page 216

X. was chargeable with the amount of the bills, did not lie. (King v. Lucas.) Separate estate-Restraint on anticipation-WillBequest. A testatrix, by her will, dated in 1875, gave all her real and residuary personal estate to trustees, upon trusts for sale and conversion, and, after payment of her debts, to raise the sum of 4500l., and to invest the same, and to stand possessed of the investments and the annual income arising therefrom upon trust, as to the annual income of the trust fund, to pay the same to R. for life, and from and after his decease upon trust to pay certain legacies, and as to 1500l. remaining part of the trust fund of 4500l., in trust for and to pay the same to E. for her sole and separate use. The testatrix declared that the interest which any female might take under her will should be for her sole and separate use, independent of any husband, "and without power to anticipate the same, and for which her receipt alone shall be a sufficient discharge.' E. married

in 1870. The sum of 1500l. was invested by the trustees upon mortgage at 5 per cent. per annum. The question was whether E. was entitled to have the capital as well as the interest of the legacy paid to her at once, or as soon as the moneys secured by the mortgage could be called in, notwithstanding her coverture. Held, that a restraint upon alienation, in the case of property given to a married woman absolutely for her separate use, was effectual to prevent her from disposing of it during the coverture, and that this rule applied whether the restraint were expressed to be of "anticipation" or "alienation," and whether the fund produced income or not; consequently the trustees would not be justified in paying the fund over to the married woman, and the court could not properly direct them to do so. (Re Bown; O'Ĥalloran v. King.)...

...

MASTER AND SERVANT. Employers' Liability Act 1880-Contributory negligence of the workmin-Liability of master.-The plaintiff's husband S. was a slater; the defendant was a builder, and had on several occasions employed S. to slate houses for him. The defendant provided the slates, poles, and scaffolding, but S. had his own tools, and was paid by the piece. On the occasion of the accident the scaffolding erected by the defendant was in a manifestly unsafe state, and the defect in it was known to the defendant or his superintendent, and S. knew that it was so known to them. S., notwithstanding the defect, ascended a ladder to finish the slating, but the scaffolding gave way, and S., who was on the ladder at the time, fell to the ground, sustaining injuries from which he died. Held, that the deceased was a workman within the meaning of sect. 8 of the Employers' Liability Act; and that, although the deceased was aware of the defect in the scaffolding, yet, as he knew that the defendant or his superintendent was aware of it also, sub-sect. 3 of sect. 2 of the Act would enable the plaintiff to recover compensation for his death. (Stuart v. Evans.)

METROPOLIS IMPROVEMENT ACTS. Powers of Commissioners of Sewers to take land for improvements-Owner's right of pre-emptionClause of particular statute conferring right of pre-emption not impliedly repealed by subsequent general statute-57 Geo. 3, c. xxix. 88. 80, 96-14 & 15 Vict. c. xci. 8.54.-The Commissioners of Sewers are not entitled, under 57 Geo. 3, c. xxix. s. 80, to adjudge the whole of a house to be necessary to be taken for the widening of a street, and to take it in pursuance of such adjudication-when in fact only a portion of the house physically obstructs such widening-with the object of reselling the remainder of the house at an increased price, and so enabling a scheme for widening the street to be carried out, the " necessity" contemplated by the Act being a purely physical necessity. The right of pre-emption given by sect. 96 of the same Act to the persons from whom lands have been purchased under the powers of the Act is not

165

138

taken away by 14 & 15 Vict. c. xci. s. 54. (Gard v. Commissioners of Sewers.)

...page 325

METROPOLIS MANAGEMENT ACTS. New street-Land bounding or abutting on-Paving expenses-Street carried over railway on a bridge. -The appellant company, in pursuance of the powers conferred on them by the Railway Clauses Act 1845 (8 & 9 Vict. c. 20), made a railway in a cutting across a public road, and carried the road over the line on a bridge. The bridge was supported on piers erected on the slopes of the cutting, and there was a parapet wall on each side of it. These walls were the property of the company. The respondent board paved the road, and called upon the company to contribute to the expenses as being owners of land bounding or abutting on 66 a new street within sect. 77 of the Metropolis Management Amendment Act 1862 (25 & 26 Vict. c, 102). It was admitted that the road was a new street" within sect. 105 of the Metropolis Management Act 1855 (18 & 19 Vict. c. 120). Held, that the company was not liable to contribute to the paving expenses either as owners of the parapet walls or of the line and slopes. (The Great Eastern Railway Company v. The Hackney District Board of Works.) 509 Vestry-Person interested in contract-Ceasing to be member-Action for penalties-Evidence of acting as member.-By the Metropolis Management Act 1855, if a member of a vestry is concerned or interested in any contract made with the vestry, he ceases to be a member, and is liable to penalties. Defendant lent money to a person who had made a contract with a vestry, and the benefit of the contract was assigned to defendant as security for the loan. Afterwards defendant was elected a member of the vestry. In an action for penalties for acting after having ceased to be a member, the attendance book, signed by defendant, and the minute book, containing his name, were produced at the trial, and the jury found for the plaintiff. Held, that sect. 54 applied to a contract made before defendant became a member of the vestry, that defendant was interested in the contract within the meaning of the section; and that there was evidence of his having acted as a member of the vestry. (Hunnings v. Williamson.)

331

MIDDLESEX REGISTRY. Registration of deed - Expunging registration Jurisdiction. A judge of the High Court has no jurisdiction to make an order that the registration of a deed in the Middlesex Registry be vacated. By the judgment in an action in the Chancery Division a deed which had been entered in the Middlesex Registry was set aside on the ground of fraud. Held, that, although it might be within the jurisdiction of the Master of the Rolls to direct that the registration be vacated, a judge of the High Court could give no further relief than a declaration that the registration ought to be vacated. (Gibbs v. Sidney.) 132

MORTGAGE.

Attornment clause-Right of mortgagee to distrain. -Defendants were mortgagees of certain premises. The mortgage deed contained a clause, by which the mortgagor attorned tenant to defendants at a yearly rent. After the mortgage the mortgagor let the premises to a tenant. This tenant assigned certain goods which were on the premises to plaintiff by a bill of sale. Defendant seized the goods so assigned to plaintiff as a distress for rent due from the mortgagor. In an action to recover damages for the seizure of plaintiff's goods: Held, that the attornment clause created a rent properly so called, with all its incident remedies, and therefore the distress was justified, and plaintiff was not entitled to recover. (Kearsley v. Philips and another.) Leasing powers-Conveyancing Act 1881-Mortgage in pursuance of agreement.-In a mortgage of land to be given in pursuance of an agreement made before the Conveyancing Act 1881, the mortgagee

435

is not entitled to a provision to expressly exclude the operation of sect. 18 of the Act, under which a mortgagor in possession has power to make leases of the mortgaged land. (Re Nugent and Riley.) page 132 Notice by mortgagor of intention to pay off mortgage -Proceedings by mortgagee.-Where a mortgagee commences proceedings to enforce his security he is not relieved from his obligation to accept in satisfaction of his security his principal and costs, with interest up to the time of payment, by the fact of his having received notice of an intention to pay him off at the expiration of six months from the date of the notice. (Re Alcock; Prescott v. Phipps.)

Power of sale without notice-Under-value-Agreement to allow purchase money to remain on mortgage Succession duty-Mutual mistake.-The plaintiff being entitled to a sum of 29161. etcck in reversion expectant on the death of an old lady aged eighty-two, obtained a loan of 16501. upon mortgage. The mortgage deed contained a power of sale upon three months' notice, or on interest being one month in arrear. The interest being in arrear, the stock was sold under the power for 1950., as subject to succession duty at 3 per cent. The tenant for life was then in a precarious state of health, and died within three months. It was afterwards found that only 77. was payable for succession duty. None of the purchase money was paid except the deposit, the remainder being left on a mortgage of the stock. There was evidence that, having regard to the age and health of the tenant for life, from 100l. to 2001. might have been obtained for the reversion. Held, that the sale could not be set aside, either on the ground of under-value, as there was no fraud; nor the leaving of the purchase money on mortgage; nor the mistake as to the succession duty, that being merely a matter for compensation. (Bettyes v. Maynard.)...

240

389

649

MORTGAGOR AND MORTGAGEE. Action in Queen's Bench Division - Transfer The personal representative of a deceased mortgagee commenced an action in the Queen's Bench Division against the mortgagor for payment of the balance of moneys lent by the mortgagee and interest. Twelve days afterwards the defendant commenced an action in the Chancery Division against the mortgagee's personal representative and heir-at-law, claiming an account and payment of the balance of any money owing by the deceased, and redemption. Held, that the first action ought not to be transferred to the Chancery Division, but allowed to proceed in the Queen's Bench Division, as the accounts could be more conveniently taken before an official referee than before a chief clerk. (Newbould v. Steade.)... Bankruptcy of mortgagor-Purchase by trustee in bankru,tcy from the first mortgagee-Effect of, on position and rights of second mortgagee.-Where the trustee in bankruptcy of a bankrupt mortgagor purchases the mortgaged property from the first mortgagee the first mortgage is not thereby extinguished so as to give the second mortgagee the first charge upon the property, but the trustee stands in the position of a transferee of the first mortgage. Neither does such a purchase affect the right of the second mortgagee to redeem as second mortgagee. (Bell . Sunderland Building Society.) Legal estate Receiver Judicature Act 1873Conveyancing and Law of Property Act 1881.-A mortgagee, having the legal estate in the mortgaged premises, and being in a position to enter into possession, is nevertheless, under the provisions of the Judicature Act 1873, sect. 25, sub-sect. 8, entitled to apply to the court in a foreclosure action for the appointment of a receiver, notwithstanding the provisions of the Conveyancing and Law of Property Act 1881, under which the mortgagee can himself appoint a receiver. (Tillett v. Nixon.) NEGLIGENCE.

Breach of duty-Supply of defective article-Injury
to stranger-Right of action.-One G., a master

JJJ

598

The

..page 357

painter, contracted with a shipowner to paint a ship, then lying in the defendant's dock. defendant, the dock owner, contracted with the shipowner to erect a staging round the ship for the purpose of having the hull painted. Whilst the plaintiff, who was in G.'s employment, was engaged in painting the hull, the staging gave way, owing to the defective condition of a rope which supported it, in consequence of which the plaintiff fell and was injured. In an action for damages for such injuries: Held, that the defendant was under an obligation to the plaintiff to use ordinary care and skill in order to supply a safe staging, and therefore the plaintiff was entitled to recover. (Heaven ". Pender.) Evidence-Railway-Accident at level crossing.Plaintiff was crossing a railway by a level crossing. A hedge and buildings obstructed the view, so that he could not see along the line to the left until he got on to the railway, but he could then have seen and he did not look. He was injured by a train approaching from the left on the further line. The engine-driver did not whistle, and the gate-keeper at the level crossing gave no warning. In an action against the railway company to recover damages for the injury: Held, that these facts showed that the injury was caused solely by plaintiff's own negligence, and therefore there was no evidence of defendants' liability to go to the jury, and plaintiff was rightly nonsuited. (Davey v. The London and South-Western Railway Company.)

739

Licensee Lord Campbell's Act (9 & 10 Vict. c. 93).-K. was possessed of a plot of land on part of which warehouses had been erected, while on the residue excavations were being carried out by the defendant, who had contracted with Kay for that purpose. The deceased, who was employed by K. to watch K.'s materials and buildings, was standing under an iron tab in which earth was being raised by the defendant's men, when the chain holding the tub broke, and the tub fell on him, thereby causing his death. It was not necessary for the deceased to stand under the tub to watch the buildings and materials. In an action to recover damages under Lord Campbell's Act (9 & 10 Vict. c. 93): Held, that the deceased was not more than a bare licensee upon the spot where he was standing, and that therefore he stood there subject to all the risks of being there, there being no obligation on the defendant to take due and reasonable care of him, and therefore that there was no evidence of liability to go to the jury, and the judge at the trial was right in directing a verdict for the defendant. (Batchelor v. Fortescue.) 442, 641 Nuisance-Obstruction of highway-Unreasonable user of highway Roller left on roadside Frightened horses-Action under Lord Campbell's Act (9 & 10 Vict. c. 93), s. 1.-The defendant left an agricultural roller between the hedge and the metalled part of the road, having removed it from a field on the opposite side of the road for his own convenience. A pony, drawing a carriage in which the plaintiff's wife was riding, shied at the roller, upset the carriage, and the plaintiff's wife was killed. Held, that the roller was an obstruction to the highway; that it was an unreasonable user of the highway by the defendant, and that the plaintiff was entitled to recover damages for the death of his wife under Lord Campbell's Act. (Wilkins v. Day.)...

PARTITION. Mortgagees-Discretion of court-Persons interested to the extent of one moiety or upwards-Partition Act (31 & 32 Vict. c. 40), ss. 3 and 4.-Mortgagees to the extent of one moiety in value of certain property, in a partition action desired a sale of the property and a distribution of the proceeds instead of a division of the property. The owners of the equity of redemption opposed. Held, upon further consideration, that the mortgagees were persons interested" under sects.3 and 4 of the Partition Act, and that being "persons interested to the extent of one moiety or upwards," it was the duty of the court under sect. 4 of the Act at their request to order a sale of the property; also that the court in

་་

39)

any case had a discretion under sect. 3 of the Act. (Davenport v. King.)

PARTNERSHIP.

an

PATENT.

345

Letters patent in two countries-Licence to manufacture in one country-Right to sell in the other country. The defendants, an English company, who were owners of patents in England and Belgium for an invention for ornamenting glass, granted to the plaintiffs, a company incorporated and carrying on business in Belgium, a licence to employ the invention for making glass at their factory in Belgium, and not elsewhere. terms of the licence, all points of difference were By the to be submitted to arbitration in Belgium. The plaintiffs, assuming their right to do so, sold in England goods manufactured by them under the licence, whereupon the defendants issued circulars warning persons in the trade that the sale in England of glass articles made abroad by employing their invention was a violation of their English patent. On application for an injunction to restrain the issue of such circulars: Held, that the licence did not imply a right to sell goods made by the plaintiffs under the license in any country where the sale would be a violation of the patent law of the country. Quere, whether the plaintiffs, if assignees of the Belgian patent, would have had the right to sell in England goods manufactured under that patent in Belgium. Circulars honestly issued to warn people not to infringe a patent by purchasing the goods of another person, ought not to be restrained before the hearing of the cause, except on a strong prima facie case. (Société Anonyme des Manufactures de Glaces v. Tilghman's Patent Sand Blast Company.) 451

POOR LAW. Illegitimate child under sixteen-Derivative settlement-Divided Parishes Act 1876.-Under 39 & 40 Vict. c. 61, s.35, illegitimate children under sixteen do not take the settlement of their mother, where such settlement has been derived from her father; they do not take their mother's birth settlement, but are deemed to be settled in the parish in which they were born. An illegitimate child may derive a settlement from its parent within the meaning of the third part of sect. 35. (Reg. on the prosecu

[April 26, 1884.

...page 59

tion of the Guardians of the Wycombe Union r. The Guardians of the Parish of St. Marylebone.)... Pauper lunatic-Married woman-Removal to husband's settlement- Consent of husband-Wife certified to be a proper person to be kept in a workhouse-25 & 26 Vict. c. 111, s. 20.-J. B. resided with his wife in the Garstang Union, but had not acquired a settlement there, and it was admitted that the last legal settlement of husband and wife was in the Preston Uuion. In 1881 the wife became of unsound mind and chargeable to the parish, and the medical officers of the union certified under 25 & 26 Vict. c. 111, s. 20, that she, being a pauper lunatic, was a proper person to be kept in a workhouse. On the 4th Aug. 1881 an order was made by two justices for the removal of the woman to the Preston Union, and the husband consented to the order of removal. The Court of Quarter Sessions quashed the order of removal on the ground that the wife could not be separated from her husband, and that she, as a married woman, was irremovable without her husband. Held, that the decision of the Court of Quarter Sessions was wrong, and that the order of removal must be upheld. (Reg. on the prosecntion of The Guardians of the Garstang Union v. The Guardians of the Preston Union.).

Wife chargeable-Maintenance by husband-Payment towards cost of relief-Limit of amount to be ordered.-By the Poor Law Amendment Act 1868, s. 33, when a married woman requires relief without her husband, guardians or overseers may apply to justices, who may summon such husband to appear before them to show cause why an order should not be made upon him to maintain his wife, and make an order upon him to pay such sum weekly or otherwise towards the cost of the relief of the wife, as after consideration of all the circumstances of the case shall appear to them to be proper, and shall determine in such order how and to whom the payments shall from time to time be made. Respondents proved, upon an application under this section, that they had granted relief to the appellant's wife to the amount of 38. a week, and that the appellant was able to maintain her at 158. a week. Held, that the justices had no power under this section to order payment beyond the actual relief granted, and that an order of 158. a week was bad. (Dinning, app., v. South Shields Guardians, resps.)

POOR RATE.

101

679

183

the owner cannot be assessed to the poor rate instead of the occupier under stat. 59, Geo. 3, c. 12, sect. 19. (Churchwardens of West Ham v. Iles.) page 205 POWER OF APPOINTMENT. Execution-Fraud on power-Appointment by will— Subsequent bargain.-The donee of a power of appointment made a valid appointment by will. By a subsequent codicil (invalid as an appointment) and also by a settlement he re-affirmed the appointment, but bargained that the appointee should make a provision for a stranger to the power: Held, that the will being an ambulatory instrument the bargain was imported into it, and vitiated the appointment as a fraud on the power, and that the appointable fund went as in default of appointment. (Re Kirwan's Trusts.)

Valid

Testamentary power of appointmentcodicil - Want of attestation - Wills Act.-A codicil purporting to execute a power of appointment, but not attested by two witnesses as required by this section of the Wills Act, does not operate as a valid appointment, though the codicil has been admitted to probate under 24 & 25 Vict. c. 114. (Re Kirwan's Trusts.)...

292

292

Power coupled with a duty-Release-Sect. 52 of the Conveyancing Act 1881 does not enable trustees who have confided to them a joint power of appointment over property in the nature of a trust to release such power. The property in such a case can only be made distributable during the lives of the trustees by their jointly executing an irrevocable appointment. (Re Eyre; Eyre v. Eyre.) 292

PRACTICE.

Action for account in England-Cross-action for gross sum in foreign court-Injunction to restrain cross-action. The plaintiffs, who were merchants and resided at San Francisco, sued the defendants, who were merchants at Manchester, in the Chancery Division, alleging that the defendants were agents, payable by commission, to purchase for and forward goods to the plaintiffs, and that they had made fraudulent overcharges; and claiming an account of dealings so as to charge the defendants with all profits in excess of those stipulated for by the agreement set up as existing between them. The defendants delivered a statement of defence, alleging that they were vendors and not agents, and that the plaintiffs owed them 28841. on settled accounts. The defendants did not, however, counter-claim in the English action, but commenced an action against the plaintiffs at San Francisco for the 28841. The plaintiffs then moved for an injunction to restrain the proceedings at San Francisco, undertaking to confess judgment in those proceedings, to be dealt with as the English court should direct, and to pay into court in England the 2. Held that, as the plaintiffs had not shown that the proceedings in San Francisco were vexatious, the burden lying on them to prove vexation, the application must be refused. Quare, whether

645

there would not have been vexation, and jurisdic tion to restrain the proceedings abroad, if it had been shown that the defendants could obtain no advantage whatever abroad which they could not obtain in a counter-claim in the English action, or if a decree for an account had been made in the English action. (Hyman v. Helm.)... Action on foreign judgment.-An action on a foreign 376 judgment is within the terms of Order III., r. 6, and therefore the plaintiff in such an action can obtain judgment under Order XIV. Easton.) (Grant . Administration-Wilful default-Inquiries. plaintiffs brought an action for administration against the trustees of a will, alleging by their tatement of claim acts amounting to fraud and wilful default, and asking for such special declarations, accounts, and relief as under the circumstances they were entitled to. At the hearing they asked only for the common administration order, and claimed to postpone all evidence upon the charges of fraud, and add in chambers such inquiries as they might be entitled to in respect of these charges. Held, that they had no right to

The

page 236

insist on the postponement of the charges, and must prove them at the hearing or abandon them. The plaintiffs declining to go into evidence to establish the charges at the hearing, the action was dismissed with costs so far as it asked anything further than the common administration order. (Smith v. Armitage.) Administration_actions-Conduct of proceedingsFirst action defective-Partnership creditor suing for administration of deceased partner's estate.A partnership creditor is not entitled to sue for administration of a deceased partner's estate without joining the surviving partner as a defendant, even though the surviving partner is insolvent Re McRae; Forster v. Davis; Norden

v.. 514

McRae.) Admissions on pleadings-Motion for judgment Summons in chambers-R. S. C. 1883, Order XXXII., r. 6.-In Pearson, J.'s brauch of the court applications for orders upon admissions on pleadings will in futuro not be heard upon motion on motion days, but must be made by summons in chambers, to come on in court as adjourned summonses. (Gough v. Heatley.) Affidavits-Special examiner-Costs-Gen. Ord. 5th Feb. 1861, r. 19-Rules of Court 1875, Order XXXVIII., r. 4.-On an application in an administration action for the appointment of a special examiner, and as to the costs of the cross-examination on the affidavits: the Court appointed a special examiner to take the cross-examination of the deponents, and ordered the expense of the production of the deponents to be borne in the first place by the party who produced them for crossexamination, and not by the party requiring such deponents to attend for the purpose of being crossexamined. (Re Knight; Knight v. Gardner.) Appeal-Criminal cause or matter-Judicature Act 1873, s. 47.-A judgment of the Queen's Bench Division striking a solicitor off the rolls in consequence of his misconduct, is not a judgment of the High Court in a criminal cause or matter within the meaning of the Judicature Act 1873 (36 & 37 Vict. c. 66), s. 47, and an appeal lies to the Court of Appeal. (Re E. F. Hardwick, a Solicitor.)

Extension of time-Special ground-CompanyWinding-up petition-Palatine Court-Power to rehear-Liability on shares-Transfer-Rules of Court 1875, Order LVIII., r. 15.-An extraordinary resolution was passed by the shareholders of a company that the company shouln be wound-up voluntarily. This resolution was void, the majority of the members voting not being entitled to vote. A creditor afterwards filed a petition in the Chancery Court of the Duchy of Lancaster for a supervision order or for an order for a compulsory winding-up, and the former order was made, neither the court nor the petitioner being aware that the resolution for a voluntary winding-up was invalid. Five months afterwards, the petitioner, having discovered its invalidity, moved before the Vice-Chancellor for the discharge of the supervision order, and for an order for a compulsory winding-up. The Vice-Chancellor refused this on the ground that he had no jurisdiction to rehear the petition. From this decision the petitioner appealed, and also applied to the Court of Appeal for leave to appeal against the supervision order, notwithstanding the lapse of time. The executors of a former shareholder who had transferred the shares held by their testator in order to escape any liability on them, less than twelve months before the original petition was presented, but more than twelve months before the case came before the Court of Appeal, opposed the application for leave to appeal, on the ground that, if an order were now made on the original petition, they would be liable under sect. 38 of the Companies Act 1862. Held, that leave to appeal ought to be given notwithstanding the lapse of time, as the mistake as to the validity of the resolution was a special ground for the application, and the respondents had no equity to resist it. The principle on which the court grants extension of time for appeal observed upon. (Re Manchester Economic Building Society.)

...

772

91

531

793

Appeal-Time-Order in winding-up and in an action -Order LVIII., r. 9.-A holder of debentures of a company commenced an action on behalf of himself and the other debenture holders to enforce their securities, and after this an order to wind-up the company was made. The Secretary of State for India then agreed to take over the undertaking on certain terms, and an order was made in the winding-up by which the arrangement was sanctioned, and it was declared that none of the money so payable by the Secretary of State was to be treated as assets of the company. An ansecured creditor who did not know of this order when it was made applied for leave to appeal. This application was made more than twenty-one days after he received a copy of the order, but within the time for appealing from a final order in an action. Held, that as the applicant could not have been a party to the action, as regarded him the order must be treated as made in the winding-up only; that Order LVIII., r. 9, applied, and that he was out of time. (Re Madras Irrigation and Cana! Company; Wood v. Madras Irrigation and Canal Company.)... Arbitration-Reference to-Application for receiver -Stay of proceedings in action-Power of courtCommon Law Procedure Act 1854 (17 & 18 Vict. c. 125), s 11.-An agreement, having reference to a ship, which S. and Co. had undertaken to build for a company, contained a clause providing that all matters in dispute should be settled by arbitration. The company alleged that the ship was not properly constructed in accordance with the agreement, it having been, in fact, refused any classification at Lloyd's. They commenced an action against S. and Co. and W. and Co. (who were assignees of S. and Co.), claiming a lien upon the ship for sums which they had paid; repayment of such sums; the appointment of a receiver; and an injunction. A motion was now made on behalf of S. and Co. and W. and Co. that all proceedings in the action might be stayed, and the matters in dispute referred to arbitration. There was a counter motion of the company for a receiver, and they contended that, as it was necessary to appoint a receiver, no order could be made on the other motion. Held, that the court had power to appoint a receiver and to send all the rest of the action to be determined by arbitration and to stav all other proceedings, except for the purpose of carrying out the order for a receiver, with general liberty to apply, so as to enable the parties to make any necessary application pending the arbitration. (Compagnie du Sénégal et de la Côte Occidentale D'Afrique v. Smith and Co. and Woods and Co.)

527

Commission-Evidence-Examination of party to action-R. S. C. 1883, Order XXXVII., r. 5.-The court has power to order a commission to issue for the examination abroad of a party to an action, though the circumstances which will induce the court to make such an order are different from those required to be shown on an application for a commission to examine a mere witness. If the names of some of the witnesses to be examined on a commission abroad are specified, the court may grant the commission for the examination of the witnesses named "and others." Where a plaintiff, residing abroad, claimed as an heir-at-law who had been missing for twenty-four years, Kay, J. ordered a commission to issue to take his evidence abroad without prejudice to the right of the defendant to cross-examine him at the trial in England in the presence of witnesses who could speak to his identity. Held, on appeal, that the order must be varied by directing that the depositions of the plaintiff were not to be read at the trial without the consent of the defendant. (Nadin v. Bassett.) 454 Companies Acts 1862 to 1880-Provisional liquidator -Rules of Court 1883, Order L., r. 17-Appointment in chambers.-Under Order L., r. 17, which provides that, when any judgment or order is pronounced or made in court appointing a person therein named to be receiver, the court or a judge may adjourn to chambers the cause or matter then pending, in order that the person named as

[April 26, 184.

page 567

107

receiver may give security as in the last preceding rule mentioned, and may thereupon direct such judgment or order to be drawn up, the appointment of a provisional liquidator of a company can be adjourned into chambers. (Re The Hoyland Silkstone Colliery Company Limited.) Compulsory reference-Common Law Procedure Act 1854, s. 3.-An action may be referred under sect. 3 of the Common Law Procedure Act 1854, although the question in dispute does not consist entirely of matters of mere account. (Martin v. Fyfe.)... Conditional appearance-Defendant partners-Service of writ-Service out of jurisdiction-Substituted service-R. S. C. 1883, Order IX.. rr. 2, 6; Order XII., r. 15; Order LXX., r. 1-Costs.-A conditional appearance is subject to the same rules as to form as a regular appearance. Where a writ has been served on a wrong person, and service is possible on the right person, leave will not be given under Order LXX., r. 1, to amend the irregularity, but the faulty service will be discharged with costs upon the application of the person intended to be served. (Nelson v. Pastorino and Co.) Consent order-Withdrawal of consent.-The con561 sent to an order may be withdrawn at any time before the order has been completed, provided the consent was not given after a statement of the facts had been made to the court. (Harvey v. The Croydon Union Rural Sanitary Authority.) Costs-Compulsory purchase of lands-Payment out of court-Special Act-Discretion of court-Order LV.-The court has power, by virtue of the general discretionary powers conferred by Order LV., to order that the costs of a petition for the payment out of the court, to a person absolutely entitled, of a fund paid into court by a company in respect of lands taken under the compulsory powers of a special Act, be paid by the company, although the special Act is prior to the Lands Clauses Consolidation Act 1815, and contains no provision as to such costs. (Re Lee and Hemingway.)

567

155

Claim and counter-claim both successful Apportionment.-Where the plaintiff's claim and the defendant's counter-claim have both been successful, the defendant, in the absence of any special direction as to costs, pays to the plaintiff the general costs of the action, though the amount recovered by the defendant in the counter-claim is larger than the amount recovered by the plaintiff on his claim. Such costs as would have been duplicated had the counter-claim been an independent action will not be apportioned, but the plaintiff will not recover as costs of the action any costs attributable to the counter-claim. (Re Brown; Ward v. Morse.) 63

Partnership action - Unsuccessful claim. The executrix of a deceased partner, in an action to have the partnership accounts taken, raised a question, unsuccessfully but not improperly, as to the value of part of the partnership property. Held, that the costs of such claim were costs for the purpose of ascertaining the amount to be divided between the partners and were properly allowable to the plaintiff out of the assets, and having been allowed by the court in the exercise of its discretion, there was no appeal. (Butcher v. Pooler.)...

573

Perusals-Exhibits-R. S. C. Aug. 1875 (Costs)— Order VI., schedule. The costs of perusals of exhibits to affidavits are not allowed on taxation under the Rules of Court Aug. 1875 (Costs), Order VI., without a special direction to the taxing master, who by the form of order has liberty to allow a special charge for perusal and consideration of the exhibits, the amount of such charge, if any, to be in his discretion. De Rosaz.) (Re De Rosaz; Rymer v. 133

Shorthand notes of evidence and judgmentPrinted copies-Rules of the Supreme Court 1875 (Costs), Order VI., Schedule.-Where the Court of Appeal makes the common order giving the costs of the appeal and of the shorthand writer's notes of the evidence and judgment in the court below, and the shorthand notes have been printed in the first instance, the solicitor of the successful party is entitled on taxation to the amount of the