day named in the agreement; 2. What &c. by any injury to the vessel between the date of the agreement and the date of the delivery.— Cory v. Thames, &c. Co., 11 W. R. 589; and see the result at law, L. R. 3 Q. B. 181.

"Whether the Plts, to the damage or injury of the Deft, prevented the Deft from completing his contract."-Plts to admit that they did so prevent, and employed their own workmen to complete.-E. Lane, Rail. Co. v. Hattersley, 8 Ha. 95.

As to co. infringing on Plt's right to bridge tolls under Act by their steam ferry, they keeping ferry account meantime, and furnishing Plt with it before trial, verified by their secretary's affidavit, though the Act gave no right of action, but only to recover penalties, see Cory v. Yarmouth Rail. Co., 3 Ha. 593, 608.

As to deterioration of estate after reference, Ferguson v. Tadman, 1 Sim. 530; as to mines being drowned out in breach of covenant by lessee's default, and so continuing, Walker v. Jeffreys, 1 Ha. 356.

For order for issues, 1. Whether the widening and deepening of a canal basin, as widened and deepened before a stated time, did or would, to the damage or injury of the Plt, diminish the surplus water in the Plt's works; 2. Whether the further widening and deepening of it, as intended, before injunction granted, would or might do so, see Blakemore v. Glamorgan Canal, 1 M. & K. 169, 1824, A. 1891.

For order for issues in the case of an alleged nuisance of smoke and vapours from cement works, see West v. White, 7 Feb. 1877, B. 174, 4 Ch. D. 631, 636.

For issues, settled by the L. JJ., and set out in schedule to the order, whether Plts, as owners of the estate in the bill mentioned, were entitled to any right of pasturage over sand banks lying between the estate and the sea, and whether the sand banks had been wrongfully removed or disturbed by the Defts or under their direction, authority, or licence, to the damage and injury of the Plts as such owners, by subjecting the estate, or any part thereof, to encroachments or incursions from the sea, or to the drifting of sand, beyond what the same would have been subject to; or by obstructing or impeding any right of way of the Plts, as owners, to the estate; or by preventing the growth of grass or herbage on the estate or the sand banks; and whether the further removal or disturbance of the sand banks would or might damage and injure the Plts by such means as above: see Davies v. Smith, L. JJ., 6 Dec. 1861, A. 2417.

An appeal as to the quantum of damages will not be entertained: Ball. v. Ray, 22 W. R. 283.

10. As to Covenants and Agreements.

FOR issues as to breaches of covenant in lease and waiver, with special directions, subject to certain payments into Court, in default action to be dismissed, see Bowser v. Colby, 1 Ha. 145.

As to agreement for partnership, Webster v. Bray, 7 Ha. 180; Trentbeck v. Crew, 2 Turn. Pr. 180; if certain persons were partners of the firm, Travis v. Milne, 9 Ha. 157; and "whether Plt had any interest, and to what amount or share, in the profits of the partnership in question, and during what time," Peacock v. P., L. C., 17 Nov. 1808, B. 31; 16 Ves. 49, 52; whether solrs acted as partners in certain business, and, if so, whether in equal shares, M'Gregory. Bainbrigge, 7 Ha. 165, n.; and as to agreement for joint speculations in buying and selling land, and as to term in agreement, Plt to be affirmant in the first, Deft in the second, with leave to Plt to examine Deft on notice, with admissions, Dale v. Hamilton, 5 Ha. 396; S. C., 2 Ph. 266; 10 Ha. vii; as to agency, Milner v. Singleton, 6 Ha. 622, n.; as to act of bankruptcy, Barker v. Chapman, L. C., 29 Jan. 1810, A. 288; Ryall v.

Stevens, L. C., 7 June, 1743, B. 309; Cust v. Ward, L. C., 3 July, 1781,
A. 374.

Issues were directed-As to the existence of any agreement, Penny v. Watts, 1 Mac. & G. 150, 169; 2 D. & S. 501; 17 Sim. 45; to try validity of promissory notes, Woodgate v. Field, 2 Ha. 211; in creditor's suit, whether testator's bond was voluntary or not, Hepworth v. Heslop, 6 Ha. 561, 622; in foreclosure, whether an old mortgage was a subsisting security at three specified dates, Wynne v. Styan, 2 Ph. 303; to try the validity of an appointment, Gee v. Gurney, 2 Col. 486; heirship according to the custom of a manor, facts being admitted, Locke v. Colman, 1 M. & C. 423; as to whether a purchase by U. was made by him for the benefit of B., the solr in the cause, Browne v. McClintock, L. R. 6 H. L. 462; whether grant of a lease by a testator was valid, Jenkins v. Morris, 14 Ch. D. 674, C. A.

Issues are not to be directed on mere suggestion or suspicion: Browne v.
McClintock, L. R. 6 H. L. 465.

As to the nature and amount of evidence on which an issue will be directed
in pedigree cases, see Monkton v. A. G., 2 R. & M. 147; Shields v. Boucher,
Lancashire v. L., 1 D. & S. 40, 288.

An issue was directed (in preference to inquiry) as to notice being given by a certain day: Earle v. Pickin, 1 R. & M. 547; and was refused in redemption suit: Lloyd v. Wait, 1 Ph. 61.

Tenants in common were all necessary parties to an issue: A. G. v. Flint, 4 Ha. 147.

11. As to Act of Bankruptcy.

day of

commit any act of

WHETHER A. did, on or before the bankruptcy, within the intent and meaning of the several statutes relating to bankruptcy, or any of them; and if the jury shall find that he did not commit any act of bankruptcy before that day, whether he committed an act of bankruptcy at any (and what) time afterwards.— Gordon v. Baron d'Avernas, M. R., 21 Feb. 1765.

And as to whether a payment made by a bankrupt was a fraudulent preference, see Exp. Bolland, 7 Ch. 24.

12. As to a Custom.

FOR issues as to the custom of the country as to consuming on a farm all hay, and thrashing out all grain crops grown thereon, and using the straw and all manure arising thereon; and as to the landlord at the expiration of the tenancy taking the hay, straw, and manure at a valuation; and whether Deft (Plt's sub-lessee) was aware that the Plt's lease contained a covenant restricting him from removing any produce, unless he should bring on to the farm a full equivalent in manure, see Milnes v. Roome, V.-C. K., 26 Feb. 1861, B. 381.

For a case in which an issue was directed whether a certain piece of land was common land or subject to any commonable rights either of the commoners of the parish of C. or the commoners of the parish of L., and for observations of the C. A. as to this form of issue and as to the evidence admissible on the trial of it, see Evans v. Merthyr Tydfil District Council, (1899) 1 Ch. 241, C. A. And for orders for issues, see-as to a custom, and the custom found to be endorsed on the postea, Gwynn v. Thomas, L. C., Nov. 1708, A. 98, 161; as to right of piscary, Mayor of York v. Pilkington, L. C., 23 Nov. 1742, B. 104; 1 Atk. 282; West, 293; 2 Atk. 302; and as to the right of the oyster meters of the City of London to unload the oyster boats within the port, and the amount of compensation, Layburn v. Crisp, in Exch., 1 Dec. 1837; order on

the equity reserved, 5 July, 1838; S. C., 4 Mee. & W. 320; and as to their rights and compensation, Thompson v. Daniel, 10 Ha. 296.

For issue as to donatio mortis causâ, see Hanbrooke v. Simmons, M. R. 20 Nov. 1827, A. 118; 4 Russ. 25.

13. As to Intestate's Marriage.

ISSUE directed to be tried by a Judge and jury in the C. P. Division. -"Whether at the time of the celebration of the Deft's marriage with the intestate the Deft had any other husband living, the Deft undertaking to be bound by the result."-Re Beard, B. v. B., V.-C. H. in Chambers, 24 July, 1876, A. 1394.

SECTION IV.-JUDGMENTS AND ORDERS AFTER TRIAL OF ISSUES OR QUESTIONS OF FACT.

1. Judgment after Trial of Issues or Questions of Fact, or Fact and Law, without a Jury, where Judgment pronounced at the Trial. THE parties having on the day of (and this day) proceeded to a trial of the issues [or questions of fact &c.] directed by the order dated &c. to be tried before this Court without a jury, This Court doth decide in favour of the Plt [or Deft], and doth find &c. [State the findings], and doth &c.

2. Judgment on Motion for Judgment after Trial, by a Jury, of Issues or Questions of Fact, directed by Court-O. XL, 7, 8. THE parties having on the day of - proceeded to a trial of the issues [or questions of fact] directed to be tried by the order dated &c. before &c. by a common [or special] jury, when the jury found &c. [State the findings, and if so, add: Now upon motion for judgment this day made unto this Court by counsel for the Plt [or Deft], and upon hearing counsel for the Deft [or Plt],] This Court doth &c. For form of notice of motion, see Dan. 353.

3. After Issue, as to Right of Way.

THIS action coming on for trial the and before this Court in the presence of counsel for the Plt and for the Deft, and upon hearing &c., This Court did find that the Plt was and is entitled to such right of way and other rights over W. court as claimed in this action by the Plt, and that the same had been obstructed by the Deft and the building erected by him, and did direct that a verdict be entered for the Plt accordingly; And upon motion this day made unto this Court by counsel for the Plt for judgment in accordance with such finding and verdict, and upon hearing counsel for the Deft, Let the Deft B. forthwith pull down and remove all buildings and structures erected so or in such manner as to interfere with or obstruct the Plt's right of way and passage over and along W. court &c., as the same existed before the commencement of the Deft's building, so as to hinder or prevent the Plt, his servants &c., coming or going to or from the messuages and

premises No. -, Street, aforesaid; or exercising, using, or enjoy. ing the free access to the rear of the Plt's messuage, No. —, -Street, over and along the said W. court; And Let the Deft B., his servants, workmen, and agents, be perpetually restrained from erecting any building or structure so or in such manner as to interfere with or obstruct the Plt's right of way and passage over and along the said W. Court &c., as the same existed before the commencement of the Deft's building, so as to hinder or prevent the Plt, his servants &c., coming or going to or from the said messuages and premises, No.-, Street, or exercising, using, or enjoying the free access to the rear of the Plt's said messuage, No. Street, over and along the said W. Court. See Krehl v. Burrell, M. R., 28 Jan. 1878, A. 226; altered to suit Jackson v. Normanby Brick Co., Ld., (1899) 1 Ch. 438, C. A., Form 10, p. 565.

-

NOTES.

PROCEEDINGS AFTER THE TRIAL OF ISSUES, ETC.

66

By O. XL, 7, where issues have been ordered to be tried, or issues or questions of fact to be determined in any manner, the Plt may set down a motion for judgment as soon as such issues or questions have been determined. If he does not set down such a motion, and give notice thereof to the other parties within ten days after his right so to do has arisen, any Deft may set down a motion for judgment, and give notice thereof to the other parties."

By r. 8, "where issues have been ordered to be tried, or issues or questions of fact to be determined in any manner, and some only of such issues or questions of fact have been tried or determined, any party who considers that the result of such trial or determination renders the trial or determination of the others of them unnecessary, or renders it desirable that the trial or determination thereof should be postponed, may apply to the Court or a Judge for leave to set down a motion for judgment, without waiting for such trial or determination. And the Court or Judge may, if satisfied of the expediency thereof, give such leave, upon such terms, if any, as shall appear just, and may give any directions which may appear desirable as to postponing the trial of the other issues of fact."

issue

By the Jud. Act, 1890 (53 & 54 Vic. c. 44), s. 1, every motion for a new trial, or to set aside a verdict, finding, or judgment, in any cause or matter in the High Court in which there has been a trial thereof, or of any therein with a jury, is to be heard and determined by the C. A. and not by a Divisional Court of the High Court.

By s. 2, every motion for judgment in any such cause or matter is to be heard and determined by the Judge before whom such trial with a jury took place, and not by a Divisional Court, unless it be impossible or inconvenient that such Judge should act, in which case such motion shall be heard and determined by some other Judge to be nominated by the President of the Division to which the cause or matter belongs.

In Evans v. Merthyr Tydfil District Council, (1899) 1 Ch. 241, where admissible evidence of reputation had been rejected on both sides at the trial of an issue, the C. A. remitted the action to Romer, J., for a new trial.

Where a rider appended to the verdict of the jury explained but did not affect the verdict on the main issue a new trial was refused: Farrelly v. Corrigan, (1899) A. C. 563, P. C.

Under the former practice the cause could be set down immediately after the trial of an action allowed: Rodgers v. Nowill, 6 Ha. 338. Where the issues were tried without a jury, and the bill dismissed at once, the order was not to be drawn up until the time for moving for a new trial had expired: Macdougall v. Gen. Sewage, &c. Co., 23 W. Ř. 435.

At the hearing after the trial of issues, the Court was bound by the findings, and to give effect to them, or order a new trial: Browne v. McClintock, L. R. H. L. 434; although they left the question undecided: Exp. Freemen of Sunderland, 1 Drew. 184; or were against the weight of

1

evidence: Exp. Morgan, 2 Ch. D. 72, C. A.; or founded on evidence which ought not to have been admitted: Evans v. Prothero, 1 D. M. & G. 572; or on questions wrongly put: Exp. Morgan, sup. ; and see Fulton v. Andrew, L. R. 7 H. L. 448. As to whether this rule applied to issues directed on interlocutory motion, see Kent v. Burgess, 11 Sim. 361, 372. It did apply where the facts had by consent been found by the Judge himself acting as a jury: Fernie v. Young, L. R. 1 H. L. 63; Simpson v. Holliday, L. R. 1 H. L. 315; but see Curtis v. Platt, L. R. 1 H. L. 337; Exp. Gillebrand, 10 Ch. 52. But if there was no evidence to go to the jury (S. C., Exp. Morgan, 2 Ch. Div. 72); or on appeal the view taken of the law was such as to make the findings immaterial (Simpson v. Holliday, L. R. 1 H. L. 315; Exp. Bolland, 7 Ch. 24; Morrison v. Barrow, 1 D. F. & J. 633); or they became so because of facts happening since (Armstrong v. A., 3 My. & K. 45; 1 D. F. & J. 640, n.; and see 2 Ch. D. 81, 82, C. A.); or the jury had evidently been misled by the wording of one of the issues (Exp. Bolland, 7 Ch. 24), the verdict might be disregarded or set aside without a new trial and an order made in favour of the side against whom the verdict was given: Exp. Morgan, 2 Ch. D. 72, 98, C. A.

The Court was not bound by the decision of another Court as a jury on similar facts in another case: Dent v. Auction Mart Co., 2 Eq. 238, 254.

Before the trial of an issue, Plt might dismiss his bill, with costs, on motion; but Deft, after trial and verdict for him, was entitled to have the cause set down for further consideration, in order that the dismissal might be pleadable: Carrington v. Holly, 1 Dick. 280; cited 2 Dick. 612.

After the issues had been tried, and a new trial refused, an appeal might be brought against the order directing the issues: Butlin v. Masters, 2 Ph. 290; Browne v. McClintock, L. R. 6 H. L. 463; Malone v. M., 8 Cl. & F. 179. As to the costs in such a case, see Rochester v. Lee, 2 D. M. & G. 427.

ISSUES OF FACT WITHOUT PLEADINGS.

By O. xxxiv, 11, upon the finding on any such issue, as in rule 9 mentioned (v. sup. p. 377), judgment may be entered for the sum agreed or ascertained, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless the Court or a Judge shall otherwise order for the purpose of giving either party an opportunity for moving to set aside the finding or for a new trial.

By r. 12, the proceedings upon such issue, as in rule 9 mentioned, may be recorded at the instance of either party, and the judgment, whether actually recorded or not, shall have the same effect as any other judgment in a contested action.

VOL. I.

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