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(OLXX-) Ch. DiV. V. C. B.—Plea.ding—Question between Co-Defendants-— Judicalu/re 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 aetion.—Bagot v. Easton (2), 27 W.R. 404.
(clxxii.) C. P. DiV. I1‘91&nd.—Pleading—SpecialIndorsement—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 defeudant’s request plaintifi was directed to serve a statement of claim.—Hibernia/n Joint Stock Company v. Mu Donnell, 39 L.T. 675.
(clxxiii.) C. .A..——Plead'ing——Stale1nent of Claim—E)'ectment.—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. I1‘6l&I1d.-—Plea.ding—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 bond. fide, because biddings had been made by a “ pufier :" ordered to be struck out.—Jones v. Quinn, 40 L.T. 185.
(clxxv.) Q, B. Div,—-Refer-ee’s Repo1t—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 moti0n.—G'raves v. Taylor, 27 W.R. 412.
(clxxvii.) Ch. Div. M. R.—SaZe by Order of Court—Con.d/uct—Adve'rtising.— 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. 186; 48 L.J. Ch. 148; 27 W.R. 877.
(clxxviii.) C. A.— Second Action—Judgment obtained by Fraud—Jurisd/iction.— 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.—Sequcsl1-atimi—Pension for Past Ser'm'ces.—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 empowera 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.
(clxxxi.) EV. DiV.—Special I'ndorsement—Lea've to Defend—Ord. 14-, r. 1.— Where application to sign judgment is made by plaintiff under Order 14. r. 1, and defendant by his afidavit 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.—Denni.- v. Seymou/r, 27 W.R. 475.
(clxxxii.) Ch. D117. V. C. H.—Teria1it pur aufre vie—-Production of ceslui que vie—6 Anne, c. l8.—Where application is made under 6 Anne, c. 18, s. 1, to the party in possession of an estate for the production of a ceslui 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.-—T1'un.-_fer of Artion—-Arbit/ration—Award made 0. Rule of (Jon-rt—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,aR statutory owners, for payment of the amount of the claim. The owners disputed their liability and the mutter 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.—We.st v. Dowman, 39 L.T. 666; 27 W.R. 355.
(clxxxiv.) Ex. DiV. I1‘B1&!1d.——Tru.ns_fPrqfAclion—Recorery ofLand—Counter claim for Specific Perf0rma.uce.—In an action for the recovery of laud 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.
(clxxxvf) Ch, Div, V, C, M,—Trcmsfer of Acti0n—-Winding-uqa of Gompa-ny—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 ma(le.— 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—Judica.ture Act, 1875, s. l1.—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 Sectham, 40 L.T. 88.
(clxxxviii.) Ch. Div. V. C. B.—Tria.l—Jm-y--Infringernent of Patent—Ord. 36, rr. 3, 26.-—In an action for infringement of patent, where only one instance of infringement was alleged, plaintifi, 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. Wa/rd §/‘ C'o., 40 L.T. 250; 27 W.R. 470.
(clxxxix.) C. A-—Tria.l—Jury—Fraud—Ord. 36, rr. 3, 26.—In an action in tho Chancery Division to set aside an agreement on the ground of fraud, whore plaintifi 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.
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 Llfé Assuramce Co., 27 W.R. 379.
Principal and Agent :—
C. A.—-Liability for Damage caused by Contractm-.—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.
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.——I'n the goods of Clariclge, 39 L.T. 612.
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 Domininns, 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.
P, D, A, D;i_v,——Testamenta1-y 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.—F1'eld/ing v. Wa.lsha,w, 40 L.T. 103 ; 27 W.R. 492.
—11 if’ I2 Vict., c. 63.—Pa.rt of plaintifl"'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 plaintiif 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.-~S'u:nnston v. Twirkenhanz Local Boa-rd, 440 L.T. 208.
Ch. Div, V. C, M,—Sewer-—-Local Boord—38 §f 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.—Newin_qton Local Board v. Cottingham Local Boa/rd, 48 L.J. Ch. 226; 4-O L.T. 58.
(ix.) B. DlV.—Sewe'r—Nu.isance—38 4?‘ 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.
(xii.) C. A.—Arbitrat1'on wnder Special Act—(7osts—8 §" 9 Vict., c. 18, s. 84-. —A railway oompany’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 compensa. tion 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.—Shaa-pe v. Metropolitan Dist. Rail. Co., 27 W.R. 420.
(xiii.) Ex, Di_V.——Passenger—Season Ti.cket~Forfeitm'e of Dep0sit.—Plaintiif 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 plaintifi.—-Cooper v. London and Brighton Rail. Co., 27 W.R. 474.
(xv.) Ch. Div. M. R.—-Right to Deal with Land.—A railway company incorporated 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
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. 4-14.
Reversionary Interest :~
(i.) Ch. Div. V. C. B.—Uncrmscionable Bargain-—Mortga41e—Ar1'ears of I'n.teresf.%-Reversioners entitled on death of tenant for life to £1,500, mortgaged tlicir reversion to secure £800 and interest at four per cent. on £4-00, which latter sum was the amount actually advanced. At the time of executing the mortgage they were in very poor circumstances and had no independent legal advice. Only one instalment of interest was paid. On death of tenant for life the trustees paid the money into Court: Held on petition by reversioners, that the mortgage could only stand as security for the amount actually advanced and arrears of interest for six years.—Re Slater's Trusts, 40 L.T. 184; 27 W.R. 4-4-8.
Scotland, Law of :
(vi.) H. L.——Superio1- a/ml Vassal— Sub-division of Feu — Redemption of C0.sua.lties—37 (Y 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. Edinb-wrgh Roperies Co., L.R. 4 App. 87.
(vii.) H. L_— WiZl— Consta-uction— Interest on Legccies.— 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.B. 4 App. 96.
Settled Estates Act :—
(iii.) Ch. Div. M. R.—Petit12on for Sale—Oo'ntingent 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 Spu/rway's Settled Estates, L.R. 10 Ch. D. 230; 48 L.J. Ch. 218; 27 W.R. 802.
(iv.) Ch. Div, V, C, M_——Mi'ne'ra-ls—S-urface——19 5" 20 Vict., c. 120, s. 83. ——A lease of the minerals under laud 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 surfnce.—Re Scarth, L.B,. 10 Oh. D. 499; 4-0 L.T. 184.
(ix.) Ch. Div. F. J.—Consh-ucti<m—Nea:t-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‘: Settlement, 27 W.R. 409.
(x.) C, A,——Volunta/ry Settlement—-Leaseholds—-Bankruptcy Act, 1869, s. 91. —A trader within two years before his bankruptcy executed a post. nuptial 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 bankrupto_v.—-Em pa/rte Hilmann, Re Pumfrey, 40 L.T. 177.
(xxxi.) P. D. A. DiV.—Arrest—C'osts—Da.mage.—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 Eudora, 40 L.T. 166.