(clxx.) Ch. Div. V. C. B.-Pleading-Question between Co-DefendantsJudicature Act, 1873, s. 24, sub-s. 2-Ord. 16, r. 17.—A. and B. having entered into an agreement with C. for working a mine, A. brought an action against B. and C., claiming to have the agreement cancelled, or for accounts: B. was out of the jurisdiction: after C. had delivered a defence and counter-claim, B. delivered a pleading, consisting of a statement of defence admitting the claim, a reply to the counter-claim and a claim against C. identical with A.'s: Held, on motion by B., that he was entitled to an order enabling him to obtain the relief claimed in this action.-Bagot v. Easton (2), 27 W.R. 404. (clxxi.) Q. B. Div. Ireland.-Pleading-Recovery of Land-Statement of Claim.-In an action for the recovery of land when plaintiff sets out a good title to the land, it is unnecessary for him to show under what title a defendant in possession claims.-Hodgins v. Hickson, 39 L.T. 644. (clxxii.) C. P. Div. Ireland.-Pleading-Special Indorsement-Ord. 3, r. 6. -In an action on a promissory note the writ set forth the note, but claimed only a portion of the amount for which it was drawn without stating specifically any credit given: Held, a good special indorsement: at defendant's request plaintiff was directed to serve a statement of claim.-Hibernian Joint Stock Company v. Mc Donnell, 39 L.T. 675. (clxxiii.) C. A.-Pleading-Statement of Claim-Ejectment. Decision of Q.B. Div. (see Practice cxvii., p. 64) reversed.-Phillips v. Phillips, L.R. 4 Q.B.D. 127; 48 L.J. Q.B. 135; 39 L.T. 556; 27 W.R. 436. (clxxiv.) Ex. Div. Ireland.-Pleading-Striking out-Ord. 19, rr. 17, 20, 22. -A paragraph in the statement of defence in an action for breach of contract, whereby defendant denied the allegations in the statement of claim generally, and also a paragraph alleging that a sale by auction was not bonâ fide, because biddings had been made by a puffer:" ordered to be struck out.-Jones v. Quinn, 40 L.T. 135. (clxxv.) Q. B. Div.-Referee's Report-Application to Send Back.-Where a referee has made his report, an application to send the case back to him should be made on notice of motion.-Graves v. Taylor, 27 W.R. 412. (clxxvi.) Ex. Div.-Remitting Action to County Court-30 & 31 Vict., c. 142, s. 10.-A Judge at chambers may properly decline to remit an action to a County Court, under sec. 10 of County Courts Act, 1867, without requiring an affidavit by plaintiff in answer to defendant's affidavit.— Coxwell v. London General Omnibus Co., 27 W.R. 381. (clxxvii.) Ch. Div. M. R.-Sale by Order of Court-Conduct-Advertising.— Where the conduct of a sale directed by the Court has been given to one party, another party has no right to interfere by advertising the sale.Dean v. Wilson, L.R. 10 Ch. D. 136; 48 L.J. Ch. 148; 27 W.R. 377. (clxxviii.) C. A.-Second Action-Judgment obtained by Fraud-Jurisdiction.Where a defendant in an action has obtained judgment in his favour by means of fraud, it is doubtful whether plaintiff can on that ground bring a second action about the same matter.-Flower v. Lloyd, L.R. 10 Ch. D. 327; 39 L.T. 613. (clxxix.) P. D. A. Div.-Sequestration-Pension for Past Services.-Where under an order of the Court a party is liable to the payment of a sum of money, the Court will restrain him from receiving a pension due to him for past services, and will empower a third person to receive the pension, but will not make an order against the Paymaster-General to compel him to pay the pension to such third person.-Sansom v. Sansom, 39 L.T. 642. (clxxx.) Q. B. Div.-Special Indorsement-Leave to Defend-Affidavit in Reply-Ord. 14, r. 3.-When defendant has filed an affidavit for leave to defend under Order 14, r. 3, plaintiff has no right to tile an affidavit by way of reply.-North Central Waggon Co. v. North Wales Waggon Co., 39 L.T. 628. (clxxxi.) Ev. Div.-Special Indorsement-Leave to Defend-Ord. 14, r. 1.Where application to sign judgment is made by plaintiff under Order 14, r. 1, and defendant by his affidavit admits part of the claim and discloses a defence as to the residue, the master has no power to make the leave to defend as to the residue conditional on payment to plaintiff of the part admitted to be due.-Dennis v. Seymour, 27 W.R. 475. (clxxxii.) Ch. Div. V. C. H.-Tenant pur autre vie-Production of cestui que vie-6 Anne, c. 18.-Where application is made under 6 Anne, c. 18, s. 1, to the party in possession of an estate for the production of a cestui que vie, and the party in possession does not respond, the applicant is entitled to an order for production.-Re Owen, L.R. 10 Ch. D. 166; 48 L.J. Ch. 248; 27 W.R. 305. (clxxxiii.) Ch. Div. V. C. B.—Transfer of Action-Arbitration-Award made a Rule of Court-Ord. 51, r. 2a.-A local board of health having a claim against a testator for non-repair of roads, made a demand on the tenant for life under the will and the executor, as statutory owners, for payment of the amount of the claim. The owners disputed their liability and the matter went to arbitration which the owners did not attend, and the award was made a rule of Court in the Q. B. Div. The testator's estate was being administered with Chancery Div.: Held that the Court had jurisdiction to transfer the award to the Chancery Division, but that the award was final, and the amount awarded a debt proveable in the administration.--West v. Dowman, 39 L.T. 666; 27 W.R. 355. (clxxxiv.) Ex. Div. Ireland.—Transfer of Action-Recovery of Land-Counter claim for Specific Performance.-In an action for the recovery of land on the expiration of a lease defendant set up a defence and counter-claim for specific performance of an alleged contract to grant a further lease: Held that the action ought to be transferred to the Chancery Division.Smyth v. Levinge, 39 L.T. 579. (clxxxv.) Ch. Div. V. C. M.-Transfer of Action-Winding-up of Com. pany-Ord. 51, r. 2a. -An application under Order 51, r. 2a, to transfer an action against a company in liquidation pending in another division to the Judge in whose Court the winding-up order has been made, may be made. Re Landore Siemens Steel Co., L.R. 10 Ch. D. 489; 40 L.T. 35; 27 W.R. 304. (clxxxvi.) P. D. A. Div.—Transfer of Action-24 Vict., c. 10-Judicature Act, 1875, s. 11.-An action assigned to the Admiralty Division, transferred to another division on the ground that it would not have been within the cognizance of the Court of Admiralty before the Judicature Acts.-The Seaham, 40 L.T. 38. (clxxxvii.) Q. B. Div.-Trial by Jury-Finding on one point only-Motion for Judgment-Ord. 40, r. 10—39 & 40 Vict., c. 59, s. 17.—The Judge before whom an action is tried may give judgment on a finding by the jury on one of the questions submitted to them, where they have been discharged without finding on the other questions.-Emma Silver Mining Co. v. Lewis, 48 L.J. Q.B. 257; 40 L.T. 168. (clxxxviii.) Ch. Div. V. C. B.-Trial-Jury--Infringement of Patent-Ord. 36, rr. 3, 26. In an action for infringement of patent, where only one instance of infringement was alleged, plaintiff, after issue joined, gave notice of trial: Held that defendant was not entitled to have the action tried before a judge and jury.-Spratt's Patent v. Ward & Co., 40 L.T. 250; 27 W.R. 470. (clxxxix.) C. A.-Trial-Jury-Fraud-Ord. 36, rr. 3, 26.-In an action in the Chancery Division to set aside an agreement on the ground of fraud, where plaintiff had given notice of trial by a judge and jury: Held that defendant was entitled to have the action tried without a jury.-Ruston v. Tobin, 40 L.T. 111. (cxc.) Ch. Div. V. C. B.—Trial—Jury—Ord. 36, r. 6.—A plaintiff who has set down his action for trial before a judge of the Chancery Div. is not entitled to apply under Order 36, r. 6, for trial of an issue before a jury.-Dent v. Sovereign Life Assurance Co., 27 W.R. 379. Principal and Agent: (xi.) C. A.-Liability for Damage caused by Contractor.-Where a contractor has been employed to do work in its nature dangerous to adjoining property, and damage results from the work, the employer is liable for the damage, though the contractor be competent and directed to use due precautions.-Angus & Co. v. Dalton, L.R. 4 Q.B.D. 162; 48 L.J. Q.B. 225. Probate : (viii.) P. D. A. Div. - Execution — Attestation. The attesting witnesses proved that the blanks in a lithographed form of will were filled up in testator's hand-writing, and that they observed the testator's name, also in his hand-writing, in the attestation clause at the time that they signed the will, which they did in testator's presence, when he put his hand on the document and indicated that it was his will: the will was not otherwise signed by the testator. Probate was granted.-In the goods of Claridge, 39 L.T. 612. (ix.) P. A. Div.-Execution-Naturalised Foreigner-7 & 8 Vict., c. 66, s. 6.— An alien naturalised in 1858, under a certificate of the Secretary of State, conferring on him all the rights of a native born subject, except any rights and capacities of such a subject out of the British Dominions, executed a codicil to his will in Switzerland, valid according to the law of the place where it was made, but not duly executed according to English law: Held that it could not be admitted to probate in England.— In the goods of Gatti, 39 L.T. 639; 27 W.R. 323. (x.) P. D. A. Div.-Testamentary Document-Deed of Gift.-Held that a document purporting to be a deed of gift executed by deceased the day before his death, and which had no seal or stamp, was testamentary, in spite of declarations made by deceased of his intention not to make a will.--Fielding v. Walshaw, 40 L.T. 103; 27 W.R. 492. 'Public Health.: (vi.) C. A.-Borough Rate-Exemption by Local Act-35 & 36 Vict., c. 79; 37 & 38 Vict., c. 89; 38 & 39 Vict., c. 55.-When a local Act contains a partial exemption in district rates for sanitary purposes in favour of lands occupied by a railway company, subsequent public Acts, dealing with the same subject, do not by implication take away this exemption.Regina v. Walsall Overseers, L.R. 4 Q.B.D. 141; 40 L.T. 47; 27 W.R. 438; Walsall Overseers v. L. & N. W. Railway Co., 48 L.J. M.C. 57. (vii.) Ch. Div. F. J.-Sewer-Local Board-Power to make Side Entrance -11 & 12 Vict., c. 63.-Part of plaintiff's land had been dedicated to the public, so as to form a street within the Public Health Act, 1848, but not so as to deprive the plaintiff of his ownership of the soil: Held that a local board had no power to construct in such a street, a man-hole communicating with their drains, without first purchasing the necessary land, or obtaining leave from plaintiff.-Swanston v. Twickenham Local Board, 40 L.T. 208. (viii.) Ch. Div. V. C. M.-Sewer-Local Board-38 & 39 Vict., c. 55, s. 22. By an indenture, dated in 1874, it was agreed that the N. Local Board should allow the C. Local Board to cause one of their sewers to communicate with a sewer of the N. district, provided that the sewage of any other districts should not be permitted by the C. Board to pass into their sewer: Held that the C. Board was discharged from this proviso by Sec. 22 of the Public Health Act, 1875.-Newington Local Board v. Cottingham Local Board, 48 L.J. Ch. 226; 40 L.T. 58. (ix.) Q. B. Div.-Sewer-Nuisance-38 & 39 Vict., c. 35, ss. 94, 96.-A sewer having been constructed under land of which appellant was lessee without his consent, he stopped up the sewer, and was in consequence convicted under Secs. 94, 96, of the Public Health Act, 1875, in respect of a nuisaance caused by the stopping up, although no nuisance existed on his land: Held that the conviction was right.-Riddell v. Spear, 40 L.T. 130. Railway : (xii.) C. A.—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 Consolidation 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.-Sharpe v. Metropolitan Dist. Rail. Co., 27 W.R. 420. (xiii.) Ex. Div.-Passenger-Season Ticket-Forfeiture of Deposit.-Plaintiff on taking a season ticket to travel on defendants' line paid, besides the price of the ticket, a deposit of ten shillings, and signed conditions, one of which was, that if the ticket was not delivered up the day after expiry the deposit should be forfeited: Held that the condition was binding on plaintiff.-Cooper v. London and Brighton Rail. Co., 27 W.R. 474. (xiv.) C. A.-Passenger-Ticket-Penalty-8 & 9 Vict., c. 20, ss. 109, 145.— Decision of C. P. Div. (see Railway iv., p. 32) affirmed, on the ground that the sum claimed under the bye-law did not constitute a debt recoverable in a court of civil jurisdiction.-London and Brighton Rail. Co. v. Watson, L.R. 4 C.P.D. 118; 40 L.T. 183. (xv.) Ch. Div. M. R.-Right to Deal with Land.-A railway company in. corporated by Act of Parliament has not, in the absence of express enactment, power to alienate any portion of the land acquired by it for the purposes of its undertaking and not being superfluous land, or land acquired for extraordinary purposes.-Mulliner v. Midland Rail. Co., 48 L.J. Ch. 258; 40 L.T. 121; 27 W.R. 330. Revenue: (ii.) Ex. Div.-Income Tax-Slate Works-5 & 6 Vict., c. 35, s. 60.-Slate works are assessable under 5 & 6 Vict., c. 35, s. 60, as quarries and not as mines, though all the workings be underground.-Jones v, Cwmorthin Slate Co., 27 W.R. 431. (iii.) Ex. Div.-Inhabited House Duty-Club-48 Geo. III., c. 55, sch. B., No. 5. -A house was used as a working-men's club and was open all day till 10.30 p.m.: no one slept on the premises: Held not an inhabited house within the Inhabited House Duty Act.--Riley v. Read, 27 W.R. 414. Reversionary Interest : (i.) Ch. Div. V. C. B.-Unconscionable Bargain—Mortgage-Arrears of Interest.-Reversioners entitled on death of tenant for life to £1,500, mortgaged their reversion to secure £800 and interest at four per cent. At the on £400, which latter sum was the amount actually advanced. Scotland, Law of: (vi.) H. L.-Superior and Vassal― Sub-division of Feu Redemption of Casualties-37 & 38 Vict., c. 94, ss. 4, 15.-Where part of a feu has been alienated, the casualties of superiority incident to that part may be redeemed separately under 37 & 38 Vict., c. 94, s. 15, without redeeming the casualties applicable to the entire feu.-Edinburgh Magistrates v. Edinburgh Roperies Co., L.R. 4 App. 87. (vii.) H. L.-Will- Construction · Interest on Legacies.- Trustees were directed by a will to sell heritable estates of the testator as soon after his death as practicable and pay certain legacies. The sale being unavoidably postponed: Held that interest was due on the legacies from testator's death.-Kirkpatrick v. Bedford, L.R. 4 App. 96. (iii.) Ch. Div. M. R.-Petition for Sale-Contingent Remainder-man.Property stood limited to a testator in fee subject to a shifting clause in favour of A. in the event of testator's children dying without issue under twenty-one, and testator left four childen, the eldest being twelve years old. On a petition by the trustees for a sale, which A. opposed: Held that A's interest was too remote to be considered.-Re Spurway's Settled Estates, L.R. 10 Ch. D. 230; 48 L.J. Ch. 213; 27 W.R. 302. (iv.) Ch. Div. V. C. M.-Minerals-Surface-19 & 20 Vict., c. 120, s. 33. -A lease of the minerals under land was made under the Settled Estates Act and part of the rents were set apart to be invested in the purchase of land. Testatrix, who had an absolute power of appointment, gave the surface of the land to one person and the minerals to another : Held that the money set aside for investment passed under the gift of the surface.-Re Scarth, L.R. 10 Ch. D. 499; 40 L.T. 184. Settlement: (ix.) Ch. Div. F. J.-Construction-Next-of-Kin.-By a marriage settle. ment money of the wife was settled in trust after her death, if her husband should survive her, and in default of appointment, for such persons as under the Statutes of Distribution would have become entitled thereto at her decease, had she died possessed thereof intestate and without having been married: Held that an only child of the wife was entitled to the trust fund.-Re Ball's Settlement, 27 W.R. 409. (x.) C. A.-Voluntary Settlement-Leaseholds-Bankruptcy Act, 1869, s. 91. -A trader within two years before his bankruptcy executed a postnuptial settlement whereby he assigned to trustees for the benefit of his wife and children leaseholds subject to the rents and covenants contained in the lease: Held that the settlement was void as against the trustee in bankruptcy.-Ex parte Hilmann, Re Pumfrey, 40 L.T. 177. Ship: (xxxi.) P. D. A. Div.-Arrest-Costs-Damage.-Where the holder of a bottomry bond arrests the ship and freight on which the bond is secured before it is due, and the bond is paid at maturity, the shipowner is entitled to the costs occasioned by the arrest, but not to damages unless there is malice or gross negligence.-The Endora, 40 L.T. 166. |