1898 LITTLE v. LITTLE. Hodges, J. defendant had been in default, but allowing him now to deliver his defence within twenty-four hours. This case is not reported upon the facts, but upon the technical objection raised as to the nature of the application. Higgins in support of the motion. Irvine to oppose for the defendant W. Little-This motion. is based upon the provisions of Order XXVII., r. 11, which are not applicable when there are several defendants. Rule 12 is the only available rule when there are several defendants, and then an interlocutory motion of this character can only proceed against one defendant where the cause of action is severable. [HODGES, J. I have only to consider whether this is a separate cause of action, so far as the defendant W. Little is concerned; there is no claim at all against the other defendant.] But the other defendant has been added as a necessary party, and he has a right to be heard in any decree that is to be pronounced. There is no separate cause of action against W. Little; it is all one cause of action. Higgins-No relief is sought as against G. Little, and his defence raises nothing to try; he is merely a formal party. The judgment can only affect the real defendant, W. Little, and if he has made default in pleading, then rule 11 of Order XXVII. is applicable. Under Order XXVI., r. 40, the defendant G. Little can be served with notice of the decree. This is not an ordinary action, but merely one against an executor claiming accounts upon the footing of wilful default. HODGES, J. (His Honor intimated that he would dismiss the motion without costs upon the facts disclosed in the affidavits.) One question, however, was raised, about which I should express my opinion, as during the argument I was adverse to the contention of Mr. Irvine. On consideration I think he was right in the view he argued. This motion was set down, no doubt, under Order XXVII., r. 11. Now rule 12 of that order provides that where there are several defendants in an action, and one of such defendants makes default, the plaintiff may, if the cause of action be severable, set down the action at once on motion for judgment against the defendant so in default, or may set it down against him as soon as it is entered for trial, or set down on motion for judgment against the other defendants. The question here is whether the cause of action is severable within the meaning of that rule. That is, that there is something separate to be dealt with, that with regard to the other person brought before the Court there is a totally different, severable subject matter to be dealt with. I think that that is the only kind of judgment which is intended to be given against one defendant under rule 12. In this present case, so far as Geo. Little is concerned, there is admittedly no separate cause of action as against him. As I understand the facts, there is only one cause of action, and that one is against W. Little; the other defendant, G. Little, is brought in merely as a necessary party, and as one who is entitled to have some voice in the judgment to be pronounced at the hearing. For that reason I should say, if I had to determine it, that G. Little should be heard upon any motion for judgment, and that the present application is wrong. However, I have dismissed the motion upon the other grounds dealing merely with the merits of the case. Motion dismissed. Solicitors for plaintiff: Crawford & Ussher. 1898 LITTLE บ. LITTLE. Hodges, J. W. H. M. F.C. 1898 May 4, 6. COWIE v. BERRY CONSOLS EXTENDED GOLD MINING COMPANY Wrongs Act 1890 (No. 1160), ss. 14, 15-Mines Act 1890 (No. 1120), s. 366-Miner The action for negligence given by sec. 366 of the Mines Act 1890 to the personal representatives of a person killed on the spot in a mine is not a new form of action, apart from sec. 14 of the Wrongs Act 1890 (Lord Campbell's Act), and the damages awarded are to be assessed and apportioned as under the latter Act. A jury is not indispensable in an action under sec. 14 of the Wrongs Act 1890. APPEAL from an order of Williams, J. The plaintiff was administrator of the estate of Alexander Cowie, deceased, and as such brought an action against the defendant company to recover damages for the negligence of the defendants, causing the death of Alexander Cowie. By the statement of claim it was alleged that on or about the 31st July 1897 the plaintiff was in the employment of the defendants as a trucker in their mine, and that while working in the mine he was killed by foul air which was in the mine, and that his death was caused by the negligence of the defendants. The defence was a denial of negligence, and an allegation of contributory negligence. At the hearing before Williams, J., without a jury, the defendants raised the objection that this action was one under Lord Campbell's Act (the Wrongs Act 1890, sec. 14) and that, therefore, by sec. .15 of the Wrongs Act, the case must be tried by a jury. Williams, J., considered he should follow the case of Eckold v. Chiltern Valley G. M. Co. (a), and that as he had no jurisdiction to assess the damages the case must be tried before a jury. He therefore made an order adjourning the case. From that order the plaintiff now appealed. Bryant and Schutt for the appellant-Even if a jury be necessary in an action under the Wrongs Act, this action is brought, not under that Act, but under sec. 366 of the Mines (a) [1891] 17 V.L.R. 213. Act 1890. That section gives a separate right of action in these cases. It gives the right to the "personal representatives of the person so killed" to compensation by way of damages. [A'BECKETT, J. It is only by Lord Campbell's Act that you can get any intelligible mode of assessing damages. The Mines Act was passed in the interest of miners. But if the damages are to go by that Act to personal representatives, that must mean to the representatives of a man's estate, and then creditors. could prove on the estate, and so the position of the wife or child would be worse under the Mines Act than under the Wrongs Act.] The Mines Act is subsequent legislation. A jury was necessary under Lord Campbell's Act, because at that time there could be no assessment of damages without one; but now by Order XXXVI. r. 2, the actions which may on the request of a party be tried by a jury are specified, and an action under Lord Campbell's Act is not among them. Counsel referred to Eckold v. Chiltern Valley G. M. Co. (b); Kaye v. Ironstone Lead G. M. Co. (c); Bradshaw v. Lancashire and Yorkshire Railway Co. (d); Bulmer v. Bulmer (e). Box (Purves, Q.C., with him) for the respondents was heard as to the question of the necessity of a trial before the jury. Counsel referred to In re East London Railway Co. (f); The Franconia (g); Beven on Negligence (1st ed.), 194. MADDEN, C.J. This case was set down for trial before a Judge without a jury, and when it came on for trial before our brother Williams objection was taken on behalf of the defendant that the action was one brought under Lord Campbell's Act, our Statute of Wrongs, and that under that statute it was indispensable that the trial should be before a jury. The plaintiff met that objection, not by contesting then that if it were an action under that Act a jury was not (b) [1891] 17 V.L.R. 213. F.C. 1898 COWIE v. BERRY CONSOLS EXTENDED GOLD MINING COMPANY No LIABILITY (No. 1). 1898 COWIE V. BERRY CONSOLS EXTENDED COMPANY (No. 1). Madden, C.J. indispensable, but that it was not an action under that Act, a confession and avoidance of the point. The plaintiff said that sec. 366 of the Mines Act 1890 practically gave another action apart from and different from that given by Lord GOLD MINING Campbell's Act, and that really it was an action by the NO LIABILITY general representatives of a dead man to recover those damages which his estate had suffered by his death. Our brother Williams held that that view was not correct, but it was insisted on by counsel for the plaintiff, and then the Judge, apparently as an indulgence, adjourned the case, instead of going on with it and entering a nonsuit--adjourned it, I suppose with a view of allowing counsel to consider the case, and applying for a jury if he thought fit. An appeal was had from that order, and counsel for the plaintiff raised the same contention again. That is the first point we have to deal with. We think that that contention, at any rate in the case of a man who has been killed outright, is erroneous. 366 of the Mines Act is peculiar in one respect. It provides that "if any person employed in or about any mine be killed Sec. the personal representatives of the person so killed may recover from the owner compensation by way of damages as for a tort committed by such owner." Now, when that enactment was made no action of tort accrued to his personal representatives, for personal injuries in the case of a man who had been killed, except under Lord Campbell's Act. That action was not for the benefit of the dead man's estate, but for the benefit of certain specified persons-viz., the kindred pecuniarily interested in the dead man's life. Now, we think that as the Legislature has in sec. 366 made no reference to any new form of action, but merely speaks of an action for the recovery of damage as for a tort, without in any way specifying the persons on whose behalf the action is to be brought, we must take the Legislature to refer to the action which was then known-viz., an action under Lord Campbell's Act. Sec. 366 uses the words, that if a person be injured, then he or his personal representatives may recover damages. It seems difficult to say that the words "personal representative" are not equivalent to the representatives of his estate, acting on behalf of his |