Page images
PDF
EPUB

(Admiralty Jurisdiction.)-The County Courts Admiralty Jurisdiction Act, 1868; The County Courts Admiralty Jurisdiction Amendment Act, 1869; The Merchant Shipping Act, 1894.

The Explosives Act, 1875.

The Rivers Pollution Prevention Acts, 1876 and 1893.

The Workmen's Compensation Act, 1906.

The Merchant Shipping (Stevedores and Trimmers) Act, 1911; The Maritime Conventions Act, 1911; and The Pilotage Act, 1913.

By the Judicature Act, 1894 (57 & 58 Vict. c. 16), considerable Appeals. restrictions are placed upon the right of appeal in general, and it is especially provided that "in matters of practice and procedure every appeal from a judge shall be to the Court of Appeal," but in other matters in the King's Bench Division it would seem that an appeal from a judge is still to a Divisional Court (Order LIV., r. 23). Also by section 1, sub-section 5 of the last-mentioned Act, in all cases where there is a right of appeal to the High Court from any Court or person, the appeal is to a Divisional Court, the decision of which is final unless leave to appeal is given by that Court or by the Court of Appeal (k).

Justices of the Peace have also jurisdiction under various Jurisdiction statutes to try cases of trespass with regard to fishery, foreshore, of justices. rights of way, and damage to property generally, but where a bona fide claim to a right which is capable of existing at law is raised their jurisdiction is ousted (1).

Authorities

By section 1 (a) of the Public Authorities Protection Act, 1893 Public (56 & 57 Vict. c. 61), any proceedings commenced in the United Protection Kingdom in respect of any act done in pursuance or execution of Act. any Act of Parliament, or of any public duty or authority, or of any alleged neglect or default in the execution thereof, must be commenced within six months next after such act, neglect, or default, in case of a continuance of injury or damage, within six months next after the ceasing thereof. Wherever a judgment is obtained by the defendant in any such action it is (by subsection (b)) to carry costs to be taxed as between solicitor and client. Sub-section (c) provides that tender of amends before the commencement of the action may be pleaded in lieu of, or in addition to any other plea in an action for damages. If the action was commenced after the tender, or is proceeded with after

(k) In the case of an interlocutory order or judgment such an appeal can only be by leave of the judge or the Court of Appeal, see The Annual Practice. By the Judicature Act, 1899 (62 & 63 Vict. c. 6) by consent all parties may agree to a cause being tried by two judges of the Court of Appeal instead of three.

(1) Hargreaves v. Diddams, L. R. 10 Q. B. 582; 23 W. R. 828; 40 J. P. 167; Mussett v. Bunch, 35 L. T. 486; 40 J. P. 758; Pearce v. Scotcher, L. R. 9 Q. B. D. 162; 46 J. P. 248; 46 L. T. 342; Reg. v. Stimson, 4 B. & S. 301 : Burton v. Hudson, [1909] 2 K. B. 564; Anderson v. Jacobs (1905), 93 L. T. 17; 21 T. L. R. 453, and see ante, pp. 25, 37.

Parties entitled to sue.

payment into Court of any money in satisfaction of the plaintiff's claim, and the plaintiff does not recover more than the sum tendered or paid, he shall not recover any costs incurred after the tender or payment, and the defendant shall be entitled to costs, to be taxed as between solicitor and client, as from the time of the tender or payment; but this provision shall not affect costs on any injunction in the action. By sub-section (d) if the plaintiff has not, in the opinion of the Court, given the defendant a sufficient opportunity of tendering amends before the commencement of the proceeding the Court may award to the defendant costs to be taxed as between solicitor and client. The section is not to affect any proceedings by any Government department against any local authority.

Section 2 repeals so much of any public general Act as enacts that in any proceeding to which this Act applies (m): (a) the proceeding is to be commenced in any particular place; or (b) within any particular time; or (c) notice of action is to be given; or (d) the defendant is to be entitled to any particular kind or amount of costs, or the plaintiff is to be deprived of, costs in any specified event; or (e) the defendant may plead the general issue; and it provides for the repeal "in particular" of the enactments specified in the schedule (n) of this Act to the extent in that schedule mentioned.”

By section 3 the Act is not to apply to proceedings in respect of alleged neglect or default, or on account of acts done in any case instituted under an Act of Parliament when that Act applies to Scotland only.

The tenant in possession may sue for a nuisance, even though it be of a temporary nature only, but if the nuisance be of a permanent nature, and injurious to the inheritance, the reversioner may also have an action, and both the tenant in possession and the reversioner are respectively entitled to recover damages commensurate with the damage sustained by him (0), but a

(m) For cases as to the application of this Act see Annual Practice, 1924, PP. 4, 5. (n) Among the Acts enumerated in the Schedule are :

1. 54 Geo. 3. c. 159 (The Harbours Act, 1814), section 27 of which (relating to the limitation of actions, the plea of the general issue and costs) is repealed.

2. 3 & 4 Vict. c. 50 (an Act to provide for keeping the peace on canals and rivers (1840)), section 18 of which (relating to venue, limitation of actions, general issue and tender of amends) is repealed.

[ocr errors]

3. 28 & 29 Vict. c. 125 (The Dockyards Ports Regulation Act, 1865), section 24 of which (relating to limitation of actions) is repealed.

And 4. 38 & 39 Vict. c. 55 (the Public Health Act, 1875), section 264 of which (relating to notice of action against local authorities) is repealed.

(0) Angell on Watercourses, p. 585; Gale on Easements, 8th ed., pp. 581 et seq. Comyns's Dig., Action for Nuisance (B); Jackson v. Pesked, i M. & S. 234; 14 R. R. 417; Alston v. Scales, 9 Bing. 5; 35 R. R. 502;

tenant under a building agreement with the lord of a manor who has only a right of entry upon the foreshore for the purposes of that agreement cannot maintain an action for taking shingle therefrom or putting bathing machines thereon (p). To entitle the reversioner to sue, it must be shown either that the act done is an act necessarily injurious to the reversioner, or, where it is not necessarily injurious, the declaration must aver that the reversionary interest is thereby injured (q). In an action brought by a reversioner against the defendant for the non-repair of a gutter, whereby the water oozed through and carried away the soil of the close, the defence was, that the injury was the consequence of the tenant in possession penning back the water and watering his meadow. Tindal, C.J., said he thought this no defence, as the owner of the reversion was suing for a permanent injury to his estate, and that he could not be met with the answer that the injury arose out of the wrongful act of the tenant, for which the defendant might have maintained an action against him. That was merely the personal act of the tenant; and it did not appear that there was any legal duty in the owners and occupiers of the close to do any act, the neglect of which by the tenant had caused the injury (r).

Building a roof with eaves which discharge rain-water by a spout into adjoining premises is an injury which the landlord of such premises may recover as reversioner while they are under demise, if the jury think there is damage to the reversion (s).

In Dyson v. Collick (t), a contractor for making a canal having, by permission of the owner of the land, laid down a dam for the purpose of the navigation, was held to have sufficient possession to enable him to maintain trespass against a wrongdoer.

Baxter v. Tayler, 4 B. & A. 72; 38 R. R. 227; Bell v. Twentyman, 1 A. & E. 766; see also Hopwood v Schofield, 2 Moo. & Rob. 34; Tucker v. Newman, 11 A. & E. 40; Fay v. Prentice, 1 C. B. 828; Kidgell v. Moor, 9 C. B. 364; Metropolitan Association v. Petch, 5 C. B. (N.s.) 504; Mumford v. Oxford Rly., 1 H. & N. 34; Sampson v. Savage, 1 C. B. (N.s.) 347; Bell v. Midland Rly., 10 C. B. (N.S.) 287; Crump v. Lambert, L. R. 3 Eq. 409; Johnstone v. Hall, 2 K. & J. 414; Mott v. Shoolbred, L. R. 2 Eq. 22; Jones v. Chappell, L. R. 20 Eq. 539; Wilson v. Townsend, 1 Dr. & S. 324; Cleave v. Mahony, 9 W. R. 882; Broder v. Saillard, 2 Ch. D. 692; 45 L. J. Ch. 414; Gillon v. Boddington, 1 Car. & P. 541; 29 R. R. 243, n.; see also Partridge v. Bere, 1 D. & R. 272; 24 R. R. 487.

(p) Laird v. Briggs, 19 Ch. D. 22.

(q) Metropolitan Association v. Petch, 5 C. B. (N.s.) 504; Bell v. Midland Rly., 10 C. B. (N.s.) 287; 30 L. J. C. P. 273; 4 L. T. 293. As to whether person entitled to any reversion in the 8th section of the Prescription Act includes a remainder man, see Laird v. Briggs, 19 Ch. D. 22.

(r) Egremont v. Putman, 1 Moo. & Malk. 404. As to the right of a Trades Protection Society to sue a dock company, see London Association of Ship Owners v. London and India Docks, [1892] 2 Ch. 242; 67 L. T. 238.

(s) Tucker v. Newman, 11 A. & E. 40.

(t) 5 B. & Ald. 600; 24 R. R. 484.

L.W.

43

Joinder of plaintiffs.

By Order XVI., r. 1, of The Judicature Act, 1875, amended by R. S. C., Oct. 26, 1896 (x):

-

All persons may be joined in one action as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative where, if such persons brought separate actions, any common question of law or fact would arise; provided that, if upon the application of any defendant it shall appear that such joinder may embarrass or delay the trial of the action, the Court or a judge may order separate trials or make such other order as may be expedient. And judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment. But the defendant, though unsuccessful, shall be entitled to his costs occasioned by so joining any person who shall not be found entitled to relief, unless the Court or a judge in disposing of the costs shall otherwise direct.” By Order XVI., r. 4:

All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities without any amendment." By Order XVIII., r. 1:—

"Subject to the following rules of this Order, the plaintiff may unite in the same action several causes of action, but if it appear to the Court or a judge that any such causes of action cannot be conveniently tried or disposed of together, the Court or judge may order separate trials of any of such causes of action to be had, or may make such order as may be necessary or expedient for the separate disposal thereof."

By the rules of Chancery, which are followed by the Judicature Acts, the owners of several properties affected by a nuisance might join in suing. If one failed to make out his case, the suit as to him was dismissed with costs. Such costs were deducted from those of the successful plaintiff (y).

(x) As to the original order, see Wilson's Judicature Acts, 7th ed. (1888), pp. 172-193; and for rule 1 of the Order in its present form and the history of its amendment, see the Annual Practice; see ibid. as to Order XVIII. r. 1, respecting joinder of causes of action, which must be read in conjunction with rules 1 and 4 of Order XVI. Similar rules apply in the County Courts.

(y) Umfreville v. Johnson, L. R. 10 Ch. 580; 44 L. J. Ch. 752; Pollock v. Lester, 11 Ha. 274; see, however, Hudson v. Maddison, 12 Sim. 416. In the case of Cowan v. Duke of Buccleuch, 2 A. C. 344, the House of Lords held, that by the practice of the Scotch Courts, in a case of nuisance by pollution, the several sufferers may combine and bring a joint action against the several authors of the nuisance-asking a declarator and interdict, but not claiming damages.

The purchaser of an estate injured by a nuisance may sue the original wrongdoer-the person who created and still maintains the nuisance-without notice or request to abate, for the damage done to the land while he owned and occupied it. Nor does it matter in this respect how many times the land injured may have changed hands since the erection of the nuisance (z).

He who has been the author of a nuisance is answerable for Parties liable all the consequences thereof (a), and although after damages to be sued recovered in an action for erecting it, another action cannot be maintained for the erection, yet it may for a continuance of the same nuisance. The continuance of that which was originally a nuisance is, in fact, a new nuisance (b). For the continuance of a nuisance, each successive owner of the land on which there exists an actual nuisance, is liable, though it may have been begun before his estate commenced (c).

Where, however, the party was not the originator of the nuisance, a request must be made to remove it before any action is brought; but it is sufficient if such request is made to the party in possession, though he be only lessee (d); and a request to a former occupier while in possession has been held sufficient to bind a subsequent occupier (e).

ance of nuisance

If the owner of land on which a nuisance exists lets the land, for continuan action for the continuance (f) of the nuisance will lie at the option of the party injured, either against the landlord or the tenant (g); but no such action lies against the landlord for any such act of his tenant during the continuance of his tenancy (h); and a declaration charging the defendant with the duty of cleansing drains, merely as owner and proprietor thereof, is bad (i). If, however, a landlord makes a drain for the use of his

(z) Angell on Watercourses, p. 587; Penruddock's Case, 5 Rep. 100; Eastman v. Amoskeag Manufacturing Co., 4 N. H. 143 (American Case); Shadwell v. Hutchinson, 2 B. & A. 97; 4 C. & P. 333; 36 R. R. 497; Batishill v. Reed, 18 C. B. 696; Wilson v. Peto, 6 Moo. 47; Gillon v. Boddington, 1 Car. & P. 541; 29 R. R. 243, n.; Gale on Easements, 8th ed., pp. 581 et seq.

(a) Under the Crown Suits Ordinance of 1876, s. 18, sub-s. 2, the Crown can be sued in tort: Att.-Gen. of Straits Settlements v. Wemyss, 13 App. Cas. 192, P. C.

(b) Angell on Watercourses, p. 587.

(c) Gale on Easements, p. 588.

(d) Penruddock's Case, 5 Rep. 181; Brent v. Haddon, Cro. Jac. 555; Jones v. Williams, 11 M. & W. 176.

(e) Salmon v. Bensley, Ry. & M. 189, at Nisi Prius; 27 R. R. 745.

(f) As to the meaning of continuance of injury under section 1, subsection (a) of the Public Authorities Protection Act, see Harrington (Earl of) V. Derby Corporation, ante, p. 170.

(g) Todd v. Flight, 9 C. B. (N.s.) 377; Mason v. Shrewsbury, L. R. 6 Q. B. 585; Christian Smith's Case, Sir W. Jones, 272; Roswell v. Prior, 2 Salk. 460; R. v. Pedley, 1 A. & E. 822; 40 R. R. 444; Thompson v. Gilbert, 7 M. & W. 456; see, however, Rypon v. Bowles, Cro. Jac. 373.

(h) Cheetham v. Hampson, 4 T. R. 318; 2 R. R. 397; Rich v. Basterfield, 4 C. B. 783; Bishop v. Bedford, 1 E. & E. 697; Preston v. Norfolk, 2 H. & N. 735; Bartlett v. Baker, 3 H. & C. 153.

(i) Russell v. Shenton, 3 Q. B. 449.

« EelmineJätka »