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Partnership :(vii.) C. A.-Covenant not to Engage in other Business-Breach-Remedy.
A covenant in a partnership deed that covenantor will not engage in any trade or business, except on account of and for the benefit of the partnership, will not enable the other partner to call for an account of profits made by the covenantor in a separate business for which he provides the capital out of his own moneys: the only remedy is by
injunction, or dissolution, or damages.-Dean v. M ́Dowell, 26 W.R. 486. (viii.) C. A.-Dissolution-Reference of Disputes to Foreign Tribunal-Stay of
Proceedings.-Decision of V. C. B. (see Partnership iv., p. 58) affirmed.
-Law v. Garrett, 38 L.T. 3; 26 W.R. 426. (ix.) C. A.- Dissolution—Trade Name.—Decision of V. C.B. (see Partnership
iii., p. 58) affirmed.-Condy v. Mitchell, 37 L.T. 766 ; 26 W.R. 269. (x.) C. A.-Holding out as Partner-Bankruptcy-Reputed Ownership.-P.
after dissolving a partnership in which he was engaged, continued the business by himself under the name of P., Son & Co.; notice of which facts were advertised in the London Gazette : the son helped in the business, and was authorized to sign cheques in the name of the firm ; but no partnership was entered into between P. and his son: ultimately P. and his son were jointly adjudicated bankrupts as ostensible partners : out of fifty creditors two deposed that the son had been held out as a partner by the father, and eight deposed that they had always believed him to be a partner : Held that there had been sufficient holding out of the son as a partner to convert the assets of the business into the joint estate of the father and son, and that the doctrine of reputed ownership applied, such assets being in the apparent possession of the firm with the
consent of P.-Ev parte Hayman in re Pulsford, 38 L.T. 238. (xi.) C. A.-Loan.—28 & 29 Vict., c. 86, s. 1.-Decision of C.J.B. (see
Partnership vi., p. 59) affirmed.- Ex parte Delhasse, Re Meyevand, L.R.
7 Ch. D. 511; 38 L.T. 106 ; 26 W.R. 338. (xii.) Ch. Div. V. C. B.-Share of Profits.--M. agreed to advance to a firin
£2,000 to be invested in a steamer, and M. was to have 5 per cent. interest on the advance, and also one-eighth of the annual profits on the steamer after deducting expenses, and an allowance for depreciation : Held that M. was not a partner with the firm in respect of the steamer.-
Mayer v. Schacher, 38 L.T. 97. Patent:(viii.) H. L.-Prior Publication.--If a referee, appointed under an Act of
Parliament to enquire into and report on a subject, acquire certain knowledge in the discharge of his duty, and communicate it to his coreferees, it thereby becomes public property, and such knowledge cannot thereafter be made the subject of a patent.-Patterson v. Gas
Light and Coke Co., L.R. 3 App. 239; 26 W.R. 482. Poor Law:(viii.) Q. B. Div.-Rateable Value--Machinery.-In assessing a ship-yard in
which is machinery partly affixed, but which could be removed without any injury to the freehold, and used in the business carried on there, sach machinery is to be taken into accouut as enhancing the rateable value of the premises.-Laing v. Bishopswearmouth Overseers, 47 L.J. M.C. 41;
37 L.T. 781 ; 26 W.R. 351. (ix.) Q. B. Div.---Settlement-Pending Order-39 & 40 Vict., c. 61.-An
order for a pauper's removal from L. to B. was made by justices in 1875, and quashed on special case in the Q. B. Div. in 1877: Held that there was with respect to the pauper a pending order of removal within s. 36 at the time of the passing of 39 & 40 Vict., c. 61 ; also that a subsequent order for removal made by justices in 1877 was wrong as the parties
were concluded by the former decision.—Barton Regis Union v. Liverpool,
47 L.J. M.C. 62; 37 L.T. 713 ; 26 W.R. 282. (x.) Ex. Div.-- Settlement by Derivation—39 & 40 Vict., c 61, s. 35.--The
first paragraph of s. 35 of the Poor Law Amendment Act, 1876, is to be read retrospectively as well as prospectively, both in the enacting part and the exception.-Westbury-on-Severn v. Barrow-in-Furness, L.R. 3 Ex.
D. 88; 26 W.R. 372. (xi.) Q. B. Div.-Settlement by Derivation—39 & 40 Vict., c. 61, s. 35.
The wife of a man who, before the passing of 39 & 40 Vict, c. 61, and while under 16, derived a settlement from his father, takes this settlement of her husband, and not his birth-settlement.-Great Yarmouth v. City of London, L.R. 3 Q.B.D. 232; 47 L.J. M.C. 61 ; 37 L.T. 712; 26
W.R. 283. Practice :(cxxiii.) P. D. A. Div.-Appeal-Admiralty Action in County Court-31 $32
Vict., c. 71, s. 31.- A plaintiff claiming an amount not exceeding £50 in an Admiralty action in a County Court, cannot appeal.—The Falcon, 38
L.T. 291. (cxxiv.) C. A.-Appeal-Costs. Where a plaintiff had obtained an interim
injunction in the Court below, giving the nsual undertaking as to damages, and on the hearing the injunction was dissolved and the action dismissed, but without costs or any inquiry as to damages, though on appeal an inquiry as to damages may be directed, and a cross.appeal by plaintiff is dismissed, the Court of Appeal has no power to vary the order as to costs in the Court below.-Graham v. Campbell, L.R. 7 Ch. D. 490 ;
38 L.T. 195; 26 W.R. 336. (cxxv.) C. A.- Appeal--Extension of Time-Ord. 58, r. 15.—The mere fact
that the Court of Appeal has since adopted a different opinion on a doubtful point of law from that on which a judgment of the Court below is founded, is not in itself sufficient reason for enlarging the time limited for appealing.-Craig v. Phillips, L.R. 7 Ch. D. 249; 47 L.J. Ch. 239 ;
37 L.T. 772; 26 W.R. 293. (cxxvi.) C. A.-Appeal-Interlocutory Order-Interpleader.-An interpleader
issue was directed in two suits concerning the ownership of some lead between the two claimants, and was found in favour of one of them : by a subsequent order, the costs in the two actions were disposed of, and the property directed to be given to the successful claimant : Held that the order on the interpleader issue was an interlocutory order, and could only be appealed from within 21 days.-MacAndrew v. Barker, 37 L.T.
810; 26 W.R. 317. (cxxvii.) C. A.-Appeal-Security for Costs.-On an application that an
insolvent appellant should find security for costs of a pending appeal, the Court will look into the subject matter of the action, and, if the appeal appear frivolous, will order security to be found.-Usill v.
Brierley, Do. v. Hales, Do. v. Clarke, 38 L.T. 249. (cxxviii.) C. A.- Appeal-Setting Down–Mistake--Ord. 58, r. 8.15.-An
appeal must be entered before the day mentioned in the notice of appeal, or, if the day named is in vacation, before the next day on which the Court sits : a mistake of the meaning of the rules of Court by counsel or solicitor is not sufficient reason for granting an extension of time.
Rhodes v. Jenkins, In re Mansel, 26 W.R. 361. (cxxix.) C. A.- Appeal-Stay of Proceedings-Ord. 39, 1. 5-Ord. 58, r. 16.
In drawing ap a role nisi for a new trial granted on appeal, it is improper to insert a stay of proceedings.—Goddard v. Thompson, 38 L.T. 166 ;
26 W.R. 362. (cxxx.) C. A.-Appeal-Time for-Old Suit-Ord. 58, 1. 15.—The time for appealing from the dismissal of a suit at the hearing dates from the time of pronouncing judgment: when a suit was heard on replication filed under the old practice, Held that the appeal must be regulated by the new practice.-International Financial Society, s. City of Moscow
Gas Co., L.R. 7 Ch. D. 241 ; 47 L.J. Ch. 258; 37 L.T. 736 ; 26 W.R. 272. (cxxxi.) Ch. Div. V. C. B.-Bankruptcy Pendante Lite - Signing Judg.
ment for Costs-Ord. 20, 1. 3. - Where a defendant is adjudicated bankrupt, on an act of bankruptcy committed before action brought, plaintiff may confess that the property claimed was in defendant's order and disposition, and sign judgment for costs.-Champion v. Formby,
L.R. 7 Ch. D. 373; 26 W.R. 391. (cxxxii.) Ch. Div. V. C. H.-Costs—Change of Solicitor-Lien-Set-off.—A
defendant in an administration action was ordered to pay costs : he then changed his solicitor : afterwards the plaintiff was ordered to pay the defendant the costs of an unsuccessful motion, and his former solicitor claimed a lien on these costs: Held that the defendant might set off the costs payable by him to the plaintiff against the costs payable to him.--
Robarts v. Buée, 26 W.R. 393. (cxxxiii.) C. P. Div.-Costs-Detenue-30 & 31 Vict., c. 143, s. 5:-- An action
of detenue is an action founded on contract, therefore if the plaintiff recover, a sam not exceeding £20 he is not entitled to costs.-- Bryant v.
Herbert, 26 W.R. 495. (cxxxiv.) Ch. Div.M.R.-Costs - Higher and Lower Scale.- A testator devised
cottages (which in fact belonged to his wife) to his wife for life, remainder to his nephew, and bequeathed his personalty amounting to more than £1,000 to his wife : after his death the wife sold the cottages in fee : on the death of the widow the purchaser brought an action against her executors for damages or compensation in conse. quence of her having elected to take uncer the will, and if necessary for administration : Held that the action was a mere action for damages, and the cottages being of less value than £1,000, the costs must be taxed on the lower scale.-Rogers v. Jones, L.R. 7 Ch. D. 315; 38
L.T. 17. (cxxxv.) Ch. Div. F. J.-Costs—Parties-Misjoinder- Married Woman.
In an action by a married woman by her next friend in respect of her separate property, her husband was joined as co-plaintiff, to which defendant took objection in his statement of defence : no change was made in the parties : Held that husband should have been made a defendant, and though plaintiff was successful in the action, she was declared not entitled to costs of pleadings, after the delivery of the
defence.—Roberts v. Fry, 38 L.T. 99; 26 W.R. 280. (cxxxvi.) Q. B. Div.-Costs-Slander.-In an action for slander, although
the judge may himself disapprove of the action being brought, if the jury give a verdict for 40s. he will certify for costs.-Hume v. Marshall,
37 L.T. 711. (cxxxvii.) Q. B. Div.-Costs—Third Party. -A third party who was under a
contract to indemnify the defendant, obtained leave to appear at the trial, and succeeded in reducing damages to a sum alreally in court: Held not entitled to costs as against plaintiff. - Williams v. South
Eastern Railway Co., 26 W.R. 352. (cxxxviii.) C. A. Default of Appearance- Married Woman-Judgment set Aside.
-A married woman was sued on a cheque which she had signed at her husband's request; and handed the writ to him, he promising to attend to it: no appearance was entered, and judgment was signed : more than a year afterwards, a summons to commit her having been taken out, the judgment was set aside on her application.- Atwood v. Chichester, 38 L.T. 48; 26 W.R. 320.
(cxxxix ) Ch. Div. F. J.-Default of Appearance, Judgment set aside-Costs.
- Judgment by default obtained against plaintiff set aside on the ground that his solicitor had, by mistake as to the position of the action in the cause-list, and because of pending negociations, deferred instructing counsel : plaintiff to pay costs of the day and of the application.- Wright
v. Clifford, 26 W.R. 369. (cxl.) Ch. Div. F. J.-Default of Appearance--Setting aside Judgment
Ord. 36, r. 20.-An action laid before V. C. Malins was transferred to Fry J. for trial, and defendant's solicitor, not knowing of the transfer, plaintiff obtained judgment on default of appearance: a motion to set the
judgment aside was refused.-Burgoine v. Taylor, 26 W.R. 436. (cxli.) Ch. Div. Fry J.-Default of Appearance-Ord. 36, r. 19.—When
plaintiff does not appear at the trial defendant is entitled to judgment with costs, without proving service of notice of trial.--James v. Crow,
L.R. 7 Ch. D. 410; 47 L.J. Ch. 200; 37 L.T. 749; 26 W.R. 236. (cxlii.) C. A.-Demurrer over-ruled- Leave to put in. Defence-Ord. 28, 1r. 2.5.
-When a demurrer is over-ruled, the demurring party is entitled to
plead to the merits.--Bell v. Wilkinson, 28 W.R. 275. (cxliii.) C. P. Div.--Discovery-Ejectment-Ord. 31,r.12.-A defendant in an
action of ejectment is not exempt from liability to make discovery of documents under Ord. 31, r. 12.–New British Mutual Investment Co. v.
Peed, 26 W.R. 354. (cxliv.) C. A.- Discovery-Interrogatories-Order of V.C.B. (See Practice
(lxv., p. 61) affirmed.-Saunders v. Jones, L.R. 7, Ch. D. 435; 37 L.T.
769. (cxlv.) C. A.-Discovery-Interrogatories-Ord. 31, r. 5.—Decision of V.C.M.
(See Practice lxvi., p. 61) reversed.—Ashley v. Taylor, 38 L.T. 44. (cxlvi.) Ch. Div. V. C. B.-Discovery-Interrogatories— Tendency to Crim.
inate.- Interrogatories, the answer to which might lay the person answering open to a prosecution for felony or misdemeanour, will be struck out as scandalous, although they may be relevant and pertinent to the question in the action, and merely an echo of the statement of
claim.-Fisher v. Owen, 38 L.T. 252; 26 W.R. 417. (cxlvii.) Ch. Div. V. C. H.- Discovery--Interrogatories- Service-Ord. 31,
4. 21.-The service of an order to answer interrogatories and the notice of motion for attachment in default on the solicitor of the defaulting
party is sufficient.-In re Mulcaster, Dalston v. Nanson, 26 W.R. 434. (cxlviii.) Q. B. Div.-Discovery-Privilege.—When an action by A. against B.
gives rise to an action by B. against C., the correspondence between A.'s and B.'s solicitors is privileged from inspection by C.-Bullock v.
Corrie, 38 L.T. 102; 26 W.R. 330. (cxlix.) C. A.-Discovery-Privilege.--Documents prepared by a party's
agent to submit to his solicitor for advice in reference to the action, are privileged, although, at the time inspection is sought, they have not in fact been laid before the solicitor.- Southwark & Vauxhall Water Co. v.
Quick, 47 L.J. Q.B. 258 ; 38 L.T. 28; 26 W.R. 341. (cl.) Ch. Div. V. C. H. - Dismissal -- Non-payment of Costs. — The
plaintiff in an action having failed to pay the defendant's taxed costs on a successful demurrer when leave to amend was given, the defendant obtained an order to stay proceedings until payment: the costs being still unpaid five months afterwards, the Court ordered the action to be dismissed unless the costs were paid within a month.- White v. Bromige,
26 W.R. 312. (cli.) Ch. Div. V. C. B.-Ejectment—Leave to Defend-Ord. 12, r. 18.
Where an equitable tenant for life is in possession of settled estates, and actions of ejectment are brought against him, the trustees of the settle.
ment, and the tenants on the estate, he is the proper person to apply for leave to defend all the actions, and, where necessary, he must use the trustees' names and indemnify them.--Longbourne v. Fisher, 38 L.T.
216; 26 W.R. 276. (clii.) Ch. Div. V. C. H.--Evidence-Affidavits-Commissioner, one of
Plaintiff's Solicitors.-Affidavits sworn before a commissioner, one of a firm of solicitors who acted for the plaintiff in the subject-matter of the action, and one of the partners of which had during the action collected evidence for the plaintiff, the firm not being the plaintiff's soliciters on the record : Held not admissible.—Duke of Northumberland v. Todd, 26
W.R. 350. (clii.) Ch. Div. V. C. H.-Evidence- Affidavits-Further Consideration.
On further consideration, affidavits used in Chambers cannot be read without notice, nor can advantage be taken of admissions in or defaults of pleading as to matters of fact referred to Chambers for inquiry.
Jones v. Chennell, 47 L.J. Ch. 80. (cliv.) Ch. Div. V. C. M.-Evidence-Affidavit-Eramination viva voce.
Where an agreement has been made that evidence shall be takep by affidavit at the hearing, the word "only " not being used, the counsel of a party who has filed an affidavit is not precluded from examining the deponent virâ voce if the counsel for the opposite party refuses to cross.
examine.-Glossop v. Heston and Isleworth Local Board, 26 W.R. 433 (alv.) Ch. Div. V. C. M.-- Foreclosure-Attendance to Receive Money.
Under a foreclosure decree, where the mortgagee's agent had attended at the place and during the time appointed for payment of the money, but without a power of attorney to receive it, and no one appeared on behalf of the mortgagor, the decree was made absolute.-Cox v. Watson, L.R. 7
Ch. D. 196 ; 47 L.J. Ch. 263. (clvi.) Ch. Div. V. C. B.-Foreclosure-Founder-Form of Judgment.-An
order for personal payment may be combined with an order for fore. closure in an action in which both forms of relief are expressly claimed.
-Gibbon v. Walker, 38 L.T. 217. (clvii.) Ch. Div. V. C. M.-Further Consideration-- Adjourned Summons.
An order made on further consideration in Chambers may be varied on
adjourned summons.-Davey v. Ward, 26 W.R. 390. (clviii.) Ch. Div. V. C. M.-Injunction-- Undertaking as to Damages-Ort.
23, 9. 1.-Where a plaintiff has obtained an injunction on the usual under. taking as to damages, and has given notice of discontinuance, the Court will, on motion by defendant, direct an enquiry as to the amount of damages : a delay after discontinuance of nearly eleven months was not held to bar the defendant's right to this.-- Newcomen v. Coulson, 38
L.T. 275; 26 W.R. 350. (clix.) C. A.-Inrollment of Decree-Bill of Review.- Decision of V.C.M. (see
Practice xxiv., p. 25) affirmed.-Widgery v. Tepper, L.R. 7 Ch. D. 423. (olx.) Ch. Div. V. C. B.-Jurisdiction-Person of Unsound Mind.--The
Chancery Division has jurisdiction to give directions as to the appli. cation of a fund in Court for the benefit of a person of unsound mind not so found, and for the appointment of a guardian.—Bligh v. O'Connell,
38 L.T. 217; 26 W.R. 311. (clxi.) P. D. A. Div.-Legitimacy Declaration-Citing Parties—21 & 22
Vict., c. 97, s. 7.-In a petition under the Legitimacy Declaration Act, 1858, the Court refused to order the citation of the elder brother, who was alleged by the petitioner to be illegitimate.—Mansell v. Attorney.
General, 26 W.R. 316. (clxii.) Ch. Div. M. R.-Lis Pendens-Motion to Vacate.- When an action
registered as a Lis pendens had been dismissed for want of prosecution;