Page images
PDF
EPUB
[graphic]

solicitor, applied for leave to amend the joint statement or deliver a fresla separate statement; the new solicitor's affidavit merely stated that H. had additional grounds of defence, but not the natnre of the proposed amendments; leave was given accordingly.-Cargill v. Bower, L.R. 4,

Ch.D. 78 ; 35 L.T. 621 ; 25 W.R. 221. (cvii.) Ch. Div. V. C. B.- Pleading-Counter-claim.--Defendant obtained

leave to file counter-claim, but through negligence of his solicitor, none was delivered, and a decree was made in his absence. Defendant applied more than six months afterwards, having changed his solicitor, for leave to file counter-claim : leave refused on ground of delay.-Wilkins v.

Bedford, 35 L.T. 622. (cyiii.) Q. B. Div.- Pleading -Demurrer.—The Statute of Limitations must

now be pleaded and cannot be raised by demurrer.-Wakelee v. Davis,

25 W.R. 60. (cix.) Ch. Div. M. R.--Pleading-Demurrer.- Where defendant obtains ex

tension of time for delivery of defence, he may demur within the extended time.-Hodges v. Hodges, L.R. 2, Ch. D. 112; L.J. 45, Ch. 750; 24

W.R. 293. (cx.) C. A.- Pleading-Demurrer.- A. agreed to sell property settled as he

and his wife should jointly appoint, and in default of appointment in trust for wife for life, with remainder for A. in fee; the purchase money having been invested in consols in the name of the trustees of the settlement, A. died suddenly before completion ; Demurrer of purchaser to statement of claim of widow asking for declaration whether she could be compelled to concur and whether purchaser was entitled to compensation out of purchase money, overruled. Demurrer of widow to statement of claim of purchaser for specific performance subject to widow's interest and compensation in respect of such interest ordered to stand to hearing of action.-Cox v. Barker, Barker v. Cox, L.R. 3, Ch. D. 360; L.J. 46

Ch. 62. (cxi.) C. A.- Pleading Ord. 19, r. 23.- Where a party relies on the illegality

or insufficiency of a contract under Statute of Frauds or otherwise he must expressly plead such illegality or insufficiency.-Clarke v. Callow,

L.J. 46, Q.B. 53. (cxii.) C. A.- Pleading-Counter-claim-Ord. 19, r. 3.- A counter-claim on facts

arising after action brought, not expressly so pleaded, may be struck out: where there is no real question between the parties the Court will determine their rights on interlocutory application.-Ellis v. Munson, 35

L.T. 585. (cxiii.) C. A.--PleadingReply - Plaintiff may in his reply, instead of by

amending statement of claim, allege new facts to support plea by way of confession and avoidance of defence, and may thereby traverse and plead

to each defence set up.-Hall v. Eve, 35 L.T. 735; 25 W.R. 177. (cxiv.) Q B. Div.- Pleading-Striking out-- Pauper Lunatic.-An action was

brought on a justice's order under 17 Vict. c. 97, s. 96, on guardians for maintenance of a pauper lunatic: the Court refused to strike out the guardians' statement of defence, on the ground that the order was final, but held that the proper mode of objecting to the defence was by

demurrer. - Finch v. Guardians of York Union, 35 L.T. 360. (cxv.) Ch. Div. V. C. B.-Pleading-Reply-Striking out.-In an action

where the only question raised by statements of claim and defence was whether or not certain land was included in an agreement, plaiut. I by lis reply joined issue generally on the statement of defence, and then pleaded fresh matter: Held that such new matter must be struck out as irrelevant to the issue.- London and St. Catharine Docks Co. v. Metropolitun Ruil, Co., 35 L.T. 733.

(cxvi.) C. A.- Pleading-Striking out.-The whole of a statement of claim of

which parts are unintelligible, irrelevant, or offensive, may be struck out under Ord, 16, r. 1.-Cashin v. Craddock, L.R. 3, Ch. D. 376 ; 35 L.T. 452 ;

25 W.R. 5. (cxvii) P. D. & A. Div.- Pleading-Striking Out - Ord. 19, r. 12.- Where

statement of claim in probate action does not deny defendant's interest the Court will not strike out statement of defence for not alleging

defendant's interest.- Medcalf v. James, 25 W.R. 63. (cxviii.) Ch. Div. V.O. H.-Receiver.-Where an executor's impending bank.

ruptcy threatened loss to the estate, appointed a receiver before service of

writ. Re H.'s estate, L.R. 1 Ch. D. 276; L.J. 45, Ch. 749; 24 W.R. 317. (cxvix.) Ex. Div.-Reference.-A motion to set aside report of official referee

must be supported by affidavit.--Stubbs v. Boyle, 25 W.R. 184. (cxx.) Ch. Div. V. C. .--Reference - Account.- The Court will refer any

matter of complicated account, or requiring scientific investigation, of a special or official referee.- Re Leigh, L.R. 3, Ch.D. 292 ; 46 L.J., Ch. 60;

24 W.R. 782. (cxxi.) C. P. Div.- Referee. –The direction in Ord. 36, r. 30, that a referee

shall sit de die in diem is directory, and that a person who has acquiesced at the time in non-compliance therewith, cannot move to set aside award on that ground; an application to set aside an award may be made without notice to the other side.- Robinson v. Robinson, 35 L.T. 337;

24 W.R. 675. (cxxii.)--C. A. -Reference-old Practice.-Verdict, subject to reference, was

taken before, but award made after, Judicature Acts came into operation : Held that motion for judgment was not necessary.-Lloyd v. Lewis,

L.R. 2 Ex. D. 7 ; 35 L.T. 539 ; 24 W.R. 102. (cxxiii.) -Ch. Div. V. C. M.-Service out of Jurisdiction, Ord. 11, 22, 1, 3.

Defendant not having been served with statement of claim moved to discharge order for service out of jurisdiction on ground that neither indorsement of writ nor affidavit in support of the application showed sufficient cause: Held that Court might consider allegations of statement of claim, and refused to discharge order.-Great Australian Gold Mining Company

v. Martin.--35 L.T. 703. (cxxiv.)-C. P. Div.-Service out of jurisdiction.- Leave cannot be given

under Ord. 11, in an action for damages for slander depreciating property to serve writ out of jurisdiction.- Casey v. Arnott, L.R. 2 C.P.D. 24;

L.J. 45 C.P. 3 ; 35 L.J. 424 ; 25 W.R. 46. (cxxv.)-Ch. Diy. V. C. H -Service ont of jurisdiction. Ord. 11 v. 1.

Where leave is given to issue writ for service out of jurisdiction the woris " by leave of the Court or a judge," may be omitted from the writ and notice, so as to enable plaintiff to proceed without such leave in default of appearance.-Bacon v. Turner, L.R. 3 Ch. D. 275; 34 L.T. 647 ; 24

W.R. 637. (cxxvi.) Ch. Diy. V. C. M.-Service-Substitution.-Substitution of notice

for service of absconding defendant out of jurisdiction, ordered by advertisement in London Gazette and T mes, and a newspaper the subject

of the action.---Ilartley v. Dilke, 35 L.T. 706. (cxxvii.) P. D. & A. D.-Service - Substitution - Probate Action.- Where

husband and wife were both defendants, and husband could not be found, the Court ordered substituted service by advertisement.-Whitely v.

Honeywell, 35 L.T, 517; 24 W.R. 851. (cxxviii.) C. Div. V. C. M.-Special C186.---\Vhere a special case was stated as

to tue e Tect of an assignment of a contingent interest: Ileld that the · assigninent was of & mere possibility, and that no order ought to be made.

Bright v. Tyndall, 25 W.R. 109.

(cxxix.) C. A.-Special Case-Trial of Question at Law - Order 34, r. 2.

Decision of Q. B. Div., see Practice (Ixv.) affirmed. - Metropolitan Board

of Works v. New River Co., 25 W.R. 175. (cxxx.) C. A.-Slay of Proceedings-Costs.- Plaintiff, whose furniture had

been seized for non-payment of costs, applied for stay of proceedings pending appeal to House of Lords, and that sheriff might be ordered to withdraw on payment of costs into Court: Ileld that plaintiff must pay whole costs to defendant's solicitor, on his undertaking to refund if appeal should succeed, and also costs of sheriff and of this application.-Morgan

v. Elford. 25 W.R. 136. (cxxxi.) Ex. Div.-Transfer.-An action for breach of contract, and fraudulent

misrepresentation with regard thereto, was brought in Ex. Div. ; aud a cross action for specific performance of the same contract was bronght in Ch. Div.; the Court ordered the first action to be transferred to Ch. Div

- Holmes v. Hervey, 35 L.T. 600; 25 W.R. 80. (cxxxii) P. D. & A. Div.-Trial-Ord. 36, r. 1. - The Court will generally

adhere strictly to the rule that causes shall be tried in Middlesex, unless another county is named in the statement of claim.-Rage v. Ridge,

35 L.T. 428. (cxxxiii.) C. A.-Trial by Jury-Chancery Action.—The trial by jury of an action

Ch. Div. must be at the sittings in London or Middlesex before a judge of a Common Law Div., or at assizes.--Warner v. Murdock, 35 L.T. 748 ;

25 W.R. 207. (cxxxiv.) Ch. Div. V. C. H.-Trial-Jury. The judge has absolute dis

cretion, under Ord. 36, r. 26, to order a Chancery action to be tried by himself without a jury: where the case rests on voluminous documentary evidence the case ought not to be tried by a jury.-Garling v. Royds,

25 W.R. 123. (0xxxv.) Ch. Div. V. C. H.-II'rit-Imendment.-- With the sanction of A.

G. an action may hy amendment of writ and statement of claim be turned into an information and action, without prejudice to a pending motion in the action.-Caldwell v. Pagham Harbour Reclamation Co., L.R. 2,

Ch.D. 221; L.J. 45, Ch. 796 ; 24 W.R. 690. (cxxxvi.) Ch. Div. V. C. H.-Writ-Indorsement.-Executor advertised part

of testator's property for sale ; A. being interested beneficially, brought action for administration only: Held, on er parte application, that A. might amend indorsement of writ by asking for receiver and injunction to

restrain sale.-Colebourne v. Colebourne, L.J. 45, Ch. 749; 21 W.R. 235 Principal and Agent :(vii.) C. A.--Commission.-S. employed B. & Co. to effect insurances on his

shipg: in their accounts they charged full premiums, but retained for themselves 5 per cent. as brokerage, and a further 10 per cent. discount for ready money: Held that the allowances were usual, and that S., not having inquired into the terms on which S. & Co. effected the insurances,

could raise no objection.-- Baring v. Stanton, L.R. 3, Ch.D. 502. (viii.) C. A.-Factor-Set-off. - Where an agent is intrusted with goods for

sale, and no limitation of his authority is disclosed to buyer, a debt due from agent to buyer may be set-off against principal's claim notwithstanding agreement of agent with principal not to sell in his own name.-In re

II nley, Ex parte Dixon, 35 L.T. 611 ; 25 W.R. 105. Principal and Surety:-(iii.) C. A.-Discharge.--A surety is discharged by creditor releasing a partial

security for principal's debt.-Polak v. Everett, L.R. 1, Q.B.D. 609; 35

L.T. 350; 21 W.R. 68). (iv.) C. A.:-Discharge.--11cld, reversing decision of C. P. Div., that whero

there is one entire contract for performance by principal of several acts at distinct times, time given to principal with regard to any one of such acts

does not discharge surety from all liability; the obligation cannot be renewed by any subsequent act to which he is not a party.-Croydon

Commercial Gas Co. v. Dickinson, 25 W.R. 157. (v.) C. A.-Liability-Bankruptcy of principal-Surety guaranteed payment

of £7000, with proviso limiting liability to £1300; debtor paid off £1000 and then filed petition for liquidation, in which obligee proved and received a dividend on £6000; more than £13,000 still remained unpaid : Held that surety was not entitled to deduct a rateable proportion of dividend, was liable for whole £1,300.-Ellis v. Emmanuel, L.R. 1, Ex. D. 157;

L.J. 46, C.P. 25; 34 L.T. 553 ; 24 W.R. 832. Probate :(ix.)-P. D. A. Div. - Attestation -- Where will had no attestation clause but

at foot thereof were the words " signed in the presence of” before the names of the witnesses, the testator's name being written below : Held that the will might be admitted to probate.--In the goods of Jones, 25

W.R. 215. (x.)-P. D. & A. Div.-Copy will.-The copy of a will may, with the con

sent of parties interested in intestacy be admitted to probate.--In the

goods of Entichnap.-35 L.T. 427. (xi.)—P, D. & A. Div.-Informal documents.-.Where four testamentary

documents were found after death. some of which were informal and imperfectly attested but not inconsistent with each other: Held that they might all be admitted to probute as one will.-In the goods of Rotton, 35

L.T. 518. Public Health:(i.)-Ex. Div.-Action for penalty-38 & 39 Vict. c. 55. An action for

penalties, under Public Health Act, 1875. Schedule 11, 5, 70, requires

consent of A. G.–Smith v. Fieldhouse, 35 L.T. 602. (ii.) Ex. Div.-Local Board-ChairmandActing after Disqualification.

Deiendant, acting as chairman of local board after disqualification, made complaint against plaintiff, the clerk of the board, who resigned, and sued for £50 penalty under Public Health Act, 1875 (38 and 39 Vict., c 55) 8. 253: Held that plaintiff was not a “party aggrieved," and could not sue without consent of Attorney-General.-- Rochfort v. Atherley, L.R. 1,

Ex. D. 511, (iii.) C. A.- Local Board - County Court ActionTime.-Held upon the con

struction of Public Health Act, 1818, ss. 69 129, Administration of Justice No. 2 Act, 1848, 6. 11, and Local Government Act, 1858, Amendment Act, 1858, s. 24, that a County Court action by a Local Board for expenses of paving, etc., having been commenced more than six months after cause of complaint arose, could not be maintained.

Tottenham Local Board v. Rowell, L.R. 1, Ex. Div. 514; 25 W.R. 135. (iv.) Q. B. Div.- Local Board-Rate - Public Health Acl, 1875.-A local

board gave notice of an intended rate under Public Health Act, 1818; before the expiration of the notice that Act was repealed by Publio Health Act, 1875, which contained a saving clause as to things “duly done," and gave similar powers. Held that the rate levied in ignorance of the repeal of the Act was valid.- Regina V, JJ. of West Yorks, L.R. 1,

Q.B,D. 220; L.J. 45, M.C. 97; 35 L.T. 339. Public Works Loan:(i.) H. L.-Rate- Mandamus.-The church wardens and overseers of W. under

5 Geo. IV., c. 36, borrowed money from the Public Loan Commissioners for the repair of the church : Held that a peremptory mandamus com. manding a rate to be made for repayment of the money was a decision upon a right, and subject to review, and that inasmuch as more than 20 years bud expired since the advance, such rate could not be made.Regina v. Churchwurdens of All Saints, lligan, L.R. 1 App. 611; 35 L.T. 181 ; 25 W.R. 128.

Queensland, Law of:-(i.) P. C.-Gold Fields Act, 20 Vict. c. 29. - An ordinary quartz roef claim is

confined to the particular reef to wbich the claim refers, and the holder is not entitled to take from any other reef within limits of the claim; discoverers of gold in a new locality within two miles from any known working reef, are entitled to reward claim of 120 ft. in length, and, also, if already holders of miner's rights, to an ordinary quartz claim; claims and interests created before rules of 1868, must be determined by rules of

1866.- Hollyman v. Voonan, L.R. 1, App. 595; L.J. 45, P.C. 62. Railway :(xiii.) Ex. Div.-Carrier.-An action against a carrier for neglect in delivery of

goods after notice of stoppage in transitu is founded on tort.-Pontifer

V. Midlant Rail. Co., 35 L.T. 706; 25 W.R. 215. (xiv.) App. Div. Ct.- Carriers - Special Contrict.- Where a railway company

entered into special contract to carry cattle at a low rate, on condition of being liable for negligence only : Held that the condition was not unreasouable, and that onus of proof of negligence was on plaintiff, Harris v.

Midland Rail. Co., 25 W.R. 63. (XV.) Railway Commissioners-CarriersUndue Preference-Parcels.-A railway

company had two scales of charges for parcels, one according to weight and distance, and a lower rate according to distance only, but subject to prepayment by stamp and other restrictions: At Dublin the company by agreement with W. paid for carriage to or from the terminus 1d, for each unstamped parcel, and nothing for stamped parcels : in other towns 2d. extra charge was made for collection or delivery of stamped parcels : Held on the facts, that the company was not guilty of undue preference.

Robertson v. Midland G. W'. Rail. Co. of Ireland, 35 L.T. 636. (xvi.) C. A.--Negligence.-Held, on the facts, that defendants were not guilty

of negligence in having omitted to examine minntely a truck belonging to another company, the breaking down of which on defendant's line caused a collision.-Richardson v. Great Eastern Rail. Co., 35 L.T. 331;

24 W.R. 312. (xvü.) H. L.-Negligence,- If defendants could have prevented accident by

reasonable care and diligence, they are not excused from liability by plaintiffs' contributory nezligence.-Radley v. London and N. W. Railuuy

Co., 35 L.T. 637; 25 W.R. 147. (xviii.) C. A.--Negligence-Insufficient platform.--Plaintiff, endeavouring to

alight from a carriage which had been stopped beyond the station-platform, fell and was injured : Held that there was evidence of negligence for a

jury.- Robson v. N. E. Rail. Co., L.J. 46, Q.B. 50; 35 1. T. 535. (xix.) C. A.-Negligeuce -- Train overshooting platform.- Decision of Ex. Div.,

see Railway Company (viii.), reversed.-Rose v North Eastern Ruil. Co.,

35 L.T. 693; 25 W.R. 205. (xx.) C. A.-Parliamentary Deposit.- Held that the costs of the solicitor of a

railway company incurred subsequently to incorporation, constituted a " debt incurred on account of the promotion of the company," within Abaudonment of Railways Act, 1869, 8. 5.-Re Barry Rail. Co., 25

W.R. 201. (xxi.)-Ch. Div. V. C. H.-Parliamentary Deposit,- The Court has power

to order investment in East India 4 per cent, stock of a parliamentary deposit pail into the bank, under 9 & 10 Vict. c. 20. Re Southwold Railway Bill, L.R. 1 Ch. D. 667; LJ. 45 Ch. 800 ; 34 LT. 56; 24

W.R. 293. Revenue:(v.) -C. A.-Succession Duly.--A bona fide sale of a reversionary interest does

not create a succession within 16 & 17 Vict. c. 51 liryor v. Morland, L.R. 3 Ch. D. 675; L.J. 45 Ch. 817; 35 LT., 1.58; 25 W.R. 21.

« PreviousContinue »