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(cxviii.) Ch. Div. V. C. B.-Receiver-Costs— Judicature Act, 1873, s. 25.
Defendant, who had been ordered to pay plaintiff's costs, was entitled to a life estate in consols standing in the names of trustees, and subject to various incumbrances. On motion of plaintiff a receiver was appointed of defendant's life interest until the costs should be paid ; the Court holding that it was unnecessary to serve the incumbrancers and trustees.
-Bryant v. Bull, 39 L.T. 470, 27 W.R. 246. (cxix.) C. A.-Receiver—278 28 Vict., c. 112, s. 1-Judicature Act, 1873, s. 25—
Ord. 42, r. 1.-A judgment creditor having issued a writ of elegit against real estate, of which defendant was in possession, but the legal estate of which was vested in a mortgagee, brought an action claiming a charge on the estate, and for delivery in execution; a receiver was appointed on the creditor's interlocutory application.-Anglo-Italian Bank v. Daries,
L.R. 9 Ch. D. 275; 47 L.J. Ch. 833; 39 L.T. 244; 27 W.R. 3. (cxx.) Q. B. Div.-Security for Costs.- Dismissal of Action.—If plaintiff fail
to comply with an order to give security for costs, it is in the discretion of the Court to dismiss the action.- De la Grange v. M'Andrew, 39
L.T. 500. (cxxi.) C.P. Div.-Service-Defendant out of Jurisdiction-Affidarit-Ord. 11,
1. la.--An affidavit on application to serve writ of summons on a defendant in Scotland is insufficient if it omits to state whether there exists in Scotland a local court having jurisdiction in the matter in question as required by Order 11, r. la.-Wood v. Mac Innes, 27
W.R. 49. (cxxii.) C. A.-Service-Foreign Defendant out of Jurisdiction.-In all actions
where defendant is a foreigner residing out of the jurisdiction he must be served with notice of the writ of summons, not with the writ.—Padley
v. Camphausen, 27 W.R. 217. (exxiii.) P. D. A. Div.-Stay of Proceedings-Costs of Abortive Action.-A.
brought an action against B. in P.D.A. Div. for revocation of letters of administration granted to B.; the Court refused to stay the action until costs of an action for administration, which A. had brought in the Ch. Div. and which had been dismissed for want of prosecution, were paid.
---Hankin v. Turner (2), 27 W.R. 232. (cxxiv.) Ch. Div. V. C. B.-Transfer of Action-Ord. 51, r. 2a.-An action
was brought in the Ex. Div. against an executor personally in respect of a debt due from his testator's estate, charging devastavit : after an order had been obtained in the Ch. Div. for the administration of the estate, the executor applied to have the action against him transferred to the Ch. Div. and stayed: the Court transferred the action, but refused to
stay it. - Re Timms, 47 L.J. Ch. 831. (cxxv.) C. A.—Transfer of Action-Consolidation–Ord. 51, rr. 1.4.-A decree
having been made in an action in the Ch. Div. for administration of the personalty of an intestate, and for an inquiry as to whether his moiety of some real estate had become assets in a partnership business in which he was engaged, the surviving partner brought an action for winding-up the partnership in another branch of the Ch. Div.: Held, that this action ought to be transferred to the judge before whom the administration
action was.—Davis v. Davis, 48 L.J. Ch. 40. (cxxvi.) Ch. Div. F. J.-Trial–Counter-Claim—Evidence. The Court being
of opinion that it would be more convenient that the claim and counter. claim in an action should be tried separately, directed the defendant's counsel at the trial of the claim to confine his cross-examination of plaintiff's witnesses to the questions raised thereon, giving him leave to call the plaintiff's witness as his own on the counter-claim.-Thompson v. Woodfine, 47 L.J. Ch. 832.
Principal and Agent:(v.) H. L.-Broker—Marine Insurance--Sub-Agent-Lien.-An insurance
broker employed as sub-agent by another broker to effect marine policies has the same rights of lien as if directly employed by principal.
-Fisher v. Smith, 39 LT. 430, 27 W.R. 113. (vi.) H. L.- Commission on Sale-Proximate Cause.—Defendant employed
plaintiff to sell a ship, under an agreement that he should receive a commission if a sale should be effected to any person led to make an offer in consequence of his publication or mention of it: plaintiff advertised the ship for sale, and it was purchased by S., who heard of it from a person who had been in communication with plaintiff: Held that there was evidence to go to the jury that the sale was effected in consequence of plaintiff's mention or publication.—Bayley v. Chadwick, 39
L.T. 429. (vii.) Q. B. Div.-Commission on Sale-Revocation of Authority-Subsequent
Sale.- Defendant agreed to give plaintiff a commission on his procuring a purchaser for defendant's ship: plaintiff negotiated with A. with regard to a sale, but the negotiation proved abortive, and defendant told plaintiff to do nothing more about selling the ship: subsequently A. introduced to defendant a purchaser who bought the ship: Held that plaintiff was not entitled to any commission, although the jury found on the facts that A. was induced to enter into the negotiation by the
information received from plaintiff.— Wilkinson v. Alston, 48 L.J. Q.B. 37. (viii.) C. A.-Commission-Procuring Loan.--Defendant agreed, if plaintiff
procured him a loan of £2,000, or such other sum as he should accept, to pay him a commission on any money received. Plaintiff procured an offer from a building society to advance defendant £1,620 on certain terms, which defendant accepted; but subsequently declined to comply with certain requirements, and no money was advanced : Held that plaintiff was entitled to his commission.-Fisher v. Drewett, 48 L.J.
Ex. 32; 39 L.T. 253; 27 W.R. 12. (ix.) C. P. Div.-Commission— Procuring Partner.—Defendant agreed to
give plaintiff a remuneration in the event of his taking into partner. ship M., whom plaintiff had introduced. Subsequently defendant entered into a written agreement with M. that they should enter into partnership from a future day, when a deed of partnership should be executed. No such deed was ever executed, nor did M. ever act as a partner: Held that plaintiff was entitled to his commission.—Harris v.
Petherick, 39 L.T. 513. (x.) Ch. Div. M. R.-Commission-Opening Accounts-Overcharges.-In
dealings between principal and agent, one case of proved fraudulent overcharge is sufficient to open the accounts between the parties.
Williamson v. Barbour, L.R. 9 Ch. D. 529. Probate :(vii.) P. D. A. Div.- Re-translation of Will.-Testator died in Mexico
leaving a will in English, duly executed according to the laws of Mexico, where he was domiciled; the will was translated into Spa and probate granted thereon in Mexico: and the Spanish translation being sent to this country, the Court admitted to probate a re-translation.
In the goods of Rule, 39 L.T. 123. Public Health:(v.) C. A.-Local Authority-Verbal Contract-11 & 12 Vict., c. 63, s. 85;
38 S. 39 Vict., c. 55, s. 173.- Decision of Ex. Div. (see Public Health ii., p. 31) affirmed. - Hunt v. limbledon Local Board, 27 W.R. 123.
Railway :(vi.) Ct. of Commrs.-Authorized Tolls—Power to exceed. Whether a
railway company carry as common carriers, or in any other capacity, they are bound not to exceed the authorized tolls.—Aberdeen Com.
mercial Co. v. Great Northern of Scotland Rail. Co., 39 L.T. 480. (vii.) Ct. of Commrs.-Jurisdiction-Concurrent Action-Reference to Arbi.
tration. A working agreement, made in pursuance of powers contained in a special act, contained an agreement to refer differences arising there. under to arbitration : Held that a difference arising on such an agreement was within the jurisdiction of the Railway Commissioners, notwithstanding that a suit relating to the same matter was then in litigation in the ordinary Courts. - Portpatrick Rail. Co. v. Caledonian Rail. Co., 39
L.T. 485. (viii.) Ch. Div. V. C. B.-Construction of Bridge-Nuisance— Railways
Clauses Act, 1845.—A railway company constructed a bridge over a road so as to carry the metals over it at the height marked in the deposited plans, but not leaving the amount of headway required by the Railways Clauses Act: in order to provide this headway they lowered the road, and in consequence the road became habitually flooded : Held that the company must alter their bridge so as to give the necessary head. way and keep the road at a proper level.- Attorney-General v. Furness
Rail, Co., 47 L.J. Ch. 776. (ix.) Ex. Div.-Level Crossing—Catch of Gate-Injury to Cattle.--Held that
a railway company was not liable for injury caused to plaintiff's cow through coming in contact with a projecting iron fastening on the gate. post at a level crossing, over which the cow was being driven.- Great
Western Rail. Co. v. Davies, 39 L.T. 475. (x.) H. L:- Negligence-Evidence--Question for Jury.-When a person is
killed in crossing a railway at night by a train, the mere fact that at the point at which he crossed, the lights of the approaching train would have been clearly visible, is not such evidence of contributory negligence on his part as to justify the withdrawal of the case from the jury.—Dublin and Wicklow Railway Co. v. Slattery, L.R. 3 App. 1155; 39 L.T. 365; 27
W.R. 191. (xi.) C. A.-Vendor's Lien-Injunction and Receiver before Judgment.—When
an unpaid vendor of land taken by a railway company, brings an action to enforce his lien, the Court will not grant an juction or receiver against the company before judgment.-Latimer v. Aylesbury and Buck.
ingham Railway Co., L.R. 9 Ch. D. 385, 39 L.T. 460; 27 W.R. 141. Scotland, Law of:(ii.) H. L-Foreign Ship — Arrestment at Sea.-An arrestment, ad fun.
dandum jurisdictionem, being used against a foreign ship lying in Glasgow harbour, a second warrant of arrestment on dependence of action was given to the messenger-at-arms to execute, and he, finding the ship had sailed, pursued and overtook her in Scottish waters, and compelled her to come back to port: Held that the execution of the arrestment was illegal. Other arrestments were used against the vessel after she was brought back by parties acting in concert with the original arresters : Held that those arrestments must also be recalled.-Borjesson v. Carlberg,
L.R. 3 App. 1316, 1322. (ii.) H. L.-Riparian Proprietors-Common Rights of Fishing, &c.-Sepa.
rate Lakes.-Where two sheets of water were joined together by a narrow channel, the water in which was usually too shallow to float a boat: Held that they were so far separate lakes that the riparian proprietors on one of the sheets of water had no right of fowling, fishing, and boating on the other.-Mackenzie v. Bankes, L.R. 3 App. 1324.
(iv.) H. L.-Superior and Vassal-Feu-contract-Poor Rates-Road Assess
ments.--By a fen-contract dated 1823, the superior bound himself to free the vassal of all cess land-tax, feu-duties, or other duties ministers' stipends and other public burdens due or that might become due out of the lands feued : Held that the superior was bound to relieve the vassal of the whole of the poor rates payable in respect of the lands and buildings thereon imposed by the Poor Law Amendment Act, 1845, but not of road assessments imposed by Local Acts after the date of the contract.—Dunbar's Trustees v. British Fisheries Society, L.R. 3 App.
1298. (v.) H. L.-Will-Construction—Voting.–Testator directed trustees to
apply residue of his estate for the benefit of his neices and their children, in the following proportions: one-third to A. for life and her children in fee, one-third to B. for life and her children in fee, and one-third to C. D. and E. equally in life rent, and to their children equally among them per stripes in fee. And if A. and B. died without issue, then their shares should accrue to C. D. and E. and their children respectively in life rent and in fee equally among them per stripes as provided with re. spect to their own shares of the residue. A. and B. died without issue, C. died having one child married and of age, who died without issue before A. and B.: Held that the representatives of C.'s child were entitled to participate in the division of the fee of the two-thirds be.
queathed to A. and B. for life.—Taylor v. Graham, L.R. 3 App. 1287. Settlement:(vi.) C. A.-After-Acquired Property.--Held that a covenant to settle wife's
after-acquired property, did not apply to a fund to which she was entitled on the happening of the double contingency of her mother surviving her father, and herself surviving her mother, where the contingencies deter. mined during the coverture, but there remained an outstanding life estate which did not determine till after wife's death.-Re Mitchell's
Trusts, L.R. 9 Ch. D. 5; 48 L.J. Ch. 50. (vii.) Ch. Div. V. C. B.-Rectification-Mistake-Evidence.—Property of
the intended wife was on her marriage settled on her for life for separate use without power of anticipation and remainder as she should by will appoint and in default of appointment to her next of kin: after death of husband, on the unsupported testimony of wife that it was intended only to protect the property during coverture, the settlement was ordered to be rectified so that property should be held in trust for wife, her executors, administrators, and assigns absolutely.-Cook v. Fearn, 48 L.J. Ch.
63; 39 L.T. 348; 27 W.R. 212. (viii.) C. A.—Tenant for Life—Fines on Renewal.- Property demised for a
term determinable on the dropping of three lives, at a yearly rent, and a heriot payable on the dropping of each life, with a covenant for per. petual renewal at a fixed fine, was, subject to the lease, settled in strict settlement, giving the trustees powers to grant leases with or without covenants for renewal, and to perform any covenant for renewal pre. viously entered into, so that the best rent should be reserved without taking any fine or premium: Held that the fines arising under the compulsory renewals belonged to the tenant for life.- Brigstocke v.
Brigstocke, 47 L.J. Ch. 817. Ship :(xvii.) Ex. Div.--Authority of Ship's Husband - Charter-party.-A ship’s
husband cannot bind his owners by an agreement to cancel a charter. party, and pay a sum of money on the cancellation.--Thomas v. Lewis,
L.R. 4 Ex. D. 18; 48 L.J. Ex. 7 ; 27 W.R. 11. (xviii.) C. P. Div.--Bill of Lading ---Excepted Perils-Negligent Stowage.—
A bill of lading provided that goods should be delivered in good con
dition, the usual perils excepted, and also excepting injury or loss from any act or neglect in navigating the ship, it being agreed that the captain, officers, and crew of the ship, on the transmission of the goods, should be considered the servants of the consignee : Held that damage arising from negligent stowage was not within the exceptions.—Hayne v.
Culliford, L.R. 3 C.P.D. 410; 47 L.J. C.P. 755; 39 L.T. 288. (xix.) C. A.-Charter-party.- Plaintiff and defendant agreed by charter-party
that defendant's ship, after loading dead weight at M. for defendant's benefit, should proceed to a first-class Spanish port, defined to mean a port at which a steamer with cargo from a foreign port could load without risk of detention by customs' authorities, and there load a cargo for plaintiff: the ship had on board, as plaintiff knew, goods which, by the Spanish Customs' regulations, prevented the ship from loading at the port of V., where she was ordered, and in consequence she was unable to load plaintiff's cargo: Held that plaintiff could not recover on action for breach of charter-party.-Cunningham v. Dunn, L.R. 3 C.P.D. 443 ;
48 L.J. C.P. 62. (xx.) C. P. Div.-Charter-party-Primage.—A charter-party provided that
the charterer should ship a cargo at a certain freight per ton in full: and the master signed bills of lading making goods deliverable to order or assigns on payment of freight as per charter-party, with 5 per cent. primage: the master was paid a fixed salary by the owners, and was not entitled to retain the primage : Held that the indorsees of the bills of lading, who received the goods as charterer's agents, were not liable for
primage.--Caughey v. Gordon & Co., L.R. 3 C.P.D. 419; 27 W.R. 50. (xxi.) P. D. A. Div.-Collision-Admission of Liability-Claim for less than
£300—Costs—31 & 32 Vict., c. 71, s. 9.-In an action for damage by collision defendants admitted liability, and the question of the amount by consent was referred to the registrar : the plaintiffs claimed £295, and the registrar awarded £200: on motion by plaintiff to condemn defendants in costs, it appearing that at the time of bringing the action the plaintiffs were liable to a claim for salvage : Held that the Court had jurisdiction to certify that the case was fit to be tried before it, but under the circumstances ordered that each party should bear his own
costs of the reference.-The Williamina, L.R. 3 P.D. 97. (xxii.) C. A.-Collision-Regulations.--A vessel with wind free is bound to
keep out of the way of another vessel overtaking her on the same tack
and close-hauled.- The Peckforton Castle, 47 L.J. P.D.A. 69. (xxiii.) P. D. A. Div.-Collision-Regulations for Preventing—36 & 37 Vict.,
c. 85, s. 17; 37 &38 Vict., c. 52, s. 1.-The Act 37 & 38 Vict., c. 52, prescribing additional regulations to be observed in a particular locality, is to be read as part of the regulations for preventing collisions at sea, so far as regards section 17 of the Merchant Shipping Act, 1873.—The
Lady Downshire, 39 L.T. 236. (xxiv.) P. D. A. Div.-Collision - Regulations for Preventing-Infringement.
-If an infringement of the Regulations for Preventing Collisions at
unless it was necessary.-The Tirzah, 39 L.T. 547. (xxv.) C. A.-Collision-Ship being Towed.-- When a ship is being towed by
another in a sea where other ships are likely to be met, she ought to have means of immediately slipping or cutting the tow rope. The ship towing must keep a look out for both ships.--The Jane Bacon, 27 W.R. 35.