—Mellor v. Sidebottom, 25 W.R. 401.

(clxxiii.) Ch. Div. M. R.-Parties-Joinder.-Ord. 16, r. 3, does not permit a person to be joined as defendant to a counter-claim against whom relief is claimed in one of two inconsistent alternatives.-Evans v. Buck, L.R. 4 Ch. D. 434; 46 L.J. Ch. 157; 25 W.R. 392.

(clxxiv.) Ex. Div.-Parties-Joinder.-A third person brought in as a party to an action, under Ord. 16, rr. 17, 18, is entitled, under Judicature Act 1873, s. 24, sub-sec. 3, to serve notice and bring in a fourth party claiming against him.-Fowler v. Knoop, 36 L.T. 219.

(clxxv.) C. A.-Parties-Joinder-Alternative Relief. In action against L. for non-performance of contract made by T. in name of L., when L. denied having given authority to contract as alleged by statement of claim: Held that plaintiff was entitled to join T. as defendant, and to claim alternative relief against him or L.-Honduras Oceanic Rail. Co. v. Le Fevre & Tucker, 36 L.T. 46; 25 W.R. 310.

(clxxvi.) Ch. Div. M. R.-Parties-Joinder-Consolidation.-After

con

solidation of two actions a new defendant was, under Ord. 16, rr. 14, 15, ordered to be added without service of any writ, and a present defendant to be made a party in a representative character without further indorsement of any writ, unless cause to the contrary should be shown within eight days.-Re Wortley, L.R. 4 Ch. 180; 46 L.J. Ch. 182; 25 W.R. 295. (clxxvii.) C. P. Div.-Parties-Joinder-Ord. 16, r. 13.-A plaintiff is not at liberty, on grounds of his own convenience, to add as defendants persons against whom he does not intend to set up any claim.-Norris v. Beazley, L.R. 2 C.P.D. 80; 46 L.J.C.P. 169; 35 L.T. 845; 25 W.R. 320.

(clxxviii.) C. A.-Parties-Third Party Notice.- Held, reversing decision of Q. B. Div., that third party notice, under Ord. 16, r. 18, may be given wherever there is prima facie a material question which is common as between plaintiff and defendant, and as between defendant and the third party, and which may be advantageously decided in the action, without prejudice or delay to plaintiff.-Swansea Shipping Co. v. Dun. can, Fox, & Co., 35 L.T. 879; 25 W.R. 233.

(clxxix.) Ch. Div. M. R.-Parties-Wrong Plaintiff-Mistake in LawOrd. 16, r. 2.-Where demurrer on ground that the wrong person was plaintiff was allowed, leave to amend was given: fraud being charged, the question of costs was reserved till the hearing.-Duckett v. Gover, 25 W.R. 455.

(clxxx.) Ch. Div. M. R.-Petition.-Where four persons were entitled absolutely to property carried to a separate account in one suit, and one of such persons was entitled also to a fund standing to his separate account in another suit, an order was made for payment out of both funds on one petition instituted in both suits.-Greenwood v. Greenwood; Bell v. Kettlewell, 25 W.R. 316.

(clxxxi.) P. D. A. Div.—Pleading—Admiralty Action-Preliminary Acts.— Ord. 19, r. 30, as to delivery of preliminary Acts does not apply to an action brought against a ship carrying cargo, for damage to the cargo by collision with another ship.-The John Boyne, 36 L.T. 29.

(clxxxii.) Ch. Div. V. C. B.-Pleadings-Amendment-Ord. 27, r. 1.Court gave leave to amend statement of claim on payment of costs of application, without enquiring as to materiality of proposed amendment.- -Chesterfield Co. v. Black, 25 W.R. 409.

(clxxxiii.) Ex. Div.-Pleading-Counter-claim.-Where several plaintiffs put in a joint claim defendant may, under Judicature Act, 1873, s. 24, and under Ord. 16, rr. 1, 3, and Ord. 19, r. 3, set up a separate counter-claim

sounding in damages against each plaintiff.-Manchester, Sheffield, and Lincolnshire Rail. Co. v. Brooks, L.R. 2 Ex. D. 243; 46 L. J. Ex. 244; 36 L.T. 103; 25 W.R. 413.

(clxxxiv.) Ch. Div. M. R.-Pleading-Counter-claim.-A claim by defendant against co-defendant for indemnity cannot be set up by counter-claim.— Furniss v. Booth, L.R. 4 Ch. D. 586; 46 L.J. Ch. 112; 25 W.R. 267. (clxxxv.) P. D. A. Div.-Pleading-Counterclaim-Collision Case.-Defendant in a collision case, resident out of jurisdiction, making a counter-claim for damage to his own ship, must give security for the whole costs of the action, otherwise his counter-claim will be dismissed.-The Julia Fisher, 36 L.T. 257.

ings show that a contract was reduced to writing by mutual mistake of parties, the Court will treat the contract as reformed.-Breslauer v. Barwick, 36 L.T. 52; 24 W.R. 901.

(clxxxvii.) C. A.-Pleading. Reply. In action for specific performance defendant pleaded breaches of agreement by plaintiff, whereby contract was avoided: Held (reversing decision of V. C. B., see Practice (cxiii.), p. 68) that plaintiff was entitled in his reply to state what facts he pleased, not being scandalous or irrelevant, to meet a defence by confession and avoidance.-Hall v. Eve, 35 L. T. 926.

(clxxxviii.) C. A.-Referee-Question of Fraud.-A case involving questions of fraud and the character and reputation of the parties will not, except by consent, be sent for trial before Official Referee.-Leigh v. Brooks, 25 W.R. 401.

(clxxxix.) App. Div. Ct.-Service out of Jurisdiction-Manager of Firm -Ord. 9, r. 6 a.-Service may be effected on the manager of a defendant who is out of the jurisdiction, if such defendant carries on business under the name of a firm having a place of business within the jurisdiction. O'Neil v. Clason, 46 L.J. C.P. 191.

(cxc.) C. A.-Service out of Jurisdiction-Ord. 11, rr. 1, 3.-Affidavit in support of application for order for service out of jurisdiction must show that cause of action arose within the jurisdiction: Order of V. C. M. see Practice (cxxiii.), p. 69, discharged.-Great Australian Gold Mining Co. v. Martin, 35 L.T. 874; 25 W.R. 246.

(cxci.) C. A.-Special Case-Ord. 34, r. 2.—Decision of Q.B. Div. see Practice (lxv.), p. 28, affirmed.-Metropolitan Board of Works v. New River Co., L.R. 2 Q.B.D. 67; 46 L.J. Q.B. 183.

(excii.) App. Div. Ct.-Time-Enlargement-Ord. 57, r. 6.—Where defendant's solicitor, after entering appearance, neglected the action, so that judgment was given against defendant by default, the Court, on the application of defendant, made more than six days after the trial, but within six days of his first hearing thereof, granted enlargement of time to enable defendant to move to set aside the judgment.-Michell v. Wilson, 25 W.R. 380.

(cxciii.) C. A.-Transfer of Action.—An action was commenced in Ex. Div. for remission of contract for sale of land and recovery of deposit: vendor filed counter-claim for specific performance: Held that, on vendor's application, the action must be transferred to Ch. Div.-Holloway v. York, 25 W.R. 403.

(cxciv.) Ch. Div. V. C. B. — Trial ·

Default of Appearance. - Where an action being called on for trial, no papers had been delivered and plaintiff did not appear: the Court dismissed the action with costs.-Farrell v. Wale, 36 L.T. 95.

(cxcv.) Ch. Div. V. C. M.-Trial-Jury.-In a suit for remission of con

tract on ground of fraud: Held that the Court had discretion to order trial without a jury.--Back v. Hay, 36 L.T. 295; 25 W.R. 392.

(excvi.) Ch. Div. V. C. B.—Trial by Jury—Discretion of Court.—The Court will not exercise its discretion under Ord. 36, r. 26, to order trial without a jury, unless good reason is shown for the exercise of such discretion.West v. White, L.R. 4 Ch. D. 631; 36 L.T. 95; 25 W.R. 342.

(cxcvii.) Ch. Div. V. C. M.-Trial-Jury-Discretion of Court.-Held in a suit for specific performance that the Court has a discretionary power to refuse a trial by jury, and that the hearing must be in Ch. Div. without a jury.-Pilley v. Baylis, 36 L.T. 296.

(cxcviii.) Ch. Div. M. R.-Writ-Renewal.-The Court gave plaintiff leave to renew a writ which he had been unable to serve, though more than twelve months had elapsed since the date of the writ.-In re Jones, Eyre v. Cox, 25 W.R. 303.

Principal and Agent:

(ix.) Ch. Div. M. R.-Broker-Custom of London-Dry Goods Market.Broker purchased goods from C. lying in docks for undisclosed principals, and endorsed delivery order to them, who deposited the same with plaintiffs to secure advances: plaintiffs lodged the order at defendant's city office, with request for warrants: on the same day, before notice of the delivery order had been received at the dock-house, the broker hearing that his principals had stopped payment, paid C. the price of the goods, applied for and obtained the warrants in the name of C., who endorsed the warrant to him, and gave him a second delivery order: Held that C.'s lien passed to the broker, who was entitled to retain the goods.—Imperial Bank v. London & St. Katharine's Dock Co., 36 L.T. 233

(x.) App. Div. Ct.-Factors Act-Agent Dealing as Principal-Where a factor had transferred to defendants who did not know him to be only an agent, goods of his principal in discharge of his own antecedent debt: Held that the Factors Act (6 Geo. 4, c. 94) did not require the sale to be by money actually passing, and that the value of the goods could not be recovered from defendants.-Thackrah v. Fergusson, 25 W.R. 307.

(xi.) C.P. Div.-Factors Act-Dock-warrants-Fraudulent Pledge.-H. having purchased goods in bond, as agent for plaintiff, retained the dock. warrants, and deposited them with defendants as security for an advance to himself, and absconded: Held that H. was not "intrusted with the possession of goods," within the Factors Act, 6 Geo. 4, c. 94, and 5 & 6 Vict., c. 39.-Johnson v. The Credit Lyonnais, 36 L.T. 253.

Principal and Surety :

(vi.) C. P. Div.—Discharge—Giving Time-Agreement.-Ship was repaired by plaintiffs, by order of W. ship's husband, with authority of defendants and B., the co-owners: W. agreed with plaintiffs that the cost should be paid partly in cash, partly in good bills, and should be apportioned between owners in proportion to their shares: defendants paid the amount apportioned to them by cheque or cash, but B. by a bill at six months which was dishonoured: Held that defendants were bound by mode of payment adopted and were not discharged from liability by plaintiffs taking B.'s bill and giving him time.—Mould v. Andrews, 35 L.T. 813.

(xii.) P.D.A. Div.-Alterations-Lithographed Form.-Testator made will on lithographed form, filling up the blank spaces, and making interlinea. tions and obliterations: surviving witness could not say whether the interlineations and obliterations were on the will when he attested it,

QUARTERLY DIGEST.

but they were necessary to carry into effect declarations of testator, made before the execution of the will: probate granted to will as altered.-Dench v. Dench, 46 L.J. P.D. & A. 13; 25 W.R. 414.

(xiii.) P. D. A. Div.-Attestation.-Where attestation clause was informal,
and the witness could not be found, on application of testator's daughter,
who was alone entitled to take under an intestacy, the Court granted
probate to her without affidavit of due execution.-In the Goods of Hux,
35 L.T. 900; 25 W.R. 273.

(xiv.) P. D. A. Div.-Executor "Either One"-Sole Survivor.-Testator
bequeathed property to his three sisters, "or to such of them as are alive
at the time of my death," and appointed "either one of them " his sole
executrix only one of his sisters survived him : probate was refused to
the surviving sister.-In the Goods of Blackwell, 25 W.R. 305.
(xv.) P. D. A. Div.-Executor-Name in Blank-Evidence.-Testator ap
pointed to be one of his executors "Perceval
Esquire, the father": Held that evidence was admissible to ascertain
of Brighton,
who was the person designated, and probate granted to a Mr. William
Perceval Boxall, a friend of the testator.-In the Goods of De Rosaz,
46 L.J. P.D. & A. 6; 36 L.T. 263; 25 W.R. 352.

(xvi.) P. D. A. Div.-Executor according to Tenor.-Testatrix appointed A.
her executrix, "only requesting
A.: Held that B., who alone survived testatrix, was executor according
that B. and C. would act for or with
to the tenor.-In the goods of Brown, 25 W.R. 431.

(xvii.) P. D. A. Div.-Limited Grant-Draft of lost Will.-When the will of
a married woman, made with husband's consent, was lost, the Court
granted probate to a draft limited till finding of the will, and also to
such personalty as was disposed of by the draft.-In the goods of Alice
Thrippleton, 35 L.T. 909.

(xviii.) P. D. A. Div.-Revocation - Misdescription of Codicil. — Testatrix executed a will in January, 1876, and a codicil in February, 1876, and a second will and codicil in 1877: the two wills were, with an exception, identical, but the second codicil, by a clerical mistake, purported to be a codicil to the will of January, 1876: the Court granted probate to the second will and codicil.-In the goods of Ince, 25 W.R. 396.

(xix.) P. D. A. Div.-Revocation-Conditional-Revival of earlier Will.A. executed a will in 1864: in 1874 he and his wife executed a joint will when starting on a railway journey in these words-"In case we should be called out of the world at one and the same time, and by the same accident, our wishes will be," &c., and containing usual clauses of revocation: A. afterwards died, leaving his wife surviving him: He'd that the first will was entitled to probate.-In the goods of Hugo, 25 W.R. 396.

Public Health:

(v.) C. P. Div.-Drainage Board—Committee.—A committee appointed by a drainage board under 24 & 25 Vict., c. 133, cannot delegate their powers to individual members.-Cook v. Ward, 25 W.R. 350.

(vi.) Q. B. Div.-Justices-Power to state Case-38 & 39 Vict., c. 55.Justices have no power to state a case on refusing order for local authority to enter premises under Public Health Act, 1875, s. 305.Diss Urban Sanitary Authority v. Aldrich, L.R. 2 Q.B.D. 179.

(vii.) C. A.-Sewer.-Held that on the construction of the Public Health Act,
1875, s. 16, the local authority may carry sewers on or over as well as
under "lands," and that "lands" includes buildings.--Roderick v. Local
Board of Aston, 36 L.T. 170; 25 W.R. 403.

(viii.) App. Div. Ct.-Vaccination -30 & 31 Vict., c. 84; 34 & 35 Vict.,
c. 98.-Where a child has had small-pox, no certificate to that effect

is required to be transmitted.-Broadhead, Appellant, v. Holdsworth, Respondent, 46 L.J. M.C. 172; 25 W.R. 306.

Railway :

(xxii.) App. Div. Ct.—Carrier—Negligence.—Held that a judge cannot non. suit plaintiff on ground that he has not proved damage, without taking into account question of breach of contract or negligence.-Roberts v. Midland Rail. Co., 25 W.R. 323.

(xxiii.) C. A.-Carriers-Passengers' Luggage-Steam Packet.-Decision of Ex. Div., see Railway Company (iv.), p. 31, affirmed.-Cohen v. South Eastern Rail. Co., L.R. 2 Ex. D. 253; 36 L.T. 130; 25 W.R. 475.

(xxiv.) C. A.-Level Crossing-Private Right of Way.-Plaintiffs under & contract with a railway company were entitled for themselves, their heirs, tenants, and assigns, with their horses, carts, &c., to "free way of passage" over a level crossing, whereon there was also then a public footway subsequently a private Act was passed whereby "all rights of way" over the crossing were extinguished: Held, on the construction of the Act, that it only affected public rights, and that plaintiffs were entitled to injunction restraining company from blocking up the crossing.-Wells v. London, Tilbury, and Southend Rail. Co., 25 W.R. 325. (xxv.) C. A.-Regulation of Railways Act, 1842, s. 6-Board of TradeReport of Inspector.- Decision of M. R., see Railway (xi.), p. 32, affirmed. -Attorney-General v. Gt. Western Rail. Co., 46 L.J. Ch. 192; 35 L.T. 921; 25 W.R. 330.

(xxvi.) Q. B. Div.-Undue Preference.-Defendants gratuitously carted goods of A., B., and C., and allowed to them a rebate which was allowed to them by rival railway companies in respect of sidings: Held that D., being charged for cartage and allowed no rebate, could maintain action for undue preference.-Evershed v. L. & N. W. Rail. Co., 36 L.T. 12; 25 W.R. 411.

Revenue:

(vi.) Ex. Div.-Inhabited House Duty.-Held that houses used for professional purposes in which a care-taker sleeps at night are not exempted by 32 & 33 Vict., c. 14, s. 11, from Inhabited House Duty.-Keene v. Dashwood, 36 L.T. 215.

(vii.) Q. B. Div.-Land Tax-Hospital.-The exemption of the site of a hospital from Land Tax ceases on removal of the hospital.—Rabbits v. Cox, 46 L.J. Q.B. 207; 35 L.T. 834; 25 W.R. 252.

(viii.) Ch. Div. M. R.-Succession Duty.-A remainder-man settled his remainder on himself for life, with remainders over, and on death of previous tenant for life paid the whole of the Succession Duty: Held that he was entitled to have such duty raised out of the capital of the fund.-Cuddon v. Cuddon, L.R. 4 Ch. D. 583; 25 W.R. 341.

Scotland, Law of:

(v.) H. L.-Appeal to House of Lords-Court of Justiciary.-There is no appeal to H.L. from the High Court of Justiciary in Scotland.-Mackintosh v. The Lord Advocate, L.R. 2 App. 41.

(vi.) H. L.-Churchyard-Enlargement.-Held that an order of Presbytery for enlargement of churchyard, made after sufficient notice, cannot be impeached for informality.-Walker v. Presbytery of Arbroath, L.R. 2 App. 79.

Settlement:-
:-

(xxiv.) Ch. Div. V. C. H.-Covenant to Settle after-acquired Property.In construing a covenant to settle after-acquired property the words during the coverture" will be implied, even though the covenant