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.
Attorneys-Burton, Yates & Hart, for plaintiff; E. Smith, for defendant.
END OF TRINITY TERM, 1872.
[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.
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
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.
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.,
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.
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
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