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(xxxii.) Ch. Div. V.C.H.- New Trial-Issue tried at Assizes - Ord. 39, r.
1, la.-Where an issue of fact in an action in the Chancery Div. had been tried by a judge and jury at Assizes, an application for a new trial of the issue was heard by the judge of the Chancery Div.-Jenkins v.
Morris, L.R. 14 Ch. D. 674. (xxxiii.) C. A.– New Trial - Misdirection.--Before granting a new trial, the
Court must be satisfied that the verdict was manifestly wrong, and that there had been a miscarriage of justice.- Jenkins v. Morris, L.R. 14 Ch.
D. 674; 42 L.T. 817. (xxxiv.) C. A.–New Trial-Trial by Jury-Final Judgment-Ord. 40, rr. 4,
10.—Where, in an action tried by a jury, the judge gives judgment for one party on the findings, the other party may move for a new trial on the ground that the ngs are against the evidence, and the divisional Court may, on such motion, enter final judgment under Ord. 40, r. 10.
-Hamilton v. Johnson, 28 W.R. 879. (xxxv.) Ex. Div.-Notice of Trial-Entry for Trial--Close of Pleadings--Ord.
36, r. 3.-A plaintiff cannot enter an action for trial before the close of the pleadings. - Metropolitan Inner Circle Co. v. Metropolitan Rail. Co.,
49 L.J. Ex. 505. (xxxvi.) Ch. Div. F. J.-Parties— Rectification of Deed.— Representation of
Class-Ord. 11, r. 9.-In an action by a widow for rectification of a settlement made on her marriage, by altering a provision giving part of her settled property to her husband absolutely on her death, the husband having died intestate : Held that it was sufficient to make one
of several of his next-of-kin a defendant.-Lovesy v. Smith, 28 W.R. 979. (xxxvii.) C. A. --Plezding-Amendment after Decree-Ord. 16, 1. 13.—No
amendment of the pleadings can be made after final judgment in an
action.—Attorney-General v. Council of Birmingham, 43 L.T. 77. (xxxviii.) Ch. Div. M. R.—Pleading-Recovery of Land-Ord. 17, 1. 2.--A
writ claimed a declaration of plaintiff's title to certain land, a declaration that a lease had been entered into by mistake, an injunction against receiving rents, a receiver and account of past rents, and the statement of claim claimed possession of the land : Held that the leave of the Court to join these claims was not necessary.—Gledhill v.
Hunter, L.R. 14 Ch. D. 492. (xxxix.) C. A.- Reference- Charge of Fraud-Appeal — Judicature Act, 1873,
8. 57.-A judge has jurisdiction to refer compulsorily issues involving questions of fraud affecting the character and reputation of the parties ; and an appeal from a compulsory order of reference, made by a judge sitting at nisi prius or assizes, must be brought direct to the Court of
Appeal.-Hoch v. Boor, 49 L.J. C.P. 665. (xl.) C. A.- Reference-Prolonged Examination of Accounts-Judicature
Act, 1873, s. 57.-Any question of account which may be referred com. pulsorily to a master under sec. 3 of the Common Law Procedure Act, 1854, may also be referred compulsorily to an official referee under sec. 57 of the Judicatare Act, 1873.-Ward v. Pilley, L.R. 5 Q.B.D. 427;
28 W.R. 937. (xli.) Ch. Div. M. R.-Scotch Order-Winding-up of Company-Companies
Act, 1862, ss. 122, 123.—Where, in the winding up of a company by the Court of Session in Scotland, it has become necessary to enforce an order for a call made by that Court against contributories in England, the order must be made an order of the Chancery Division in England.-Re
City of Glasgow Bank, L.R. 14 Ch. D. 628. (xlii.) C. A.-Security for Costs-Married Woman-- Next Friend-Ord. 16,r.8.
The Court has a judicial discretion to allow a married woman to sue alone
with or without giving security for costs, and to direct a next friend to give such security at any stage of the proceedings.-Martano v. Mann,
L.R. 14 Ch. D. 419; 49 L.J. Ch. 510; 42 LT, 890. (xliü.) Ch. Div. V. C. H.--Service out of Jurisdiction- Affidavit. - Where
leave had been obtained to serve notice of the writ in lieu of service on a defendant residing at Beyrout, the Court held that an affidavit in which deponent swore that he had personally served defendant with a notice, a true copy of which was thereuntu annexed, was sufficient.
Bustros v. Bustros, L.R. 14 Ch. D. 849. (xliv.) H. L.-Special Indorsement - Leave to Defend ---Ord. 14, r. 1a.-Where
the defence to a specially indorsed writ is a denial and contradiction of the accounts on which the claim is grounded, it is wrong to make au order ander Ord. 14, r. la, refusing leave to defend except on payment
into Court.-Wallingford v. Mutual Society, L.R. 5 App. 685. (xlv.) V. C.M.--Special Indorsement Married Woman-Separate Estate
Ord. 14, 1. 1.--Plaintiff brought an action against a widow in respect of bills of exchange given by her while under coverture, on a specially indorsed writ: Held that, as she was not personally liable, Ord. 14, r. 1
did not apply.-Ortner v. Fitzgibbon, 43 L.T. 60. (xlvi.) C. P. Div. - Test Action - Staying other Actions. — Thirty-eight
actions having been brought by different plaintiffs against the same defendants, involving a question common to all, on the application of plaintiffs in one action, the Court ordered the other actions to be stayed until after the trial of that one.—Bennett v. Lord Bury, L.R. 5
C.P.D. 339. (xlvii.) Q. B. Div.-Transfer of Action-Collision of Ships-Limitation Action.
---Personal Injury. One of two ships having been held in an Admiralty action solely to blame for a collision, the owners instituted an action for limitation of liability in the Admiralty Division. A fireman on board the other ship haying issued a writ in the Q. B. Div., claiming damages for personal injuries from the owners of the delinquent ship, the action was, on defendants' application, transferred to the Admiralty Div.
Hawkins v. Morgan, 49 L.J. Q.B. 618. (xlviii.) Ch. Div. V.C. M.-Withdrawal of Defence.—One of two defendants
to an action for the recovery of land, after defending the action, gave up possession and sought to withdraw his defence : Held that he should be allowed to do so on payment of mesne profits and the costs occasioned by his defence and of the application to withdraw.—Real and Personal Advance Co. v. Mc Carthy, 49 L.J. Ch. 615.
Principal and Agent:(i.) Ch. Div. M. R.-Accounts—Commission Agent-Consignor.---The
general course of trade between a consignor and commission agents was that the agents were liable to the consignor for the amounts received and made advances to him, crediting themselves with advances and interest, and debiting themselves with the amounts realized : Held that the consignor, in an action for accounts, was not entitled to an account of the application by the agents of the proceeds of the sale of his goods.
-Kirkham v. Peel, 43 L.T. 171; 28 W.R. 941. (ii.) C. A.-Sale of Goods --Undisclosed Principal—Payment to Agent.
When an agent buys goods as agent for an undisclosed principal, the liability of such principal to the seller for the price of the goods is not discharged by a payment to the agent, unless such payment is the result of misleading conduct on the part of the seller. -Irvine v. Watson, L.R. 5 Q.B.D. 414 ; 49 L.J. Q.B. 531; 42 L.T. 800.
(ii.) Q. B. Div.-Undisclosed Principal-Sale-Contract.—Plaintiffs shipped
corn from New Zealand to England endorsing the bills of lading to M., a factor in Glasgow, in order that M. might sell the corn and pay over the purchase.money after deducting commission at 3 per cent. M. endorsed the bills over to defendants in London, who sold the corn and credited M. with the proceeds, less 2 per cent. commission. Defendants knew that M. was acting as agent for another person, bat plaintiffs were not disclosed as principals in the transaction : Held that plaintiffs were entitled to recover from defendants the balance due from them to M. in respect of the sales, without dedacting any set-off in respect of other transactions between defendants and M.-- New Zealand Land Co. v.
Reeston, L.R. 5 Q.B.D. 474. (iv.) C. P. Div.-Unincorporated Society-Borrowing Powers-Authority-
Agent.-- The directors of an unincorporated building society were authorised to borrow money up to a certain amount. The directors having already exceeded this amount, the plaintiff lent £100 to the society, which he paid to the treasurer, who embezzled the money. The jury found that the treasurer had been held out both by the directors and the society as a person authorised to receive the money : Held that both the directors and the society were liable.-Chapleo v. Brunswick Building Society, L.R. 5 C.P.D. 331.
Principal and Surety :(i.) C. A.-Bankruptcy-Neglect to Value Security-Discharge of Surety.
Defendant was surety for the repayment of a loan made by plaintiff to P., for which plaintiff held as collateral security on insurance on P.'s life. P. having become bankrupt, plaintiff proved for the whole of his debt without valuing the insurance, which was subsequently given up to the trustee by order of the Court: Held that defendant was not thereby discharged from his liability beyond the value of the policy of insurance. - Rainbow v. Juggins, L.R. 5 Q.B.D. 422.
Probate :(i.) P. D. A. Div.-Evidence-Contents of Will--Declarations of Testator.-
Oral and written declarations of a testator, made either before or after the date of execution of a will, are admissible in evidence to show what were the constituent parts of the will at the time of execution.- Gould
Lakes, 49 L.J. P.D.A. 59.
Public Health :(i.) Q. B. Div.-Foreign Cattle-Slaughter at Sea-Compensation–32 8:33
Vict., c. 70.--Under the Contagious Diseases (Animals) Act no compeu. sation is payable by local authorities in respect of foreign auimals slaughtered after their arrival, but before being landed at a British port.
- Nissler v. Hull Corporation, 49 L.J. Q.B. 501 ; 42 L.T. 894. (ii.) C. A.- Local Board — Disqualification - Penalty -- 38 & 39 Vict.
c. 55, s. 253.- An action to recover a penalty for acting as member of a local board after disqualification may be brought under r. 70 of schedule 2 of the Public Health Act, 1875, by any person without obtaining the consent of the Attorney-General.--Fletcher v. Hudson, L.R. 5 Ex. D.
287; 49 L.J. Ex. 697. (iii.) Q. B. Div.-Local Board--Disqualification-Lease from Board—38 &39
Vict., c. 55, sch. II., r. 164.- A person is not disqualified for membership of a local board by reason of a lease by the board to him of a sewage farm containing covenants by the board to supply and by him to use the sewage of the district. - Regina v. Gaskarth, 49 L.J. Q.B. 509.
Railway :(i.) Ex. Div.-Accommodation Works — Injury from Insufficient-Liability,
8 Vict., c. 20, ss. 68-73.-A railway company having constructed a culvert under the provisions of the L.C.C. Act, 1845, to drain adjoining land, twenty years afterwards a flood took place and injury was caused to the land owing to the culvert being insufficient to carry off the water. Held that an action would not lie against the company for damages.-Colley v. L. &* N.W. Rail. Co., L.R. 5 Ex. D. 277 ; 49 L.J. Ex. 575; 42
L.T. 807. (ii.) H. L.-Arbitration under Special Act-Costs—8 & 9 Vict., c. 18, s. 34.
A railway company's Special Act provided that the company might alter certain streets, paying compensation to the owners of adjoining houses or purchasing the houses; and in case of dispute, the compensation or purchase-money was to be assessed by a single arbitrator, to be appointed by the Board of Trade. There was no provision as to the costs of the arbitration, but the Act incorporated the Lands Clauses Consolidatiou Acts, unless expressly varied : Held that Sec. 34 of the Lands Clauses Act, 1845, applied to such an arbitration, and that the taxing of the costs was not a condition precedent to the right to bring an action to recover them. - Metropolitan Dist. Rail. Co. v. Sharpe, L.R.
5 App. 425 ; 43 L.T. 130. (iii.) Q. B. Div.-Bye-Law-Penalty – Passenger Refusing to Show Ticket
8 Vict., c. 20, s. 108.-A bye-law of a railway company that any passenger failing or refusing to show or deliver up his ticket, should be required to pay the fare fro the station whence the train originally started to the end of his journey, is bad, and cannot be enforced in the
absence of fraud.-Saunders v. South-Eastern Rail. Co., L.R. 5 Q.B.D. 456. (iv.) C. A.-Construction-Diversion of River-- Necessity--8 & 9 Vict., c. 20,
s. 16.—The powers given by sec. 16 of Railways Clauses Act, 1845, to divert streams, are only given in respect of necessary Acts, and the saving of expense to the company does not constitute a necessity within the meaning of the section. --Pugh v. Golden Valley Rail. Co., 42 L.T.
863; 28 W.R. 863. (v.) C. A.-Judgment Creditor-Appointment of Receiver or Manager
30 & 31 Vict., c. 127, s. 4.-Whenever a judgment creditor of a railway company is unpaid, the appointment of a receiver or manager under sec. 4 of Railway Companies Act, 1867, is a matter of right, and the only evidence requisite in support of a petition under that section is an affidavit proving that the applicant is a judgment creditor, that his debt is unpaid, and that the company is a going concern.-Ex parte Cambrian
Rail. Co., Re Manchester and Milford Rail. Co., L.R. 14 Ch. D. 645. (vi.) C. A.– Passenger-Injury — Measure of Damages. The rule that
damages for breach of contract should be such as naturally arise from the breach, or may reasonably be supposed to have been in the contemplation of the parties, does not apply to an action for injury to a passenger by railway so as to exempt the company from liabilty for damages in respect of the loss of an income which they did not know the plaintiff
was earning.-Phillips v. London & S. Western Rail. Co., L.R.5 C.P.D. 280. (vii.) Ex. Div.-Passenger Duty-Sleeping Carriages-5 8 6 Vict., c. 79, ss.
2, 4.- Defendants in addition to the sum charged for fare received from passengers a further sum in respect of the duty imposed by the Railway Passengers Duty Act: Held that they were liable to pay duty on the entire sam received from their passengers, and that they were also liable to pay duty on extra charges made for the use of sleeping carriages.Attorney-General v. L. & N. W. Railway Co., 49 L.J. Ex. 670.
(viii.) H. L.-Statutory Powers-Letting of Railway Stock--Ultra Vires.
The E. Railway Co. were empowered by Act of Parliament to take a lease of the line of the T. Railway Co., and to enter into agreements with respect to the working of the line, apportionment of tolls, &c. The E. Co. did not take a lease, but subsequently entered into an agree. ment with the T. Co. to supply locomotives and rolling stock for working the line : Held that such agreement was not ultra vires. ---Attorney. General v. Great Eustern Rail. Co., L.R. 5 App. 473 ; 49 L.J. Ch. 545 ;
42 L.T. 810. Revenue:(i.) Ex. Div.-Income Tax-Foreign Corporation—16 & 17 Vict., c. 34, s. 10.
-A foreign company ha an agency in London which conducted a branch business and earned profits. The dividends of the company were payable at the option of shareholders abroad or in London. In a particular year the London agency earned an amount which enabled them to pay all dividends demanded of them in that year. They were assessed to income tax ander schedule D. on the profits earned in England on an average of three years : Held that the money in their hands for the payment of dividends was intrusted to them within the meaning of 16 & 17 Vict., c. 34, s. 10, but that since they had paid income tax under schedule D. on their earnings they ought only to be further assessed in respect of that part of the dividends representing profits arising out of the United Kingdom.-Gilbertson v. Fergusson,
49 L.J. Ex. 536. (ii.) Ex. Div.-Succession Duty-Predecessor-16 & 17 Vict., c. 51, s. 2.
A lunatic was tenant in tail in possession of an estate, with remainder to his brother and sister R. and D. successively in tail. R. converted his estate into a base fee in remainder, and mortgaged it for more than the value of the fee simple. A compromise was afterwards entered into, with the consent of the Lord Chancellor, and deeds of settlement executed, whereby the estate was conveyed to trustees discharged from the mortgage on trust after the lunatic's death to raise and pay the amount due to the mortgagees, and subject thereto to hold to the use of D. for life, remainder to her sons saccessively in tail. On the lunatic's death D. became tenant for life in possession, and on her death her son became tenant in tail in possession : Held that her son derived his interest as successor from his mother.-Attorney-General 1. Dowling,
49 L.J. Ex. 621. Scotland, Law of :(i.) H. L.- Bill of Exchange-Acceptance-19 & 20 Vict., c. 60, ss. 6, 11 ; 41
Vict., c. 13, s. 1.-A. procured from B. an advance of £1,000 on a bill of exchange for C. and D., his sons. B. signed the bill as drawer, and addressed it to C. and D. who signed as acceptors, and afterwards A. wrote his name on the back of the bill and gave it to B. C. and D. had since become bankrupt, and A. and B. both being dead there was no evidence why A. put his name to the bill : Held that A.'s representatives
were not liable on the bill.—Steele v. M Kinlay, L.R. 5 App. 754. (ii.) H. L.—Disentail—Interest of Heirs Substitute-38 & 39 Vict., c. 61, s. 5.
--In valuing the interest of second and third heirs substitute on a petition for disentail by the first heir in possession : Held that it was proper to take into consideration the state of health of the first heir, and that the chance of succeeding to the fee simple ought to be valued.--
M‘Donald v. M ́Donald, L.R. 5 App. 519. (ii.) H. L.-- Mortis Causa Deed—Unqualified Disposition.—General words of disposition in a mortis causa deed are, in the absence of proof of con