The Irish Jurist

Where an appellant makes in the Court of Appeal a case differing from that made in the court below, though the court may reverse the decree appealed from, it will make the appellant pay the costs of the appeal. fb.

Cases decided in the Court of Appeal in Chancey are not to be reheard. Falkiner v. Thornidge, 9 Ir. Ch. R. 168, C.

fault equally among the children. The settlement contained the usual hotchpot clause, but none for advancement. This fund was invested on mortgage. There were five children of L's marriage, and in 1844, on the marriage of one of them, A, L settled 1,000l. of his own monies upon her husband, herself, and their issue. In 1845, L made his will and appointed the 5,000l., as to 1,000 to his daughter J, and the residue among hs remaining children, excepting A. By his will he also be queathed 1,2007. to the trustees of A's settlement, for her be lefit; in 1848 the settlor, on the marriage of J, gave 1,000l. of his own monies, and secured 1,2007 upon trusts for J, her husband, and their issue. By a subsequent codicil, L revoked the appointment by his will to J, by reason of the monies give on her marriage. In a suit by the trustees of the settlemen, for a declaration as to the rights of the parties, Held, that the sum appointed to J, and revoked by the codicil, was to go as in default of appointment. Folkes v. Western (9 Ves. 450), approved of. Noblett v. Litchfield, Reports temp. Napier by Drury, 158; s.c, 7 Ir. Chan. R. 575, C.

Held, further, that A and J were not excluded from sharing in the said sum. Ib.

Held, further, that L could not be taken to be a purchaser of the shares of A and J, in the unappointed part of the settled fund. Ib.

PRACTICE (EQUITY).

Administration of Assets.] In an administration suit, under the common order to account, the Master has jurisdiction to entertain the question of mal-administration by an administratrix, such as the payment of simple contract debts in priority to bond debts. Nason v. Peard, 5 1r. Jur., N.S., 137, C.

Where a residuary legatee files a cause petition to have a charitable bequest declared void for want of an object, and the court is of opinion that there is sufficient evidence of a general charitable purpose to warrant a reference to the Master, to construct a scheme, the residuary fund must bear the costs of the petition up to the reference; but the costs of the parties appearing in the office must come out of the specific fund. Daly y. Attorney-General, 5 Ir. Jur., N.S., 297, C.

Affidavit.] The affidavit of a party in a cause, so far as it states or charges facts merely for the purpose of eliciting a reply, is admissible as part of the pleadings, although not as evidence. Kernaghan v. Kell, 5 Ir. Jur., Ñ. S., 163, C.

Amendment.] The 98th General Order (1843), limiting the time for application to amend a decree to 6 days after the decree has heen pronounced, will be construed strictly, and the only remedy is by petition to re-hear. O'Neill v. Innes, 5 Ir. Jur., N. S. 208, C.

Appeal Court.] An order was made by one of the judges of the Landed Estates Court, disallowing E's claim on the schedule of incumbrances, and placing M's claim prior to W. On appeal by E, he abandoned all question of the validity of M's claim, and obtained an order establishing his own claim on the schedule; W withdrew his appeal, and thereupon E, finding that the validity of M's claim would not be disputed, as he expected it would be in W's appeal, sought to have his original appeal reheard, only so far as it related to the question of the validity of M's claim. Motion refused; the whole appeal must be reheard. In Matter of J. Sadler, Owner; 5 Ir. Ju., N.S., 50, C. of Ap.

B, the widow of A, claimed dower of lands, to which A derived his title through R, who had purchased them at a sale under the Court of Chancery, and the legal estate being found to be outstanding in a trustee resident out of the jurisdiction. IS was appointed to convey the lands to R, under the 1st William 4, cap. 60, sec. 8. In her petition B relied on the above conveyance from the court above, and obtained only partial relief. Before the Court of Appeal, B brought forward additional evidence, going behind the conveyance from the court, and establishing the title of the different parties to that conveyance; and thereupon it was referred to the Master, to inquire and report what lands A had died seised of in fee-simple. Held, that as the appellant had neglected to state and bring forward her whole case at the original hearing, she should be visited with the respondent's costs. In re Kernaghan, petitioner, 5 Ir. Jur., A.S., 51, C. of Ap.

A trustee filed a cause petition for the recovery of a portion of the trust property, alleged by him to have been mis-applied; his petition was dismissed. A cross suit was heard at the same time, by the decree in which, the trustee was removed from his office of trustee. Held, that having been removed from the trusteeship by the decree of the court, and that decree being not appealed from, he could not maintain an appeal from the order dismissing his own petition. Leach v. Wallace, 9 Ir. Ch. R. 147, C.

In the taxation of the costs of cases heard before the Court of Appeal. The Taxing Masters should be guided by the importance of the case, and allow the fees of the counsel who addressed the court, and exercise their discretion as to the necessity of a fee for a third counsel. In re Putland, 5 Ir. Jur., N.S., 118, C. of Ap.

Creditor's suit.] Lands were sold in the Incumbered Estates Court, and the proceeds brought in to a cause pending in the Court of Chancery, to be there administered. W, the first incumbrancer, was not made a party to the suit, and the fund was paid out to P, a puisne incumbrancer. Held, that, having regard to the position of P as a solicitor having notice of the claims of the petitioners, that P was liable, in a suit instituted for the purpose, to make good to W the amount, with interest from the time at which P had so received it. Walker v. Power, Napier temp. Drury, 668. This decree was affirmed; 9 Ir. Ch. R. 527, C. of Ap. The Court of Appeal holding P only liable for interest from the date of the notice calling on him to reSee Todd v. Studholme, 3 Kay & Jon. 324, place the fund.

29 L. Ti. O. S. 24.

Dismissal of Petition, s. 15.] A cause petition under the 15th section stood under the 51st General Order, 1857, dismissed no final order having been filed within the time limited by the Masters. The petitioner in the dismissed suit presented a second petition praying that in proceeding on that petition the Masters should have regard to the proceedings had on the dismissed petition. The court referred the second petition to the Master, without prejudice to any question as to its regularity, the costs of this petition to be in the discretion of the Master. Moore v. Keogh, 5 Ir. Jur., N.S., 300, C.

Evidence.] Under the 14th & 15th Vict. c. 99, s. 2, the court will, where the plaintiff resides abroad, issue a commission to examine the plaintiff himself on his own application. Codd v. Donnelly, 9 Ir. C. L. R. 465; s. c. 4 Ir. Jur., N.S., 241, Q. B.

Revivor. Petition of,] Where a final decree has been made, directing the payment of a sum of money, the Statute of Limitations runs from the day on which the decree was pronounced; and a petition of revivor, filed after the lapse of 20 years from the above date is barred, notwithstanding that permission to file the petition had been obtained in the Rolls prior to the expiration of the 20 years. Dunne v. Doyle, 5 Ir. Jur., N.S. 208, C.

Semble-Where a husband proves a will in right of his wife, and the wife survives him, she is liable to a devastavit for the assets which came to her husband's hands. fb.

Service of Subpoena.] In a suit by bill and answer, after decree, upon application of a defendant having the carriage of the proceedings, where the solicitor for the defendant had died and no other solicitor had been named in his place, the court allowed the defendant having the carriage of the proceedings to proceed in the suit before the Master, serving the other defendants (and such as resided out of the jurisdiction by substiution of service or otherwise) as the Master should direct. De Morin v. Henry, 5 Ir. Jur., N.S. 300, R.

Supplemental Petition.] A supplementary petition, in the nature of a petition of review, prayed that a decretal order in an administration suit, under s 15, might be reviewed, and that the administratrix be disallowed credit for all payments made by her not in due course of administration, and that she should be directed to pay petitioner the sum so misapplied. The supplemental petition only shewed that it ap

peared from the evidence attached to the decretal order, that the administratrix had paid simple contract debts in priority to specialty debts. Held, this was not the proper case for such a proceeding, and the petition was dismissed with costs. Nason v. Peard, 5 Ir. Jur N.S., 137, C.

Semble, the correct course of procedure where the error appas upon the decree is to appeal, or, if the decree be enrolled, to proceed by petition of review. Ib.

Where a supplemental petition in the nature of a petition of review, on newly-discovered matter, has been filed, the original cause must be reheard before the Court of Appeal, at the same time with the supplemental petition as to the new matter. Orme v. Fetherston, 5 Ir. Jur., N.S., 245, C. of Ap.

The original cause petition should, for this purpose, be set down in the Lord Chancellor's list of causes, and the order for rehearing should direct that the supplemental petition be heard together with it. Ib.-See Barton v. Sampson, ( Ir. Jur., N.S. 401).

Amendment.

PRACTICE (LAW).

A plaintiff may amend his summons and plaint upon paying the defendant the costs of the motion to obtain liberty to amend. Earl of Darnley v. Liscombe, 9 Ir. C. L. R., App. v.

The court after judgment by default in an ejectment cause will not amend, by changing the venue to the county where the lands lie, it having been by mistake laid in a wrong county. The Grocers' Company v. Coll., 9 Ir. C. L. R., App. viii.

After a trial had, this court requires, upon an explicit and satisfactory affidavit, a case of surprise to be made out to enable - them to grant an application to file a new defence, where the effect of so doing would be to remodel the pleading and have a new question tried between the parties. Adams v. Atkinson, 9 Ir. C. L. R., App. xviii.; s.c., 4 Ir. Jur., N.S, 305, Q.B.

Bill of Particulars.] A defendant should, in his bill of particulas, explicitly, identify the dates of payments whereon he means to rely. Bourke v. Scott, 5 Ir. Jur., N.S., 100, Ex. Costs.] The plaintiff recovered judgment in the superior courts, for the sum of 147, having, at the time of bringing the action, an office or place of business within the jurisdiction of the civil bill court of the county in which the cause of action arose, and in which the defendant resided. Held, that

such a residence was sufficient to bring the action within the construction of the 97th section of the Common Law Procedure Act, 1856. Darcy v. Hastings, 5 Ir. Jur., N.S., 38 C.P.

In an action of trespass, a verdict for £5 damages, was awarded by the jury. The judge certified "that the trespass was wilful" (Common Law Procedure Act, 1853, sec. 126),

and that it was a fit case to be tried in the superior court," (Common Law Procedure Act, 1856, s. 97). The Taxing Master under the Common Law Procedure Act, 1853, s. 243, certified for but half the amount of the costs as taxed. Held on appeal, that the certificate of the Master was correct. Manning v. Chadwick, 9 Ir. C. L. R., xxxii.

Where an action of contract had been brought for a sum less than 20%., both parties residing within the same civil bill jurisdiction, and judgment was obtained on confession, and the costs were taxed without the defendant appearing before the Taxing Officer, or objecting thereto and were afterwards paid by the defendant under pressure of execution, the court subsequently, on the motion of the defendant, ordered the costs to be refunded to the plaintiff. Wilson v. Keogh, 9 Ir. C. L. R., App., xlviii.

Ejectment.] A defendant in ejectment who claimed under an unregistered lease, subsequent in date to an unregistered lease under which the plaintiff derived, registered his lease after aetion brought, and before the trial. Held, that the plaintiff was entitled to a verdict and judgment for his costs in the terms of the 204th section of the Common Law Procedure Act, 1853. Ryan v. Landers, 9 Ir. C. L. R., 487.

Enquiry.] In an action to recover damages for slander, the plaintiff, having marked judgment by default, served notice on the defendant personally, of speeding his writ of enquiry before the sheriff. Held, that the defendant was entitled to an order by the court, that such writ of enquiry

should be sped before the Master. Segrave v. Duffy, 5 Ir. Jur., N.S., 170, Ex.

Interrogatories.] A party is not bound to state in his affidavit, by way of answer to interrogatories, that by doing so he would criminate himself. When it appears on the face of the interrogatories, that the answering of them may have the effect of criminating him. M'Mahon v. Ellis, 5 Ir. Jur., N.S. 16, C.P.

Leave granted to deliver interrogatories to the plaintiff, before defence filed, and the time for pleading extended until two days after the interrogatories shall have been answered. White v. Gahagan, 5 Ir. Jur., N.S., 173, C.C.

It is not necessary that interrogatories exhibited under the 56th section of the Common Law Procedure Amendment Act,

1856, should be signed by counsel. Sinnott v. The People's Provident Insurance Company, 9 ir. C. L. R., 180.

Jury.] An action for penalties under the Corrupt Practices Prevention Act. Held, to be a case in which an application for a special jury, under the late practice ought to be granted. Lester v. Fegan, 5 Ir. Jur., N.S., 70; s. c., 9 Ir. C. L. R., xliii.

An application was made in an action-instituted by an eminent merchant in Dublin, involving serious mercantile questions relative to partnership accounts, and--wherein a former jury had disagreed, for an order to strike a special jury under the old system, pursuant to the 16th and 17th Vict., cap. 113, sec. 112, upon the grounds that the plaintiff, being a member of the town council, and of the principal' public and commercial boards in the city, was, consequently, possessed of great influence among the persons returned on the special jury panel; and therefore the defendant, who was a stranger, believed that he could have a fairer and more impartial tribunal in having a special jury struck under the old system. Held, that the above grounds were in sufficient to justify the court in granting the motion. Each application of this nature must be decided according to its particular circumstances. Codd v. Thompson, 5 Ir Jur., N.S., 105, Ex.

The notice of trial served by the plaintiff on the defendant, was not accompanied by a notice that the plaintiff intended to bave the case tried by a special jury. Leave granted to have it so tried, notwithstanding this omission. Scanlan v. M'Carthy, Ir. Jur., N S., 199, Con. C.

A political case, where strong party prejudices might possi bly operate, and where it was stated that an action was instituted under the Corrupt Practices Prevention Act, ostensibly to recover penalties for bribery, but, in reality, to assist a pending election by the extraction of evidence from the witnesses at the trial, is not, per se, such a case as would warrant the court in granting an order to strike a special jury under the former system. Magee v. Mark, 5 Ir. Jur., N.S., 131.

The courts require that notice of an application for an order given to the opposite party. 1b. to strike a special jury, under the former practice, shall be

The granting of such an application is in the discretion of the court. Ib.

The facts upon which the motion is grounded should be stated us tinctly in the affidavit upon which it is founded. Ib.

Motion If the court has directed that no rule be pronounced upon a motion; such an order will prevent the renewal of the same motion. Hargreave v. Meade, 9 Ir. C. L. R., App. xlv.

Security for Costs.] When an appeal is brought in the Court of Error, the court below has no jurisdiction to make an order that the party appealing should give security for costs. The application should be made to the Court of Appeal. Moore v. Great Southern and Western Railway Company, 9 Ir. C. L. R., App. vi.

To compel a plaintiff resident out of the jurisdiction of the court to give security for costs, an affidavit by the defendant that he has just defence to the action on the merits," is sufficient. Caldwell v. Lord Kilworth, 9 Ir. C. L. R. App. vii. While a motion is pending for security for costs judgment cannot be marked by the plaintiff. Stewart v. Bollance, 5 Ir. Jur., N.S. 71, Ex.

In an action for penalties under the Corrupt Practices Prevention Act, the 17 & 18 Vict, c. 102, the defendant made an affidavit stating that he had a good defence on the merits, and that the plaintiff was not the real plaintiff, but was put

To an action for a specific sum of money, the defendant pleaded, as to part, a set-off "for goods of the defendant, which the plaintiff converted to his own use;" and in this endorsement of particulars set forth the value of the goods in monies numbered. Held, bad on demurrer. Cuffe v. Lawson, 5 Ir. Jur., N. S., 286, Q. B.

Action to recover 250l. expended in pursuance of an agree ment to the effect that if A B, the tenant of a farm of land to B C, would cause to be erected on said lands certain farm buildings, B C, would pay to A B, suck sum as should be expended by A B in the erection thereof. Defence-That the agreement was in relation to lands, and that neither was there auy agreement in writing, nor was there any memorandum or notice of such agreement signed by the said B C or by any other person by him lawfully authorised, as required by the statute in such case made and provided. The plaintiff demurred to this defence. Held, that such defence was not sustainable. Foley v. Connolly, 5 Ir. Jur., N. S., 312, C. P.

In an action for rent, on a demise, the defendant pleaded that a third party was in possession of a portion of the premises, at the time of the making of the demise, under a prior lease from the plaintiffs. Held, that the reversion expectant on such prior lease passed under the subsequent lease. Ecclesiastical Commissioners v. O'Connor, 9 Ir. C. L. R. 242; s. c., 4 Ir. Jur., N. S., 148, Q B.

When a landlord who is in possession of one portion of the premises, and has only a reversion in another, grants a lease of the whole, such lease operates as a lease in possession of all such lands as were in the possession of the landlord at the time of the making of the demise, and a lease in reversion of the remainder. Ib.

Equitable defence.] H G C, a tenant in tail under a deed of settlement which gave him no leasing power, executed a lease for thirty-one years or three lives to M L, and died. The remainder-man brought an ejectment on the title against M L, who after defence filed, moved for leave to plead the lease as a further and equitable defence to the action--it being a valid lease or contract for the grant of a lease, in equity for twenty-one years under the 12 & 13 Vict, c. 26, s. 2. Held, that the lease did not constitute an equitable defence within the C. L. Procedure Act, 1856, 19 & 20 Vict., c. 102, s. 85. Carpenter v. Larkin, 5 Ir. Jur., N.S., 174.

Replication.] To an action on a policy of insurance. Defence the Statute of Limitations. Replication-That before six years clapsed J B filed a cause petition in the Court of Chancery to enforce payment by his demand. The defence to the suit was that before the commencement of the suit the policies had lapsed by non-payment of the premiums, and that the Court had directed this action to be brought to try that question. Held. that the pendency of that suit was a good equitable answer to the defence. Supple v. Cann, 9 Ir. C. L R., 1, C.P.

Setting aside.] In an action for assault and false imprisonment, the defendants pleaded that they did not maliciously, or without reasonable or probable cause, assault the plaintiff, or cause him to be imprisoned, as in said count complained of. Held, that such a plea was double, as putting in issue the existence of the malice and the fact of the assault. (Pigot, C B., disentiente.) Brennan v. Williams, 5 Ir. Jur., N S., 18; s. c. 9 Ir. C. L. R. App. 35; Ex. overruling, Winton v. Moore, 8 Ir. C. L. R. 234.

To a count alleging that the defendant "maliciously, and without reasonable and probable cause, gave the plaintiff in charge to a policeman, and caused him to be imprisoned," &c. The defendant pleaded, "that he did not do all or any of the acts alleged maliciously, or without reasonable and probable cause." Held, that the plea was bad. Brennan v. Williams, 5 ir. Jur., N. S., 18., affirmed. Smith v. Whelan, 5 Ir. Jur., N.S., 93, Q.B.

The court in reforming pleadings, objected to as embarrasing, will endeavour to have them so framed as to secure the trial of the real question in the case for the advantage of both parties, and with the view of saving expense. In pleading under the Justices' Protection Act, the defendant is bound to state unambiguously, the specific matters wherein he alleges he exceeded his jurisdiction. Clarke ▼. Scully, 5. Ir. Jur., N.S., 96, Ex.

In an action by a weighmaster, to recover damages for disturbance in his office, a paragraph in the summons and plaint averrung, that the defendant, intending to injure and disturb, &c., on divers days, wrongfully disturbed the plaintiff in the

free enjoyment, &c., of his said office, by employing his ser vants to stand near plaintiff's weigh house to entice away from, and induce not to resort to, said weigh-house, divers customers, &c., who but for such acts, &c., would have resorted thither," was set aside as embarrassing, on the ground that plaintiff should have distinctly shown acts done by defendant, and whereby the plaintiff was injured. Dexter v. Hayes, 5 Ir. Jur., N. S., 98, Ex.

A general rule would be desirable, requiring that notices of motion to set aside pleadings as embarrassing, should state specifically the objection to be relied upon, such motions being in the nature of special demurrers. The courts are disposed in such cases to withhold costs from the party objecting, unless he states in his notice the points he means to rely n. Martin v. Lane, 5 Ir. Jur., N. S., 99, Ex.

Where to a summons and plaint for work and labour, and materials, &c., the defendant could not, under the circumstances of the case. traverse, inasmuch as he admitted the work was done, nor plead payment, as the sum "claimed" had not been paid; the only course open to him was to plead specially. Bourke v. Scott, 5 Ir. Jur., N. S., 100, Ex.

Where an attorney filed, in the name of a minor, a defence which was set aside on the ground that the minor should have appeared hy guardian, the court ordered the attorney to be, personally liable for payment of the costs. Mulcahy v. Mulcahy, 5 Ir. Jur, N. S., 105, Ex.

A plaint averred, in the first paragraph, that defendant was indebted, &c., in the sum of 116 16s for rent of certain lands, let under a lease for a life in being. The defence stated that "the said C D appears, and takes defence to the action of the said A B (plaintiff) and says as to 581. 88., parcel of the sum claimed in said first count, &c., &c., that until default was made in the performance of certain covenants [fully set forth] he, the said A B, should, &c, from time to time, &c, during the continuance of said demise, accept and take, &c., the yearly sum of 581. 8s. in lieu of said rent of 1167. 16s. thereby reserved [defence then proceeded to aver performance of covenants by lessee, and that there had been no default,] and therefore he defends the action. Held, that the defence was embarrassing, inasmuch as it was uncertain whether it was intended to be a general defence to the whole action, although it answered only a portion thereof, or whether it was meant only to answer part of the cause of action, and leave it open to the plaintiff to mark judgment on the remainder. The ruling in Garrett v. Waldron, 9 Ir C. L. R., App. xxiv. Q.B., confirmed, Dunsandle v. Finney, 5 Ir. Jur., N. S., 168.

In an action of trespass to try a right of way, defendant justified under a lost deed of grant from a former owner. The plea stated that the grant was made "by John Cole, aftewards Baron Mountflorence, to the then Lord Bishop of Clogher." Held, that this general statement of the grantee's name did not make the defences embarrassing, within the meaning of the 83rd sec. of the Common Law Procedure Act, 1853. Steele v. Irwin, 5 Ir. Jur., N. S., 177, C. C.

The court will not set aside upon motion, as false and sham, a single defence upon which issue can be taken. O'Donnell v. Reilly, 5 Ir. Jur., N. S., 241, Ex.

The plaintiff, with his father and mother, had made a proposal that the plaintiff should marry the defendant's daughter, A, the defendant, having heard rumours prejudicial to the character of plaintiff, made, and caused inquiries to be made, by A's uncle and brother, (who were defendant's brother and son,) concerning the truth of these rumours. The result of these inquiries was, that the defendant received information which he had reasonable grounds for believing to be true, and which was in substance the same as the alleged defamatory matter in the plaint mentioned. Defendaut told plaintiff's father and mother, in the presence of A's uncle and brother, the said information which he had so received, which was the speaking and publishing of the defamatory words in the plaint mentioned. Defence-That the defendant spoke the said words bona fide, and without malice. Held, that on motion to set aside this plea as embar asing, the court would not decide whether this was a privileged communication. Rosbotham v. Campbell, 5 Ir. Jur., N. S. 243.

Held also, that the plea admits the defamatory sense imputed to the words in the plaint, inasmuch as it does not traverse or deny that sense. 16.

The plaint stated that the indenture was made between the said plaintiff by his then name and description, &c, of the one part, and the said plaintiff of the other part scaled with the

seal of the said defendant. A demurrer, because it did not appear by the plaint, that the defendant was a party to, or had signed the deed declared upon, was set aside as frivolous. Berkeley v. Whitty, 5 Ir. Jur., N. S., 198, C. C.

To an action for breaking and entering the houses of the plaintiff, the defendant pleaded that the said houses were not the property of the plaintiff Defence set aside. v. Williams, 5 Ir. Jur., N. S., 285, Q. B.

Willions

When special damage is averred but is not the gist of the action, a plea confessing and avoiding the special damage must be pleaded to, as such, and not as a defence to the whole cause of action. O'Hanlon v. Murray, 5 Ir. Jur., N. S., 309, Q. B.

A defence to an action of ejectment for non-payment of rent which stated, "that the rent claimed is not, nor is any part thereof, due to the plaintiff, &c." and on which there was no endorsement of particulars. Held, embarrassing. Moore v Fisher, 5 Ir. Jur, N. S., 291, C. P.

The se ond paragraph in the summons and plaint stated an agreement by the defendant to build a dwelling-honse according to certain plans and specifications, and of the best materials. Breach-ihat he defendant made certain specific deviations from the original plans and specifications, and used certain specific materials of a bad and improper description. Plea-That everything was done by the defendant according to the terms of the agreement. Held, that this defence was embarrassing. Smyly v. Kelly, 5 Ir. Jur., N.S., 321, Q. B.

In a plea of set off, the defendant, by a clerical error used the word "plaintiff" for "defendant," and vice versa, upon a motion to strike out this defence as embarrassing, the court, considering that the motion might have been rendered unnceessary had the plaintiff called upon the defendant by notice to amend, allowed the defendant to amend the plea by substituting the word "plaintiff" for the word "defendant," and rice versa, refused to make any rule upon the motion, and directed each party to bear their own costs. Bush v. Curran, 9 Ir. C. L. R., App. xxviii. & xxx., Q. B.

A plaint contained three counts-for goods bargained and sold, sold and delivered, and on an account stated. Defenceas to the first two counts a warranty and a breach of it, without traversing or taking further notice of the count on an account stated. The defence was set aside as embarrassing, it being uncertain whether it was intended to be an answer to the whole action, or whether it was intended only to answer the two first counts, leaving it open to the defendant to mark judgment on the count on an account stated as for want for a defence. Garrett v. Waldron, 9 Ir. C. L. R., App. xxiv., Q. B.

To a plaint containing three counts-first, by drawer against acceptor; second, for goods sold and delivered; third, upon an account stated; the defendant pleaded as to the first, second, and third counts, and the causes of action therein, that at the "time of the accepting of the said bill he was an infant." Held, that this plea was embarrassing, because whilst purporting to answer all the causes of action in the plaint, it, in fact, only auswered one of them. O'Driscoll & Co. v Croker, 9 Ir. C. L. R., App. xxix., Q. B.

Action upon a promi-sory note by a payee against maker. Plea that the defendant made the note as a security for a portion of the residue of damages and costs due on a judgment which had been recovered against one W. by plaintiff, and that at the time of making the note it was agreed between the plaintiff and defendant, that plaintiff should execute a release to W. in respect of said judgment, and that the note should not be enforced until said release were signed by the plaintiff; the plea then averred that plaintiff never signed said release, and now sued in fraud of said agreement, and that, save as aforesaid, then never was any consideration for the note. The plea set aside as embarrassing. Egan v. Neill, 9 Ir. C. L. R., App. ix.

The court set aside a defence of nul tiel record to an action upon a judgment, it appearing upon the record and on affidavit that the objections were unfounded and false, and the defence filed for the purpose of delay, and gave liberty to the plaintiff to mark judgment as for want of defence. Hassard, 9 Ir. C. L. R., App xxi. Co. Ch.

Gordon v.

To an action of trespass, qu. cl. fr. the defendant pleaded that the defendant " was not possessed as of his own property" as alleged, the plea was set aside, but leave to amend given. Droney v. Droney, 1r. C. L. R., App. xxxvii.; s. c. 4 Ir. Jur., N. S., 262., C. P.

POLICY.

Of insurance], see INSURANCE.

POOR LAW.

Duties of Guardians in supplying necessaries for religious service], see MANDAMUS.

Duties of Commissioners on the appointment of Roman Catholic Chaplains, see MANDAMUS.

POOR RATES.

A house and offices occupied by the Christian Brothers school-house, and receiving no remuneration for their services merely for their accommodation as teachers, in an adjoining is rateable.-1 & 2 Vict., c. 56, s. 63; 9 & 10 Vict., c. 110; 6 & 7 Vict., c. 36; 15 & 16 Vict., c. 63, ss. 12 & 16; and 17 Vict., c. 8, s. 2. Keating Appellant, Poor Law Gaardians, 5 Ir. Jur., N.S., 84.

Premises should, in order to be exempted from rateability be essentially requisite to the maintenance of a charity school for taxation, be used, exclusively, for charitable purposes or that the teachers should, ex necessitate, reside therein and derive no private use or benefit therefrom. Ib.

PORTIONS.

In 1810, R. I. covenanted with the trustees by his marriage, that all the property of which he should die seised, or possessed, &c., should be liable to. and charged with a sum of 1,300, settlement for the issue of the marriage. E. was the sole issue of the marriage. Upon the marriage of E. with W. in 1847, a settlement was executed, to which R. I. was a party, and he thereby covenanted that if the rents of the properties put in settlement did not amount to the annual sum of 3001, he would pay the difference. R. I., by his will in 1852, devised certain freehold interests to trustees upon trust, to pay the rents to E. for life, with remainder to her children, with remainder over; and he declared that this devise was intended to be in satisfaction of the covenant as to the 3007. Two deeds were afterwards executed by R. I., by which railway shares, and lands were settled, upon trust, for himself for life; remainder to E. for life for her separate use, without power of anticipation, remainder to her children. By a codicil to his will, in January, 1853, R. I. bequeathed to E. all his plate, furniture, and other chattles, and bequeathed the sum of 1,850, in trust, for W., the husband of E., for life, remainder to E. for life, remainder to her children. The will and codicil disposed of the entire of the estate of R. I. Held, - overruling the decision of Lord Chancellor Brady—that these sums were a satisfaction of the charge of 1,300l. Garner v. Holmes, 3, Ir. Jur., N.S., 421; s.c., & Ir. Chan. R. 469. Reports Temp. Napier by Drury, 116, C of Ap.

A F devised lands to D, his eldest son, for life, with remainder to the first and other sons of D, in tail male, with remainders over; with a power to D to appoint a jointure and a sum not exceeding 3,000l. for younger children, if he narried with the consent of the executors and guardians appointed by the will; and by this will the testator appointed A, B & C executors, and nominated C guardian. A and B renounced; Calone, took out probate. D, while a minor, married E, also a minor; the marriage was performed by a person in holy orders, but without license, publication of banns, or, the consent of C. The consent of C being obtained, some days after a marriage was regularly solemnized between D and E. E, by a post-nuptial marriage settlement, purported to execute the powers to charge 3,000, given by the will of his father, on condition to raise the 3,000 for the benefit of the younger children of E. Held, that the marriage without consent not having been avoided (9 Geo. 2, c. 11), it remained valid, and that the marriage with consent being, consequently, inoperative, there was no marriage with consent sufficient to warrant the exercise of the power. Adams v. Adams, Reports temp. Napier, by Drury, 247. C.*

By a settlement, dated in 1816, a fund of 5,000l. was vested upon trust, after the decease of the settlor, L, and of his wife, for the children of the marriage as I should appoint, in de

See Dolbyn v. Adams, Ir. Jur., N.S., 400; S.C., Ir. Chan. R 170, R.; S.C., re ersing the order of the Master of the Rolls, 2 Ir. Jur., N.S., 143; S.C., 7 Ir. Chan. R., 193.

fault equally among the children. The settlement contained the usual hotchpot clause, but none for advancement. This fund was invested on mortgage. There were five children of L's marriage, and in 1844, on the marriage of one of them, A, L settled 1,000l. of his own monies upon her husband, herself, and their issue. In 1845, L made his will and appointed the 5,000l., as to 1,000 to his daughter J, and the residue among hs remaining children, excepting A. By his will he also be queathed 1,2001. to the trustees of A's settlement, for her be efit; in 1848 the settlor, on the marriage of J, gave 1,000l. of his own monies, and secured 1,2001 upon trusts for J, her husband, and their issue. By a subsequent codicil, L revoked the appointment by his will to J, by reason of the monies give on her marriage. In a suit by the trustees of the settlemen, for a declaration as to the rights of the parties, Held, that the sum appointed to J, and revoked by the codicil, was to go as in default of appointment. Folkes v. Western (9 Ves. 450), approved of. Noblett v. Litchfield, Reports temp. Napier by Drury, 158; s.c, 7 Ir. Chan. R. 575, C.

Held, further, that A and J were not excluded from sharing in the said sum. Ib.

Held, further, that L could not be taken to be a purchaser of the shares of A and J, in the unappointed part of the settled fund. Ib.

PRACTICE (EQUITY).

Amendment.] The 98th General Order (1843), limiting the time for application to amend a decree to days after the decree has heen pronounced, will be construed strictly, and the only remedy is by petition to re-hear. O'Neill v. Innes,

5 Ir. Jur., N. S. 208, C.

B, the widow of A, claimed dower of lands, to which A derived his title through R, who had purchased them at a sale under the Court of Chancery, and the legal estate being found to be outstanding in a trustee resident out of the jurisdiction. I S was appointed to convey the lands to R, under the 1st William 4, cap. 60, sec. 8. In her petition B relied on the above conveyance from the court above, and obtained only partial relief. Before the Court of Appeal, B brought forward additional evidence, going behind the conveyance from the court, and establishing the title of the different parties to that conveyance; and thereupon it was referred to the Master, to inquire and report what lands A had died seised of in fee-simple. Held, that as the appellant had neglected to state and bring forward her whole case at the original hearing, she should be visited with the respondent's costs. In re Kernaghan, petitioner, 5 Ir. Jur., A S., 51, C. of Ap.

Cases decided in the Court of Appeal in Chancey are not to be reheard. Falkiner v. Thornidge, 9 Ir. Ch. R. 168, C. A trustee filed a cause petition for the recovery of a portion of the trust property, alleged by him to have been mis-applied; his petition was dismissed. A cross suit was heard at the same time, by the decree in which, the trustee was removed from his office of trustee. Held, that having been removed from the trusteeship by the decree of the court, and that decree being not appealed from, he could not maintain an appeal from the order dismissing his own petition. Leach v. Wallace, 9 Ir. Ch. R. 147, C.

Creditor's suit.] Lands were sold in the Incumbered Estates Court, and the proceeds brought in to a cause pending in the Court of Chancery, to be there administered. W, the first incumbrancer, was not made a party to the suit, and the fund was paid out to P, a puisne incumbrancer. Held, that, having regard to the position of P as a solicitor having notice of the for the purpose, to make good to W the amount, with interest claims of the petitioners, that P was liable, in a suit instituted from the time at which P had so received it. Walker v. Power, Napier temp. Drury, 668. This decree was affirmed; 9 Ir. Ch. R. 527, C. of Ap. The Court of Appeal holding P only liable for interest from the date of the notice calling on him to replace the fund. See Todd v. Studholme, 3 Kay & Jon. 324,

29 L. Ti. O. S. 24.

Evidence.] Under the 14th & 15th Vict. c. 99, s. 2, thǝ court will, where the plaintiff resides abroad, issue a commission to examine the plaintiff himself on his own application. Codd v, Donnelly, 9 Ir. C. L. R. 465; s. c. 4 Ir. Jur., N.S., 241, Q. B.

Semble Where a husband proves a will in right of his wife, and the wife survives him, she is liable to a devastavit for the assets which came to her husband's hands. fb.

Service of Subpana. In a suit by bill and answer, after decree, upon application of a defendant having the carriage of the proceedings, where the solicitor for the defendant had died and no other solicitor had been named in his place, the court allowed the defendant having the carriage of the proceedings to proceed in the suit before the Master, serving the other substiution of service or otherwise) as the Master should direct. defendants (and such as resided out of the jurisdiction by De Morin v. Henry, 5 Ir. Jur., N.S. 300, R.

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The Irish Jurist, 12. köide