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(xvii.) C. P. DiV.—O'osts—Order of House of Lord.s.—An action lies on the judgment of the House of Lords ordering an unsuccessful appellant to pay to respondent the costs of a.ppeal.—-Marbella Iron Ore Co. v. Allen, 47 L.J. C.P. 601; 38 L.T. 815.
(xviii.) Ch. Div. V. C. H.——C'osts-—Set.ofl'—Solicitor-’s Lien.—An order was made in a partnership suit confirming a compromise by which plaintifi tool: the assets and was to pay thereout the costs of the suit, and defendant was in a certain event to pay plaintifi a sum of money : The partnership assets were sufiicient to pay all the costs, but plaintifi claimed to set-oi! the sum payable by defendant against the costs: on an application by defendant and his solicitor for payment of the costs : Held that the solicitor’s lien precluded the set-ofi.—Heir-on v. Hobson, 47 L.J. Ch. 574-.
(xix.) C. P. Div.—Oosts—Tana.tion.—The affect of rule 8 of special allowances for costs in rules of Court, Aug., 1875, is to give the Master a discretion as to what allowances shall be made for the attendance of witnesses in Court. without regard to the old scale of charges.—Tu1-nbull v. Ja/nson, 26 W.R. 815.
(xx.) Ch. Di.V. M. R.—Costs —Taa-atian—Additional Rules, Aug., 1875, 0-. 18.—Where defendant obtains an order to stay proceedings on payment of costs, it is the duty of the master when taxing the costs to determine
questions raised as to the propriety of proceedings for which charges are made.—Bainss v. WormslPy, 39 L.T. 85.
(xxi.) C. J. B.—C'osts—Ta.:mtio»n—Atten,dance of Country S0licitor.—-A country solicitor personally attending an appeal instead of employing his London agent will beallowed on taxation the additional costs occasioned thereby. —E.v par-Ie Dickens, Re Foster, L.R. 8 Ch.D. 598; 26 W.R. 915.
(xxii.) Ch, Div, F, J'_—Cosfs—Tu.zatinn—Three Counsel Shorthand Notes.-— On taxation between party and party, costs of employing more than two counsel may be allowed if the Court is of opinion that such a course was justifiable : in the absence of special directions at the trial the costs of copies of shorthand notes of evidence will not be allowed.—Kirkwood v. Webster, 26 W.R. 812.
(xxiv.) Ch, Div, V, C, B,-—Counter-cla,im——Wi_fe's Separate Es£ale.—In an action seeking to charge a wife‘s separate estate in respect of adebt due to plaintiff, to which the husband was made a party: a counter-claim in respect of moneys due to the husband and pictures of the husband detained by the plaiutiif was allowed.—Ho<Zs0n v. Mochi, L.R. 8 Ch. D. 569; 4-7 L.J. Ch. 604-.
(xxvi.) Ch, Div. M, R,-—Default of Appeal-m1ce—Pa.yment into C'ourt.—Iu an administrative action, notice of motion was served on defendant, an executor, for payment into Court of money, part of testator’s estate, which it was shown by affidavit that he had received : defendant did not appear: Held that he had sufiiciently admitted that the money was in his hands by not answering the afiidavit, and that he must pay it into Court.—F-reeman v. C01, 4-7 L.J. Ch. 560.
—Where through a mistake either party fails to appear on an action being called on for trial, and judgment is given in defaillt of appearance, it is a matter of course -'10 restore the action on payment of costs of the day, when an application is made within due time.-—Burgoine v. Taylor, 47 L.J. Ch. 542.
(xxviii.) Ch. DiV. F. J.——Default of Appoarance—Setting Aside JudgmentCos-ts.—Judgment dismissing an action for default of appearance by plaintifi, was set aside on terms of plaintiff paying costs of previous trial and of motion to set aside.—Oockle v. Joyce, Wright v. Cliford, 47 L.J. Ch. 5&3.
(xxix.) C11. DiV. F. J.—Default of Appea1'ance—Test Action-Ord. 36, r. 19. —Where, at the trial, a plaintifi declined to proceed, the Court declined to take into consideration the fact that the action had been made a test action for the purpose of deciding rights between plaintifis in similar actions and the same defendants, but ordered the action to be dismissed, with costs.—Robinson v.- Chadwick, 47 L.J. Ch. 607.
(xxx) C, A_—-Default of Appea/rance——-Test Aclion.—Where one of several actions against same defendants has been ordered to be tried as a test action, and plaintifi in such a~tion lets judgment go by default, the Court may substitute another action as the test action.—-Amos v. Chadwick, 39 L.T. 50; Z6 N.R. 840.
(xxxi.) Ch. Div. V. C. H.—Discovery—-Afliclavit of Docaments.—In an action for account in which the issue of settled accounts was raised, defendant was ordered to make an alfidavit of documents claimed to be covered by the settled accounts.—DicI-son v. Harrison, 47 L.J. Ch. 686.
(xxxii.) Ch. DiV. V. C, M,-—Discovery—Inter'rogatories—Member of Cor. p0ru.ti¢m—()1‘d.. 31, rr. 4, 5.—On an application for an order to serve interrogatories on a member of a company the Court will not look at the
interrogatories, but will only consider the fitness of the member to give informu.tion.-- Berkesley v. Sta/nda-rd Discount Co., 26 W.B. 852.
(xxxiii.) C. A_—Discovery—-—Intc~rr0galor£es—Tendency to C1~iminate—Ord. 81, 1'. 8. Where interrogatories inquire after matters amounting to an indictable offence they ought not to be struck out, but the party interrogated may decline to answer them as tending to criminate : a party may decline to answer under Order 31, r. 8, though he might have applied
to have the interrogatories struck out under Or.l. 81, r. 5.-—Fisher v. Owen, L.R. 8 Ch. D. 645; 47 L.J. Ch. 681.
(xxxiv.) Ch. Div, V. C. H.-—Discovery—Interrogatom'es—Sen-ice—O-rd. 31, 1'. 21.—'1‘he service of an order to answer interrogatories and the notice of motion for attachment in default on the solicitor of the defaulting
party is sui‘ficient.—In re Malcaster, Dalston v. Nansen, 47 L.J. Ch. 609.
(xxxv.) P. D. A. DiV.—Disc-.ver~y—1'rivilege.—Reports of a survey of a ship made before action brought, are privileged if made solely for purpose of the action.-—The Theodore K0-rner, 38 L.T. 818.
(xxxvi.) C. A_.—Evidence—Appeal — Further Evidenoe—Ord. 58, 1'. 5. -—Aflidavits which were used in chambers were rejected, on further consideration : plaintiff, in his notice of appeal, gave notice of motion for leave to read them: Held that they were further evidence within Ord. 58, r. 5, and leave given to read them.——J0nes v. C/|.¢111l8ll, L.R. 8 Ch. D. 492; 47 L.J. Ch. 583.
(xxxvii.) C. C. R,~——Eviilence——Dep0sition—I’regnancy——-11 §" 12 Vict., c. 42, s. 17.-Pregnancy alone may be a source of illness within 11 & 12 Vict., o. 42, s. 17, so as to give the judge power to admit in evidence in a prosecution the deposition of :1 witness unable to travel in consequence of her approaching confinement.-—Reyina v. Wellings, L.R. 8 Q.B.D. 426.
—Ord. 53, rr. 1, 2.—An application for an order to compel a. sherifi who has returned a writ of fi. fa. to pay over the amount levied is a proceeding in an action within Ord. 53, r. 1, 2, and should be made on motion after notice to sherifi.- -Delmar v. Fremnantle, L.R. 3 Ex. D. 237.
ment of a decree made in the presence of A. in an administration suit, whereby it was declared that certain property belonged to T. beneficially, did not render it necessary for A. to file a. bill of review and to vacate the iurollment before instituting n suit to set aside a sale whereby '1‘. claimed to have become the beneficial owner of the property.-lVi<1gm'y v. Tapper, 4'7 L.J. Ch. 550.
(xl.) C. P. DiV.—Interpleader—Claim for Part of Goods.—On an
interpleader issue claimant was ordered to specify which of the goods seized he claimed, but did not do so : a. verdict having been found for claimant as to part of the goods only : Held that the execution creditor was entitled to the amount paid into Court under the interpleader order and that claimant must pay the costs of the trial.—Plummer v. Price, 39 L.T. 38.
C. P. DiV.—Im‘erpZeader—1 Q‘ 2 Wall. 4-, c. 58, .1. 1.——L. sent wine to London to D., which D. deposited with a. dock company and received dock warrants making the wine deliverable to D. or his assigns, which he indorsed to plaintifi : L. served the company with notice not to part with the wine which he alleged had been obtained from him by fraud, and plaintifi brought an action against the company for detaining the wine: Held that the company could not interplead_—A.ttenborough v. St. Katherine's Dork Co., L.R. 3 C.P.D. 378.
C. A.—O1der for Sale—Admiss1'on—Ord. 4-0, r. 11.—In a suit commenced under the old practice, when plaintiff claimed n charge on bonds deposited in the bank to the credit of the cause, which defendant admitted, the Court ordered a sale of the bonds on plaintiff's application before trial under Ord. 40, r. 11.—Coddi'ngton v. Jacksonville Rail. Co , 39 L.T. 12.
(xliii.) C. A,—Pa1'ties—-Administrcttor ad Lz'tem.—An administrator ad litem
does not sufficiently represent the estate in an action where plaintiff seeks to establish his title as sole next of kin of an intestate.Dotcdeswell v. Dowdeswell, 38 L.T. 828.
terested under a. will, died insolvent, and his creditors obtained an administration decree: A.‘s executrix, who had also an interest under the will opposed to that of A., was rnude defendant in another action for the administration of the trusts of the will, and the creditors obtained an order for leave to intervene in this action: Held that the order was irregular, and that some other person ought to have been appointed to defend in the action in the name of the executrix on the behalf of the son's estate.—Samuel v. Samuel, 47 L.J. Ch. 716.
Ch. DiV'. V. C. H.——Parties—Infant Plaintz'jT—Ord. 16, r. 8.—ln an action for breach of trust and execution of the trusts of a. will by infants by their step-father as next friend, who was also made n. defendant, the Court ordered his name to be struck out as defendant, and gave the wife leave to defend without her husba.nd.——Lewis v. Nobbs,
having bought property from defendant brought an action to have £2,000 of the purchase-money returned to him: defendant was also being sued in the Ex. Div. for the £2,000 by persons claiming it as com. mission on the sale : the Court refused to order the plaintiffs in the Ex. Div. to be served with a, third party notice, or made defendants to this action under Ord. 16, r. 17. -Assor/'ia.fed Home Co. v. Whirhcord, 47 L.J. Ch. 652.
(xlvii.) Ch, Div, V, C, M_——Pa/rties——Partiti0n—31 §’ 32 Vict., c. 40.—ln a partition action relating to leasehold property, where plaintifis were executors and trustees for sale, entitled to part of the property, and defendants were a person entitled to the rest of the property for life, and other executors and trustees for sale entitled in remainder, it was Held that the beneficiaries under the trusts were not necessary parties.--Stare v. Gage, 47 L.J. Ch. 608; 38 L.T. 843.
(1.) Ch, Div, V, C, H,—Pleadin_a—— Claim in Representative Cha,ra.cter— Dem.urrer.—When a plaintiff sues in a representative character, the statement of claim is to be read for the purposes of demurrer, as if that fact were stated therein.——-Jolmsrm, v. Burgcs, 4-7 L.J. Ch. 552.
(ii.) Ex, DiV,—Pleading-—- Co-um‘er-(7laim——Set-ofl'.—In an action by the assignor of a debt, the debtors pleaded, by way of set.oi¥ and counterclaim, damages for breach of contract by the assignor: Held that he could not recover damages against the plaintiff, but was entitled by way of set-0E against the p|aintiE’s claim, to the damages sustained from the breach of contract by the a.ssiguor.——Young v. Kitchen, 4-7 L.J. Ex. 579.
(iii.) Ch. Div, M. R,—I’lea/li1|,g——Counte1--Cla.im—Ord. 49, 'r. 3.—Where to an action for dissolution of partnership defendant set up e. counter-claim raising a. different cause of action: Held that such claim could not be conveniently disposed of in the action.—-Naylor v. Furrer, 26 W.R. 809.
(liii.) C, A,—Pleading———Paymenl into Court-—Den-ial of Cause of Acti0n.—As a general rule a defendant may deny plaintifi’s causes of action, and at the same time plead payment into Court in respect of the whole or any part of them.—Be-rdan v. Greenwood, L.R. 3 Ex. D. 251 ; 47 L.J. Ex. 628; 26 W.R. 902.
(liv.) Ch. Div. F. J.—-Plea,1ling—Set-ofi'-Ne eweat regn0—Danna._qes.—A defendant need not, in claiming set.0E, separate the claim or the statement of facts relied upon, in any way, from his statement of defence : in claiming damages for a. writ of Ne areal rcgno, alleged to have been improperly obtained, the applicant should first move to discharge the writ. —Lees v. Patterson, 47 L.J. Ch. 616.
(lv.) C, _A,——Reference——E'rr0r of Refaree—Jud»icature Act, 1873, s. 56.—A judge has no power to alter or vary the report of a special referee: If he refuses to adopt it, he must either hear the case himself or remit the report to the referee.-——Dunkirk Hall Colliery Co. v. Lever, 26 W.R. B4-l.
Counter-Claim against one Plaintifl'.—Where owners of a ship which has sunk and owners of the cargo on board join as plaintiffs in an action against another ship for damages sustained by collision, the Court will order the claim by the shipowner to be dismissed in default of his giving security for the counter-claim, but will allow the owner of the cargo to proceed without security.—-The Oarnarvon Castle, 26 W.R. 876.
application to stay proceedings pending an appeal must be made first to the judge of the Court below.—-Attorney-Gerwral v. Swansea Improvements Co., 26 W.R. 840.
an action against A. and others an order for substituted service against A. having been obtained, and judgment against all the defendants given, A. applied to set aside the judgment against him on aflidavits, alleging ignorance of the action while pending and merits: judgment was set aside on terms as to giving security for the amount of the judgment and for costs.—Watt v. Burnett, 38 L.T. 908.
Ch, Div, M, R,—Trial—Jury.——In an action against directors for fraud and misrepresentation, a motion by one defendant to have the action tried before a judge and jury was refused, on the grounds that the other defendant did not consent, and that, under the circumstances, such a trial did not appear desirable or c0nvenieut.—.-‘lIireho1I..~;e V. Barnett,
(ii.) Q. B. DiV.—C0rrupt Bargain—Bta.s.—\Vhe1'e a. bargain is made
between one who is in the employ of another and a third party, who has contracted with the employer, which is calculated to bias the mind of the employed and cause him to act to the prejudice of the employer, such bargain is corrupt, even though no damage result to the employer. —-Harrington v. Victoria, Graving Dock Co., L.R.. 8 Q.B.D. 549; 47 L.J. Q.B. 594-. ‘
(iii.) Ch. Div. F, J ,—Puyment to Agent—Set-of of Debt.—Where A. owes
money to B., and B. authorises him to pay it to C., he must actually pay the money to C , and is not entitled to set-ofl a debt due to him from C. against the payment of the debt to A.—P$'erso'n V. Scott, 4/I L.J. Ch. 705;
26 W.R. 796.
Ch. DiV. F. J'.—Settle¢l Accounts —R|'ght to Surclmrge and FalsifyC'0st~'.—In an action for account by a principal against his agent, plaintiff showed five itemsof error in order to surcharge and falsify a series of settled accounts: defendant set up no such right in the pleadings, but claimed it at the bar: Held that plaintifi was entitled to surcharge and falsify all the accounts, but defendants were not so entitled.—1l[ozley v. (lowie,
38 L.T. 908; 26 W.R. 854.