Page images
PDF
EPUB

he had been acquitted on the criminal charge.—Pooley v. Whetham,

L.R. 25 Ch. D. 435; 43 L.T. 267. (lx.) Ch. Div. V. C. M.-Contempt-Breach of Undertaking-Publication

of Interlocutory Proceedings.-On a motion for an injunction defendant undertook not to publish a certain advertisement likely to injure plaintiff's business until the trial. He published in a newspaper a notice of the hearing of the motion and of his undertaking which virtually repeated the advertisement : Hell that he had not committed a contempt

of Court.Buenos Ayres Gas Co. v. Wilde, 29 W.R. 43. (lxi.) Ch. Div. V. C. M.-CostsAdministration Action-Apportionment.

Under a power of appointment in a marriage settlement the shares of children were appointed unequally, but were nearly equalised by a division of the anappointed property under a hotch-pot clause : Held that the costs of an action to administer the trusts of the settlement must be paid rateably out of the appointed and unappointed shares.

Moore v. Dizon, L.R. 15 Ch. D. 566; 49 L.J. Ch. 807 ; 29 W.R. 12. (lxii) Q. B. Div.-Costs-Admiralty Action--County Court-31 & 32 Vict.,

c. 71, s. 9-Ord. 55.-Section 9 of County Courts Admiralty Jurisdiction Act, 1868, is repealed by Order 55.---Tenant v. Ellis, L.R. 6 Q.B.D. 46;

43 L.T. 506; 29 W.R. 121. (lxiii.) C. A.-Costs-Collision.-Cargo owners, whose cargo had been lost

through a collision, brought an action against the vessel which had come into collision with the vessel carrying their cargo, and both vessels were found to blame : Held that no costs ought to be given.The City of

Manchester, L.R. 5 P.D. 221; 49 L.J. P.D.A. 81. (lxiv.) Ch. Div. F.J.--CostsInquiry as to Damages.-Where in an action for

damages, judgment was given for plaintiff with costs, and an inquiry as to damages directed, the costs of the inquiry were reserved in order that the Court might exercise control over the manner in which it was

conducted.-Slack v. Midland Rail. Co., L.R. 16 Ch. D. 81; 43 L.T. 434. (lxv.) C. A.-CostsSet-off.-Judgment having gone by default against

J. and H., and the sheriff having taken Ji's goods in execution, H. got the judgment against him set aside with costs; and in an interpleader issue claimed the goods seized, but was decided against with costs : Held that the costs in the interpleader could not be set-off against the costs of the action.-Barker v. Hemming, L.R. 5 Q.B.D. 609; 49 L.J.

Q.B. 730. (lxvi.) C. A.-Costs-Taxation-Counter-Claim.--A claim and counter-claim

having both been dismissed with costs : Held that plaintiff must pay the general costs of the action, and defendant only those costs incurred on account of the counter-claim.-Mason v. Brentini, L.R. 15 Ch. D. 287;

43 L.T. 557 ; 29 W.R. 126. (lxvii.) Ex. Div.--Costs, Taxation - Counter-claim.-Plaintiff claimed com.

mission from defendants, who set up a counter-claim for a specific sum for goods sold, and plaintiff, by his reply, admitted his indebtedness for their amount. At the trial the jury found defendants were indebted to plaintiff for a sum less than the amount of the counter-claim, and judgment was entered for plaintiff on claim and defendants on counter. claim : Held that in taxing the costs, defendants were entitled to the

costs of the cause.- Baines v. Bromley, 29 W.R. 245. (lxviii.) C. A.-Costs--Trial by Jury-Discretion of Judge-Ord. 55.-In

exercising his discretion to deprive a successful party of his costs under Ord. 55, a judge may take into consideration the conduct of the party previous to and conducing to the action, as well as in the course of litiga. tion. ---Harnett v. Vise, L.R. 5 Ex. D. 307 ; 29 W.R. 7.

[graphic]

(lxix.) Ch. Div. M. R.- Counter-Claim-Trial of Issues-Ord. 36, r. 6.

Where defendant counter-claims instead of bringing a new action, he is not entitled to have the issue on his counter-claim tried before the

other issues in the action.— Piercy v. Young, L.R. 15 Ch. D. 475. (lxx.) Ch. Div. M. R.-Discontinuance--Counter-Claim.-Where plaintiff

discontinues an action in which a counter-claim has been delivered, defendant cannot proveed with the counter-claim.-Vavasseur v. Krupp,

L.R. 15 Ch. D. 474. (lxxi.) C. A.-Discovery-Interrogatories.—Decision of V.C.B. (see Practice

xxvi., p. 28) affirmed.-Benbow v. Low, 50 L.J. Ch. 35. (lxxii.) P. D. A. Div.-Discovery-Interrogatories- Admiralty Action

Collision.-Interrogatories may be delivered in an action for damage by collision, asking for information relative to the collision.-The Radnor.

shire, L.R. 5 P.D. 172; 43 L.T. 319. (lxxiii.) C. A.-Discovery-Interrogatories - Co-defendants-Ord. 31, r. 1.-M.

brought an action against K., who counter-claimed against M. and N: Held that N. had no right to interrogate M.--Molloy v. Kilby, L.R. 15

Ch. D. 162; 29 W.R. 127. (lxxiv.) Ch. Div. V. C. M.-Discovery-Interrogatories-Winding-up of

Company-Ord. 31, r. 1.-In the winding-up of a company, the official liquidator will be allowed to deliver interrogatories to a persun claiming to prove, who has made an affidavit of documents. -Re Alexandra Palace Co., L.R. 16 Ch. D. 58; 50 L.J. Ch. 7; 43 L.T. 406;

29 W.R. 70. (lxxv.) Ch. Div. M. R.-DiscoveryProduction of Documents. In an

action claiming an account of profits made by defendants as agents for plaintiffs, where defendants denied the agency, the Court declined to order production of invoices of goods sold by third parties to defendants, and re-sold by them to plaintiffs, until after trial of

the question of agency.–Verminck v. Edwards, 29 W.R. 189. (lxxvi.) Ch. Div. V. C. B.-Evidence-Affidavits in Reply-Ord. 38, r. 3.

The Court has no power to order plaintift's affidavits in reply to be taken off the file if not confined strictly to matters in reply, but will disregard them at the trial. The Court can, at the trial, give defendant

leave to answer such affidavits.Gilbert v. Comedy Opera Co., 29 W.R. 169. (lxxvii.) C. A.-Evidence- Attachment of Debt-Examination of Debtor-Ord.

45, r. 1.-In the oral examination of a judgment debtor, as to whether any and what debts are owing to him, any question fairly pertinent and properly asked, with a view to ascertain full particulars of such debts, must be answered. Decision of V.C.M. (49 L.J. Ch. 701) affirmed.Republic of Costa Rica v. Strousberg, L.R. 16 Ch.D. 8; 50 L.J. Ch. 7; 43

L.T. 399; 29 W.R. 179. (lxxviii.) C. A.-Evidence-Examination ex parte-Ord. 37, rr. 1, 4.-After

consenting that evidence in an action should be taken by affidavit, a solicitor for one party was unable to get his witnesses to make affidavits : Held that the Court had no jurisdiction to allow him to examine witnesses ex parte before a special examiner, and to use the depositions on the trial, subject to cross-examination of the witnesses.- Warner v.

Mosses, 50 L.J. Ch. 28; 43 L T. 401; 29 W.R. 201. (lxxix.) C. A.-Evidence-Experts-Nautical Assessors.-Where the Court

is assisted by nautical assessors, evidence of experts on questions of

nauticalscience may properly be rejected.—The Sir Robert Peel, 43 L.T.364. (lxxx.) Ch. Div. V. C. M.-Evidence -- Scientific Witnesses.-A judge

may, at any period in a case, allow further evidence to be called by either party for his own satisfaction.-Budd v. Davidson, 29 W.R. 192.

(lxxxi.) C. A.-Judgment Debtor-Elegit-Equity of Redemption-Receiver

Judicature Act, 1873, s. 25 (8).- A judgment creditor who has sued ont an elegit against his debtor, whose only property is an equity of redemption, is entitled to the appointment of a receiver, on motion after judgment in the division in which he has obtained jadgment.-Smith v.

Cowell, L.R. 6 Q.B.D. 75 ; 50 L.J. Q.B. 38; 43 L.T. 528; 29 W.R. 227. (lxxxii.) Ch. Div. M. R.- Leave for Short Notice of Motion-Vacation

Ord. 53, r. 8.—Leave to serve short notice of motion cannot be given by

the Chief Clerk in Vacation.-Conacher v. Conacher, 29 W.R. 230. (lxxxii.) C. A.–Married Woman- Leave to sue Alone-Ord. 16, r. 8.-A

married woman having brought an action in her own name, defendant took ont a summons to stay proceedings unless she joined her next friend or gave security for costs : Held that the dismissal of the summons amounted to giving plaintiff leave to sue alone, and that the Court could give such leave after action brought.-Kingsman v. Kingsman,

29 W.R. 207. (lxxxiv.) Ch. Div. M. R.-MotionsPriority-Motion to Discharge Prisoner.

Á motion to discharge a prisoner from custody has priority over all other

motions.- Ashton v. Shorrock, 43 L.T. 530; 29 W.R. 117. (lxxxv.) Q. B. iv.--New TrialTrial by Jury-Time for Applying-Ord. 39,

r. la.—Where an action has been tried by jury in London or Westminster, if no divisional court to which an application for a new trial may be made sit on the last of the four days after the trial, the application is in time if made at the first subsequent sitting.–Grant v. Holland, 49

L.J. Q.B. 800; 29 W.R. 32. (lxxxvi.) Ch. Div. M. R.-Next Friend of Married Woman - Acting as

Solicitor.-A writ issued by the next friend of a married woman on her behalf without the employment of a solicitor will be set aside with costs

against the next friend.- Swann v. Swann, 43 L.T. 530. (lxxxvii.) Div. Ct.-Notice of Trial-Time-Ord. 36, 7. 3.-A plaintiff is

entitled to give notice of trial with his reply, though the reply may not

formally close the pleadings.--Asquith v. Molineux, 49 L.J. Q.B. 800. (lxxxviii.) Ch. Div. V. C. B.- Order to attend Proceedinys-No Authority

from Client-Discharge.—An order to attend proceedings, obtained by a solicitor without the written authority of his client, will be discharged

on the client's application.- Bird v. Harris, 43 L.T. 434 ; 29 W.R. 45. (lxxxix.) C. A.Particulars--Account.-In an action in which plaintiff claimed

to be repaid out of a certain fund sums advanced by him to C., in a joint transaction with defendant who had advanced other sums, defendant, before putting in a defence, applied for an account of the amount alleged to have been advanced, with dates and particulars : Held that defendant could not require the particulars applied for before putting in his defence.-Augustinus v. Nerinck, L.R. 16 Ch. D. 13;

43 L.T. 458; 29 W.R. 225. (xc.) Ch. Div. V. C. H.-Parties--Change by Death-Application by

Successor of Deceased Defendant-Ord. 50.-Where an action has abated against a defendant before judgment, and plaintiff has not made his successors in interest parties to the action, defendant's successors should apply for an order against plaintiff that he obtain an order to prosecute the proceedings against them within a limited time, or that in default the action may be dismissed as against them, without

costs.-Motion v. King, 29 W.R. 73. (xci.) Ch. Div. V. C. M.-Parties-Patent-Co-owners--Ord. 16, r. 13,

14.-One of several co-owners of a patent can sue for an injunction and an account. An objection by a defendant for want of parties cannot

[graphic]

be taken at the hearing, though mentioned in the defence, but the proper course is to move that the other persons should be added as parties. --Sheehan v. G. E. Ruil. Co., L.R. 16 Ch. D. 59; 50 L.J. Ch. 68 ;

43 L.T. 432 ; 29 W.R. 69. (xcii.) C. A. - Parties -- Third party Notice - Ord. 16, rr. 17, 18, 20,

21.-In an action by a company against its directors and others seeking to make defendants liable in respect of dividends improperly paid out of capital, defendants applied for leave to serve third party notices on all the shareholders on the ground that they would have a right to recover the sums received by the shareholders as dividends : Held that the Court, in the exercise of its discretion, ought to refuse the application. An application by defendant for leave to serve a third party notice onght to be made on notice to plaintiff.-Wye Valley Rail.

Co. v. Hawes, 50 L.J. Ch. 75; 29 W.R. 120, 177. (xciii.) Ch. Div. M.R.-Petition Presented without Authority-Amendment

of Order.-A petition for appointment of new trustees, and a vesting order, was presented in the names of several co-petitioners, and an order made. More than a year afterwards, an application was made by some of the persons joined as co-petitioners, to have the order rescinded, on the ground that the petition was not authorised by them : Held that the order could not be rescinded, but should be amended by striking out

their names as co-petitioners.—Re Savage, L.R. 15 Ch. D. 557. (xciv.) C. A.Pleading-Allegations in Aggravation of Damages-Ord. 19, r. 4.

- Every fact of which evidence may be given at the trial is material,

and may be pleaded.—Millington v. Loring, 29 W.R. 207. (xov.) Ch. Div. F. J.-PleadingAmendment-Ord. 27, 1. 1.--In an action

to restrain defendant from committing certain acts upon a foreshore forming part of a settled estate, defendant pleaded that he had acquired an easement by prescription, and denied that plaintiff was entitled to the foreshore, “save subject to defendant's rights : " Held that defendant could not amend at the hearing, so as to raise the question of plaintiff's ownership, by striking out the words in inverted commas.—Laird v.

Briggs, 43 L.T. 632; 29 W.R. 197. (xcvi.) Ch. Diy. V. C. B.-Pleading-Issue between Co-Defendants-Notice

Ord. 16, r. 17.-In an action by A. against his trustees B. and C. for breach of trust, B. claimed in his defence contribution from C., and delivered his defence to C. : Held that c. had sufficient notice of B.'s

claim for indemnity.-Butler v. Butler, 49 L.J. Ch. 742. (xcvii.) C. A.Pleading-Payment into Court-Ord. 30, r. 1.-When plaintiff

claims for distinct pieces of work and labour alleged in separate paragraphs of his statement, defendant on paying money into Court, need not specify in his defence how much is paid in respect of each

head of claim.- Paraire v. Loibl, 43 L.T. 427. (xcviii.) C. A.Pleading-Substitution of PlaintiffTitle of Action.—Leave

having been obtained by C. to carry on an action begun by A. against B. in which the statement of claim had been delivered, in like manner as the same might have been carried on by plaintiff, if he had not assigned his interest (see Practice xii., p. 36): Held, reversing the decision of V.C.B. (43 9.T. 466 ; 29 W.R. 45), that the statement of claim ought to be annended by adding a new title to the action with C. as plaintiff, and by showing the devolution of title.—Sear v. Lawson,

29 W.R. 109. (xcix.) Ch. Div. F. J.-Transfer of Action-Further Proceeding-Charging

Order-Ord. 51, r. la.--A petition being presented by a solicitor for a charging order on moneys, the subject of an action transferred to Fry, J. for hearing, his lordship ordered the petition to be heard by himself as & further proceeding in the action.- Porter v. West, 43 L.T. 569;

29 W.R. 236. (c.) C. A.-Transfer of Stock-Vesting Order-Power to make in Chambers

18 & 19 Vict., c. 134, s. 16.–An order vesting the right to transfer stock will not be made in Chambers.-Frodsham v. Frodsham, L.R. 15 Ch. D.

317; 43 L.T. 558; 29 W.R. 165. (ci.) C. A.-Trial-Jury-Interpleader Issue-Ord. 1, r. 2; Ord. 36, rr. 2, 3.

-An interpleader issue having been directed, it was drawn up for trial with a jury, and so tried. A new trial having been directed, plaintiff gave notice of trial before a judge alone, and defendant did not give any counter-notice, bat objected at the trial to the jurisdiction of the judge to try the case withont a jary: Held that the issue could not be tried by a judge without a jury.-Hamlyn v. Betteley, L.R. 6 Q.B.D. 63; 50 L.J. C.P. 1.

Principal and Agent:-(v.) C. A.- Agent for MortgagorBankruptcy of Principal-Transfer of

Mortgage to Agent.-In 1828, plaintiff mortgaged freeholds to B. and in 1832, being about to reside abroad, he gave a power of attorney to defendant to receive the rents and profits of all his property and thereout to pay incumbrances. In 1845, plaintiff became bankrupt, but his assignee did not interfere with the mortgaged property. In 1849, defendant took a transfer to himself of the mortgage, and in 1877 the bankruptcy was annalled : Held that on plaintiff's bankruptcy defendant ceased to be bis agent, and did not become agent of the assignee, and that on the transfer of the mortgage he became a mortgagee in possession, and could plead the statute of limitations against plaintiff's claim to redeem.Markwick v. Hardingham, L.R. 15 Ch. D. 339.

Principal and Surety:(ii.) C. A.-Guarantee-Death-Notice--Covenant for Benefit of Third Party.

B. gave a guarantee to the Committee of Lloyd's on behalf of A. on his becoming an underwriter, whereby B. held himself responsible for all Ai's engagements "in that capacity.At this time Lloyd's was a volun. tary association, managed by a committee; and in 1871 it was incorporated by Act of Parliament: Held that the guarantee was not determined by notice of the death of B., and that Lloyd's were in the position of trustees for all persons with whom A. had entered into engagements as an underwriter.-Lloyd's v. Harper, 43 L.T. 481.

Probate :(ii.) P. D. A. Div.-Codicil-Incorporation --Semble a document con.

taining the words “ This is a third codicil to my will,” is not incorporated in a codicil of subsequent date by the words “this is a fourth codicil

to my will."-Stockil v. Punslon, L.R. 6 P.D. 9; 29 W.R. 214. (iii.) P. D. A. Div.-Contingent Will.-Deceased, being about to go to M.,

duly executed a will, which began, “ Being about to leave this station for M., in case of my death on the way, know all men that this is a memorandum of my last will and testament.” He reached M. in safety, but died nine months afterwards : Held that the will was pot contingent,

and should be admitted to probate.- In the goods of Mayd, 29 W.R. 214. (iv.) P. D. A. Div.-Will of Persian Subject-Decree of Persian Court

Administration with Decree Annexed.-A Persian domiciled in Persia having died possessed of property in England, administration with the decree annexed of the Persian Conrt having jurisdiction over wills and

« PreviousContinue »