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piece of land was granted " abutting upon an intended way thirty feet wide; "and the land was underlet, the abutment being described as "upon an intended way,' but not mentioning the width of thirty feet. It was held that the under lessee was entitled to a convenient way, though not of the width of thirty feet. But here the covenant by the lessee that "he shall and will kerb the causeways adjoining the said land with proper kerbstone " is conclusive to shew that a way was to exist along the north and east fronts of the land demised. The "causeways" are in fact the "newlymade streets" mentioned in the lease, and delineated on the plan; and a causeway is a way; and the defendant could not kerb the causeways without treating them and using them as ways. Upon these grounds we are of opinion that a way, as pleaded, was granted by the lease; that the plea was proved and properly found

for the defendant; and that the rule should be discharged. The defendant has contented himself with a claim to a footway. It may, however, prevent future litigation to observe that it is clear, upon the facts before us, that he is equally entitled to a carriage-way over the locus in quo.

CLEASBY, B., concurred in the above judgment.

CHANNELL, B.-I have not been free from doubt upon this case, but I do not dissent from the conclusion arrived at by my Lord and my brother Cleasby.

Rule discharged.

Attorneys-Burton, Yates & Hart, for plaintiff; E. Smith, for defendant.

END OF TRINITY TERM, 1872.

TO THE SUBJECTS OF THE

CASES AT COMMON LAW

IN THE

LAW JOURNAL REPORTS,

NEW SERIES, VOL. XLI.

[In the following Index, Q.B. refers to the QUEEN'S BENCH, C.P. to the COMMON PLEAS, Ex. to the
EXCHEQUER, and M.C. denotes that the case is reported in the MAGISTRATES' CASES.]

ACTION-when maintainable: tenants in common:
trespass: trover: amendment of form of action]-
One tenant in common cannot maintain trespass
or trover against his co-tenant for cutting and
carrying away the grass off their land unless
there has been an ouster, or unless it is shewn
that the grass has been destroyed. Jacobs v.
Seward (House of Lords), C.P., 221
Plaintiff and defendant being tenants in common

of certain land, defendant entered the land,
cut the grass, put a lock upon the gate, and
carried away the grass. There was no evi-
dence that defendant kept the gate locked, but
there was evidence that he opened the gate for
plaintiff's son to take away the hay of a former
year-Held, that these facts did not amount
to an ouster of plaintiff by defendant, so as to
enable plaintiff to maintain an action of tres-
pass against defendant, nor to a destruction
of the common property so as to entitle him to
maintain an action of trover. Held, also, that
the Court below was right in refusing to allow
an amendment of the declaration by converting
the action into an action for an account under 4
Anne c. 16. s. 27. Ibid.

When maintainable. See Bankruptcy.
Canal. Damage. Negligence.

against foreign company. See Practice.

for extinction of commonable rights. See
Compensation.

· Parties to actions. See Slander.

ADMIRALTY COURT-jurisdiction of, and of County
Court. See Prohibition.

AFFIDAVIT—want of deponent's addition: waiver]—
Where a rule nisi had been obtained against two
persons, and one of them succeeded in getting the
NEW SERIES, 41.-INDEX, Com. Law.

[blocks in formation]

AMENDMENT-adding a plaintiff]-In an action
against a tenant for dilapidations to furniture,
the first count was for damages for breach of
the agreement under which the furniture had
been let, and the second count was for the
amount of dilapidations as awarded by valuers.
It appearing that though plaintiff was the party
to the submission under which the award was
made, the agreement for letting had been made
only between one C. (who was plaintiff's trustee)
and defendant, the plaintiff applied for and
obtained a Master's order, under section 34 of
the Common Law Procedure Act, 1852, to add
C. as plaintiff in the action:-Held, that the
Master had power to make such order, and that
he rightly exercised his discretion in making
it, since, if refused, plaintiff could bring a fresh
action in the joint names of plaintiff and C.,
and according to section 19 of the Common

A

Law Procedure Act, 1860, succeed as to the one
who was entitled to recover, subject only to the
right of defendant to the costs occasioned by
such joinder. De Gendre v. Bogardus, C.P., 107

AMENDMENT (continued)-of misjoinder of defen.
dants on trial in County Court. See County
Court.

of form of action. See Action.

ANIMALS-mischievous dog. See Negligence.

APPROPRIATION OF PAYMENTS. See Bill of Ex-
change.

-

ARBITRATION award: evidence of arbitrator:
Lands Clauses Act: lands injuriously affected:
no land taken but only an easement appurtenant
to the lands injured]-In an action upon an
award, the arbitrator's evidence is admissible to
shew in respect of what matters he allowed or
refused compensation, but not to explain his
reasons for awarding a particular sum in respect
of any particular matter. The Duke of Buccleuch
and Queensberry v. The Metropolitan Board of
Works (H.L.), Ex., 137

When lands are injuriously affected by the con-
struction of works authorised by an Act of
Parliament, the owner is entitled to compensa-
tion if an easement appurtenant to the lands is
taken, just as he would be if part of the lands
was taken. Ibid.

Liability of Arbitrator. See Negligence-
Pappa v. Rose.

ARTICLES OF CLERKSHIP. See Attorney and
Solicitor.

ASSIGNOR AND ASSIGNEE-Right of assignee to
sue. See Marine Insurance.

ASSUMPSIT Promise to marry on happening of
contingency. See Breach of Promise. And see
Guarantie.

ATTORNEY AND SOLICITOR-enrolment of articles
of service of clerk: binding to a firm]-A clerk
entered into articles of clerkship by which he
bound himself to serve a firm of attorneys con-
sisting of two partners:-Held, that the bind-
ing was valid, and the articles must be enrolled.
Re an articled clerk, Q.B., 141

omission to renew notices for examination
and admission]-An articled clerk gave the
proper notices for examination and admission
as an attorney in Easter Term. He passed his
examination in that Term, but did not apply
for admission, nor did he renew his notices as
required by R. (atts.) of Hilary Term, 1853,
8. 6:-Held, upon an application in Trinity
Term to be allowed to renew the notices, so
that he might be admitted during that Term,

that the rule was positive, and that this Court
would not dispense with it. Er parte Hay, Q.B.,
375

admission: articled clerk: intermediate exa-
mination]-A member of the University of
Edinburgh, who has not taken the degree of
M.A., but has been enrolled on the General
Council by virtue of 21 & 22 Vict. c. 83. s. 6,
is not entitled to be admitted an attorney after
three years' service under articles. Ex parte
Stewart, Ex,76

Quere, whether this Court has jurisdiction to
compel the examiners to grant a certificate to
an articled clerk that he has passed his inter-
mediate examination. Ibid.

liability for negligence: duty to register lis
pendens]-In an action against a solicitor for
negligence, the declaration stated that plaintiff
was equitably interested in four-tenth parts of
the lease of a colliery, that the lessee had en-
tered into negotiations for the sale of the lease
to a company, and that plaintiff retained defen-
dant, as solicitor, to file a bill in Chancery
against the lessee and the company for the
purpose of enforcing plaintiff's claim in respect
of his shares, and praying that the lessee
might convey and secure to plaintiff four-
tenths of the purchase money, and that the
company might be decreed to do all things ne-
cessary to confirm such conveyance and security
and might be enjoined from paying plaintiff's
proportion of the purchase money to the lessee.
Breach that defendant did not register the bill
as a lis pendens according to 2 & 3 Vict. c. 11. s.
7, whereby the lessee was enabled to dispose of
the lease to another company and to receive the
purchase money, and plaintiff was deprived of
his share in it:-Held, that the declaration was
good, as the bill in Chancery which prayed for
an equitable lien against the intended pur-
chasers of the lease was a lis pendens, which
ought to have been registered under the statute,
and that having regard to the terms of the bill
it was the duty of defendant as a solicitor to
have registered it, without any express request
on the part of plaintiff. Plant v. Pearman,
Q.B., 169

suspension: practice where an attorney has
been suspended by another court]-Where an
attorney has been suspended for a limited period
by order of one of the Superior Courts, the
Court of Common Pleas will not adopt such
order by suspending, in like manner, the attor-
ney from practising in that Court, without ex-
amining the facts on which the order was made,
and exercising its own discretion in the matter.
Re Brutton, C.P., 58

In a case in which the Master of the Rolls ordered
an attorney to be suspended for a certain period,
and the misconduct was such that he might have
been struck off the roll for it, the Common Pleas,
after reading the affidavits used before the
Master of the Rolls, ordered the attorney to be

suspended from practising in that Court, not
only for the period ordered by the Master of
the Rolls, but until the further order of the
Court. Ibid.

action without authority: order to pay costs:
composition with creditors]-Where an attorney
brought an action, knowing he had no authority
from the plaintiff, and on judgment for the de-
fendant a rule was granted ordering him, the
attorney, to pay the defendant's costs, and then
such attorney, under 32 & 33 Vict. c. 71, entered
into a composition with his creditors,-Held,
that he was not discharged from such payment
as the case was one of fraud within 32 & 33
Vict. c. 71. s. 49. Jenkins v. Feraday, C.P., 152
BAILMENT. See Carriers. Detinue.

BAILOR AND BAILEE. See Negligence-Fowler v.
Lock.

De-

BANKRUPTCY-set-off: mutual credit: executor:
notice of equities]-Plaintiff, as trustee under
the Bankruptcy Act, 1869, of K. & Co.,
bankers, sued defendant for money lent, the
balance due upon his private account.
fendant had another account with the bank as
executor of A., and at the time of the bank-
ruptcy the balance on this account was in his
favour. Under the will of A. defendant was
both executor and residuary legatee, and at the
time of the bankruptcy he had assets in his
hands exclusive of the balance in the bank,
more than sufficient to provide for all bequests
which remained unpaid, and to leave a balance
due to him as residuary legatee:-Held, that
he was entitled to set off the balance due to
him on the executorship account, since the
bank might have sued him in his own name if
he had overdrawn the account due to him as
executor, and the only effect of opening the
account as executor was to give notice that
there might be equitable rights as against the
person opening the account, though in the
present case there was no suggestion of any
equity against defendant. Bailey v. Finch, Q.B.,

83

license in bill of sale to seize after acquired
property: extinguishment of principal debt]-
Where a bill of sale given to secure a debt
contains, together with an assignment of existing
property, words which amount to a license to
scize after acquired property, but which do not
amount to an equitable assignment of the latter,
such license is co-extensive with the debt, and
cannot be exercised after the debt has been
barred by the bankruptcy of the debtor. Cole
v. Kernot; Thompson v. Cohen, Q.B., 221

vesting of cause of action in assignees :
special damage]-In an action against attor-
neys for breach of duty in failing to procure
the best price for the equity of redemption of the

plaintiff's premises which had been entrusted to
them for sale, the declaration alleged as special
damage that defendants "well knew that if
plaintiff did not obtain a reasonable price, the
bankruptcy of plaintiff would be the necessary
and inevitable consequence," and further, that
in consequence of the breach of duty alleged,
plaintiff was adjudicated bankrupt. Defendants
pleaded the bankruptcy of plaintiff:-Held, on
demurrer, by BLACKBURN, J., MELLOR, J., and
LUSH, J., on the authority of Hodgson v. Sidney
(35 Law J. Rep. (N.s.) Exch. 182), that the
plea was good, that the cause of action passed
to the assignees in bankruptcy, and that de-
fendant's knowledge that plaintiff's bankruptcy
would follow from their breach of duty made no
difference; HANNEN, J., doubting whether Hodg-
son v. Sidney was not distinguishable on that
ground. Morgan v. Steble, Q.B., 260

mortgage in fee: looms in a mill]—Where
the occupier, who is also owner in fee, of a
mill containing looms nailed to the floor, mort-
gages the mill and fixtures in fee and after-
wards assigns all his effects to a trustee for
the benefit of his creditors, the mortgagee is, as
against the trustee, entitled to the looms as
part of the mill. Longbottom v. Berry (39 Law
J. Rep. (N.S.) Q.B. 37), affirmed. Holland v.
Hodgson (Ex. Ch.), C.P., 146

execution: county court adjudication: trad-
ing in London: claim by trustee under 32 &
33 Vict. c. 71. s. 87: evidence]-The goods of
M. having been seized and sold under an exe-
cution, notice was duly served on the sheriff
under section 87 of 32 & 33 Vict. c. 71 of a
petition in bankruptcy against M.; this peti-
tion was, under the above statute, preferred in
the G. County Court against M., as a gentleman
residing within the district of that Court, and
not residing or carrying on business in the Lon-
don district, and alleged an act of bankruptcy
which would render even a non-trader liable
to be made bankrupt; no opposition was offered,
and M. was adjudged bankrupt and a trusteo
appointed. In an interpleader issue between
the trustee and the execution creditor, to try
whether the former was entitled to the pro-
ceeds of the sale as trustee of a bankrupt
trader,-Held, by the majority (BOVILL, C.J.,
BYLES, J., and GROVE, J.) of the Court (dis-
sentiente BRETT, J.), that the trustee might rely
on the copy adjudication in the Gazette as con-
clusive evidence of the bankruptcy, and also
give evidence that M. was a trader in London
in order to shew that the goods were the goods
of a bankrupt trader within the above section
of the statute. Revell v. Blake, C.P., 129

execution under 501.: seizure by sheriff:
sale after adjudication: creditor holding a secu
rity]-Section 18 of the repealed Bankrupt
Law Consolidation Act, 1849, is not re-enacted
directly or indirectly in the Bankruptcy Act,

1869. Therefore under the latter Act, when
the sheriff has, under an execution for less
than 50, seized a debtor's goods before any
act of bankruptcy, the execution creditor's claim
to be paid out of the goods is not defeated by
the debtor's subsequent bankruptcy, though the
sheriff do not sell till after the adjudication.
Such an execution does not require the pro-
tection of section 95, sub-section 3, which applies
only where an act of bankruptcy has been com-
mitted prior to the seizure. Slater v. Pinder
(Ex. Ch.), Ex., 66

BANKRUPTCY (continued)--bankrupt assignee of
lease: lease deemed to have been surrendered :
liability of lessee]-A lessee of a messuage and
premises for a term of years assigned the un-
expired residue to one who was afterwards ad-
judicated bankrupt under the Act of 1869. The
trustee in bankruptcy disclaimed the lease under
section 23 of that Act:-Held, that the lessor
could maintain an action on the covenants in the
lease against the lessee for the rent which be-
came due between the adjudication and the dis-
claimer. Smyth v. North, Ex., 103
Semble, per MARTIN, B., and PIGOTT, B., that the
Court of Bankruptcy having made no order as
to the possession of the property disclaimed,
this action would be maintainable for rent due
after the disclaimer; Contra, per BRAMWELL, B.
Ibid.

annulling of bankruptcy on appeal: mutual
credits, debts or dealings: reverting of pro-
perty to bankrupt]-An adjudication in bank-
ruptcy under the Act of 1869 having been
made against defendant, his trustee in bank-
ruptcy sold part of the estate, and paid the pro-
ceeds into a bank to an account which he kept
as such trustee. The bank knew the circum-
stances, and also that an appeal against the ad-
judication was pending. The bank afterwards
became bankrupt, and subsequently the adjudi-
cation against defendant was annulled by the
Court of Appeal, on the ground that no act of
bankruptcy had been committed. The Court
made no order under section 81 as to the vesting
of defendant's property. The trustee in bank-
ruptcy of the bank having brought an action
against defendant for a debt due to the bank
before defendant's bankruptcy,-Held, affirming
the judgment of the Court below, that defend-
ant could set off equitably the money paid by
his trustee into the bank. Bailey v. Johnson
(Ex. Ch.), Ex., 211

Order of Discharge. See Attorney and
Solicitor-Jenkins v. Feraday.

See Debtor and Creditor.

BARON AND FEME. See Husband and Wife.

BASTARDY-Appeal. Second Order. Jurisdiction
of Justices. R. v. Glynne, Q.B., 57; M.C., 58

Evidence. Death of mother before the
hearing at petty sessions, The Queen v. Armi-
tage, Q.B., 376; M.C., Vol. 42, 1873

BILL OF EXCHANGE-collateral security: appro-
priation: equity]-On the 14th of September
P. & Co. purchased from H. a floating cargo of
maize, and the same day resold it to the defen-
dant. On the 4th of October P. & Co., accord-
ing to the custom of the trade, paid H. (who
retained the shipping documents) a deposit of
8837. on account of the cargo, and the same day
drew a bill on the defendant for that amount,
which the defendant accepted. P. & Co. there-
upon discounted the bill with the plaintiffs.
On the arrival of the cargo in November, P. &
Co., acting on the defendant's instructions, sold
the cargo for him to C., who paid H. the
balance due from P. & Co. on the first sale, and
received direct from H. the shipping documents.
There was then remaining in C.'s hands a
balance of 4157. due to the defendant. On the
2nd of December P. & Co. executed a deed of
inspectorship; on the 17th the bill for 883.
was dishonoured at maturity; and on the 20th
the defendant filed in Dublin a petition for ar-
rangement with his creditors. Had P. & Co.
not suspended payment, they would have been
entitled, according to the regular course of busi-
ness, to have appropriated the balance of 415.
to the taking up of the bill; and it would also
have been their duty towards the defendant to
have done so and to have retired the bill. C.
having paid the 415. into Court,-Held, that
the money paid in ought to be applied towards
taking up the bill, and ought not to be paid
to the defendant or his trustees. The Bank of
Ireland v. Perry, Ex., 9

BILL OF LADING-construction of as to carriage
by steam ship]-Goods were shipped under a
bill of lading which commenced, "Shipped in
the steamship Hibernia . . . . with liberty to
call at any ports, in or out of the route, to
receive and discharge coals, &c., and to tranship
the goods by any other steamer." The vessel
had only an auxiliary screw, and was propelled
by steam during a small part of the voyage
only, which lasted for about double the time
which would have been taken by an ordinary
steamer. In an action for delay in delivering
the goods, the judge refused to direct the jury
that the contract in the bill of lading was for
a voyage by steam, but left to them the ques-
tion whether the voyage was performed in a
reasonable time, having regard to the fact that
the vessel had only an auxiliary screw:-Held,
that the jury had been misdirected, as it was an
implied term of the bill of lading that the
voyage should be wholly or principally by steam.
Fraser v. The Telegraph Construction and Main-
tenance Company, Q.B., 249

See Ship and Shipping.

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