EDITED BY EDWARD B. HAMILTON, ESQ., B.A.,

CHARLES F. MAXWELL, LAW PUBLISHER, 81 CHANCERY LANE,

AND WENTWORTH COURT, SYDNEY.

ADELAIDE: E. S. WIGG & SONS.

LONDON: W. MAXWELL & SON, 8 BELL YARD
TEMPLE BAR.

MDCCCLXXXVII.

Rec. June, 22,1898.

July 3rd, 1886.

to

February to serve a second third-party notice. The
cause was in the list for trial in February, but it was
not tried until 16th March, prior to which, on 10th
March, the third party was served with the notice.
It has been contended that the first notice was
gone, as it was not amended, and that the applica-
tion should not have been made for leave
to serve a second notice on the third party,
who had already entered an appearance
the first notice. I think that the
taken by the defendant was not irregular.
The notice must state the nature and ground of the
claim. It has to be presented to the judge, and a
copy of the amended statement of claim, where the
statement has been amended, must be served along
with the notice. It is immaterial, I think,
whether the defendant applied for leave to serve a
second notice, or an amendment of the first notice
corresponding with the amended statement of claim.

course

Application on behalf of Francis Barr, who had been served with a third-party notice dated 4th March, 1886, for an order. That the said notice and the order authorising the same may be set aside for irregularity on the ground that a judge of this Court having refused to give any directions on a previous third-party notice in this action, served upon the applicant at the instance of the defend-The question of liability as between the defendant ant, the said order and notice of the 4th March, 1886, were improperly obtained and served by the defendant; and upon the ground that the matters in question referred to in the said last-mentioned notice have, so far as this action is concerned, been agitated and finally determined as between the applicant and the defendant.

and the third party may still be tried at or after the trial of the action between the plaintiff and the defendant, as may be directed (Order XVI., r. 52). It was further contended in support of the summons that the subject matters in question referred to in the first notice had been agitated and finally determined as between the third party and the defendant The affidavit in support stated that Barr had when the defendant's summons for directions been served with a third-party notice dated 13th was heard and dismissed, on December 12th, November, 1885, issued at the instance of the 1885. But that application was not heard or defendant and appeared thereto on the 24th determined upon its merits. Before the November, 1885. On the 5th December, 1885, merits were entered upon it appeared that the the defendant applied to Higinbotham, J., for statement of claim was erroneous upon a point on directions pursuant to Order XVI., r.52, when it was which it had to be subsequently amended, and ordered that the application be dismissed, and until amendment the defendant's claim against the that no directions be given, and that no costs of the third party could not be inquired into The cases application be allowed, but that the costs of Barr of Rich v. Darrett, S. J., vol. 23, p. 513; and (including the costs of a certain affidavit) be taxed, Caister v. Chapman, Biltleston, p. 232, were both and when taxed be paid by the defendant to Barr. of them cases in which there was a summons for These costs were taxed at the sum of £12 16s., directions or for an order that judgment should be which sum had not been paid by the defendant. entered for the defendant against the third party. The action was in the list for trial at the February They do not affect the present application which is Sittings, 1886, but was adjourned and was not tried made by the third party. I do not express an until the 16th March, when certain questions were opinion as to what should be done if the defendant reserved for the opinion of the Full Court. Barr was should hereafter apply for directions or for an order served on the 10th March with a second third party for judgment; nor as to whether the defendant notice, and entered an appearance on the 18th March. should be allowed to take any further steps without MR. HODGES in support; DR. MADDEN to oppose. paying the cost of any previous proceedings which HIS HONOR said: This was an application on the he has been ordered to pay. Neither of these part of Francis Barr, a person served with a third-questions is now before me on this summons. party notice dated 4th March, 1886, for an order dismiss the present application, but without costs, as that the said notice and the order authorising the the defendant applied for and obtained an adjournsame should be set aside for irregularity. The ment. I certify for counsel. defendant obtained leave from me to issue the third-party notice. Subsequently on 4th February, 1886, the plaintiff obtained leave to amend his statement of claim in a material particular by altering the figures 1884 to 1883 in paragraph 2, and 1885 to 1884 in paragraphs 4 and 5. After the amendment was made on 26th February, the defendant immediately applied for and obtained leave on 27th

I

Solicitors: For third party, Crisp, Lewis and Hedderwick; for defendant, Potts.

(Before Kerferd, J.) NICHOLLS V. CRISPE.

June 21, July 2.

Rules of Supreme Court, Order XXX., r. 1 ; Order
XXXI., rr. 1, 12-Where a party applies either