73 ^ 
 
 Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, ,1893 
 
 in riEnoRV op 
 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 KD 7325.B62 
 Practice under the Judicature Acts; being 
 
 3 1924 017 860 564 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017860564 
 
PRACTICE 
 
 "UNDER 
 
 THE JUDICATURE ACTS 
 
 REPORTS OF POINTS OF PRACTICE 
 
 ARISING UNDER 
 
 THE JUDICATURE ACTS, 1873 and 1875, 
 
 DECIDED IN JUDGES' CHAMBERS. 
 
 Edited by 
 
 ADAM H. BITTLESTON, B.A., S.C.L., 
 
 Of the Iimer Temple, Ba/rrister-at-LoAjo. 
 
 LONDON : 
 LAW TIMES OFFICE, 10, WELLINGTON-STEEET, STEAND, W.C 
 
 1876. 
 
LONDON : 
 PRINTED BY HORACE COX, 10, WELLINGTON-STREET, STRAND, W.C. 
 
ADDENDA. 
 
 The following notices have been posted in Judges' Chambers 
 since Nov. 1, in addition to No. XXVIII. in the Eeports. 
 
 PENDING BUSINESS. 
 
 High Court op Jtjstice.^Notice. 
 
 In order to save the expense and inconvenience of separate 
 applications for directions as to the form and manner of pro- 
 c edure in actions commenced before the 1st Nov. inst., the Judge 
 sitting at chambers hereby directs. — 1. That where no declaration 
 has been delivered the action shall be continued according to the 
 ordinary course of the High Court of Justice, as if it had been 
 commenced 111 that court. 2. That in all other cases the action 
 shall be continued up to the close of the pleadings according to 
 th e practice of the court in which it was brought, and afterwards 
 according to the provisions of the Judicature Acts, subject, how- 
 ever, to an order, at the instance of either party, to proceed at 
 any stage according to the course prescribed by those Acts. 
 
 Judge's Chambers, Nov. 2, 1875. (By order.)^ 
 
 COSTS OF INSPECTION. 
 
 Where an order for the inspection of documents is made under 
 Order "XXXL, rules 17 and 18, the costs of the application and of 
 the inspection shall be costs in the cause (unless otherwise ordered), ' 
 the cost of 4<£. per folio for copies of documents being paid by-the 
 party inspecting. 
 
 (By order of the Sitting Judge.) 
 
 December 20, 1875. 
 
JUDGES' CHAMBERS. 
 
 Nov. 2 and 5. 
 
 (Before Lush, J.) 
 
 Ramsden v. Breabley. 
 
 Interrogatories — Discovery^ Action for libel — Judicature Act 1873, 
 s. 24 ; s. 22, subs. 7—6 Sf 7 Will. 4, c. 76, s. 19. 
 
 Any information which, before the passing of the Judicature Acts, 
 could have been, obtained in Eguity by fil/img a bill of discovery, 
 can now be obtained by interrogatories in any cause before the 
 High Court of Justice, although the cause may have been entered 
 for trial before the Judicature Acts came into operation. 
 
 This was an action by the plaintiff against the publisher of the 
 Standard newspaper, for' an alleged libel in that paper ; and the 
 present application to his Lordship was for leave to administer 
 interrogatories to the defendant. The interrogatory which was 
 objected to, and which, as will be seen, was allowed by the learned 
 Judge, is as follows: — Were you, on the 22nd Nov. 1874, the 
 printer or publisher, or both, of the Standard newspaper ? 
 
 W. P. Macdonald appeared for the plaintiff ; Warburton Pike 
 for the defendant. 
 
 Nov. 5. — Lush, J. — The question in this case is whether the 
 plaintiff is entitled to an order for administering interrogatories 
 to the defendant for the purpose of discovering whether he was 
 or was not, at a given date, the printer and publisher of the 
 Standard newspaper. The action, which is for an alleged libel in 
 that paper, was brought many months ago, and was entered for 
 trial at the sittings after last Trinity Term, but not having been 
 reached, it stands in the list of remanets for trial at the present 
 sittings. The defendant's plea is "Not Guilty." Whether the 
 plaintiff could have obtained permission to put this interrogatory 
 from the Court of Queen's Bench, under the law as it stood up to 
 the 1st Nov. inst., is at least doubtful. She was advised that she 
 could not, and she did not therefore make the application. But 
 she clearly had the right to a discovery in equity by virtue of 
 6 & 7 Will. 4, c. 76, s. 19, which is still in force (see 32 & 33 Vict, 
 c. 24), and which enacts, " That if any person shall file any bill in 
 any court for discovery of the name of any person concerned as 
 printer, publisher, or proprietor pf any newspaper, or of any 
 matter relating to the printing or publishing of any newspaper, 
 
■Addenda. 
 
 in order the more effectually to bring or carry on any suit 
 or action for damages alleged to have been .sustained by reason 
 of any slanderous or libellous matter contained in any su,ch 
 newspaper respecting such person, it shall not be lawful for the 
 defendant to plead or demur to such bill, but such defendant shall 
 be compelled to make the discovery required; provided always 
 that such discovery shall not be made use Of as evidence or other- 
 wise in any proceeding against the defendant, save only in the 
 proceeding for which the discovery was made." The plaintiff did 
 not avail herself of the remedy thus provided, by reason, as she 
 alleges, of her inability to bear the expense of it. It must be 
 taken, upon the statement made to me, that she has a difficulty 
 in proving the fact that the defendant was the printer and 
 publisher, and that the discovery sought will enable her "more 
 effectually " to carry on her action. The questions are., first, the 
 general one — Can a plaintiff in an action brought in the High 
 Court of Justice have the benefit of this enactment by any form 
 of proceeding in the division to which the action belongs ; and, 
 second, if it could be granted in such an action, can it and ought 
 it to be applied to an action brought and entered for trial before 
 the Judicature Acts came into operation ? I cannot entertain a 
 doubt upon either of these questions. As to the first, the Court 
 of Chancery no longer exists as a separate tribunal. It has 
 become a constituent part of the High Court of Justice, each 
 division of which is invested with equal authority and "with the 
 entire jurisdiction of the whole court. The 24th section of the 
 Act of 1873 was designed to meet such cases as this. It enacts in 
 sub-sect. 7 : " That the High Court of Justice, in any cause or 
 matter pending before it, shall have power to grant and shall 
 grant all such remedies whatsoever as any of the parties thereto 
 may appear to be entitled to in respect of any legal or equitable 
 claim, properly brought forward by them respectively in such 
 cause or matter, so that as far as possible all matters so in contro- 
 versy between the said parties respectively may be completely 
 and finally determined, and all multiplicity of legal proceedings 
 concerning any of such matters avoided." The proceeding by 
 bill of discovery, pointed out by the Act of Will. 4, has also been 
 abolished ; but the Judicature Acts were not intended to abolish, 
 nor have they the effect of abolishing the right of discovery which 
 it gives. That right still exists. The procedure substituted by 
 the Acts for the bill of discovery is an action in the High Court ; 
 but that, by the hypothesis, has been already brought. By the 
 express language of the section just quoted, the remedy is to be 
 granted as a proceeding in that action, and in order to carry out 
 the policy of the Act, it must be granted by that Division of the 
 High Court which has seisin of the cause, so as to " avoid multi- 
 plicity of legal proceedings." To hold that the suitor must go 
 elsewhere for it would be to defeat the primary objects of the 
 
Addenda. 
 
 Acts. . I am, therefore, of opinion that in the case supposed a 
 plaintiff -would be entitled to the discovery now sought, and that 
 the appropriate form of remedy is by administering interroga- 
 tories. The protection accorded to the defendant by the Act of 
 Will. 4 will attach to the answer which he makes to this interro- 
 gatory, as it would have attached to the answer to the bill of 
 discovery. The second point is provided for by the 22nd section 
 of the Act of 1873. By that section the High Court is to have 
 "the same jurisdiction in relation to pending actions as if the 
 same had been originally commenced therein," and it goes on to 
 say that, " so far as regards the form and manner of procedure, 
 such causes may be continued and concluded either in the same 
 or the like manner as they would have been continued and con- 
 cluded in the court from which they shall have been transferred, 
 or according to the ordinary course of the High Court of Justice 
 (so far as the same may be applicable thereto), as the Court may 
 think fit to direct." It is clear that if the Judicature Acts had 
 not passed the plaintiff might now have filed a bill of discovery, 
 and no reason has been suggested why she' should be deprived of 
 the substituted remedy here. ' The defendant will not be in a 
 worse position by being required to answer the interrogatory 
 than he would have been if such a bill had been filed. I therefore 
 direct that this action be continued according to the course of the 
 High Court of Justice, and allow the interrogatory. As the trial 
 may come on at the latter end of the next week, and as the 
 question is one which will require no time, and will put the 
 defendant to no inconvenience to answer, I must require him to 
 file his answer on or before Monday next. 
 
 Solicitor for the plaintiff, A. Howard. 
 
 Solicitor for the defendant, Riches. 
 
EKRATA. 
 
 jo. XI. ; insert after, (See No. XIX.) 
 
 NoN&Vi. ; insert, after the words " deliver milTr " in line 3, comma. 
 
 No. XIX. ; insert, after the words " defendant's affidavit" in line 3, "(See 
 No. XI.)" 
 
 No. XXI. \ in lines 1 and 3 of judgment for " plaintiff" read " defendant," 
 ancLin line 2 for " defendant" read plaintiff." 
 
 No. XJLV11. ;\in head-note, for "18" read "12," and for "inspection' 
 read \ discovery," and in line 1 for "inspection" read "dis- 
 covery. 
 
 No. x x viiT. ; in^ast line omit the words " copy of the," and after last 
 word add V with the notice (Appendix B, Form 4)." 
 
 No. XXX. ; in head-Wote for " 18" read " 16." 
 
 No. XXXII. ; in head\iote/or " inspection" redd " discovery." 
 
 No. XXXVIII. ; in headVnote for. " 34" read " 36." 
 
 No. XLV. ; in line 1 of judgment after " H. v. M" insert "(10 H. L. C. 
 191; 33 L. J. 193\ Ch.)," in line 5 of judgment insert "not" 
 between "was" an8 "entitled," and in lines 10 and last of 
 judgment for " claimant" read " execution creditor." 
 
 No. XL VI. ; in line 8, for " ]iea\read " him." 
 
 No. Lm. ; in line 2 of judgment /ok" abolish" read " encourage. 
 
 No. LX. ; in head-note, between "C^urt" and "30," insert "Order VI 
 rules.'" 
 
 No. LXXV. ; in head-note for "interrogatories" read "discovery," and 
 for "1" read "12." 
 
 No. LXXIX.; in head-note and line 3 for \XXVI." read "XXXI.," and 
 for "12" read "4." 
 
 No. CXXVH. ; in head-note for " 1875 " read "\1873." 
 
 No. CXXX. ; in line 1 and line 1 of judgment, for "Moncton" read 
 " Moulton," in line 2 of judgment for " 8\ read "6." 
 
 No. CXXXVII. ; in line 1/or- " 1879" read " 1875.' 
 
 No. CXLVII. ; in line 2 for " pp. 87, 105," read "p. 
 
 No. CLXXXIV. ; insert in head note after " XXXI.," "\ule 12.' 
 
Errata- 
 
 sCTCVI. ; in head-note for " 31 " read " 35, b. 24, sub-s. 5." 
 
 No. CCS^I. ; in 2nd line of judgment for " filing " read " framing." 
 
 No. CCXXT>sn head-note for "6" read "14, 18," and for "XIII. " read 
 "XVI> 
 
 No. CCXXXI.; infflti^/or "Moncton" read "Monlton." 
 
 No. CCXXXII. ; in line 6>s^" defendant " read " plaintiff. " 
 
 No. CCXXXIII. ; in line 3 /or^Moneton " read "Monlton," and to b< rl 
 
 note add " sub-s. 8.' 
 No. CCXLIX. ; in line 2 omit the wordsN^debtor and a judgment." 
 No. CCLXXT. ; in line 11 for " Foord " reodN^oard." 
 No. CCLXXTIII. ; in line 14, for " defendant " raJ*<plaintinV 
 
 7/z/s 3 
 
lUporte of imctto €%m. 
 
 JUDGES' CHAMBERS(et). 
 
 Friday, Nov. 5. 
 (Before Lush, J.) 
 
 No. I. 
 
 Application for leave to deliver declaration. 
 
 This was an application for leave to deliver a declaration which 
 had been drawn some time|previous to the 1st Nov., but for various 
 reasons not delivered before that day. The action was one of 
 demurrage on two charter-parties. 
 
 Ltjsh, J. — The declaration should have been delivered before. 
 It is extremely desirable on all accounts to bring the new Act 
 into operation as soon as possible. This is a matter of considerable 
 length, the statement of which will, by the new Rules, have to be 
 printed. I cannot make this an exception to the order, that after 
 1st Nov. no declaration should be delivered. 
 
 No. II. 
 
 Amendment of indorsement on writ. 
 
 An application was made to the Judge as to whether his order 
 was necessary in order to amend the indorsement of a writ not 
 yet served. The indorsement on a writ under the Judicature Act 
 may, in certain cases, be treated as the statement of claim. The 
 Judge directed the applicant to take an order. 
 
 No. III. 
 
 Order XXXI., rule 12, Judicature Act 1875. 
 
 Under the above rule an order will not be given, as of course, 
 but a summons must be taken out. f 
 
 (a) Reported by A. H. Bittleston, Esq., Barriuter-at-Law. 
 B 
 
Reports of Practice Cases. 
 
 No. IV. 
 
 Atkinson v. Ellison and anotheb. 
 
 After delivery of declaration, new procedure ordered to be adopted, 
 on affidavit of counter claim. 
 
 This was an action brought to recover rent under a deed of 
 underlease. The declaration was delivered before the 1st Nov. 
 Subsequently a summons was taken out by the defendants calling 
 upon the plaintiff to show cause why all matters in dispute should 
 not be referred to arbitrators named in the deed, and why all 
 further proceedings in the cause, if any, should not be continued 
 and concluded according to the ordinary course of the High Court 
 of Justice. 
 
 Bowen appeared to support the summons, and F. Turner showed 
 cause. 
 
 The first part of the summons as to referring matters in 
 dispute being decided against him, Bowen handed in an affidavit 
 stating that the defendant had a cross claim with regard to the 
 breach of covenant in the lease, and urged that, under the Judica- 
 ture Act, this could be set-off against the claim of the plaintiff. 
 
 Lush, J. — The affidavit does not state the counter-claim very 
 clearly, but I shall direct that the action shall be continued accord- 
 ing to the ordinary course of the High Court of Justice. 
 
 F. Turner. — Will the^ declaration have to be amended, and made 
 a statement of claim ? 
 
 Lush, J. — The declaration may stand as a statement. 
 
 Solicitors for the plaintiff, Walters, Young, and Co. 
 
 Solicitor for the defendants, F. T. Dubois. 
 
 No. V. 
 
 Campbell and another v. m Thukn and otheks. 
 
 Order XVI., rule 3, Judicature Act 1875. 
 
 The trustee appointed tn distribute composition among creditors of 
 
 acceptors of a bill of exchange will not be joined as a party in an 
 
 action by the indorsee against the acceptors. 
 
 This was an action by the plaintiffs as indorsees against defen- 
 dants as acceptors of a bill of exchange, under the Bill of 
 Exchange Act, leave having been given to the defendants to 
 appear. The declaration was delivered on 1st Nov. A summons 
 was taken out by the defendants for the purpose of having the 
 proceedings carried on under the new Act. 
 
 Holl appeared to support the summons. He first applied 
 that, under Order XVI., rule 3 of the Judicature Act 1875, 
 Mr. J. Young should be joined as a defendant in the action. 
 Messrs. ^. C. im Thurn and Co. having suspended payment, 
 and their creditors having agreed to accept a composition, Mr! 
 J. Toung was appointed trustee. The bill upon which the action 
 
Reports of Practice Cases. 
 
 was brought was for £1373 3s. lid., and was drawn for account 
 of Messrs. Cloetta and Schwarz.. On the failure of J. C. im Thurn 
 and Co., two bills for £600 and £786 19s. were sent as cover by 
 Messrs. Cloetta and Schwartz, to the holders of the bill, Finlay, 
 Campbell, and Co. The bill for £786 19s. was. duly paid at 
 maturity, but the bill for £600 was dishonoured. Cloetta and 
 Sohwarz have now also failed. The plaintiff refuses to take the 
 composition and Young refuses to pay more. 
 
 Lush, J. — The plaintiff could not sue Young, and Young has 
 no interest in the suit. There is no privity between them. 
 
 Holl read the opinion of Mr. Benjamin, Q.O., recommending an 
 application to be made for an order for the joinder of the trustee 
 as defendant. 
 
 Lush, J. — I can make no order that the trustee should be joined 
 as a defendant. There is a clause in the Judicature Act that says 
 that the procedure under the Bills of Exehange Act shall be un- 
 altered. I doubt whether that applies to the procedure after the 
 declaration is delivered. I shall not, however, decide that now ; 
 all further proceedings in the cause may be continued and concluded 
 according to the ordinary course of the High Court of Justice. 
 
 No. VI. 
 
 Transfer — Order LI., rule 1 — Judicature Act 1875. 
 
 In an action upon an agreement to take a house, which was said 
 to be an offshoot of an administration suit now pending, an appli- 
 cation was made for the case to be sent over to the Chancery 
 division, to be tried conjointly with the administration suit. His 
 Lordship said that he had no power to make the order, as the 
 Lord Chancellor alone could give permission for the transfer. 
 
 No. VII. 
 
 Renewal of writ — Order VIII., rule 1, Judicature Act 1875. 
 
 Application having been made to the officer to renew a writ 
 issued in 1874, and duly renewed at intervals of six months, he 
 declined to renew it without an order from the judge. 
 
 Lush, J. — My impression is that that writ will never require an 
 order for its renewal. The rule applies only to writs issued under 
 the Act. 
 
 Saturday, Nov. 6. 
 
 No. VIII. 
 
 Service out of the jurisdiction — Order XI., rules 1, 3. 
 
 This was an application for leave to serve a writ upon a defen- 
 dant in Scotland, supported by an affidavit. 
 
 Lush, J. — You don't show either that the contract was made in 
 London, or that it was broken in London. Order XI., Bnile 1, of 
 
 b 2 
 
Reports of Practice Cases. 
 
 the Act says nothing about place of performance. Ton must 
 amend your affidavit; you had better shew where the parties 
 signed the contract. 
 
 No. IX. 
 
 Interrogatories — Order XXXI., rule 1. 
 
 A summons had been taken out under the new Act, after the 
 close of the pleadings, calling upon defendant to answer interro- 
 gatories. Issue was joined before 1st Nov. 
 
 Lush, J. — Where it is sought to administer interrogatories after 
 the pleadings are at an end, the practice under the new system 
 does not differ from that under the old. As at present advised, I 
 should require an affidavit. 
 
 No.X. 
 
 Restraining action — Judicature Act 1873, s. 24, sub-sect. 5. 
 
 An application having been made to the Master of the Bolls to 
 make an order to refer for taxation the costs in a suit, and in the 
 meantime to restrain a common law action now pending, he said 
 that he would make the order to refer, but had now no power to 
 stay proceedings at common law. An application was now made 
 for an order to stay proceedings in the action. It was stated 
 that the courts of equity under the old system always restrained 
 proceedings at law on granting an order to refer for taxation of 
 costs. 
 
 Lush, J. — It seems to me that whatever division of the court 
 makes the order, that division should restrain the action. This 
 order, as I understand it, is not an injunction within the meaning 
 of the Act. It is part of the order to tax. Another applica- 
 tion can be made to the Master of the Kolls, and if he still de- 
 clines, I will consider the case again. 
 
 No. XI. 
 
 Counter claim after issue joined — Judicature Act 1875 — 
 Order XIX., rule 3. 
 
 This was an application to add a counter claim to pleadings 
 after issue joined. The action was one for goods sold and 
 delivered, and the defence was one of fraud as to the nature of 
 the goods. No cross action had been commenced ; the defendant 
 had not returned the goods ; and there had been part payment. 
 Consequently, the defendant apprehended a difficulty in setting 
 up prompt repudiation at the trial, and therefore desired to add 
 a counter claim under Order XIX., rule 3 of the new Act. 
 
 Lush, J. — If the allegation is well founded, there is in this 
 case ground for a counter claim. I will adjourn the case for de- 
 fendant's affidavit. 
 
 -£«yi- 
 
Reports of Practice Cases. 
 
 No. XII. 
 
 Milissich v. Lloyd's. 
 
 Separate issues to be tried separately — Judicature Act 1875 — 
 Order XXXVI., rule 6. 
 
 This was a summons taken out by the defendants calling upon 
 the plaintiff to show cause why all further proceedings in the 
 action should not be according to the New Procedure, and why 
 all further proceedings under the order for the commission should 
 not be stayed until after the trial of the issues arising upon the 
 pleaB of Not guilty and justification, the defendants submitting 
 to any order the court might make as to assessment of damages. 
 
 Mathew appeared to support the summons ; /. M'Leod showed 
 cause. 
 
 The action was one for libel relating to policies of insurance, and 
 the facts were as follows : — Vouchers were laid before the under- 
 writers at Lloyd's by a man named Guerra, in which the sum of 
 140Z. had been substituted for that of 28?. Guerra was prosecuted 
 and convicted. At the trial of Guerra the prosecuting counsel 
 stated that the plaintiff Milissich and another person named 
 Ghitaberti had conspired with the prisoner to commit the fraud. 
 A report of the trial was printed and circulated in the form of a 
 pamphlet by Lloyd's, and that report contained the charge above 
 alluded to, which was the alleged libel. The defendant pleaded 
 Not guilty, and justification. An order had been obtained by the 
 plaintiff for a commission to issue for the examination of certain 
 persons at Venice. 
 
 Mathew. — The interrogatories are simply directed to character. 
 The ground of my application is that the question of damages 
 stands apart from the question of fact, and that the new rule, 
 therefore, applies. Let us ascertain whether there is a libel at 
 all, before we go into the question of damages. The interroga- 
 tories seem to be directed simply to the question whether certain 
 persons had not known and dealt with the plaintiff, and whether 
 they had not ceased to deal with him in consequence of the 
 pamphlet containing the libel. 
 
 M'Leod. — It would be very hard on Milissich if the evidence 
 was confined to what could be procured in this country, as there 
 might then be a strong case against him. The interrogatories 
 are not confined to the question of damages, their object being 
 also to prove the fact of publication in Venice. 
 
 Lush, J. — I must see that the plaintiff is not prejudiced by 
 having this isolated fact tried. Subject to that and to my seeing 
 the interrogatories, I should be inclined to grant the order. 
 Send me the interrogatories and I will decide on Monday. 
 
 Nov. 8. — Lush, J. — I cannot make the order. I do not think 
 that I could in this case separate the question of damages from 
 the question of fact without injury to the plaintiff. 
 
Reports of Practice Cases. 
 
 Monday, Nov. 8. ' 
 
 No. xm. 
 
 Special case — Judicature Act 1875, Order XXXIV., rule 2. 
 
 This was an application for a special case to be stated under 
 the above order. The action was one of trover against the South- 
 Western Railway Company. Goods in packing cases were sent 
 to Wooley via the South-Western Eailway< when they arrived 
 at Twickenham, where consignee lived, he was unable to pay 
 the charges, and the company kept the cases. It was stated 
 in defendant's affidavit that the consignee on being told that the 
 goods were at the station, said that he couldn't take them at 
 present, but it was of no consequence, as they contained pieces 
 of marble. The plaintiff's case was that the goods were stopped 
 in transitu without notice to the consignee. The defendant's 
 case was that immediately on the goods arriving at Twickenham 
 notice was given to the consignee. 
 
 Lush, J. — It must go to a jury. If there was any doubtful 
 point of law, the case would be different. Tou dispute the time 
 when the goods arrived, and their value. The legal liability 
 depends on facts that must be tried before a jury. 
 
 No. xrv. 
 
 Withdrawing record — Re-entering — Order XXIII., 
 Judicature Act 1875. 
 
 An application was made for an order to withdraw the record 
 in an action for breach of promise of marriage. It was stated 
 that the parties reside in Ireland, and that negotiations were going 
 on for a settlement. The cause stands for trial on Wednesday. 
 
 Lush, J. — The intention of this provision is that you should 
 not be at liberty to withdraw the record, and to re-enter it with- 
 out leave. I will give the order, but it is not to be re-entered 
 without leave. 
 
 No. XV. 
 Power to direct trials before referees — Judicature Act 1873, 
 sect. 57. 
 This was an application for an order to refer the cause in ques- 
 tion to a special referee. The action was one of negligence brought 
 by trustees against their solicitors. The trustees had been allowed 
 by the defendants to advance their money on mortgage of a pro- 
 perty, which the defendants reported favourably on in 1869. In 
 1870 the property produced no rent, and the trustees took it into 
 their own hands. Sixteen breaches were alleged, such as not 
 following counsel's opinion, &c. The particulars of claim include 
 
Reports of Practice Cases. 
 
 the gross amount advanced, interest on that amount, and various 
 items of expenditure on the property. An objection was taken 
 that there was no power to make the order unless the defendants 
 admitted their liability, and reference was made to the Act of 
 1875, sect. 22. 
 
 Lush, J. — That is only a modified restoration of the Bill of Ex- 
 ceptions ; but it does not touch the reference clause at all. 
 
 It was then urged on behalf of the plaintiffs that the case was 
 just coming on for trial ; and on the other side it was pointed out 
 that the Act had only just come into force, and could not before 
 have been taken advantage of. 
 
 Lush, J. — I should under any circumstances feel a difficulty in 
 interfering when a cause is on the point of being tried. But 
 my power is limited by the Act to making the order asked for in 
 causes where "any prolonged examination of documents or 
 accounts, or any scientific or local investigation " is required ; 
 and here the question of accounts is quite a subordinate one, and 
 with regard to prolonged examination of documents I can make 
 no order. 
 
 No. XVI. 
 Interrogatories— 'Judicature Act 1875, Order XXXI., Rule 5. 
 
 This was a summons to strike out interrogatories delivered by 
 the plaintiffs under the Act, and therefore without an order, 
 in an action upon a contract to deliver milk, to the defendants in 
 that action. The breach alleged in the declaration was non- 
 delivery; and there was a second oount alleging that the milk 
 supplied was of inferior quality to that contracted for. The 
 interrogatories chiefly objected to were as follows : Who skimmed 
 the milk that was supplied to us ? Was it habitually or occa- 
 sionally done P &c. 
 
 Ltjsh, J. — I feel it is quite necessary to keep a strong hand on 
 the interrogatories now. I was very much afraid that the power 
 given by the Act would be abused, and this is an abuse. The 
 interrogatories will be disallowed ; and the costs are to be 
 the defendants' in any event. 
 
 Tuesday, Nov. 9. 
 
 No. XVII. 
 
 Judicature Act 1875, Order XXXI., rule 12. 
 
 An application was made to the Judge under the above rule for an 
 order for discovery of documents. The declaration had been de- 
 livered before 1st Nov. 
 
 Lush, J. — The old practice is to go on until the close of the 
 pleadings in actions begun before the Act came into operation. 
 An affidavit iB, therefore, necessary in this case. No order. 
 
Reports of Practice Cases. 
 
 No. xvin. 
 
 Application to proceed wider the Judicature Act. 
 In this case the declaration had been delivered before 1st Nov. 
 The action was upon an agreement, which was set out in the 
 declaration, and breach alleged ; there were also the usual money 
 counts. The plaintiffs had a claim under the agreement for £20 
 against the defendants. The defendants' case was that they were 
 agents, and they desired to proceed under the Act, as they would 
 then be able to make their principal a defendant in the action. It 
 appeared that it was doubtful whether there was any contract in 
 writing at all. 
 
 Lush, J. — I will grant your application. Tou can serve a state- 
 ment of defence, instead of pleas, but I do not at present say that 
 you can make your principal a party in the action, (a) 
 
 No. XIX. 
 Evans v. Gan. 
 
 In the case of Evans v. Gan, which was an application to add 
 a counter-claim to the pleadings after the cause was at issue, and 
 which was adjourned on Saturday for defendant's affidavit, the 
 affidavit was produced. Sjul Yio xT ■ -*~ 
 
 Lush, J. — This action is for goods sold and delivered, and it 
 is clearly one of the cases contemplated by the Act. Fraudulent 
 representation as to the nature of goods sold is ground for an 
 action, but if you keep the goods, it is no defence to an action for 
 their value. The effect of my granting this application will be 
 to consolidate the two actions, and I therefore grant it. The 
 costs of this application and the costs of amendment of plead- 
 ings must be the plaintiff's in any event. 
 
 Wednesday, Nov. 10. 
 
 No. XX. 
 
 Signing judgment m actions of ejectment. 
 
 An ex parte application having been made yesterday to his Lord- 
 ship, questioning the correctness of the decision of the Masters in 
 the Exchequer, that they could not, under the Act, sign judgment 
 in actions of ejectment, after due service of writ and default of 
 appearance, without an order, he postponed his decision until to- 
 day for the purpose of consulting with the masters, intimating at 
 the same time that he thought an order would be necessary. 
 This morning his Lordship gave the following decision : The 
 
 fa) His Lordship has stated that in oases similar to the above, an order will not 
 
 be given, but simply a direction how to proceed. 
 
Reports of Practice Cases. 
 
 service of a writ in the manner prescribed by Order IX., rule 8, 
 will not entitle the plaintiff in an action of ejectment to sign 
 judgment without an order ; rule 112 of Hilary Term 1853 remains 
 in force. 
 
 No. XXI. 
 
 Hall v. Smith. 
 
 Judicature Act 1875, Order L Vlll., rule 10. — Enlarging time for 
 
 appeal from refusal of rule. 
 This was an action for damages by a builder against a clergyman 
 for not allowing him to finish a building, in which a verdict was 
 given for the plaintiff for 120Z. A rule for a new trial on the 
 ground of misdirection had been moved for and refused. Applica- 
 tion was now made to the learned judge under the above rule to 
 enlarge the four days within which such refusal should be appealed 
 against. The ground of the application was that the Court of 
 Appeal were not yet prepared to hear appeals of this nature ; and 
 it was said that they propose to make a rule establishing one day 
 a week for these m 9y°© s ; -v J- tyv0 fcr 
 
 Ltjsh, J.— The p*MBH#sayshe is willing ^Wivjihe money 
 into court; I will, tnerrf^^stay the/rara&Sf^Pn&and for a 
 fortnight to enable the < p»SSff TO^ppeal, if he pays into court 
 this week 240Z. 
 
 No. XXII. 
 
 Injunction. 
 An application was made for an injunction to restrain from paying 
 away money. 
 
 Lush, J. — I shall follow the Chancery practice, and grant it 
 without an affidavit. 
 
 No. xxni. 
 
 Declarations delivered on 1st Nov. 
 An application was made to the judge under these circumstances : 
 Two declarations had been delivered on Nov. 1st ; subsequently, 
 in one case, directions were given to proceed under the Act ; in 
 the other directions were given to proceed under the old system. 
 
 Lush, J. — You might have come for a direction, if you were in 
 doubt as to whether to deliver declarations or statements of claim. 
 If you had read the Act you would have seen that pending actions 
 might have been continued, either according to the old or the new 
 practice, as the court might direct. I shall not alter the direc- 
 tions that have been given. 
 
 No. XXTV. 
 
 LUSCHBB V. COMPTOLB. D'ESCOMPTB DE PaBIS. 
 
 Injunction— Judicature Act 1873, s. 25, sub-sect. 8 ; Judicature 
 
 Act 1875, Order LU., rules 2, 3, 4. 
 
 This was an action by Luscher & Co., merchants, against the 
 
 Comptoir d'Escompte de Paris for money paid. The present was 
 
10 Reports of Practice Cases. 
 
 an exports application under the above provisions of the Act, for 
 money to be paid into court, pending a summons calling upon the 
 other party to show cause why an injunction should not be issued 
 restraining the defendants from paying away money in their 
 hands, which the plaintiffs claimed. The plaintiffs were the con- 
 signees of 428 bales of palm leaves ; the bill of lading being in the 
 hands of the defendants, the plaintiffs, who were entitled to it, 
 claimed it from them. The consignor, however, had become 
 bankrupt, and the defendants claimed the bill of lading on behalf 
 of the Sank of Algiers, and refused to give it up until the plain- 
 tiffs paid the sum of £538 4s. 2d. Finally, the plaintiffs paid 
 what they demanded under protest ; and it was to recover this 
 sum that the action was brought. 
 
 Bremner supported the application. 
 
 Lush, J. — I cannot order the holder of the money to pay it into 
 court unless he wishes to. Some person has wrongfully withheld 
 your bill of lading, and you have a claim against him for the 
 money you have paid. It is not your money, though you have a claim 
 against them ; and I have no power to direct them what to do 
 with their money. No order. 
 
 Wednesday, Nov. 10. 
 
 No. XXV. 
 
 Twtcroit v. Grant and others. 
 
 This was an application to continue the action according to the 
 ordinary course of the High Court of Justice. 
 
 Bremner, in supporting the application, stated that this was 
 an action brought against Baron Grant and two other defendants, 
 named Clark and Punshard, for issuing a fraudulent prospectus. 
 The reason for the application was that several orders had been 
 obtained, calling upon Grant to answer these interrogatories, but 
 he had taken no notice of any of them. If this application were 
 granted, the plaintiff would be able to avail himself of the pro- 
 vision for striking out the defence on failure to answer inter- 
 rogatories, instead of proceeding by the old and often ineffectual 
 system of attachment. 
 
 Webster for the defendant Grant, stated that the reason that 
 the interrogatories had not been yet answered was that Mr. 
 Morris, Baron Grant's solicitor, went to America in reference to 
 the Brie railway, and has not yet come back. We are willing to 
 give them answers within a week. 
 
 Lush, J.— Then I shall not give the direction asked for. If I 
 had done so, I should only have struck out the defence in the last 
 resort. 
 
Reports of Practice Cases. 11 
 
 No. XXVI. 
 Judicature Act 1875, Order XXXL, rule 4. 
 An application was made as to whether an order was necessary 
 for interrogatories against a body corporate. 
 Lush, J. — An order is necessary. 
 
 Thursday, Nov. 11. 
 
 No. XXVII. 
 Mattocks. Heath. JBCowus-u-C^y 
 Judicature Act 1875 — Order XXXI., rule 1% Inspec t io n of docu- 
 ments. . > 
 This was an application under the Aot for an order for- mopooM Oii t 'y 
 of documents, and a cross summons had been taken out by the 
 other side for the same purpose. The action was one of ejectment, 
 and the matter was originally in the Court of Chancery. The 
 defendant claimed to be heir-at-law to an estate of which the last 
 owner, Mr. Scarth, died intestate, as being his cousin. Malius, 
 V.C., had dismissed the plaintiff's bill, and left him to bring his 
 action of ejectment at common law. The defendant was in pos- 
 session. The documents asked for were certain pedigrees, and 
 letters between the defendant and intestate. . 
 
 FMay for the plaintiff. — Letters that have passed between the 
 defendant and intestate admitting, as defendant alleges, the rela- 
 tionship between them, are relied upon by the defendant, and there- 
 fore we are entitled to see them. We say that if we see them we 
 shall be able to prove that he was no relation at all. 
 
 Lord, contra. — My friend's case is that the intestate's name was 
 Scarf, and not Scarth. The action was ripe for trial at the sittings 
 after last Trinity Term, and the record was withdrawn by plain- 
 tiff, who has seen everything we have. 
 
 Finlay. — In defendant's bill of costs he admits having pedi- 
 
 Lush, J. — Here it is alleged that you have seen both the letters 
 and the pedigrees ; I will adjourn till to-morrow to enable you to 
 get an affidavit. 
 
 Friday, Nov. 12. 
 
 No. XXVII. 
 
 Mattock v. Heath. 
 
 On the adjourned summons coming on 
 Finlay, for the plaintiff, put in an affidavit, which stated that it 
 appeared from the bill of costs that the defendant has in his pos- 
 session notes taken by Mr. Eoe of statements made by the defen- 
 dant relating to the descent of the family. Those notes are the 
 
¥>, Reports of Practice Cases. 
 
 documents of which we desire discovery, and I submit that, at all 
 events under the Act, we are entitled to an order. 
 
 Lush, J.— Does the Act give wider powers of discovery than 
 were in existence previously? It certainly dispenses with an 
 affidavit, but that only in the discretion of the Judge. You are 
 not entitled to discovery except of documents that you would have 
 a prima facie right to inspect. This is a mere memorandum made 
 by or on behalf of the defendant. Can you claim to see private 
 memoranda written by the opposite party for his pleasure or conve- 
 nience P The plaintiff and the defendant do not claim here from 
 a common ancestor; but are at issue upon the question who was 
 the father of the intestate. . 
 
 Finlay. — It may be a most material element in the plaintiff s 
 case that the defendant has at different times made different 
 statements with regard to the nature of his relationship. 
 
 Lush, J. — I can make no order. Both summonses dismissed 
 with costs. 
 
 No. xxvin. 
 
 Judicature Act 1875. Order XXX., rule 2. 
 The following order was to-day issued : — 
 
 As money may now be paid into court without leave at any time 
 after service of the writ, and before defence (Order XXX., rule 2), 
 summonses to stay on payment of a smaller sum than the sum 
 demanded will no longer be issued. Instead, thereof, the amount 
 shall be paid into court, and Lhu u opj of the receipt sent to the 
 plaintiff's solicitor.*«~^J^>*Ft^("CMy l *~^£- &,-3tnsm?). 
 
 By orHef of the Sitting Judge. 
 Chambers. 
 
 No. XXIX. 
 Atkinson v. Ellison. 
 
 Judicature Act 1873, ss. 56, 57 — Summons to refer — Common Law 
 
 Procedwre Act 1854, s. 11. 
 This case, in which a previous summons was heard last week 
 (No. 4), came again before the Judge on a summons taken out by 
 the defendant to refer the original claim and the counter-claim in 
 the action to an arbitrator named in the lease. 
 
 Bowen in support of the summons — I ask that the landlord's 
 claim for rent, and the tenant's claim for breach of covenant, may 
 both be referred. The nature of our cross-claim is that tinder the 
 covenant by the landlord to do certain repairs we have a right to 
 be repaid for those repairs which we were compelled to do by threats 
 from the superior landlord. The declaration was delivered before 
 Nov. 1, but the action has been ordered by your Lordship to be 
 continued under the Act. Pleas have not yet been delivered. It 
 seems to be a question for a surveyor rather than a jury. 
 
 Lush, J. — A surveyor could go down and see the premises, and 
 give his evidence before a jury. 
 
Reports of Practice Cases. 13 
 
 Bowen. — I make this application first under sects. 56, 57, of the 
 Judicature Act 1873, and secondly under sect. 11 of the Common 
 Law Procedure Act 1854, which would enable me to take advan- 
 tage of the clause to refer. 
 
 F. Turner, contra. — If the defendant is entitled to anything 
 under the Common Law Procedure Act, it can only be to refer the 
 question as to the covenant in the lease, as that only is covered 
 by the reference clause; he would not be entitled to refer the 
 action for rent. 
 
 Bowen. — "We could refer the question whether the counter-claim 
 is good pro tanto. 
 
 Lush, J. — The defendant is not the person sued as regards the 
 counter-claim, and the Common Law Procedure Act only gives 
 the benefit of setting up an arbitration clause to the person sued. 
 The counter claims comes in under the new Act. As to that the 
 defendant cannot avail himself of the Common Law Procedure 
 Act, and I do not think this is a case for reference under the Judi- 
 cature Act. I give him time to plead in case he likes to take the 
 opinion of the court. Costs to be costs in the cause. 
 
 No. XXX. 
 Judicature Act 1873, s. 10. 
 
 A Judge in Chambers has now the same jurisdiction as the Master 
 of the Rolls to stay writs of prohibition issuing from the Petty 
 Bag Office. 
 
 No. XXXI. 
 Discovery — Judicative Act 1875 — Order XXXI., rule 12. 
 
 An order for discovery of documents under the Act, includes 
 documents that have been in the power of the opposite party ; 
 under the old system, the order related only to documents then 
 in his possession or power, and interrogatories were necessary with 
 regard to any that had ceased to be so. 
 
 No. xxxn. 
 
 Judicature Act 1875 — Order XXXI., rule 20 — Failure to give 
 
 This was an appeal from a decisionofoae of the masters, refusing 
 to dismiss an action for want of prosecution. An order for dis- 
 covery had been made on 2nd Nov., directing the plaintiff to file 
 his affidavit in four days; subsequently, two days more were 
 given him, but he had failed to comply with the order. The 
 present summons was then taken out. On the other side it was 
 said that they were now ready to comply with the order. 
 
 Lush, J. — I have not yet granted an application of this kind ; 
 nor shall I do so when the parties really intend to answer. This 
 is a highly penal provision, and only to be exercised in the last 
 
14 Reports of Practice Cases. 
 
 resort. With regard to the costs of this summons, I should have 
 been inclined to make them the defendant's in any event ; but, 
 as the master has decided that they should be costs in the cause, 
 and it is the principle of the Act that costs should not be the 
 subject of an appeal, I shall make no order. 
 
 Judicature Act 1875. — Order L., rr. 1, 2, 3, 4. 
 This was an application by a trustee under a bankruptcy that 
 he should not be required to give security for costs in an action 
 carried on by him in the bankrupt's name, and was based upon 
 the above rules. The matter had been before a master, who had 
 refused the application. It was now urged that, under Order L., 
 rule 4, the trustee's name could be inserted instead of the bank- 
 rupt's as plaintiff in the action. 
 
 Lush, J. — Rule 4, Order L., gives me power to insert the 
 trustee's name ; but the cause is set down for trial, and I think it 
 ■would be very inconvenient to alter the record. If the proceedings 
 had not reached their present stage, it would have been desirable 
 to have done so ; as it is, it seems to me not desirable. It is 
 better that the old practice of the trustee's giving security for 
 costs should be followed in >this case. Supposing the plaintiff's 
 name to remain, it rests upon a principle of law, independent of 
 statutes, that where an action is brought by one person for the 
 benefit of another, and the person so suing is a bankrupt, the 
 person for whose benefit the action is brought must give security 
 for costs. As the cause is at issue, future proceedings will be 
 carried on under the Judicature Acts ; but what I am asked to 
 do is to change all that was done under the old system. It can 
 make no material difference to the trustee whether his name 
 appears as plaintiff in the record, and he thus becomes liable for 
 costs, or whether he gives security for costs. 
 
 Saturday, Nov. 13. 
 
 No. XXXTV. 
 Judicature Act 1875— Order III., r. 6.— Particulars. 
 This was an appeal from Master Gordon's decision refusing to 
 make an order for particulars. This was an action of debt for 
 goods supplied. Judgment had been signed, but afterwards set 
 aside upon affidavit of merits. The writ was not speoially in- 
 dorsed. 
 
 Lush, J.— I hope it will be generally understood that in money 
 causes particulars will not be ordered or allowed as a matter of 
 course. When they can be indorsed or stated in the olaim thev 
 ought to be so, and the expenses of a second document saved 
 
Reports of PraeUee Cases. 15 
 
 The action having been ordered to go on under the Aot, a state- 
 ment of claim' had been delivered, Betting out the goods for the price 
 of whioh the action was brought, and which consisted of the 
 various items of a fancy dress in an air-tight case, but not giving 
 the separate price of each item. These were the particulars de- 
 fendant asked for. For plaintiff it was said that, as he was 
 not himself a maker of the articles he had sold to defendant, but 
 had ordered them from another person, he could not give the 
 particulars asked for. 
 
 Lush, J. — I will adjourn till Tuesday for the best particulars 
 the plaintiff can give. 
 
 No. XXXV. 
 
 Judicature Act 1875. Order XXXVL, rule 13. — Postponement of 
 notice of trial. 
 
 This was an application by the plaintiff in an action for postpone- 
 ment of trial. The question in the action related to the condition 
 of a cargo of rye. The cause stood for trial in February last, 
 but at that time defendants obtained a postponement in order to 
 enable a commission to go on their behalf to Galatz, which com- 
 mission had just returned. The reason for the present application 
 was that the boatswain of the ship in which the cargo was shipped, 
 who was a necessary witness for the plaintiff, and who in February 
 was at Sunderland, and ready to come up to London, had gone to 
 sea again two days ago. Under the late procedure no application 
 would have been necessary, as the plaintiff might have with- 
 drawn the record, but now an application to postpone must be 
 made. It was stated that the boatswain would not be back till 
 March as he had gone to Mexico. 
 
 Lush, J. — It is the plaintiff's delay, not the defendant's ; I 
 will postpone till March. 
 
 No. XXXVI. 
 
 Service of writ — Judicature Act 1875, Order IX., rule 2. 
 
 This was an appeal from a refusal of a master to make an order 
 to proceed in the absence of service. 
 
 Lush, J. — The master is quite right. Under the Act an order 
 for substituted service is necessary. 
 
 No. XXXVII. 
 
 Judicature Act 1875, Order XI., rule 1 — Service out of the juris- 
 diction. 
 
 This was an appeal from a decision of Master Manley Smith that 
 an affidavit produced was insufficient under the above rule to 
 enable him to make an order for service of a writ out of the juris- 
 diction. The affidavit stated that the cause of action arose 
 within the jurisdiction, and that it was for money paid by plaintiff 
 
16 Reports of Practice Cases. 
 
 for defendant, and interest thereon, and that the defendant was 
 bound to indemnify the plaintiff. 
 
 Lush.— The general affidavit that the cause of action arose 
 within the jurisdiction is not now sufficient ; what is requisite is 
 pointed out by the rule. Amend your affidavit by stating that 
 the money was paid in London. 
 
 No. XXXVIII. 
 Judicature Act 1873, sect. 36 — Removal of cause. 
 An application was made that a cause which had been tried before 
 Pollock, B., at Liverpool, and in which a rule nisi had been 
 granted two terms ago by the Court of Exchequer, should be sent 
 over to the Common Pleas Division. It was stated that Mr. 
 Aspinall had advised this application. 
 
 Lush, J. — The application should be made to the Exchequer 
 Division of the High Court ; I can make no order. 
 
 No. XXXIX. 
 Application to proceed under the Judicature Acts. 
 This was an appeal from a decision of Master Johnson, refusing 
 an application for proceedings to be continued under the Act. The 
 action was one for the breach of a covenant in a lease of a furnished 
 house. The declaration, which was delivered on the 1st Nov., 
 contained all the facts that would have been necessary for a 
 statement of claim ; and the defendant thought he was entitled to 
 the benefit of the Act, and wished to be at liberty to deliver a 
 statement of defence instead of pleas. 
 
 Lush, J. — I think under the circumstances I ought to give the 
 direction you ask for. The declaration is to be amended by 
 entitling it in the High Court of Justice, and it may then stand 
 as a statement of claim. The statement of defence to be delivered 
 on Thursday. 
 
 No. XL. 
 Skinner v. Dodds. 
 Order to refer — Judicature Act 1873, sect. 57. 
 This was an action for £5250, for the services of the plaintiff and 
 four clerks, in doing the business of defendants, who were under- 
 writers. The defence was practically that there had been sufficient 
 payment. An order had been obtained before the Act came into 
 operation to refer to a master, and application was now made by 
 the defendant to vary this order by substituting for a master a 
 Bpecial or an official referee. The ground of the application was 
 that from the master there was no appeal on questions of law ; 
 from the referees there would be a general appeal to the court as 
 to law and facts, by sect. 57 of the Act of 1873. 
 
 No order. Costs to be plaintiff's in any event. 
 
 Compton for the plaintiff. 
 
 Harrison for the defendant. 
 
Reports of Practice Cases. 17 
 
 No. XLI. 
 
 BliKWITT V. DOWLING. 
 
 Injunction — Judicature Act 1873, s. 24, subs. 5 ; «. 25, subs. 8. 
 
 This was an action of ejectment, in which an injunction was 
 obtained last week. Notice of trial had been given by B. J. 
 Blewitt, the plaintiff, for the sittings in London, and the defendant 
 had appeared and defended fur the whole of the land. 
 
 A. Charles for the defendant. — The plaintiff has issued three 
 writs for the recovery of land against three tenants of the 
 defendant's, and threatens forty-seven more. I appear on behalf 
 of the landlord, who is the defendant in this action, to ask your 
 Lordship to stay these three actions at once. I am appearing 
 ex parte on this occasion ; but I think that is contemplated by 
 sect. 24, sub-sect. 5, of the Act of 1873, upon which I am 
 proceeding. 
 
 Lush, J. — The section Bays : " By motion in a summary way," 
 but that does not mean ex parte. I think you must proceed by 
 summons ; sect. 25, sub-sect. 8, requires one. 
 
 A. Charles. — Could not your Lordship extend the time of 
 appearance ? If we give them notice, they will issue the forty- 
 seven writs before they can be restrained. 
 
 Ltjsh, J. — I think I have no power to interfere at all on an ex 
 parte application. 
 
 A. Charles. — I am informed that this application would have 
 been undoubtedy ex parte in Chancery, and that the other side 
 could come afterwards and try to reverse the order. 
 
 Ltjsh, J. — I will adjourn the application for you to inquire of 
 one of the registrars whether that is so. 
 
 Later in the afternoon the above application was renewed. 
 
 A. Charles. — I have seen Mr. Registrar Latham, and he says 
 that the Tice-Chancellors, and generally the parties themselves, 
 prefer that applications for injunctions to restrain should be after 
 notice to the other side ; as that course avoided the possible in- 
 convenience of having the order subsequently set aside, if the 
 party interested made out a valid objection to it. But he said 
 that, beyond all question, the Court of Chancery would restrain 
 actions against tenants subsidiary to an action of ejectment, in a 
 case of this kind, on an ex parte application. 
 
 Lush, J. — Then I will make the order. You want an interim 
 injunction till Wednesday, and then a permanent one. 
 
18 Eeports of Practice Cases. 
 
 Monday, Nov. 15. < 
 
 No. XLII. 
 
 Liverpool, Brazil, River Plate Steam Navigation Company v. 
 London and St. Katherine Steam Navigation Company. 
 
 Separate issues to be tried separately — Judicature Act 1875, Order 
 XXXVI., rule 6— Judicature Act 1873, sect. 57. 
 
 This was an appeal from an order of a master that the question of 
 liability arising in this action should be tried separately from the 
 question of damages. It was an action for injuries done to a 
 vessel of the plaintiff company while in the dock of the defendant 
 company. For the appellant, it was urged that if the question of 
 liability was tried by a jury and found against the dock company, 
 and then the damages had to be assessed in a separate inquiry, it 
 would materially increase the expense ; that the case was a simple 
 one ; and that the amount of the damages ought to be fixed by a 
 jury. On the other side it was said that it was useless to go to court 
 with two sets of witnesses, one to prove the defendants' liability, 
 and the other to prove the damage to the vessel, when the Judge 
 would be certain to refer the question of damages; that the 
 alleged damage consisted of a variety of items ; that the object of 
 the rule was that a question of extent of damage of a complicated 
 character should be tried apart ; and that, under sect. 57 of the 
 Act of 1873, the Judge would have power to order a reference, 
 without the consent of the opposite party, if he considered any 
 prolonged examination of accounts requisite. 
 
 Lush, J. — I cannot help thinking that a reference would be 
 ordered by the Judge as to the question of accounts. I do not 
 think it was intended by the Act that a question as to damages 
 of this sort should be tried in court. 
 
 Order of master affirmed. 
 
 No. XLIII. 
 
 Measures v. Thomas and Jones. 
 Judicature Act 1875, Order XVI., rules 18, 19, 20, 21. 
 This was an action for the price of ironwork, and the defendants 
 had given notice to Smaley, a third party, under the above rules, 
 that they claimed to be indemnified by him. A question arose as 
 to the plaintiff's locus standi in the present matter, and it was 
 Btated that he desired to appear as Smaley was a man of straw. 
 
 Lush, J. — That will make no difference to you ; the present de- 
 fendant will not in any way be released from his liability to the 
 plaintiff. 
 
Reports of Practice Cases. 19 
 
 It appeared that Smaley had contracted to build a warehouse, 
 and defendants were to find the ironwork, Smaley paying them 80 
 per cent, net cash for it. Notice was given by the defendants under 
 Order XVI, rule 18; and the preseut appearance was under 
 Order XVI., rule 21. The defendants admitted their liability to the 
 plaintiff, and the only question was whether Smaley should in- 
 demnify .them to the extent of 80 per cent., or to the full amount. 
 A tender of the smaller sum had already been made by Smaley 
 to the defendants. The defendants desired that such an order 
 should be made as would estop Smaley from disputing the amount 
 that, at the trial, the defendants should be held liable to pay the 
 plaintiff. 
 
 Ltjsh, J. — That is exactly the object of the rule. Upon an 
 affidavit of service and non-attendance of Smaley, I order 
 that Smaley, if liable, do not dispute the amount due to the 
 plaintiff from the defendants. Then Smaley is bound when he 
 brings his action of indemnity by the amount paid to the plaintiff. 
 In the event of Smaley being held liable to indemnify the defen- 
 dants, the costs of this summons to be the defendants'. 
 
 No. XMV. 
 Hough v. The Ocean Makine Insurance Company. 
 Summons to refet — Judicature Act 1873, sect. 57. 
 This was a claim of a large sum of money from underwriters for 
 particular average. The nature of the defence was that, when the 
 ship was repaired at Malta, a quantity of unnecessary repairs were 
 done. The defendants paid 10002. into court, and took out the 
 present summons to refer under the Act. They put in an affidavit 
 stating that it would be necessary to go into a prolonged examina- 
 tion of accounts as to the repairs done to the vessel. On the 
 other side it was urged that the cause was coming on for trial ; 
 that there would be no question of items ; that all the repairs done 
 to the vessel were necessary in consequence of the injuries she had 
 sustained ; and that, if the matter was to be referred, the plaintiff 
 would much rather wait till the trial, by which time probably 
 official referees would have been appointed, who would sit de die 
 in diem, instead of having constant adjournments. 
 
 Ltjsh, J. — I shall leave it to the judge at the trial, who will have 
 the facts more fully before him. 
 
 Tuesday, Nov. 16. 
 
 No. XLV. 
 Interpleader summons — Ante-nuptial settlement of after-acquired 
 
 property. 
 On the hearing of an interpleader summons, an important ques- 
 tion was raised as to whether after-acquired property could vest 
 
 c 2 
 
20 Reports of Practice Cases. • 
 
 under the trusts of an ante-nuptial settlement. Under the trusts 
 of a marriage settlement all household goods, &c, were assigned 
 to the wife, and all after-acquired property of a similar kind were, 
 to be subject to the same trusts, (/o 3t^.C,iy.Z 1>X\- I^I^AO 
 
 Lush, J. — In HoVroyd v. Marshall, the House, of Lords decidea 
 in a case similar to this that 'all the after-acquired pro- 
 perty came under the trusts of the deed, reversing the de- 
 cision of the Lords Justices. Before the Judicature Act I should 
 have been bound to hold that the claimant waU'entitled to the 
 goods brought in since the settlement ; but aa application might 
 then have been made to a court of equity, who would have 
 restrained the sheriff from interfering with them. I am 
 now bound to administer equity, and must, therefore, follow •-_ 
 the decision in HoVroyd v. Marshall. It is open to thriffimSatYti 
 appeal upon this question, which is a very important one. I 
 question the policy of the law in this respect. It seems to me a 
 very mischievous thing to allow all after-acquired property to vest 
 under a marriage settlement. With regard to the objection that 
 the marriage settlement was not registered, the Bills of JMe 
 Act does not require it. The sheriff must withdraw ;^ iSfmMS ^ 
 barred. *^ 
 
 No. XLVI. 
 
 Judicature Act 1875, Order XVI., rules 4, 13 — Striking out a 
 party to an action. 
 
 This was an action by a builder for work and labour done. A 
 writ was issued against two persons, who occupied the position 
 of lessor and lessee, and the present application was on behalf of 
 Christy, the lessor, to have his name struck out of the action. It 
 was stated that Shoots, the other defendant, was liable to do all 
 the repairs as lessee, and that Christy had no interest in the 
 action. On behalf of plaintiff it was. stated that there was a 
 question as to which was liable to 1«£^so he had served both 
 parties. 
 
 Lush, J.— I cannot try that question here. The defendant 
 Christy has misunderstood the meaning of the rules. 
 
 Dismissed with costs. 
 
 No. XLVII. 
 
 Amis v. Clark. 
 
 Judicature Act 1873, ss, 40, 45 — Oounty Courts Act, s. 6 — Appeal 
 from County Court. 
 
 An ex parte application was made to the Judge with regard to 
 appealing under the Act from a County Court. The Act of 1873, 
 sect. 45, transfers such appeals to a divisional court to be consti- 
 tuted for the purpose ; but the defendant's last day of appeal had 
 come, and no divisional court had been constituted for hearing 
 such appeals. Formerly, such an appeal would have been to a 
 
Beports of Practice Cases. 21 
 
 Vice-Chancellor, but that was taken away by the Act. It had been 
 decided by the Lords Justices that an appeal after the Act came into 
 operation from a decision given before that time was governed by the 
 Act. It was stated on behalf of the defendant that he had given notice 
 of appeal, but was not now proceeding by summons ; he contended 
 that what he desired was similar to an injunction which his Lord- 
 ship had already granted ax parte. It appeared that the County 
 Court judge had decreed specific performance of a contract to 
 convey ; the grounds of appeal were that the person who entered 
 into the contract on defendant's behalf was not his agent. The 
 purchase money was 160J. 
 
 Lush, J. — Has the money been paid to your agent ? 1 must 
 protect the plaintiff. I will adjourn the application for you to 
 find out. ' , 
 
 On renewing the adjourned application it was stated that 
 Clark, the defendant, had always denied the authority of Bridge 
 to sell for him, so Amis, the plaintiff, had not paid the purchase- 
 money. 
 
 Lush, J. — Then I will make an order that on motion ex parte 
 by the defendant I allow the defendant liberty to appeal to the 
 proper divisional court, when constituted. 
 
 No. XLVIII. 
 
 Tebbs v. Lewis and another. 
 
 Judicature Act 1875 — Order XVI., rules 17, 18. — Notice to third 
 
 parties. 
 
 This was an action against auctioneers by an intending vendee 
 for his deposit money. Under the above rules a notice had been 
 served upon Green, the vendor, who claimed the deposit money 
 as forfeit. The amount of the deposit money was £247 ; bnt 
 out of this £81 2s. 6d. was claimed by the defendants as commis- 
 sion. 
 
 It was contended by W. A. Lewis for the defendants that in this 
 case they were not stakeholders, but agents for the vendors. They 
 were unable to interplead as they claimed part of the sum, and 
 had an interest in the validity of the sale being established. 
 
 Beasley, for the plaintiff, objected that the declaration was 
 delivered on 26th Oct., and that, therefore, they were under the 
 old practice. 
 
 Lush, J. — The plaintiff will not be hurt, as the money is to be 
 paid into court; and the defendants will be relieved from having 
 another action possibly brought against them. , This is one of the 
 very cases contemplated by the Act. I direct that this action be 
 continued according to the ordinary course of the High Court of 
 Justice ; that the vendor Green come in as a party to be bound by 
 the verdict. Costs of the application to be plaintiffs costs iu 
 the cause. 
 
22 Reports of Practice Cases. 
 
 No. XLIX. 
 
 Interpleader. 
 
 In an interpleader summons a question arose as to whether the 
 practice in writs of ji. fa., where there was a partnership account 
 was the same at common law and equity. The common law rule 
 has been that where there was a partnership account the sheriff 
 could not interplead ; but his Lordship doubted whether that rule 
 prevailed in equity, and whether the partnership account would 
 uot have to be gone into to see the state of accounts between the 
 partners ; in which case that practice must now be followed in 
 all cases. It was stated by the sheriff's representative that the 
 practice in this respect had always been the same in equity and 
 common law. 
 
 Ultimately, it was settled that the old practice was unaltered, 
 and the sheriff withdrew. 
 
 No. L. 
 
 Judicature Act 1875, Order XXXI., rule 20. — Summons to strike 
 out defence in default of discovery. 
 
 This was an action for breach of an agreement to allow the plain- 
 tiffs to use certain waste lands for the purpose of draining docks 
 belonging to them. An order for discovery of documents had 
 been made on the 14th July, and not complied with ; the plaintiffs 
 now asked ,to strike out the defence. On the other side it was 
 stated that differences had arisen between the real and the nominal 
 defendants, that the same solicitor had previously been acting for 
 both parties, and that a change had consequently become neces- 
 sary ; and that it was owing to this that the delay had occurred. 
 Lush, J. — Then I give you a week more. 
 
 Wednesday, Nov. 17. 
 
 No. LI. 
 Green's Trustee v. Barrett. — Barrett v. Rosenthal. 
 Judicature Act, 1873, sect. 57— Summons to refer. 
 One Green having become bankrupt, the trustee under the bank- 
 ruptcy, who is the plaintiff in the first, and the defendant in the 
 second action, took possession of the premises. Barrett, the land- 
 lord, claimed a right to distrain on part of the machinery thereon, 
 «nd eventually did distrain. The present summons was to refer 
 tinder the above section. Two cross actions, the first brought by 
 the trustee for wrongful distress; the second by the landlord for 
 rent, breach of covemint to repair, and some small amounts under 
 various heads. 
 
Reports of Practice Cases. 23 
 
 M'Leod, for the landlord, iu support of the summons, con- 
 tended that a prolonged investigation of documents was neces- 
 sary, as there were over 140 pages of correspondence between 
 the parties as to their respective rights ; that a local investiga- 
 tion was necessary as to the non-repair of machinery by the 
 trustee, which was the real question in the second action, and that 
 the damages occasioued by non-repair must ultimately form the 
 subject of a reference. 
 
 Williams, for the trustee, stated that the second action had only 
 just been begun, whereas the first stood for trial ; and that the 
 landlord having agreed that if the goods were left on the 
 premises he would not distrain, the sole question in the first action 
 would be as to a breach of this agreement. 
 
 Ltjsh, J. — Reading a lot of letters is not what the Act means by 
 a prolonged examination of documents ; and there is no more 
 necessity for a local investigation in this case than in any action 
 for non-repair. I can make no order. 
 
 No. LII. 
 
 Hancock and othebs v. Db Niceville. 
 
 Summons to strike out Replication. 
 
 This was an appeal from a Master's decision allowing a replication. 
 The action was for goods sold ; pleas, never indebted, and 
 coverture. The replication stated that the defendant in her 
 own proper person had promised to pay, and thereby charged her 
 separate estate ; and further that she was living apart from, her 
 husband, and therefore her separate estate was liable. 
 
 Kelly, for the defendant, urged that the action was brought on 
 a common law claim, that the plaintiffs had chosen to stand 
 upon their rights at common law, and not in equity, that the 
 declaration was delivered on the 25th Oct., and that therefore they 
 were under the old system. 
 
 Williams, on the other side, cited cases to prove that it was a 
 good equitable ground of reply. 
 
 Lush, J. — It is unnecessary to decide whether the plaintiff 
 could avail himself of his equitable rights in this action, and at 
 this stage of it, as the replication does not state that the defendant 
 had any separate estate, and is therefore bad from any point of 
 view. It would embarrass the defendant, and I cannot allow it. 
 Decision of Master reversed. 
 
 No. Lin. 
 
 Discovery. 
 
 In an action of ejectment, a summons had been taken out for dis- 
 covery. The nature of the documents of which discovery was 
 sought was not known. 
 
24 Reports of Practice Cases. 
 
 Lush, J. — Then I certainly shall not make the order. The Act 
 did not intend to*3&o&dtffim5e speculative summonses by doing 
 away with the affidavit. 
 
 Thursday, Nov. 18. 
 
 No. LIV. 
 
 Printing — Judicature Act 1875, Order XIX., rule 5. 
 
 An affidavit, though more than three folios, may, by order of the 
 
 judge/be filed without printing ; and, semble, will be so when only 
 
 a few copies are required. 
 
 No. LV. 
 Judicature Act 1875 — Application to proceed under the Acts, 
 Order XIX., rule 3 — Judicature Act 1873, sect. 22. 
 This was an appeal from a decision of Master Johnson. The action 
 was brought for the price of goods sold ; and the ground of the 
 application was that the defendant desired to set up a counter- 
 claim. The declaration had been delivered on the 28th Oct. The 
 master was of opinion that the affidavit did not disclose sufficient 
 grounds for a cross action. The affidavit of the defendant stated 
 that when the ship arrived conveying the goods in question, which 
 consisted of machinery, they were found to be materially damaged, 
 owing to bad packing ; and further that when the machinery came 
 to be worked, it broke in various places, owing to the bad quality 
 of the iron used. 
 
 Lush, J. — The affidavit of the defendant shows a good cause of 
 action, and wherever there is bond fide ground for a cross action, I 
 direct the new procedure to be adopted. It has the effect of "con- 
 verting two actions into one ; and that cases of this sort should be 
 brought under the new system is one of the very objects of sect. 
 22 of the Act of 1873. The decision of the master must be re- 
 versed, and the direction asked for given. 
 
 No. LVI. 
 Judicature Act 1873, s. 22 — Application to proceed under the Acts. 
 In this case the declaration had been delivered on the 25th Oct., 
 and the pleas were not yet delivered. The ground of the applica- 
 tion was that the defendant desired to take out a summons to 
 refer under the Act. — Direction as asked. 
 
 No. LVII. 
 
 Judicature Act 1875, Order XXXI., rule 12 — Summons for 
 
 discovery. 
 
 This was a summons for discovery in an action for libel. The 
 
 alleged libel was a charge of violent conduct by a landlady con- 
 
Reports of Practice Cases. 25 
 
 tained in some letters to the Grimsby News. The discovery sought 
 was of the original letters containing the alleged libel. On the 
 affidavit being held to be insufficient, it was contended by the 
 plaintiff that, as the pleadings were complete, he was entitled 
 under the Judicature Act to an order without any affidavit. 
 
 Lush, J. — The new rule certainly goes far beyond the old ; as 
 it not only dispenses with an affidavit, but would require the de- 
 fendant, if he has not got the letters, to state what he has done 
 with them. I will adjourn, to enable the other side to bring an 
 affidavit. 
 
 No. LVin. 
 
 Scarth v. Williams. 
 
 Judicature Act 1875, Order XXXI, rule 20— Summons to dismiss 
 
 action for want oj prosecution. 
 This was a feigned issue directed by the Master of the Rolls to 
 try the question whether there was an agreement between the 
 parties that the plaintiff, who was the administrator of his brother, 
 a solicitor, should only charge the defendant costs out of pocket. 
 The alleged date of the agreement was 10th Dec. 1866. On 
 the 28th nit. an order had been made upon the plaintiff for dis- 
 covery of documents ; this not having been complied with, on the 
 12th inst., a peremptory order was made by Master Manley Smith, 
 calling upon the plaintiffs to answer by the following day. On 
 the 13th inst. that order was postponed by Blackburn, J., and the 
 following day an affidavit of documents was filed by the plaintiff. 
 The present summons was then taken out by the defendant on the 
 ground that in this affidavit there was no mention of any docu- 
 ment in the suit of Shoolbred v. Williams, which lasted from 
 August 1866, down to 1872, and which was the most important 
 suit in the business of Francis Scarth, deceased, although the 
 plaintiff had made an affidavit in Chancery that he had documents 
 in that suit. These facts were stated in an affidavit which was 
 put in. On the other side in was stated that they had set out in 
 the affidavit every letter which they had ever had from the 
 deceasd, Scarth. 
 
 Lush, J. — How do the documents in Shoolbred v. Williams 
 relate to the matter now in question ? In truth the defendant 
 does not know whether they do or not till he sees them. There 
 is a specific agreement alleged here, and these letters cannot be 
 material. — No order. 
 
 No. LIX. 
 Thomas v. The Queen. 
 
 Application to proceed under the Acts — Counter cloAm — Judicature 
 
 Act 1873, s. 22— Judicature Act 1875, Order XIX., rule 3. 
 This was a petition of right, commenced in June 1873. By the 
 Petition of Bight Act 1860, the procedure in petitions of right is to 
 be similar to that in actions at law. The claim in the petition was 
 
26 Reports of Practice Oases'- 
 
 for a sum of money alleged to be due from the Crown to the plain- 
 tiff in pursuance of an agreement to reward the plaintiff for certain 
 improvements in artillery invented by him. The loug interval 
 since the cause was commenced had been caused by the plaintiff's 
 amendment of his petition, and some delay in obtaining the 
 Solicitor-General's fiat to the amendment. 
 
 Bowen, for the Crown, now desired to avail himself of the new 
 procedure, and set up a counter claim for expenses in connection 
 with experiments. As the petition had been amended,, he was 
 entitled to plead de novo. He had an affidavit made by the 
 Accountant- General of the Army that the counter claim was a 
 bond fide one. 
 
 Lanyon, for the plaintiff, thought that it would be hard if the 
 defendant was now allowed to avail himself of the new procedure, 
 when, but for an accident, the cause would have been tried before 
 the Acts came into operation. He was willing, if necessary, 
 to withdraw the amendment of his petition, and he could 
 bring an affidavit showing that the delay was caused by the other 
 side. 
 
 Lush, J. — It is just' if there is a counter claim that the 
 Crown should be able to set it up; and what is just ought 
 to be done. If it is fit and proper that this counter 
 claim should be set up in any proceedings, why should it not 
 be set up in the pending proceedings? I do not know what 
 I should do if issue had been joined ; that case has not 
 yet come before me. I direct that the petition be continued 
 according to the ordinary course of the High Court of Justice. If 
 the petitioner is successful in establishing his claim, but your 
 counter-claim is also established, and for a larger amount, it 
 should be in the discretion of the court whether the petitioner 
 should not have the costs of the trial up to the time of the intro- 
 duction of the counter-claim. 
 
 Na LX " On.**®_ 
 
 Judicature Act 1875 — Additional Rules of Ctowj^SO, 31, 32 — 
 Appeal from taxation of costs. 
 
 On an appeal coming before the judge from a taxation of costs by 
 the Master, a preliminary objection was taken that the Master's 
 allocatur had been given, and was final and conclusive as to all 
 matters that had not been objected to before the Master in the 
 manner prescribed by the above rules. In reply, it was submitted 
 that the whole of the proceedings in the cause had been previous 
 to the Act coming into operation. ' 
 
 Lush, J.— There are provisions in the new Acts that must apply 
 to pending business, and this is one of them. With all the dis- 
 position to help you, I am afraid I have no power to do so. 
 
 Appeal dismissed. 
 
Heports of Practice Cases. 27 
 
 No. LXI. 
 
 Summons to strike out interrogatories — Judicature Act 1875, Order 
 
 XXXI., rule 5. 
 This was an application to strike out interrogatories that had 
 been delivered under the Acts without an order, in an action for 
 penalties brought under the 102nd section of the Larceny Act, by 
 a common [informer. The object of the interrogatories was to 
 discover whether the defendant had inserted a certain advertise- 
 ment in a newspaper. The interrogatories were delivered on the 
 12th ; and an objection taken that this summons was too late was 
 overruled. 
 
 H. Oowie for the defendant. — Discovery is never given in equity 
 in an action by a common informer. The old doctrine of equity 
 on this subject is laid down in Orm v. Crockford (13 Price, 308), 
 which was an action for penalties under 9 Anne, c. 16, in the Court 
 of Exchequer, sitting as an equity court, and where it is laid 
 down that it is " contrary to the humane policy of the law " to 
 allow discovery where it would subject the Answering party to 
 penalties. Gliadwick v. Ohadwick (22 L. J. Ch.), and Edmunds v. 
 Greenwood (L. Bep. 10 C. P. 222) are also in point. In all works on 
 discovery in equity it is laid down that where discovery will sub- 
 ject the answering party to a penalty, it has not been allowed 
 where the object of the plaintiff is to recover the penalty, 
 
 Lush, J. — I foresee that we shall have more trouble with inter- 
 rogatories now that no order is necessary, than we had before. 
 
 Interrogatories ordered to be struck out. 
 
 Friday, Nov. 19. 
 
 No. LXII. 
 Hewetson v. The Whittington Life Instjbance Society. 
 
 Interrogatories against a company — Judicature Act 1875, Order 
 XXXI, rule 4, s. 5. 
 This was an application for an order to deliver interrogatories to 
 the officer of the defendant company in an action on a policy. 
 Upon an objection to the interrogatories on behalf of the defendant, 
 it was contended for the plaintiff that the nature of the interro- 
 gatories could not be gone into on the present summons, but that 
 another summons must be taken out under the 5th rule of the 
 31st order, for an order to strike them out. 
 
 Lush, J. — Wherever under the new practice an order for interro- 
 gatories is necessary, the interrogatories will be gone into on the 
 application for the order, and it will not be granted as of course. 
 These interrogatories may be unnecessary after plea. 
 
 Summons adjourned till after plea. 
 
28 Reports of Practice Cases. 
 
 No. LXIII. 
 Under the Judicature Acts, an appeal is in all oases a re-hearing, 
 and fresh facts may be gone into. — Per Lush, J. 
 
 No. LXIV. 
 
 Judicature Act 1875, Order IX., rule 2. — Substituted service. 
 
 This was an ex parte appeal from a decision of Master Bennett's 
 refusing to make an order for substituted service. The affidavit 
 stated that on the 24th Aug. S. was inquired for at his Club and 
 could not be found ; on the 1st. Sept. plaintiff wrote to Baker, 
 defendant's solicitor, asking for S.'s address ; to that an answer 
 came saying that he would- be happy to forward letters to S. A 
 few days afterwards, plaintiff wrote to Baker that the reason S.'s 
 address was wanted was because he owed them £450. On the 25th 
 Oct. plaintiff wrote again to Baker, complaining of having had no 
 answer, and asking whether he was prepared to accept service. 
 On the 28th Oct. Baker replied to the effect that having no in- 
 structions, he could not accept service. On this, plaintiff wrote 
 to know whether Baker was not S.'s solicitor, and on the 3rd 
 Nov. Baker wrote to say that he had acted for S. but was not 
 now acting for him. On the 9th Nov. plaintiff attended at S.'s 
 club and asked for his address, and was told that he had not been 
 there for some time, and that his address was unknown there. On 
 the 13th Nov., on calling again at the club, the plaintiff was told 
 that Baker called for S.'s letters. It was stated that Morgan's 
 Rules for Substituted Service, and other books on equity practice 
 lay down that service on an agent is sufficient, provided he is 
 closely connected with the party. 
 
 Lush, J. — Tour affidavit does not state when Baker called for 
 S.'s letters, or how often. If he was in the habit of calling 
 for them, I think that would be sufficient. Tou must amend your 
 affidavit. 
 
 No. LXV. 
 
 Norton Cannock Coal Company o. Merriman. 
 
 Application for direction to proceed wider Judicature Acts — 
 
 Counter-claim. 
 This was an action for the price of coals sold and delivered, £198 
 odd. 
 
 Grant for defendant. — I have not pleaded yet, and I desire to 
 set up a counter-claim of non-delivery of the balance of the coals. 
 They only sue us for the amount they have delivered. 
 
 Moulton for plaintiff. — The declaration was delivered on 25th 
 Oct. I desire to put them to their cross action. 
 
 Lush, J. — The Act has decided that cross actions shall be 
 tried simultaneously. 
 
 Direction given. 
 
Reports of Practice Cases. 29 
 
 Saturday, Nov. 20. 
 
 No. LXVI. 
 
 Tennant v. Walton. 
 
 Application to proceed under the Judicature Act or to refer — 
 
 Counter claim. 
 
 This was an action on attorney's bills, amounting to 80L The 
 
 declaration was delivered on the 30th Oct. 
 
 Cooper, for the defendant. — The defendant is an auctioneer. We 
 have a considerable set-off to that claim, and also a counter claim 
 tor negligence in doing our business. We do not deny the re- 
 tainer. The set-off makes a reference desirable. 
 
 Mayd, for the plaintiff. — The counter claim the defendant 
 desires to set up is one for acting negligently in a cause in 
 which the amount in dispute was only 12!., and which was tried in 
 the County Court at Salford as long ago as 1871. Till our bills 
 were sent in in 1875, no complaint of any negligence was made. 
 
 Ltjsh, J. — The principle upon which I have hitherto acted is 
 that wherever, in pending business, there is a bond fide cross 
 claim, I direct the action to be continued according to the ordi- 
 nary course of the High Court of Justice. Here I do not think 
 there is any substance in your counter claim or your set-off ; and, 
 with regard to the set-off, it could be pleaded. I shall make no 
 direction to continue this action under the Judicature Acts, nor 
 to refer under the Common Law Procedure Act. 
 
 No. LXVIL 
 Application to proceed tinder the Act — Counter claim. 
 This was an action for the price of shares by a stockbroker, and 
 it was desired to set up a counter claim for fraudulent representa- 
 tion as to the value of the shares. Adjourned for an affidavit ; 
 upon defendant producing affidavit of counter claim new proce- 
 dure to be adopted. 
 
 No. LXVIII. 
 Application to proceed wilder the Act — Counter claim. 
 This was an action brought for the price of iron sold and delivered. 
 The defendant desired to set up a counter claim for non-compliance 
 with the contract in respect of the quality of the iron supplied. 
 The declaration was delivered 27th Oct. It was alleged that the 
 iron had been passed on to third parties for chain cables, and that 
 the defendant had had to make good damage sustained in con- 
 sequence of the inferiority of the iron supplied. 
 
 Lush, J. — Where the counter claim is bona -fide, these applica- 
 tions are granted as a matter of course. 
 Direction given. 
 
30 Reports of Practice Cases. 
 
 No. LXIX. 
 Tmnacria Steam Navigation Company v. Kichardson. 
 Summons to proceed under the Act. 
 This was an action by a foreign corporation for damages for the 
 negligent construction of a ship, Sicily being the domicile of the 
 plaintiffs. The ground of the present application was that the 
 defendant desired to set up a counter claim for extras due to him 
 beyond the contract price which the plaintiffs had paid. 
 
 Anstie, for defendant. — An action was commenced before the 
 Judicature Acts came into operation for the cross claim, and we 
 served a writ in the manner prescribed by Sicilian law in July 
 last. There being a difficulty as to whether this was good ser- 
 vice, and a question whether a foreign corporation domiciled 
 abroad could be served at all, Field, J., was applied to, and he 
 expressed a strong opinion that the company should accept service 
 of writ in the cross action, and finally adjourned the summons io 
 see what effect the Judicature Acts might have upon the question. 
 
 Webster, for the plaintiffs, cited cases to show that a foreign 
 corporation cannot be sued. The Judicature Acts have not altered 
 the law on this point, and the defendant should not be allowed to 
 adopt the new procedure for the mere purpose of setting up a 
 counter-claim where he could not bring a cross action. 
 
 Lush, J. — It is a matter of course that this direction should be 
 given where there is a bond fide counter-claim, and I think that 
 a fortiori it should be given where there is a difficulty in serving 
 the writ in a cross action founded on the counter-claim. 
 
 Direction given. 
 
 Monday. Nov. 22. 
 
 No. LXX. 
 
 Particulars of counter claim. 
 Tins was a summons for particulars of a counter claim on appeal 
 from the Master's decision that the particulars in the claim were 
 sufficient. The action was brought for goods sold and delivered. 
 The defendants agreed to purchase certain coal of the plaintiff, 
 and the plaintiff accordingly shipped the coals. The defendants 
 had obtained leave to serve a counter claim, and the plaintiffs 
 desired particulars of damages under the breaches alleged in the 
 ninth paragraph, the counter claim set up being for breach of 
 contract. , On behalf of the defendants it was said that the counter 
 claim contained sufficient particulars, as it alleged the amount 
 delivered short, and claimed demurrage. 
 
 Lush, J. — You have not given any particulars as to inferior 
 quality. Tou say in your claim that the cargo contained a large 
 
Reports of Practice Cases. 31 
 
 quantity of stones, &o. I order that you give particulars of the 
 damages claimed, except in respect of short delivery and demur- 
 rage. Costs to be costs in the cause. 
 
 No. LXXI. 
 
 Interrogatories. 
 
 Istekrogatomes in an action under the old procedure, that had 
 been delivered without an order, were struck out. 
 
 No. LXXII. 
 
 Order XXII., rule 5. 
 
 An application was made ex 'parte by the defendants in an action 
 in which a counter claim was set up as to whether, under the 
 following circumstances he should add to the title of his state- 
 ment of defence the name of a third person. They were brokers, 
 and had purchased iron from plaintiffs to sell to a third party. 
 The action was for the price of the iron, and the counter claim for 
 certain deductions the defendant had had to allow the third party, 
 owing to inferior quality of the iron. The above rule does not 
 apply to such a case, so' as to make it necessary to add the third 
 party's name to the title. 
 
 No. LXXIII. 
 Barrow v. Cooke. 
 Statement of claim in the place of declaration. 
 This was an appeal from an order of Master Johnson of the 17th 
 Nov., calling upon the plaintiff to deliver a statement of claim in 
 the place of his declaration. The declaration was delivered on the 
 2nd Nov., having been drawn by counsel during the Long Vacation, 
 and alleged that the plaintiff employed the defendant for reward 
 to dispose of certain shares, but that the defendant did not 
 deliver a true and just account : another count alleged that the 
 defendant so fraudulently conducted himself towards the plaintiff 
 that the shares became of no value. 
 
 Cooper Wyld for the defendant. 
 
 Lush, J. — How can his giving a false account of the sale affect 
 the shares ? In those cases where I have allowed a declaration 
 to stand as a statement of claim, all the facts have appeared in 
 the declaration ; I think this declaration does not give the infor- 
 mation that a statement of claim would. 
 
 The plaintiff said that he would be in a great difficulty, as he 
 had already signed judgment against one defendant. 
 
 Lush, J. — Then amend your declaration so as to be as specific 
 as a statement of claim would be. The defendant must have 
 eight days to deliver his defence after delivery of amended 
 declaration. 
 
32 Reports of Practice Cases 
 
 No. LXXTV. 
 
 Judicatwe Act, Order XIII., rule 6. 
 
 In an action for damages on tho policy of a ship, the defendant 
 made an application for inspection of the ship's papers before 
 appearance. It was admitted that under the old practice inspec- 
 tion could not have been had before declaration ; and the ground 
 of the application was that if the claim proved to be well founded, 
 appearance would be avoided altogether. 
 
 Lush, J. — Can the plaintiff in this action sign judgment in 
 default of appearance P 
 
 Under Order XIII., rule 6, it was submitted that he could. 
 
 Lush, J. — Then I make the order. 
 
 Tuesday, Nov. 23. 
 
 No. LXXV. 
 
 15 4r 16 Vict. c. 86, s. l^^Mtim^fmtti-Judicature Act 1875, 
 Order XXXI., rule 12. 
 
 The rule in equity that discovery will never be given to a defen- 
 dant in a suit until he has put in his answer to the bill, is varied 
 by the Judicature Acts, and discovery will now be allowed in 
 special cases before that stage. 
 
 No. LXXVI. 
 
 Interrogatories — Judicature Act, Order XXXI., rule 1. 
 
 This was a summons to strike out interrogatories delivered under 
 the Judicature Acts by the plaintiff in an action for rent, on the 
 ground that they were wholly in the plaintiff's knowledge. 
 
 Lush, J. — The statement of defence is not yet delivered, and you 
 cannot know what is material to be asked. The claim is a perfectly 
 simple one for five quarters' rent alleged to be due. I shall adjourn 
 this summons till after the defence is delivered ; and if I find the 
 interrogatories to be unnecessary, I shall strike them out with 
 costs. Parties must be taught not to take advantage of the pro- 
 visions of the Act for the purpose of increasing costs. 
 
 No. LXXVII. 
 
 LoWTHEK V. BBLLAffiS. 
 
 This was an action against a stock-broker for differences on the 
 sale of stock, and there was a counter-claim, which defendant 
 desired to set-up, of unliquidated damages for fraudulent represen- 
 tation in respect of the shares for the price of which he was being 
 sued. Defendant's application to continue under the new pro- 
 
Beports, of Practice Cases. 33 
 
 cedure, in order to avail himself of his counter-claim, was made on 
 Saturday, and adjourned till Monday for an affidavit. On 
 Monday, defendant did not renew his application; but to-day 
 plaintiff took out a summons to strike out the statement of 
 defence, which, it appeared, had been delivered to him that day, 
 and which included a counter claim. No affidavit having been 
 produced, the statement of defence was ordered to be struck out, 
 and the defendant to plead under the old system. 
 
 No. LXXVIII. 
 
 Notice of trial is now never to be given where it is not intended 
 to be acted upon, but^s for the purpose of keeping the cause on 
 the list. Per Lush, J. 
 
 No. LXXIX. 
 Cooke v. Oceanic Steam Company (Limited.) 
 
 Judicature Act 187S, Order JLXvl ., rule S=— Power to enforce dis- 
 covery against a company — 17 §r 18 Vict, c. 125, s. 50. 
 
 This was an action for damages for the loss of passenger luggage. 
 A summons had been taken out for discovery of documents, sup- 
 ported by an affidavit under Order XXVI., rule 12. The 
 affidavit stated that it was the practice of the defendant company 
 to deliver to the passengers by their vessels tickets as receipts for 
 their luggage, and that the ticket given to the plaintiff in accordance 
 with this practice had been given up to the company. It was of this 
 ticket that discovery was sought. An objection was taken on 
 behalf of the defendants that the above rule applied only to inter- 
 rogatories ; and it was contended that if this was so, in the absence 
 of any other provision in, the Acts relating to discovery by a com- 
 pany, the practice in Chancery must prevail, which had always 
 been to make an officer of the company a party to the suit when 
 discovery was sought. 
 
 Lush, J. — The Judicature Acts have in many cases to be sup- 
 plemented by the Common Law Procedure Acts, and by sect. 50 
 of the Act of 1854 I am empowered to name an officer of the com- 
 pany to make discovery. 
 
 No. LXXX. 
 
 Judicature Act 1875, Order XIV., rule 1 ; Order III., rule 6 ; 
 Appendix A, sect. 7 — Signing judgment on a specially indorsed writ . 
 
 This was a summons to sign final judgment in an action for goods 
 spld, which had been before Master Unthank, and was by him 
 referred to the judge. The writ was indorsed as follows : " The 
 plaintiff's claim is 36J. 5s. for balance of account for goods sold. 
 It was contended for the defendant that this was not a special 
 indorsement under Order III., rule 6, and not within the examples 
 given in Appendix A., sect. 7 ; that the ordinary form of indorse- 
 
34 Reports of Practice Cases. 
 
 ment was similar to the present ; and that the defendant, having 
 filed a petition of bankruptcy, the plaintiff should prove his debt 
 under that. 
 
 Lush, J. — There is a form of special indorsement in Appendix A 
 , — for butcher's meat supplied— exactly like the one in question. 
 It could not be intended that a list of items extending, perhaps, 
 over three or four years should be indorsed on the writ. The 
 ordinary form of indorsement would not be " balance of account," 
 which implies an account paid. As bankruptcy is not a defence to 
 an action, there is no defence to the present action. I think the 
 plaintiff is entitled to sign judgment, as he would have been if he 
 had delivered a statement of claim and thjjre had been no state- 
 ment of defence. 
 
 Tuesday, Nov. 23. 
 
 No. LXXXI. 
 
 Michael v. Corner. 
 
 Judicature Act 1873, sect. 22 — Judicature Act 1875, Order XIX, 
 rule 3 — Application to proceed under the Act in order to deliver 
 counter claim. 
 
 This was an action for non-acceptance of ship, delivered according 
 to contract. The action had been standing for trial since July. 
 The defendant desired to set up a counter claim for damages, in 
 respect of the deposit of another ship with the plaintiffs as part 
 payment. On behalf of the defendant it was stated that 
 there had been fraudulent misrepresentation by the plain- 
 tiff as to his ship being of a certain class, whereas 
 he had bought it a fortnight before as an unclassed ship. There 
 was also a dispute as to whether the value of the ship deposited 
 by defendant in part payment was £500 or £1000. It appeared 
 that with regard to this second ship, a Chancery suit had been 
 commenced by the defendant. 
 
 Lush, J. — Unless you undertake to pay the costs of the 
 Chancery suit, I shall not allow the counter claim to be set up. 
 Subject to your giving security for those costs to the satisfaction 
 of the master, I give you the direction asked. Costs of amend- 
 ment to be plaintiff's in any event. 
 
 No. LXXXII. 
 
 Amis v. Clark. 
 
 County Court appeal — Judicature Act 1873, ss. 40, 45. 
 
 In the case of an appeal from a County Court, in which his 
 Lordship had already given eight days extension of the time for 
 
Reports of Practice Cases. 35 
 
 appealing, in consequence of the Divisional Court not yet being 
 constituted, he was asked to still further extend the time. 
 
 Lush, J. — I cannot go on extending the time during which 
 you may appeal. Tou must apply to the court to appoint a Divi- 
 sional Court for hearing these appeals. I will give you two 
 days' further time to make that application. 
 
 Wednesday, Nov. 24. 
 
 (Before Quain, J.) 
 
 No. LXXXIII. 
 
 Judicature Act 1875, Order LIL, rule 2 — Order for sale of goods. 
 
 This was an action for the unpaid balance on the sale of a horse, 
 and for breach of warranty of a horse delivered in part payment. 
 The plaintiff sold a horse to the defendant, and took another horse 
 in part payment. It was alleged by plaintiff that this second 
 horse was warranted sound, and had turned out not to be so. The 
 present application was for leave to be given the plaintiff to 
 sell the second horse. 
 
 Qttain, J. — There is no pretence for saying that this is under 
 Order LIE., rule 2. According to your own statement you re- 
 ceived the horse in part payment for the one sold. Tou can sell 
 it, if you choose to do so, without any order. 
 
 No. LXXXTV. 
 
 Goi/rvpulsory reference — Judicature Act 1873, s. 57. 
 
 This was an application to refer the question in an action for work 
 done to a special referee. The action was brought to recover the 
 sum of £500 for the erection of a skating rink. For the appli- 
 cant, the defendant in the action, an affidavit was put in which 
 stated that the surveyor had refused to give his certificate as 
 required by the contract, and that a local if not a scientific inves- 
 tigation was necessary. For the plaintiffs it was urged that the 
 certificate of the surveyor was not a condition precedent, under 
 the contract, to their bringing this action ; that the claim was for 
 a lump sum ; that the only question was whether the work had 
 been properly done; that the plaintiffs were almost the only 
 builders of skating rinks ; and that the only objection that had 
 been taken to the building was that the water lay. 
 
 Quain, J. — I will make an order to refer to a special referee to 
 be agreed upon by the parties, and in the event of their failing to 
 
 d 2 
 
36 Reports of Practice Cases. 
 
 agree, to a master, the defendant to furnish plaintiff within a 
 week with full particulars of his objections to plaintiffs work, 
 and to state in what respect he alleges the contract has not been 
 performed. 
 
 No. LXXXV. 
 
 Judicature Act 1873, s. 24, subs. 2. 
 
 Wheee a judgment has been obtained, and an arrangement is 
 subsequently entered into which would render it inequitable to 
 carry that judgment into effect, execution will now be stayed by a 
 judge in chambers {Per Quain, J.) 
 
 No. LXXXYI. 
 
 Geoghesan v. Domeb. 
 
 Judicature Act 1873, s. 24, subs. 5. 
 
 An application was made to stay this action in consequence of 
 the pendency of an administration suit in the Chancery Division. 
 The question in the suit appeared to be one between an 
 executor, the present plaintiff, and the widow, the present de- 
 fendant, as to whether the will of the testator should be adminis- 
 tered according to French or English law. The action was in 
 detinue for bonds, being part of the estate. 
 
 Quain, J. — In this case, a suit for administration by the widow 
 to which the executor is a party, is pending. Under the old law, 
 the moment an administration suit was commenced in the Court 
 of Chancery, an injunction issued as of course to restrain the 
 creditors from proceeding against the executor. I think the Acts 
 intended proceedings to be stayed here in clear cases. Order to 
 stay proceedings. 
 
 Petheram for defendant. 
 
 No. LXXXVII. 
 
 Bell v. Lowe and others (executors). 
 
 Judicature Act, 1875, Order XV., rules 1, 2 ; Order III., rule 8. 
 
 This was a summons, similar to the above, to stay proceedings in 
 an action pending an administration suit. The plaintiff had 
 obtained an order for an executor's account from the Chief Clerk 
 under Order XV., rules 1, 2; the writ being indorsed under 
 Order III., rule 8. 
 
 Quain, J. — This is one of the cases intended by the Aot ; the 
 order for account is the same as the old decree. 
 
 Orompton for the plaintiff. 
 
 E. Harrison for the defendant. 
 
Eeports of Practice Cases. 37 
 
 No. lxxxvui. 
 
 Judicature Act 1875, Order XXXI., rules 5, 8, 10 — Objection to 
 interrogatory — Sufficient answer. 
 
 This was a summons under rule 10 of the above Order for an 
 order requiring the defendant to answer further an interroga- 
 tory in an action for slander by a clergyman. The statement 
 of claim alleged that the defendant had been going about 
 Bock Ferry where the plaintiffs father resided, stating that 
 the plaintiff had been inhibited. The statement of defence 
 was a denial of this statement. The interrogatory in ques- 
 tion was as to whether the defendant had or had not been going 
 about Eock Ferry making this statement. The defendant's 
 answer to this was as follows : I am advised and believe that the 
 plaintiff is not entitled to this discovery, and therefore I object 
 to answer. It was submitted, on behalf of the plaintiff that the 
 only mode of taking such an objection was by applying under 
 Order XXXI., rule 5, to strike out the interrogatory. For the 
 defendant it was contended that it was open, to him .to apply to 
 strike out the interrogatory under the above rule, or to take the 
 course he had adopted in the present instance of stating his 
 objection in his affidavit in answer under rule 8 of the same Order. 
 It had been clearly laid down that no interrogatories were allowed 
 in actions of slander. 
 
 Quain, J. — I think the 8th rule of this Order applies only to 
 cases of objection on the ground that the answer would criminate 
 the defendant. The proper course to have been taken in this case 
 would have been to have applied to strike out the interrogatory. 
 But even if rule 8 could be held to apply to such an objection, the 
 mode of stating it here would not be sufficient. Order for further 
 ans#er. 
 
 No. LXXXIX. 
 
 Application to proceed under the Judicature Acts — Oownter claim — 
 Judicature Act 1873, ss. 22, 57 — JuMcature Act 1875, Order 
 XIX., rule 3. 
 
 This was an application by the defendant in an action by a 
 builder for £470, due for work and materials, to proceed under the 
 new Acts to enable him to set up a counter claim for damages for 
 non-completion. A summons was also taken out by the defendant 
 to refer the cross claims. The defendant offered to bring £360 
 into court. 
 
 Quain, J.— I will order that, upon the defendant bringing £360 
 into court, the cross claims be referred to a special referee to be 
 agreed upon by the parties. A statement of defence must be 
 delivered within three days. 
 
38 Reports of Practice Cases. 
 
 No. XC. 
 
 TwTCKOSS V. GBANT AND ANOTHER. 
 
 Judidature Act 1875, Order XXXI., rule 20 — Striking out 'defence 
 on faM/re to answer. 
 
 This was an action under the Companies' Act 1862, for issuing a 
 fraudulent prospectus. Several orders had been made in July, 
 September, and October, calling upon the defendant Grant to 
 answer interrogatories. An application to strike out defendant 
 Grant's defence for failure to answer had been made before Mr. 
 Justice Lush (Law Times, Judges' Ch. No. XXV.), who gave him a 
 week further, 'but as he had not complied with the order, the 
 application was now renewed. On behalf of the defendant the 
 affidavit in answer was produced, but it had not yet been filed. 
 
 Quam, J. — I never heard of such frightful procrastination. 
 The power given by the Act was inserted expressly to meet the 
 case of such procrastinators as the defendant. I will make the 
 order to strike out his defence unless he files his answer within 
 twenty-four hours. Costs of this application to be paid by 
 defendant Grant. 
 
 No. XCL 
 
 Application to proceed under the Judicature Acts — Counter-claim — 
 — Judicature Act 1873, sect. 22 — Judicature Act 1875, Order 
 XIX., rule 3. 
 
 This was an application by the defendant in an action on a 
 charter-party for £73, to proceed under the new Acts to enable 
 him to set up a counter-claim for £203 odd, as damages for short 
 delivery and injury to cargo. The defendant had pleaded, amongst 
 other pleas, one of set-off. He produced an affidavit stating that 
 he was advised and believed that he had a good counter-claim as 
 above. For the plaintiff it was urged that when he brought the 
 action, he was advised that there could be no set-off, as the other 
 side had no liquidated claim ; and that if the counter-claim was 
 allowed, it would be necessary for him to get evidence from 
 Australia to meet it. 
 
 Quadt, J. — I would not for a moment give these rules an opera- 
 tion that would oust the plaintiff from a vested right. But this 
 is in reality only a question of procedure, and in no way alters 
 the rights of the parties. Allowing the counter-claim instead of 
 a cross action is merely giving another and a better remedy for 
 enforcing the same right. That being so, it becomes entirely a 
 question as to terms ; and that being an important question, I 
 will take time to consider it. 
 
 Subsequently, the order was granted on the terms that the 
 plaintiff should have a week to consider whether he would discon- 
 tinue his action, and if he elected to do so, that the defendant 
 should pay all the oosts, on the ground that setting up a counter- 
 
Reports of Practice Cases. 39 
 
 claim which was not pleadable when action was begun was like 
 pleading a defence arising after action, and the defendant must be 
 subject to some terms, as in Order XX. 
 
 No. XCII. 
 
 Drake's Patent Concrete v. Dower. 
 
 Judicature Act 1873, s. 25, subs. 8; Judicature Act 1875> 
 Order LJJ., rules 3, 4 — Injunction. 
 
 This was an ex parte application for an injunction to restrain the 
 defendant from pulling down a building which he alleged was not 
 built according to contract. A house was in the course of erec- 
 tion by the plaintiff for the defendant, and the defendant had 
 begun to pull it down. 
 
 Order given to restrain the defendant from pulling down the 
 partially erected house, or any part of it. 
 
 Thursday, Nov. 25. 
 
 No. XCIII. 
 
 Judicature Act 1873, s. 25, sub-s. 8 ; Judicature Act 1875, 
 Order LIL, rule 4 — Injunction — Receiver. 
 
 This was an ex parte application for an injunction to restrain the 
 defendant from parting with goods in his possession, and for the 
 appointment of a receiver to protect them. An action was pending 
 for the return of oats and straw wrongfully taken possession of by 
 the defendant. 
 
 Quain, J. — This is a common action of trover. 
 
 No order. 
 
 No. XCIV. 
 
 Judicature Act 1873, *. 25, sub-s. 8; Judicature Act 1875, 
 Order LTJ., rules 3, 4. 
 
 This was an ex parte application for an order for inspecijon for the 
 purpose of ascertaining the weight of oats and straw sold, and for 
 an injunction to restrain the defendant from parting with the 
 possession of them until such inspection had been had. An action 
 was pending for the price of oats and straw sold. 
 
 Quain, J. — How can I order a man not to part with his own 
 property ? I have no objection to give you an order for inspection, 
 but I cannot do that ex parte. Tou must take out a summons. 
 
40 Reports of Practice Cases. 
 
 No. XOV. 
 
 Godbabd v.. Poole and anotheb. 
 
 Judicature Act 1873, sect. 22 ; Judicature Act 1875, Order L., • 
 rules 2, 4. 
 
 This was an action brought on a bill of exchange for £110, drawn 
 by defendant Poole and indorsed to plaintiff. Poole had become 
 bankrupt, and suffered judgment by default ; Lowring had been 
 appointed trustee. This was an application to proceed under the 
 new Acts, and to let in Lowring, the trustee, to defend the action, 
 £180 being paid into court. 
 
 Bremner, for Poole's trustee, said that the judgment had been 
 snapped against them. 
 
 Knight for plaintiff. 
 
 Quain, J. — Tt is only a question of terms. I will order that the 
 judgment be set aside on payment of costs, and that the trustee 
 be at liberty to defend in the name of the debtor ; money to 
 remain in court. 
 
 No. XOYI. 
 
 Hancock and otheks v. de Niceville. 
 
 Equitable replication— Judicature Act, s. 22 ; s. 24, sub-s. 1. 
 
 This was a summons for leave to amend replication, which had 
 been struck out by Mr. Justice Lush (Law Times Nov. 20, 
 Judges' Ch. No. LIL). The declaration in this case was for goods 
 sold and delivered. Pleas : Non assixmvpsit and coverture. The 
 replication had been amended by stating that the defendant was 
 possessed of separate estate. 
 
 E. Williams for plaintiff. — We wish to* proceed under the Judi- 
 cature Act in order to enable us to avail ourselves of this repli- 
 cation, which is good in equity. This is not the case of replying 
 to a plea of infancy or coverture, fraudulent concealment of 
 infancy or coverture, which would be bad. We do not allege any 
 concealment. 
 
 L. Kelly for defendant. — If this amendment is allowed, the 
 cause should be sent over to the Chancery Division, as the 
 question will be purely one of equity. 
 
 Quain, J. — That would soon bring us back to the old system. 
 This suit began and went to plea upon the personal undertaking 
 of this lady to pay for goods sold and delivered, and she pleaded 
 coverture ; the plaintiff now desires to turn it into a suit against 
 her separate estate. Under these circumstanoes, I cannot give 
 him better terms than that on payment of all costs from writ 
 downwards, the plaintiff may turn his declaration into a statement 
 of claim. 
 
Reports of Practice Gases. 41 
 
 No. XOVII. 
 Amis v. Clask. 
 
 Appeal from County Gourt — County Courts Act, s. 6; Judicature 
 
 Act 1873, s. 34, subs. 2, s. 45. 
 This was an ex parte application with reference to appealing from 
 a County Court Judge. The matter had been twice before Mr. 
 Justice Lush, who had given first a week and then two days' ex- 
 tension of the time for appealing, for the purpose of appealing to 
 the divisional court, when constituted. 
 
 22. W. Byrne for the applicant. — I first applied to Vice-Chan- 
 cellor Malins, but he said he could not assist me. I then applied 
 to the court, but they said they could do nothing, as a divisional 
 court was not yet constituted. I suggested that they should con- 
 stitute one, but they declined to do that, and said a meeting of the 
 Judges would first be necessary. I call your Lordship's attention 
 to what was done by the Vice-Chancellor in Fades v. Scales (W. 
 N. Nov. 20, Ch. p. 194), and ask you to adopt that course in the 
 present instance. 
 
 Qtjain, J. — I should not be disposed to follow exactly the form of 
 the order in Eccles v. Eccles (u~b% sup.). I think that I had better 
 give you a rule nisi, calling upon the plaintiff to show cause 
 before the Judge in Chambers why the judgment in his favour 
 should not be reversed. You !must have a verified copy of the 
 Judge's notes, under Order LVTII., rule 11. 
 
 Solicitors for the appellant, F. J. and G. J. Braikenridge. 
 
 Friday, Nov. 26. 
 
 No. xcvm. 
 
 Application to sign judgment — Counter claim — Judicature Act 
 1875, Order XIV., rule 1 ; Order XIX., rule 3. 
 
 This was a summons in an action for milk sold and delivered 
 where the writ was specially indorsed, calling upon the defendant 
 to show cause why the plaintiff should not sign final judgment. The 
 affidavit stated the plaintiff's demand was for £36 4s. 4d. for milk 
 delivered, and that in plaintiff's belief there was no defence to 
 the action. On behalf of the defendant it was admitted that the 
 sum named was due ; but it was stated that he had a counter 
 claim to an equal or greater amount. The counter claim consisted 
 in the breach of a contract in writing to supply the defendant 
 with sixteen gallons of milk per diem, at Is. 8d. per gallon ; the 
 alleged breach being that the plaintiff only supplied from four to 
 six gallons per diem. In consequence of this default, the defen- 
 
42 Reports of Practice Cases. 
 
 dant, who had contracts to supply several large institutions, had to 
 procure milk at 2s. per gallon, and to pay the carriage for it. 
 
 Qtjain, J. — This is a proper counter claim, The original action 
 for milk delivered and the counter claim are based on the same 
 agreement. I order that the defendant be allowed to defend, 
 confining his defence to his counter claim ; and that both the 
 original action and the counter claim be referred to the master. 
 
 No. XCIX. 
 
 Application to proceed under the Judicatwe Acts — Set-off — Judi- 
 cature Act, 1873, g. 22— Judicature Act, 1875, Order XXII., 
 rule 10. 
 
 This was an application by defendant to proceed under the Judi- 
 cature Acts, for the purpose of obtaining judgment for the 
 balance, if the set-ofi should be found to be in excess of the 
 plaintiff's claim. The claim of the plaintiff was for £28 odd ; the 
 set-off was stated to amount to £96. The declaration had been 
 delivered in March; the pleas, one of which was a set-off, in 
 April. 
 
 Quain, J. — To grant this application will affect no alteration in 
 the legal rights of either party ; it is purely a question of pro- 
 cedure. I only give the defendant the power of raising the 
 question of the amount of his claim at the trial. The defendant 
 does not now introduce a new claim. He has pleaded a set-off j 
 and very properly wants to get his claim, which overtops the 
 plaintiff's, decided in this action. I think that it is highly de- 
 sirable to give him the opportunity he asks for, and I shall 
 therefore do so. 
 
 No. C. 
 
 Judicature Act, 1875, Order LI., rule 4 — Consolidation of 
 actions. 
 
 This was an appeal from the refusal of a master to allow one 
 statement of claim to be delivered by a plaintiff who had issued 
 two writs against the same defendant. One writ was for malicious 
 prosecution ; the other for amount of salary due as manager, 
 including three months salary in lieu of notice. 
 No order ; appeal dismissed with costs. 
 
 No. CI. 
 
 Application to sign judgment — Judicature Act 1875, Order III., 
 rule 6 ; Order XIV., rules 1, 3. 
 
 This was an appeal from the decision of Master Johnson, refusing 
 leave to sign judgment on a specially indorsed writ. The plain- 
 tiff's affidavit stated that in his belief there was no defence to the 
 action. Issue had been joined. The writ was served before 
 Nov. 1st. 
 
Reports of Practice Cases. 43 
 
 Qtjain, J. — I cannot give the plaintiff in this case the benefit 
 of the remedy under Order XIV. This is a very special remedy ; 
 and I can only give it according to the letter of the Act. This is 
 not a specially indorsed writ under Order III., rule 6. 
 
 Appeal dismissed. 
 
 A precisely similar application was then made in another case, 
 on appeal from Master Dodgson. 
 
 Quain, J. — I have just decided the question. The writ having 
 been served under the old procedure, it' is impossible that it can 
 have been specially indorsed under Order III., rule 6. 
 
 Appeal dismissed. 
 
 In another case an application was then made, on appeal from a 
 Master, similar to the above, with the difference that the writ 
 had been served since Nov. 1. This was an action for the 
 price of steel and wooden shutters. The plaintiff's affidavit 
 stated that there was no defence. The defendant's affidavit 
 stated that the shutters were not in repair ; and that the plaintiff 
 had admitted this by sending a man, who was now repairing them. 
 It was objected to the defendant's affidavit that it did not state to 
 how much of the claim the alleged defence went, as it was bound 
 to do under Order XIV., rule 3 ; and it was pointed out that the 
 affidavit only spoke of steel shutters, whereas there was a claim of 
 £25 odd for wooden shutters. 
 
 Qxtain, J. — To allege that a man is repairing the shutters only 
 goes to show that that is being done which will prevent the 
 necessity of any reduction of the' claim. This is one of the most 
 beneficial parts of the new procedure. 
 
 The defendant asked for an adjournment that he might file a. 
 further affidavit. 
 
 Adjourned for a week. 
 
 No. OIL 
 
 Oappblbtjs v. Beown. 
 
 Application to proceed under the Judicature Acts — Counter claim — 
 Judicature Act 1873, s. 22 ; Judicature Act, 1875, Order XIX., 
 rule 3; Order XX., rule 3. 
 
 This was an action for the price of timber by a Norwegian mer- 
 chant, The present application was by the defendant to proceed 
 under the Judicature Acts on appeal from Master Manley Smith. 
 The declaration was delivered on Oct. 30. 
 
 Knight, for the defendant. — We desire to set up a counter claim 
 for insufficient delivery in respect of other cargoes. We are ready 
 to pay the money into court. 
 
 JSdwyn Jones for the plaintiff. — The present action is brought 
 for the price of timber delivered in pursuance of a contract made 
 in April ; the counter claim which they ask to set up is that the 
 delivery of timber, in pursuance of a contract made in March, and 
 for which they have paid, was insufficient. If the Act is held to 
 
44 Reports of Practice Cases. 
 
 allow Buch a counter claim, it will be a great hardship to mer- 
 chants. 
 
 Quain, J.— That the counter claim here set up is brought upon 
 an earlier contract than the original action may be a very 
 good defence to it, but is not a sufficient reason for refus- 
 ing to allow it. I have a discretion as to allowing the de- 
 fendant to set up a counter claim; and may strike it out, 
 after it has been set up, when I think it ought not to be allowed. 
 For instance, in an action for assault and battery, I would not 
 allow a counter claim to be set up for seduction of defendant's 
 daughter. It was the scandal t)f the past procedure that A. 
 might have a liquidated claim against B., and B. a claim for 
 damages against A., and yet B. could not set up his claim in an 
 action by A., but must bring a fresh one. Pleading a counter 
 claim under circumstances such aB the present, I look upon as 
 analogous to pleading a defence arising after action brought, and 
 therefore it comes within the principle of Order XX., rule 3. I 
 order that defendant be at liberty to deliyer his counter claim - r 
 and that the plaintiff have a week to consider whether he will 
 continue his action. If he elect to discontinue, all the costs to 
 be his. 
 
 Decision of Master reversed. Appeal allowed. 
 
 No. CIII. 
 
 Judicature Act, 1875, Order LVIIL, ride 6 — Appeal no stay. 
 
 It is to be understood that' an appeal is now no stay of pro- 
 ceedings or execution ; and therefore when an application is made 
 to stay for the purpose of an appeal, the applicant will be put 
 under terms. Per Qtfain, J. 
 
 No. CIV. 
 
 Judicature Act 1875, Order XXXI., rule 12 — Discovery of 
 
 documents. 
 
 The Order for affidavit of documents will be granted as a matter 
 of course, without requiring the applicant to state what is the 
 nature of the documents which the other party has in his pos- 
 session. Per Qtjain, J. 
 
 Saturday, Nov. 27. 
 
 No. CV. 
 
 Particulars 1 . 
 
 It was presumed that under the Judicature Abts, particulars of 
 claim would be unnecessary. The statement of claim, or the in- 
 dorsement on the writ, should give full particulars. Per QttAiir, J. 
 
Reports of Praetiee Cases. 45 
 
 No. CVI. 
 
 Signing judgment on specially indorsed writ — Judicature Act 1875, 
 Order III., rule 6, Order XIV., rule 1. 
 
 This was an appeal from the order of a district registrar to pay 
 money into court as a condition for not signing judgment in an 
 action for goods sold and delivered. The 'writ was served before 
 Nov. 1. 
 
 Quain, J. — The writ could not be indorsed under Order III., 
 rule 6. The registrar had no power to make this order. 
 
 Order rescinded. 
 
 No. cvn. 
 
 Judicature Act 1875, Order XIX,, rule 4 — Pleadmgs not to 
 
 contain evidence. 
 
 ■On the application of a defendant, three paragraphs were struck 
 
 out of a statement of claim, as being an infringement of the rule 
 
 that pleadings are not to contain evidence. 
 
 No. OVIII. 
 
 Habeeshon and anothee v. Gill. 
 
 Judicature Act 1873, s. 25, subs. 80 — Judicature Act 1875, Order 
 LII., rules 4, 3 — Application to appoint a receiver. 
 
 This was an action of ejectment by a landlord against his tenant, a 
 builder. An eas parte application was now made on behalf of the 
 landlord for the appointment of a receiver. 
 
 Jason Smith for applicant. — The defendant, under a covenant in 
 his lease, should have completed the house let to him by the plain- 
 tiff; he has not done so, and the house is now falling into dis- 
 repair. I ask, therefore, for a receiver to be appointed to prevent 
 waste. I refer your Lordship to sect. 25 of the Act of 1873, sub- 
 sect. 8. Where property is being wasted it is the universal 
 practice of the Court of Chancery to appoint a receiver. 
 
 Quain, J. — There is an excellent provision in Order LII., rule 3, 
 of the Judicature Act 1875, for the protection of property. But 
 that order cannot be made ex parte. I can make no order without 
 you give me an authority to prove that the Court of Chancery 
 would appoint a receiver where property is falling into decay. 
 This is a novel application here, and I will adjourn it for you to 
 give me express authority on the point. 
 
 Monday, Nov. 29. 
 
 The above application was to-day renewed by Jason Smith, who 
 cited Boehm v. Wood (Turn. & E. 345), a$ an express authority for 
 his application ; and further argued that, even if the Court of 
 
46 Reports of Practice Oases. 
 
 Chancery would not in this case have appointed a receiver under 
 the old practice, the power of doing so was now much enlarged, 
 and, in the words of sect. 25, sub-sect. 8, of the Act of 1873, 
 might now be done in all cases in which it should appear just and 
 convenient to do so. 
 
 Quain, J. — What you ask me for is to appoint a receiver in a 
 pending action to take care of the property. Since Saturday I 
 have had an opportunity of consulting a Vice-Chancellor, and I 
 am told that the Court of Chancery never interfered with the legal 
 estate, upon the application of the party who had the legal estate, 
 and that he had never heard an application similar to the present. 
 The latter part of sub-sect. 8 applies apparently only to injunctions, 
 and not to the appointment of a receiver. With regard to the 
 words "just and convenient" in the earlier part of sub-sect. 8, 
 where such very wide words are used, it is necessary to refer to 
 the old practice, and to interpret them by that. At all events 
 I shall not do this ex parte ; you can take out a summons, but I do 
 not encourage you to do so. It seems to me to be unnecessary. 
 My advice to you, is not to go to the trouble and expense of having 
 a receiver appointed, but to put in someone in the neighbourhood 
 as a care-taker for yourselves. 
 
 B. S. Taylor and Son, solicitors for plaintiff. 
 
 No. CIX. 
 
 Judicature Act 1873, s. 57 — Local investigation. 
 
 Wheeb furniture in a house has to be examined, a " local investi- 
 gation " within the above section is required, and a reference may 
 therefore be ordered without the consent of all the parties inter- 
 ested. Per Quain, J. 
 
 No. CX. 
 
 Judicature Act 1875, Order XIV., rule 1; Order ILL., rule 6— 
 Application to sign judgment. 
 
 This was an application to sign judgment on a specially indorsed 
 writ. The writ was served in October. 
 
 Quain, J. — It is impossible that this writ can be specially in- 
 dorsed under Order HI., rule 6, because that rule did not then 
 exist. — No order. 
 
 No. CXI. 
 
 Eestbix and Wipe v. Stewakjd. 
 
 Particulars of statement of claim — Embarrassing and inconsistent 
 
 pleading—Judicature Act 1875, Order XXVII., rule 1. 
 In this case, which was an action for slander, a summons for par- 
 ticulars of, to whom, when, and where the alleged slander was 
 uttered, was taken out by the defendant. The master refused 
 particulars as to whom, but allowed them as to when and where. 
 From this decision both parties appealed to the Judge, who 
 
Reports of Practice Cases. 47 
 
 adjourned the appeal till after the delivery of the statement of 
 defence, Shortt, for the plaintiff, alleging that the defendant 
 would probably set up a plea of justification. 
 
 The adjourned appeal now came on; and the statement of 
 defence, which is set out below, was handed to the Judge. 
 
 Quain, J., refused to allow any particulars. 
 
 A. summons, taken out by the plaintiff, was then heard, calling 
 upon the defendant to amend his statement of defence, which was 
 as follows : 
 
 Statement of defence. 
 
 1. The defendant denies that he spoke and published of the 
 plaintiffs the words as in the third paragraph of the statement of 
 claim mentioned with the meaning as therein alleged. 
 
 2. The defendant denies that the said words were spoken and 
 published by him of the plaintiffs maliciously. 
 
 3. The defendant further says that a letter was written by the 
 plaintiff Thomas to the plaintiff Emma Elizabeth, imputing mis- 
 conduct to her (the contents' of which were not divulged by the 
 defendant to any person) and that if any mention was made of 
 such letter, or if anything was said by the defendant with reference 
 thereto, such mention was made and such thing was said for the 
 purpose of denying and contradicting any such imputation, and 
 not otherwise. 
 
 4. The defendant further says that the companionship and hos- 
 pitality of the several persons mentioned in the fifth paragraph of 
 the statement of claim have not been lost, nor have the plaintiffs 
 been deprived thereof by reason of the alleged speaking and 
 publishing by the defendant of the words as in the third paragraph 
 of the plaintiffs' statement of claim mentioned. 
 
 Wheeler for defendant. — Paragraphs 1, 2, and 4, of the state- 
 ment of defence are equivalent to a plea of not guilty. Para- 
 graph 3 was inserted for the purpose of complying with 
 Order XIX., rule 22. 
 
 Shortt for plaintiff. — Paragraph 3 is an attempt at justification 
 couched in most embarrassing language. Iobject to it as incon- 
 sistent with the rest of the statement. The statement of defence 
 is now one pleading, and cannot contain inconsistent allegations. 
 I contend that under the new procedure there cannot be a plea of 
 not guilty, and of justification. 
 
 Qttain, J. — Mr. Wheeler is making experiments under the new 
 system. I do not blame him at all ; the pleading portion of the 
 new procedure appears to me to be its weak side. The slanderous 
 words alleged here are, " I have seen a letter imputing miscon- 
 duct to the plaintiff's wife." Paragraph 3, is therefore, tantamount 
 to a plea of justification. If the defendant wished to justify he 
 should have said : " I have seen a letter from plaintiff to his wife, 
 imputing misconduct to his wife." I will strike out, under 
 Order XXVIL, rule 1, all the latter part of paragraph 3, from the 
 
Reports of Practice Cases. 
 
 words " the contents of which," down to the end, as embarrassing. 
 But I cannot fgo quite to the length that Mr. Shortt would, have 
 me, and hold that not guilty and justification cannot now be 
 pleaded together; consequently the statement of defence may 
 stand, after the above amendment has been made. 
 
 Fallows and Brown, solicitors for the plaintiff. 
 
 Merrimcm, Powell, and Go., solicitors for the defendant. 
 
 No. cxn. 
 
 Wilson v. Dundas and Stevenson (Garnishees). 
 
 Judicature Act 1875, Order III., rule 6 ; Order XLV., rules 2, 5. — 
 Attachment of debts. , 
 
 This was an application by Wilson, the judgment creditor, to 
 attach half a year's salary, due to Mackenzie, the judgment 
 debtor, from his trustees, Dundas and Stevenson. 
 
 Edwyn Jones, for the garnishees, contended that this was a 
 trust debt, and therefore not attachable ; and, further, that the 
 debt was not due. 
 
 Shaw, for the judgment creditor. 
 
 Quain, J. — Order III., rule 6, expressly says, that there may be 
 a special indorsement of a trust debt. If Mackenzie brings an 
 action against his trustee, he can recover his half year's salary. 
 It is submitted for the garnishees that there cannot be an attach- 
 ment of an equitable debt; but there is no distinction now 
 between a legal and an equitable debt. I should be contravening 
 the very object of the Judicature Acts if I was to hold otherwise. 
 If we could not now attach an equitable debt sitting here, we 
 might as well be under the ancien regime. . The debt need not be 
 due, as the words of Order XLV., rule 2, are " debts owing or 
 accruing." As, however, the garnishee disputes his liability, I 
 will order a special case to be stated for determining the question 
 under Order XLV., rule 5. 
 
 Keays, solicitor for the judgment creditor. 
 
 Ourrey and Holland, solicitors for the garnishees. 
 
 No. CXIII. 
 
 Williams v. Weight. 
 
 Judicature Act 1873, s. 25, sub-s. 8 — Injunction — Form of 
 
 pleadings. 
 
 This was an ex parte application for an injunction to restrain the 
 plaintiff from building on a particular site. 
 
 Quain, J. — Why do you not go to the Court of Chancery ? 
 
 Oorst, Q.C. — Because it is cheaper to come here, my Lord. 
 
 The dispute between the parties was as to the site of Wellington- 
 road, New Brighton. There was a counter claim ifl the action, 
 which stands for trial at the forthcoming Liverpool Assizes, and the 
 
^ 
 
 Reports of Practice Cases. 49 
 
 heading of the Liverpool form of pleadings, which was produced, 
 was as follows : In original action, Williams, plaintiff, Wright, 
 defendant; in counter claim, Wright, Dlaintiff, Williams, de- 
 fendant. 
 
 Quadj, J. — That is utterly wrong. The new procedure recog- 
 nises the party setting up a counter claim in no other light than as 
 a defendant. The heading of the Liverpool form is simply absurd. 
 Gorst, Q.O., in support of the application. — We want to stop 
 the plaintiff from building, because he is obliterating our land- 
 Ifcsj-marks. The trial will come on in a fortnight,»and the jury go to 
 N> view next week. The other side have got an injunction from your 
 <5V Lordship to restrain the defendant from pulling down the plaintiff's 
 C~ building. We only want the plaintiff to be compelled to hold his 
 yV hand, as the defendant has been compelled to hold his. 
 Ow An affidavit was put in which stated that the plaintiff's building 
 S^> would conceal the site of the Wellington-road, which was the 
 \\ defendant's boundary, and that the plaintiff had not up to the 
 
 \ present time desisted from building. 
 V^\ Qttain, J. — The affidavit does not state that the plaintiff is doing 
 \ anything to injure you. The building is already there ; if there is 
 V^any injury, it is done. 
 Injunction refused. 
 
 Solicitors for the defendant, Chester, TTrquhart, Bushby, and 
 Halden, agents for Btockley, Liverpool. 
 
 No. CXIV. 
 
 Schedule to Order of Oct. 28, 1875, as to Oourt Fees imder the 
 Judicature Act 1875. 
 
 The taxing master's per centage on costs will be according to the 
 scale in the above schedule, in all cases where the costs have not 
 been taxed before Nov. 1. Per Quain, J. (after consultation with 
 the masters). 
 
 Tuesday, Nov. SO. 
 
 No. CXV. 
 
 JEWleb v. Lewy. 
 
 Judicature Act 1875, Order XIII., Rule 5 — Application to sign 
 judgment. 
 
 This was an ex parte application under the following circumstances. 
 Leave had been given, under the old system, to file a declaration, 
 giving notice to the defendant, who was abroad. The declaration 
 had not been delivered before Nov. 1. Lush, J., had said, on 
 
 E 
 
50 Beporbs of Practice Cases. 
 
 being applied to, that the proceedings must be carried on under the 
 Judicature Acts. The present application was to know whether 
 the plaintiff could now sign judgment under the above rule. 
 Quain, J. — Tou must take out a summons. 
 
 No. CXVI, 
 Williams v. Andrews. 
 Joinder of third party as defendant — Judicature Act 1875, 
 Order XVI., rule 13. 
 This cause had come on for trial, and been adjourned for a week, 
 on the application of the SoMcitor-Qeneral, who appeared for the 
 defendant, in order that a special case might be stated, and an 
 application made to the judge in chambers for the joinder of 
 another defendant. The action was brought to recover 
 extras on two building contracts, one for erecting a church, 
 and th6 other for erecting a vicarage. On behalf of the plaintiff 
 it was alleged that the present defendant was jointly liable 
 with Dean Champneys, who is now dead. It was desired to 
 join his executors as co-defendants with Andrews, which could 
 not have been done under the old procedure. Time would, of 
 course, be given them to plead, and the joinder asked for would 
 probably save expense. On behalf of the executors, it was urged 
 that such an application at this stage of the proceedings was most 
 unreasonable; and that they were advised by counsel that they 
 were not liable, the Dean being only liable on the contracts while 
 he was vicar of the church in question. On behalf of the defen- 
 dant, it was alleged that the defendant was unable to pay the 
 whole sum for which he was sued ; that Dean Champneys was 
 liable on the contract, and that his executors should, therefore, 
 be made parties ; and that the defendant would not object to an 
 adjournment for the purpose of giving them time to plead. 
 
 Quain, J. — I do not think it would be reasonable at such a 
 stage of the proceedings as this to join a third party. 
 
 No order. 
 
 1 No. CXVEL. 
 
 Judicature Act 1873, s. 45 — Appeal from County Court. 
 An application for a rule nisi calling upon the other side to show 
 cause why the decision of a County Court Judge in their favour 
 should not be reversed was refused, on the ground that the decision 
 of the County Court Judge was correct. 
 
 No. cxyiii. 
 
 Wood v. Wakefield. 
 Injunction — Judicature Act 1873, s. 24, sub-sect. 5— Stay of pro- 
 
 This was an ex parte application on behalf of the defendants for a 
 stay of proceedings in the above action. 
 
Beporbs of Practice Cases. 51 
 
 Wilson for the defendant. — This is an action of trover by a lady 
 who claims goods, sold by the defendants, who are executors, 
 under an order of the Court of Chancery, when the ordinary 
 administration suit was pending. Walker v. Middlethwaite is 
 identical with this case, with the exception that the action there 
 was for land instead of goods. 
 
 Quain, J. — I can well understand that when a bill was filed by 
 all the creditors for administration, an action by a single creditor 
 would be stopped by the Court of Chancery; but this is a different 
 case. I cannot give you this summary relief, it will only be given 
 in very plain cases. 
 
 Solicitor for the defendants, (Jlements. 
 
 Dec. 1. 
 
 No. CXIX. 
 
 E. Assam Co. (Limited) v. Eoche and Goveb. 
 
 Application to sign judgment — Judicature Act 1875, Order XIV., 
 
 rule 1. 
 
 This was an action against a firm of solicitors for money due. The 
 defendants were instructed to collect the debts due to the plaintiff 
 company, and had not paid 'them over; they had a claim against 
 the company of £70 odd, which was admitted, leaving a balance in 
 favour of the plaintiffs of £131 odd. Master Manley Smith had 
 allowed the plaintiffs to sign judgment for this sum, and against 
 this order the defendant Gover appealed. The defendants had 
 dissolved partnership. 
 
 W. L. Williams, for the plaintiff, read an affidavit by the 
 secretary of the company that there was no defence to the action, 
 and stated that Eoche never disputed the debt, and had allowed 
 judgment to go by default. 
 
 Norton, for the defendant Gover, put in an affidavit by defen- 
 dant stating that he believed Eoche and the plaintiff company to 
 be in collusion ; and that he had offered and was willing now to pay 
 his share of the debt, provided that the' company would under- 
 take that execution should not be levied on him for the remaining 
 half. 
 Qitain, J. — This is a clear case. 
 
 Order of master affirmed. Stay of proceedings pending an 
 appeal to the court refused. 
 
 e 2 
 
52 Reports of Practice Cases. 
 
 No. CXX 
 
 Discovery of documents — Judicature Act 1875, Order XXXI., 
 
 rule 12. 
 
 This was an application by a defendant for an affidavit of docu- 
 ments. On behalf of the plaintiff it was urged that the order 
 should not in this case be given, as the plaintiff resided in Sweden, 
 and the object was to throw him over the present sittings. He 
 had paid money into court. On behalf of the defendant it was 
 stated that no notice of trial had yet been given. 
 
 Quain, J. — I will certainly not allow the plaintiff, a foreigner, to 
 be thrown back by this summons. If he does not- give notice of 
 trial for these sittings, the defendant can come back. 
 
 No order. 
 
 No. OXXI. 
 
 Askew v. North-Eastern Railway Company. 
 
 Judicod/wre Act 1875, Order XXVII., rule 1 — Striking out part of 
 statement of claim. 
 
 This was an application, on appeal from the master, to strike out 
 from the statement of claim in the above action paragraph 14, 
 which was as follows : " The defendants do not dispute, but 
 have, in their correspondence with the plaintiff's solicitors, 
 admitted that the plaintiff and his tenants are entitled to have 
 access from the Kedheugh Estate to the quay for the carriage, 
 storage, and shipment of manure, dung, and goods of a like 
 description, and have expressed their willingness to make the 
 necessary arrangements and to give all facilities for that purpose." 
 
 The above action was brought by the owner of the Bedheugh 
 Estate for damages for an interference with his right to carry coals 
 over the quay, for a declaration of his and the defendants' respec- 
 tive rights, and for an injunction ordering the defendants to desist 
 from interfering with his right to carry coals over the quay. 
 
 0. Bowen for plaintiff. 
 
 Allen for defendants. 
 
 Qtjain, J. — This paragraph must be struck out. Can you point 
 out even in the forms where you have such a precedent as No. 1 
 of Appendix C, any precedent for such a paragraph as this ? 
 Can you point out any section in the Act that enables you to plead 
 admissions made by the other side to your solicitors ? Tou put 
 the defendants in the difficulty of not knowing whether to traverse 
 the admission. Conciseness is intended by these rules to be the 
 very soul of the new pleading. I believe all that is necessary in 
 
Reports of Practice Cases. 53 
 
 ordinary cases is a statement of particulars of demand, and then a 
 simple notice of the ground of defence, such as the Statute of 
 Limitations, &c. 
 
 Order of master Reversed. Statement of claim ordered to be 
 amended by striking out paragraph 14. 
 
 Solicitors for the plaintiff, Johnston and Harrison. 
 
 Solicitors for the defendants, Williamson, Hill, and Go. 
 
 Thursday, "Dec. 2. 
 
 No. CXXII. 
 
 Application to change the venue. 
 The above application was made by the defendants in an action 
 for the breach of a contract to supply milk, and the master had 
 refused to change the venue from Middlesex to Wiltshire. This 
 was an appeal from that decision. The defendants' affidavit 
 stated that they resided in Wiltshire, that the cause of action 
 arose there, that a question would arise as to a local custom with 
 regard to the sale of milk, and that the application was not made 
 for the purpose of delay. 
 
 Quain, J. — It is quite immaterial where the defendants live. 
 Speedy trial is the rule in these days, and I cannot allow the 
 defendants to postpone the trial of this case from January till 
 March. 
 
 No. OXXIII. 
 
 AbMITAGE V. FlTZWIIilAM AND OTHERS. 
 
 JudAaabwe Act 1875, Order IX, rule 2— Service of writ. 
 As ex parte application was made for an order for substituted 
 service upon one of the defendants in the above action, who was 
 in India. It was stated that his solicitors refused to accept ser- 
 vice, on the ground that they had no instructions to do so. 
 
 Order made for 1 substituted service upon defendant's managing 
 clerk at his office, and upon his solicitors. Defendant to have 
 six weeks to appear. 
 
 Solicitors for the plaintiff, Seal. 
 
 No. OXXIV. 
 
 Ross V. GlBBS. 
 
 Particulars of damn. 
 
 In this case particulars of claim were applied for. The statement 
 
 of claim had not yet been delivered. It was stated that it was 
 
 desired to get particulars before appearance, as it might be 
 
54 Reports of Practice Cases. 
 
 important to do so, with reference to the question of costs. Till 
 particulars were delivered, the claim could not be identified, and 
 could not, therefore, be admitted. 
 
 Qtjain, J. — I do not sympathise with that grievance ; the party 
 served with the writ generally knows the nature of the claim 
 against him. At present, the statement of claim may contain full 
 particulars. The defendant comes too soon. I presume that the 
 reason for omitting all mention of particulars from the Judicature 
 Acts was that it was presumed that they would never now be 
 necessary. 
 No order. 
 
 No. OXXV. 
 
 Fenner and another v. Bedford. 
 
 Judicature Act 1873, s. 25, subs. 8 — Injunction. 
 
 An ex parte application for a peremptory injunction to restrain 
 the defendant in the above action, which was one of trespass, from 
 committing certain trespasses, was made by A. Oharles. On 
 29th Nov. the defendant broke into a rectory house belonging to 
 the plaintiffs, and removed the furniture, &c, including a safe 
 containing plaintiff's papers, and commenced to pull down the 
 house. An affidavit was put in stating the above facts, and 
 further that the roof had been removed, and that the defendant 
 and others were at four in the afternoon on the day previous to 
 this application continuing to pull down the above mentioned 
 premises, and were, in the plaintiffs' belief, still pulling them 
 down. 
 
 An injunction was granted, with liberty to serve any persons 
 on the premises as well as the defendant. 
 
 Solicitors for the plaintiffs, Thompson and Son. 
 
 No. CXXVI. 
 
 Ameuny v. H. H. The Nawab Nazim op Bengal. 
 
 Judicature Act 1875. Order XIV., rule 1. — Signing judgment on 
 specially indorsed writ. 
 
 This was an appeal from a master's refusal to allow judgment to 
 be signed under the above rule. The plaintiff's affidavit stated 
 that he had formerly been an attache of the Syrian embassy, and 
 was Professor of Arabic in King's College, London ; that he was 
 engaged by William David Fox to act as interpreter, &c, for Fox 
 and the defendant, at a salary of £30 per month ; that on Fox's 
 death in October 1873, Lister O'Byrne was engaged as secretary, 
 and plaintiff was re-engaged as assistant secretary, at the same 
 salary as before ; that two bills of exchange had been given for 
 arrears of salary, which were dishonoured ; that arrears of salary 
 were still due ; and that there was no defence to this action. For 
 the defendant an affidavit made by Lister O'Byrne was read, 
 
Reports of Practice Cases. 55 
 
 which stated that he was the representative of the defendant ; 
 that the plaintiff's affidavit was untrue ; and that in the agreement 
 under which the plaintiff was engaged, there was a clause to refer 
 to two persons named therein any dispute that might arise as to 
 salary. 
 
 Allen, for the defendant, pointed out that the plaintiff's affidavit 
 did not allege that any services were tendered, and said that one 
 ground of the defence was that, in point of fact, no services were 
 performed. 
 
 Brownfield for the plaintiff. 
 
 Appeal dismissed. 
 
 Solicitor for the defendant, F. 0. Barker. 
 
 Solicitor for plaintiff, Bamsden. 
 
 No. cxxvn. 
 
 Fkakbs v. Bresmw. 
 Judicature Act 1873> s. 24, subs. h—Stay of action. 
 
 This was an application to stay the above action, which was for 
 non-delivery of goods, until a bill of exchange, which had been 
 given by the plaintiff to the defendant, had become due. It was 
 stated that the bill would become due on the 10th, and that the 
 defendant's object in making this application was to see whether 
 it would be honoured, as he expected to have ground for a counter- 
 claim on this bill. 
 
 Quain, J. — I have exercised the power given me by sub-sect. 5 
 of the 24th section of the Act of 1873, in cases where the winding- 
 up of a company or an administration suit is pending ; but I shall 
 only do it in clear cases such as those. Even if fraud is alleged 
 by the defendant I should not go into that question here. I never 
 heard of an action being stayed on the possibility of a future 
 defence arising. 
 
 No order. Costs to be plaintiff's in any event. 
 
 No. CXXVIII. 
 
 Jones v. Turner. 
 
 Judicature Act 1875 — Order XXVIL, rule 1 — Strikvng out part of 
 statement of clam as embwrrassmg. 
 
 The following paragraphs had been ordered to be struck out of 
 the statement of claim in the above case by Master Gordon as 
 embarrassing : 
 
 6. The plaintiff thereupon exerted himself, by advertising and otherwise, 
 to secure a purchaser of either the whole or the one-half share of the 
 defendant's interest in the said quarry, and, amongst others, introduced to 
 the defendant a Mr. Frederick Wallace, who, in conjunction with a Mr. 
 Newman (so the plaintiff has been informed by the defendant), purchased 
 
56 Reports of Practice Cases. 
 
 from the defendant one-half share of the defendant's interest in the said 
 quarry. 
 
 7. But though the defendant has stated to the plaintiff the fact of the 
 sale, as alleged in the 6th paragraph, yet the defendant refuses to tell the 
 plaintiff the exact Bum for which or the precise terms upon which such 
 sale has been effected, and has thereby prevented and still prevents the 
 plaintiff claiming a definite sum as due to him by the terms of the agree- 
 ments set out in the 3rd and 5th paragraphs. 
 
 8. Whether the defendant has or has not sold his whole or part interest 
 in the said quarry to the Baid Mr. Frederick Wallace separately, or in con- 
 junction with the said Mr. Newman, the plaintiff cannot, except as 
 explained in the 6th paragraph, state. The plaintiff has, however, every 
 reason for believing that the defendant has in fact made such a disposition 
 of his property to some one or more of the persons introduced by the plain- 
 tiff to the defendant as to entitle the plaintiff to the reward promised and 
 agreed for either in the letter aforesaid ot the 2nd July, a.d. 1875, or in 
 that of the 3rd July, A.D. 1875, if not both. 
 
 Na&myth, for plaintiff. — The plaintiff has to state his grievance 
 clearly, and I fail to see how, in this case, he could have done so 
 without the above statement. 
 
 Francis for defendant. 
 
 Qtjain, J. — Paragraph 6 states what the defendant told the 
 plaintiff. That is not proper pleading. It would have been easy 
 for the plaintiff to state that Newman and Wallace bought the 
 half share, and then to have claimed his commission. He could 
 then have administered interrogatories. I shall affirm the Master's 
 order; but, as this is one of the peculiar cases where the plaintiff's 
 case is in the knowledge of the defendant, I will order that the 
 amendment may be deferred until after the defendant has 
 answered interrogatories. 
 
 Friday, Bee. 3. 
 
 No. OXXES. 
 Wilton v. Bbignell. 
 Judicature Act 1875, Order XXXI., rule 5 — Interrogatories. 
 This was an action for libel by a solicitor in Sunderland against 
 the publisher of the Sunderland Echo. The present summons 
 was taken out to strike out certain interrogatories administered 
 by the plaintiff to the defendant. From interrogatory 3 : " Was 
 not the passage set out in paragraph 3 of statement of claim 
 intended by the defendant to apply to the plaintiff? If not, 
 say to whom ?" the last words were ordered to be struck out. 
 Interrogatory 4 : " Were not the words set out in paragraph 5," 
 &c., was struck out as repetition. Interrogatory 8 : " Were you 
 yourself the writer of any of the passages mentioned in the state- 
 ment of claim P If not, who was ?" was also struck out. 
 
Reports of Practice Cases. 57 
 
 No. CXXX. 
 
 Be The New Hamburgh: and Bbazilian Railway Company. 
 
 Judicature Act 1873, sect. 25, sub-sect. 6 — Interpleading before action. 
 
 •MSSeTOffor" the above company, applied to be allowed to inter- 
 plead. — No action has yet been drought against us, but the com- 
 pany have received notice from Melhardo and Lloyd not to pay 
 money or issue shares to Watson and Smith, as the former claim 
 to have had the shares assigned to them by the latter ; and from 
 Watson and Smith we have received a letter denying the alleged 
 assignment, and demanding the issue of the shares. This applica- 
 tion is under sect. 25, sub-sect. 6, of the Act of 1873. Mr. Wilson 
 has the following remark on that section : "This section appears to 
 allow relief by interpleader in cases falling within it after notice 
 of conflicting claims without waiting for an action to be brought," 
 p. 157. I should submit that this sub-section was intended to 
 remove the technical difficulty that existed with regard to inter- 
 pleading, as to an action being first brought. 
 
 Batten for Watson and Smith. — We claim under an award of 
 Horatio Lloyd, and say that there is no assignment. We should 
 like an adjournment. 
 
 Pulbrook for Melhardo andLloyd. 
 
 Quain, J. — Mr. Mon^on ^^mterpretation of the intention of 
 sub-sectsS is quite worthy of consideration. The Trustee Relief 
 Act enabled a trustee, where the trust property was the subject of 
 dispute, to apply to the Court of Chancery for protection from 
 suits, and it was not necessary in order to obtain this relief that 
 actual proceedings should be pending. I am very much inclined 
 to give that construction to the sub-section before me. 
 
 Application adjourned. 
 
 On the hearing of the adjourned application, Quain, J. refused 
 to allow the company to interplead, on the ground that there was 
 no sufficient notice of an absolute written assignment. 
 
 No. CXXXI. 
 
 Seligman and otheks (Trustees, &c) v. Mansfield; White v. 
 MansIteld. 
 
 Judicature Act 1875, Order XVI., rules 17, 19, 21 
 
 An application was made in the above actions, on appeal from 
 Master TJnthank. The first of these actions was brought by prin- 
 cipals against their agent for an account ; the second was for 
 breach of contract. The defence in the second action was that Mans- 
 field was an agent of the plaintiffs in the first action, and entered 
 into the contract under their authority. Master Unthank had 
 ordered that Seligman should be. bound by the sum that Mans- 
 field should be held liable to pay White, and that White should 
 
58 Reports of Practice Cases. 
 
 be a party to the first action. The latter part of this order was 
 now appealed against by White. 
 
 Trevelyan for "White. — White has nothing whatever to do with 
 the matters in dispute in Seligman v. Mcmsjield. We do not object 
 to the first part of the order. 
 
 Buiterworth for defendant. — Seligman are not the real principals ; 
 they are only trustees for an insolvent estate in New Tork, and 
 our remedy over will be against that estate. Money was pnt 
 into our hands to meet contingent liabilities. Tour Lordship has 
 very wide powers under the new Acts. 
 • Qtjain, J. — It was certainly never intended by the Act that a 
 plaintiff should be mixed up in a matter with which he had 
 nothing to do. It was quite right that Seligman should be bound 
 by the amount that Mansfield should be held liable to pay White, 
 but what has White to do with the other action? What was 
 chiefly in the mind of the framers of the Act when this section 
 was inserted, were matters of suretyship. We used to have cases 
 in which, an action having been brought against a surety on a 
 bond, and the sum recovered, when the surety brought his action 
 against the principal the whole question had to be tried afresh. 
 That was the primary object of the section ; but I see that it goes 
 further than that. I shall not bring White into what may be an 
 intricate question. 
 
 Butterworth: — I represent a merchant, who desires nothing 
 more than to get rid of this money. Will your Lordship stay 
 this action of Seligman v. Mansfield until White v. Mansfield is 
 decided, if we pay 400Z. into court ? 
 
 Trevelyan. — Seligman, &c, will undertake to discharge out of 
 any moneys they may recover in their action any debt or damages 
 which White may recover against Mansfield. 
 
 Quain, J. — Mr. Butterworth admits £400, and will pay it into 
 court ; the remaining £800 is pure matter of account. The best 
 thing that can be done for both parties is to refer the matter. I 
 am disposed to think that I oan still refer to an arbitrator under 
 the Common Law Procedure Act ; I think the power to do that is 
 saved by sect. 76 of the Judicature Act 1873. No order, on 
 Seligman undertaking to discharge out of any moneys recovered 
 in this action any debt or damages which White may recover 
 against Mansfield. Defendant to be at liberty to amend his plea 
 by paying £400 into court. Any further liability to be referred to 
 an arbitrator. 
 
 No. CXXXII. 
 
 Summons to refer. 
 
 This was a summons to refer in an action for work and labour 
 
 done under a builder's contract, there being a counter-claim for 
 
 penalties. 
 
 Bighorn for plaintiff. 
 
 Webster for defendant. 
 
Eeports of Practice Cases. 59 
 
 Quaik, J. — I can refer to an arbitrator, under the Common Law 
 Prooedure Aot of 1852, or to a speoial referee, under the Judica- 
 ture Aot. There is a great practioal difference between the two. 
 The speoial referee sits de die in ddem. He can report to the court, 
 and there is an appeal from his decision. He Bits, in short, as a 
 speoies of court. It is a more elaborate procedure than that under 
 the old reference — I am afraid almost too elaborate. 
 
 The parties having elected to refer to an arbitrator under the 
 Common Law Procedure Act 1852, order accordingly. 
 
 Satwrday, Dec. 4. 
 
 No. CXXXIII. 
 Judicature Act 1875, Order XXXI., rule 5 — Interrogatories. 
 A summons having been taken out by the defendant in an action 
 for breach of promise of marriage, to strike out interrogatories as 
 to means (including one as to the settlement made by the defen- 
 dant on his present wife) ; 
 
 Quain, J. — As long as these actions are allowed, and the defen- 
 dant's means are allowed to be the measure of damages, inter- 
 rogatories such as these are pertinent, and will be allowed. 
 
 No. OXXXIV. 
 Wake v. Gwynne. 
 Counter-claim — Judicature Act, 1875, Order XIX., rule 3. 
 An application was made in the above case to file a counter-claim 
 of breach of warranty. The action was for the price of a boiler ; 
 issue had been joined, and the cause stood in the paper for the 
 present sittings. 
 
 Webster. — This was the sale of a boiler upon the terms that it 
 should be equal to the last. Had it not been a specific chattel, 
 the plea of never indebted would have been sufficient to set up a 
 defence under a breach of warranty. Counsel had some doubt on 
 the point. 
 
 Harrison for plaintiff. 
 
 Quain, J. — This application is too late. Tou might have come 
 a month ago. Cause to be restored to its place in the list ; not to 
 be heard before Wednesday. 
 
 No. CXXXV. 
 
 Mooee v. The City and County Bank. 
 Stay or transfer of proceedings — Companies' Act 1862, s. 138; 
 
 Judicature Act 1873, «. 24, sub-s. 5, s. 36. 
 An application was made to stay proceedings in the above action, 
 or to send it over to the Chancery Division. 
 
60 Reports of Practice Cases. 
 
 Sill, in support of the application. — The City and County Bank 
 is now in liquidation. I am applying on behalf of the official 
 liquidator. The whole question in the action will arise in tho 
 Chancery proceedings. 
 
 Vcmghcm Williams. — There is a difference between compulsory 
 and voluntary liquidations. This is a voluntary liquidation, and 
 the same power to «tay is not given as in the case of a comDulsory 
 liquidation. See Be Poole v. Fire Brick Clam Company (L. Rep. 
 18 Bq. 542). 
 
 Quain, J. — I think this is a matter that should be argued in 
 open court. I will stay the action. Costs hitherto incurred to be 
 added to claim, and claim to be decided by the Chancery Division, 
 to which the winding-up of the company is attached. 
 
 Monday, Bee. 6. 
 
 No. CXXXVI. 
 Judicature Act 1875; Order XXXI., rule 13 — Form of affidavit of 
 
 documents. 
 An application was made for an order for a further affidavit of 
 documents. It was submitted that the affidavit being in the old 
 form was insufficient ; but on the other side it was contended that 
 as the order was issued on the 12th June, the old form of affidavit 
 was sufficient. The affidavit had not been filed till after 1st 
 Nov. 
 
 Affidavit to be amended, according to Form 9, Appendix B., 
 within a week. 
 
 Tuesday, Dec. 7. 
 
 No. CXXXVII. ' 
 Judicature Act 187JI Order XXXV., rule 7, expressly allows an 
 appeal from a district registrar in respect of a matter in which he 
 had jurisdiction only by consent ; but there is no similar provision 
 with regard to appeals from a master, apparently from an over- 
 sight. Per Quain, J. 
 
 No. CXXXVIII. 
 Judicature Act 1875, Order XXXV., rule 4,- Order LTV., rule 2 — 
 
 Jurisdiction of District Registrar. 
 On appearance to a judgment summons, issued by the Distriot 
 Registrar of Preston. 
 
 Quain, J., declined to hear the parties, on the ground that the 
 District Registrar had no power to issue a judgment summons. 
 
Reports of Practice Cases. 61 
 
 Wednesday, Dee. 8. 
 
 No. CXXXIX. 
 
 Pbaeson v. Lahe. 
 
 Judicatwe Act 1875, Order XVI., rules 5, 17, 18, 19 — Application 
 to serve thwd person with notice. 
 
 This was an action on a bill of exchange by the indorsee against 
 the acceptor. . The defendant's affidavit stated that the bill in 
 question, which was for 500Z., was drawn by Josiah Muncey, and 
 was accepted by the defendant on Muncey'spromise " to put him up 
 to a good thing on the Derby ;" and alleged that there was no con- 
 sideration for the acceptance by defendant, and that there was 
 fraudulent misrepresentation on the part of the drawer, Muncey. 
 The statement of defence had not yet been delivered. The present 
 application was to serve Muncey with notice that the defendant 
 claimed to be entitled to indemnity from him. In support of the 
 application it was argued that if Muncey was not brought in as a 
 party, an action would have to be brought against him. On be- 
 half of the plaintiff, it was argued that, under rule 5 of Order XVI., 
 it was open to the plaintiff to proceed either against the acceptor, 
 or the drawer, or the drawer and acceptor, and that he had elected 
 to proceed against the acceptor ; that the defendant had no 
 remedy over against. Muncey ; and that the third person, Muncey, 
 should have had notice of this application. 
 
 Qtjain, J. — Whether the defendant in this case could bring an 
 action against tbe drawer of the bill is doubtful, as this is not the 
 case of an accommodation indorsement. If he' could, it would be 
 on the ground that the money was paid to Muncey's use. But 
 the defendant's affidavit amounts to an allegation that the 
 bill was got from him by fraud. The case of an acceptor 
 claiming indemnity from a drawer seems to me to be within 
 the words of rule 17. I think the words in rule 17, 
 "on notice being given to such last mentioned person," 
 refer to the notice that the defendant now asks leave 
 to give, and do not mean that a notice to the third party is 
 necessary of this application. I think the preliminary question 
 is exclusively between the plaintiff and defendant. But I think 
 this is a question that should be discussed ; and I hope it will be 
 taken to the division of the court now sitting. Leave given to 
 serve Josiah Muncey with notice that the defendant claims 
 indemnity from him. If plaintiff appeals against this order, the 
 defendant to have one day's notice of appeal. The defendant to 
 have a week to plead. Costs to be costs in the cause. 
 
 Solicitor for plaintiff, W. T. Ricketts. 
 
 Solicitors for defendant, Probert and Wade. 
 
Reports of Practice Cases. 
 
 Wednesday, Dec. 8. 
 
 No. CXL. 
 
 Johnson v. Moefat. 
 
 Order for substituted service — Judgment signed too soon — Judica- 
 ture Act 1875, Order IX., rule 2. 
 
 This was an action, under the Bills of Exchange Act, by the 
 indorsee againBt the acceptor of a bill of exchange. An order for 
 substituted service had been made by Master Dodgson, and judg- 
 ment had been signed on Nov. 1 6. The present summons was to 
 set aside the judgment on appeal from Master Dodgson, who had 
 ordered that the judgment should only be set aside on payment of 
 £65 — the amount of the bill— into court. 
 
 Marshall Griffiths, for the defendant, argued that the non- 
 appearance of the defendant was owing to his absence in Scotland, 
 and that judgment had been signed before the time limited for 
 appearance, which should be reckoned from the date of the taking 
 effect of the order for substituted service. 
 
 The plaintiff, who appeared in person, argued that as this was 
 an action under the Bills of Exchange Act, the old practice applied 
 to it, which was that the days should run from the third attempt 
 to serve the writ. 
 
 Quain, J. — I never heard of that practice; and shall not recog- 
 nise it. Judgment , has been signed too soon ; and I shall now 
 consider the application for leave to defend as though the time 
 had not yet elapsed. The writ was issued in May, and the first 
 attempt to get an order for substituted service was made in 
 October. I shall not put the defendant under the terms imposed 
 by the master of paying £65 into court, but he must pay the costs 
 thrown away, as the condition of obtaining leave to appear. 
 
 No. OXLI. 
 
 PlTTEN V. ChATTBEBTJKG. 
 
 Interrogatories — Discovery — Judicature Act 1875, Order XXXI., 
 
 rules 1, 5, 12. 
 This was an application to strike out an interrogatory. The 
 interrogatory objected to was the usual one as to doouments. 
 
 Warburton Pike, in support of the summons. — Under the old 
 practice, in order to obtain discovery of documents, an affidavit as 
 to one particular dooument in possession of the other side was 
 necessary. When there was a difficulty about making that affi- 
 davit, a practice grew up of inserting an interrogatory as to doou- 
 ments, and thus obtaining discovery ; and this practice was found 
 
Reports of Practice Cases. 63 
 
 so convenient that it became general. ' Now that interrogatories 
 can be delivered without an order, I contend that that interroga- 
 tory should no longer be allowed. The point is generally impor-. 
 tant, but especially so with regard to aotions of ejectment. 
 
 Poulter shewed cause. — What Mr. Pike acknowledges was found 
 convenient under the old practice I think would still be found so. 
 
 Qtjain, J. — I think Mr. Pike's objection is unanswerable. We 
 are now inquiring whether you have to get leave for discovery, or 
 can get it without an order. My opinion is that you have not the 
 right to put this question at the end of your interrogatories 
 without first getting an order. 
 
 Interrogatory struck out. 
 
 No. CXLII. 
 Action wpon hill of exchange — Service of writ upon partners — 
 
 Judicature Act 1875, Order II., rule 6 ; Order IX., rule 6 — 18 8f 
 
 19 Vict. c. 67. 
 An application was made in this case as to whether there had 
 been sufficient service of the writ of summons, which raised an 
 important point as to the construction of Order II., rule 6. That 
 rule lays down that " With respect to actions upon a bill of ex- 
 change or promissory note, commenced within six months after 
 the same shall have become due and payable, the procedure under 
 the Bills of Exchange Act (18 & 19 Vict. c. 67), shall continue to be 
 used." Under the Bills of Exchange Act personal service of the 
 writ was in all cases necessary : but under Order IX., rule 6, of 
 the new Act, special provisions are made for service of the writ 
 where partners are sued. The question now raised was whether 
 service on a partnership under these provisions was good service 
 in an action under the Bills of Exchange Act ? 
 
 Quam, J. — I am of opinion that you cannot take advantage of 
 Order IX., rule 6, if you are suing under the Bills of Exchange 
 Act. I think that, in the face of Order II., rule 6, it would be 
 too strong a decision to strike out the words " personal service " 
 from that Act. With the exception that the onus of obtaining 
 leave is shifted from the defendant to the plaintiff, you can get 
 the same advantage now under Order XIV., rule 1, by specially 
 indorsing your writ under Order III., rule 6, as you can by pro- 
 ceeding under the Bills of Exchange Act. 
 
 No. CXLHL 
 Discovery of documents — Judicature Act 1875, Order XXXI., 
 rule 12. 
 On an application for an order for discovery of documents, the 
 objection was taken that the action was one by a landlord against 
 his tenant on a lease, and that, therefore, no discovery could be 
 required by the plaintiff. 
 
 QuArN, J. — This order is now given as a matter of course. 
 
64 Reports of Practice Cases. 
 
 Thursday, Bee. 9. 
 
 No. CXLIV. 
 Seugman v. Huth. 
 
 Equitable set-off— Judicature Aat 1875, Order XIX., rule 3. 
 This was an action in trover brought by the trustees of a bankrupt 
 against the defendant, who was a banker ; there was also a special 
 count in the declaration for a breach of agreement in not applying 
 bills as directed. The defendant now desired to set-off the money 
 due to him from the bankrupt Kaufman, the bankrupt, had sent 
 from America the bills of exchange to the defendant which he had 
 appropriated to settling the account between himself and 
 Kaufman. 
 
 0. Bowen, for the defendant. — The question in dispute is 
 whether a letter sent by Kaufman to Huth appropriated these 
 bills to meeting specific acceptances ; we deny that it did so. The 
 action being brought in trover, we could not, under the old proce- 
 dure, plead a set-off. I do not say that I could bring an action 
 upon the debt ; my application is to be allowed to plead it, not by- 
 way of counter-claim, but as a set-off. 
 
 Hall, for the plaintiff. — We claim these bills as trustees under 
 Kaufman's bankruptcy, and say that they were sent as cover for 
 specific debts. The defendant has proved for the debt under the 
 bankruptcy in America. 
 
 Quain, J. — It was decided in Phillips v. Allan (2 M. & B. 575 ; 
 8 B. & 0. 477) that proving for an English debt under bankruptcy 
 proceedings abroad operated as a discharge. I do not think that 
 you can set-off this debt against the assignees, unless you could 
 bring it either under the statute of set-off or under an allegation 
 of mutual credit. I will refer the question to the court. 
 
 No. CXLV. 
 
 Sandys v. Louis. 
 
 Set-off— Judicature Act 1875, Order XIX., rule 3. 
 
 An application was made by the defendant in this case to be 
 
 allowed to set-off a County Court judgment for £58 odd against a 
 
 judgment in the Court of Exchequer for £92 odd. 
 
 B. Williams for the plaintiff. 
 
 Quain, J. — We have always been in the habit of setting-off one 
 judgment against another, but the peculiarity of the present appli- 
 cation is that it is to set off the judgment of an inferior against 
 that of a Superior Court. 
 
 Ultimately, the application was granted. 
 Solicitors for the plaintiff, Bees, Hope, &c. 
 Solicitor for the defendant, Ody. 
 
Reports of Practice Cases. . 65 
 
 No. CXLVI. 
 
 Ivory v. Crtjickshank the Younger. . 
 
 Judicature Act 1875, Order XIII., rule 6 ; Order XLIL, rule 4. — 
 
 Signing judgment for recovery of specific goods. 
 An application was made in this case under the following circum- 
 stances. The action was brought for rent, and for the return of 
 specific goods; the defendant had failed to appear. Judgment 
 had been ■ signed for the amount of the rent ; but the judgment 
 officer had refused to sign judgment for the delivery of the goods 
 without an order of the judge. It was stated that the goods 
 detained were heirlooms and family relics, and that, therefore, a 
 writ of inquiry should not issue to assess their value, under Order 
 XIII., rule 6. What was desired was to obtain a judgment for 
 the return of the goods, which would be equivalent to a decree of 
 the Court of Chancery under the old practice, and then judgment 
 could be enforced in either of the three modes pointed out by 
 Order XLIL, rule 4. 
 
 Quain, J. — The only judgment by default in an action for deten- 
 tion of goods mentioned in these rules is under Order XIII., rule 
 6. I will take time to consider the point. 
 
 Friday, Bee. 10. 
 
 Quain, J. — I think you were right in your argument that you 
 are entitled to proceed in this case under Order XLIL, rule 4. 
 In order to do so you must have a judgment signed in your favour 
 for the return of the goods. I doubt whether the judgment 
 officers are right in not allowing yon to sign judgment for the 
 delivery of these goods without an order. The last words of Ordel 
 XIIL.rule 6, apply to proceedings under the old writ of delivery 
 when the value of the goods would have to be assessed. You may 
 therefore, sign judgment for the return of the specific goods, 
 and then proceed under Order XLIL, rule 4, as you may be 
 advised. 
 
 Solicitor for the plaintiff, Beddall. 
 
 No. CXLVII. 
 
 Restell and another v. Steward. 
 
 Judicature Act 1875, Order XXVII., rule 1 — Summons to strike out 
 
 amended paragraph in the statement of defence. 
 The previous proceedings in this case, and the statement of 
 defence, will be found set out ante, pp. 87, 105. 
 The present application was to strike out from the amended 
 
66 Reports of Practice Cases. 
 
 statement of defence, the latter of the two following paragraphs, 
 which had been substituted for the one previously struck out. 
 
 3. As to so much of the third paragraph of the statement of claim as 
 alleges that such a letter as that therein mentioned was written the defend- 
 ant says it is true that snch a letter was written. 
 
 4. The defendant farther say a that a letter was written by the plaintiff 
 Thomas to the plaintiff Emma Elizabeth which imputed misconduct as is 
 in the third paragraph alleged, and that if any mention, was made of snch 
 letter, or if anything was said by the defendant with reference thereto, 
 such mention was made and such thing was said for the purpose only of 
 denying and contradicting any such imputation, and not otherwise. 
 
 Wheeler for the defendant. 
 
 Bhortt for the plaintiff. 
 
 Qtjain, J. — In pleading justification you should use the very 
 words alleged to have been uttered. In this case the plea should 
 begin, " and the defendant says he has seen a letter from Eestell 
 to his wife," &c. I will make the order asked for. 
 
 Order to strike out paragraph 4>. 
 
 Solicitors for the plaintiffs, Fallows and Brown. 
 
 Solicitors for the defendant, Merriman, Powell, and Co. 
 
 ( No. OXLiVin. 
 
 Application to sign judgment — Judicature Act 1875, Order XTV., 
 
 rule 1 ; Order III., rule 6. 
 Master Pollock had refused in this case to allow judgment to be 
 signed under the above rules, and this application was an appeal 
 from that decision. The action was for the balance of an account 
 stated on a share account. 
 
 Bigham, for the defendant, read an affidavit, stating that he had 
 a good defence to the action ; and argued that the above rule 
 could not bo applied where there was such an affidavit, and that 
 some of the masters had so decided. 
 
 Qtjain, J.— A mere affidavit that the defendant has a good 
 defence is not sufficient ground for refusing to allow judgment to 
 be signed under this rule. That would be encouraging defendants 
 to make illusory affidavits. I shall go into the merits. 
 
 The sole question in dispute appeared to be as to whether the 
 defendant company were bound to settle differences on the closing 
 of the account between the parties ; the defendants admitting that 
 in that case they would be liable for a balance against them of 
 £416. 
 
 At the close of the argument, Bhortt, for the plaintiff, read the 
 copy of a letter, sent by the defendants to the plaintiff, under- 
 taking to close the account whenever he wished. 
 
 Qtjain, J.— I will adjourn the case for you to verify that letter. 
 
 On the hearing of the adjourned summons, Shortt produced th« 
 original of the letter he had previously read. 
 
 Horace Brown, for the defendants, produced, an advertisement 
 
Reports of Practice Cases. 67 
 
 in the Daily News, which showed that the plaintiff was endeavour- 
 ing to have the company wound-up in Chancery. 
 
 Quain, J. — This letter shows most distinctly that it was part of 
 the arrangement between the parties that the plaintiff should have 
 power to close his account whenever he wished. 
 
 Order to sign judgment. Decision of Master reversed. 
 
 No. CXLIX. 
 
 Reference to Judge by district registrar — Judicature Act 1875, 
 
 Order XXXV., rule 6. 
 A defendant having appeared in person before a district regis- 
 trar, and given an illusory address, the plaintiff had applied to 
 the registrar for leave to sign judgment; and the matter had 
 been referred by the registrar to the Judge. 
 
 Quain, J. — A district registrar cannot refer to the Judge under 
 rule 6 of Order XXXV., unless a summons has been taken out 
 calling upon the other side to appear before the registrar. 
 
 CL. 
 
 Appeals from Masters. 
 
 Evekt appeal is now a re-hearing, and, therefore, fresh affidavits 
 may be used in all appeals from a master to the Judge in chambers. 
 Per Quain, J. 
 
 Saturday, Dec. 11. 
 No. OLI. 
 Tjrevena v. Watts and another. 
 Transfer of pending action — Counter-claim. 
 This was an appeal from the order of Master TJnthank that the 
 declaration in this case should stand for a statement of claim, and 
 that the defendant should be allowed to deliver a statement of 
 defence and a counter-claim instead of pleas. The action was 
 brought by a builder, who alleged that he had been stopped by 
 the defendant from completing his contract, that upwards of 
 £1000 was due to him, and that the surveyor had improperly re- 
 fused to certify for the amount due. The counter-claim that the 
 defendants desired to set up was for various breaches under the 
 covenants. 
 
 Chitty, for the defendants. 
 
 Quain, J. — I shall treat this as a defence arising after action 
 brought. I vary Master Unthank's order by giving _ plaintiff a 
 week to elect whether he will go on with this action ; if he elects 
 not to proceed, defendants to pay costs up to master's order. 
 
 i 2 
 
68 Reports of Practice, Cases. 
 
 The defendants must give particulars of their counter claim 
 within three days. If defendants by Tuesday, before one o'clock, 
 elect to withdraw their counter claim, then the master's order to 
 be set aside, and the costs connected with it to be the plaintiff's 
 costs in any event. 
 
 Solicitors for the plaintiff, Lewis and Lewis. 
 
 Solicitors for the defendants, Ola/rke, and Woodcock. 
 
 No. CLTI. 
 
 Tozer v. "Walfoed. 
 
 Judicature Act 1873, sect. 25, sub-sect. 8 — Injunction. 
 
 This was an ex parte application for an injunction in an action of 
 
 ejectment. 
 
 O. B. Kennedy, for the plaintiff. — We wisb to restrain the de- 
 fendant from using and keeping- on our premises, now occupied 
 by him, a certain steam engine. The defendant has covenanted 
 not to do any act dangerous to his co-tenants, or to the landlord. 
 In consequence of the eDgine in question, the fire office, where we 
 were insured, have refused to continue the insurance, and we are 
 under a covenant with our superior landlord to insure. In the 
 covenant of defendant to repair and to keep safe, there is an ex- 
 ception of accidental fire. This action was begun in the hope that 
 the engine would at once be removed. It works night and day, 
 and is therefore a nuisance to the co-tenants, as well as an actual 
 damage to the plaintiff. 
 
 Injunction given to restrain the defendant from working his 
 engine until the trial of the cause, the plaintiff undertaking to 
 abide by any order the court may make as to any damages suffered 
 by the defendant. 
 
 Solicitors for the plaintiff, Webb, Stock, and Butt. 
 
 Monday, Bee. 13. 
 
 No. CLIII. 
 
 (Before Htjddleston, B.) 
 
 Smith v. Haseltine. 
 
 Judicature Act 1875, Order XVI., rules 2, 13 — Application to join 
 x plaintiffs. 
 
 A. summons was taken out in this case to add as plaintiffs to the 
 action Rooke Pennington, James John Newbury, and Benjamin 
 Patchett. The affidavit of Pennington stated that the action 
 was to recover certain letters patent, one-fourth interest in 
 which had been absolutely assigned by the plaintiff to the 
 
Reports of Practice Cases. 69 
 
 7 _ . 
 
 depsnent, and that the remaining three-fourths of the plaintiff's 
 interest had been assigned by him to deponent, Newbury, and 
 Patchett to hold in trust for him (plaintiff). It was stated that 
 the defendant was a patent agent. 
 
 Htodleston, B. — You have to satisfy me of two things under 
 Order XVI., rule 2, first, that there has been a bond fide, mistake 
 in the original issue of the writ ; and, secondly, that it is a neces- 
 sary change. The affidavit does not state that there has been a 
 bond fide mistake ; but I think that, looking at rule 13 of the same 
 Order, I can make this amendment. If these parties had been origi- 
 nallyjoined as plaintiffs in the action they could, not have been struck 
 out. I shall make the order to add these parties as plaintiffs, but 
 the original plaintiff must still give security for costs, as the 
 assignment to Pennington and the others may turn out invalid. 
 
 No. CLIV. 
 
 Weir v. Barnett and othjses. 
 
 Judicature Act 1875, Order XXVII., ride 1 — Summons to strike out 
 statement of claim. 
 
 The present summons was on appeal from Master Gr. Pollock, 
 who had allowed the statement of claim to stand. The action 
 was brought for false representation with respect to certain 
 debentures. 
 
 Petheram, for the defendants. — I want the plaintiff to state 
 what false representations are made in the letter, and what in 
 the prospectus ? We know nothing about the letter. I say that 
 under the old system of pleading my friend must necessarily 
 have been more explicit. Ought we to be in a worse position 
 now than we should have been formerly ? 
 
 A. Cha/rles, for the plaintiff. — -This is almost exactly the form 
 given in the schedule ; it sets out the false pretences. What the 
 defendant wants is for me to state what is his case. In . the form 
 in the schedule the knowledge was the plaintiff's, because he had 
 been carrying on the business ; in this case the defendant's case 
 is not within our knowledge. My friend wishes to make us plead 
 evidence. 
 
 Httdhleston, B. — As regards any false statements in the letter, 
 it would be a question of evidence whether the defendant had 
 anything to do with it ; as regards any false statements in the 
 prospectus, the defendants would be liable. It is a matter of 
 evidence what statements are in the letter, and what in the 
 prospectus. My idea is that, according to the spirit of the Act, the 
 grounds upon which the plaintiff's claim is based' should be stated 
 in his claim ; and here he sets out false statement A, false state- 
 ment B, and so on. The real question at issue here is, did the 
 defendants make a substantially false representation? Mr. 
 
70 Reports of Practice Oases. 
 
 Charles has pointed out that the affairs of the company cannot 
 be supposed to be in his knowledge. 
 
 Order of Master affirmed. 
 
 Solicitors for defendants, Bailey, Shaw, Smith, &o. 
 
 Solicitors for plaintiff, Jackson, Fox and. Ellen, &c. 
 
 The following are the material paragraphs in the statement of 
 claim : 
 
 ■ 3. On the 13th Nov. 1873 Messieurs Stewart and Lambe, public 
 accountants, acting as agents of the defendants, Bent to the plaintiff, and 
 the plaintiff received a prospectus and letter relating to an issue of deben. 
 tares in the said company. 
 
 4. The said prospectus and letter were issued by the authority or with 
 the sanction or acquiescence of the defendants, who are jointly and severally 
 responsible for the truth and accuracy of the statements contained therein 
 respectively. 
 
 5. Except the information contained in the said letter and prospectus, 
 the plaintiff had no information respecting the said company and the 
 affairs thereof. 
 
 6. The plaintiff believing that the information contained in the said 
 letter and prospectus was true and acting entirely upon the faith of the 
 statements therein contained subscribed for, and took twelve of the said 
 debentures, and paid the moneys payable in respect thereof. The plaintiff's 
 application was accepted, and the said twelve debentures were issued and 
 allotted to him by the defendants. 
 
 7. The plaintiff has since ascertained that the following statements 
 contained in the said letter and prospectus were and are false and cal- 
 culated to mislead and deceive the plaintiff, and the plaintiff alleges that 
 the defendants falsely and fraudulently made the said statements to him, 
 although they well knew that the same were false, with the intention to 
 induce him to subscribe for and take the said debentures on the faith of 
 them : 
 
 (Here follow the alleged false statements.) 
 
 8. The said debentures so bought by the plaintiff, upon faith of the 
 representations aforesaid, are absolutely worthless, and the plaintiff has 
 entirely lost the sums of money which he paid in respect of them. 
 
 Wednesday, Dee. 15. 
 
 No. CLV. 
 
 Cruse v. Bjttiingell. 
 
 Judicature Act 1875, Order IX., rule 13 — Order X. 
 
 In this case an order had been obtained for substituted servioe ; 
 
 .the writ served under that order had not been indorsed with the 
 
 day of the month and week of the seryice thereof. The judgment 
 
 officer had refused to sign judgment on an affidavit of seryice of 
 
 the writ. It was contended that Order IX., rule 13, applied only 
 
 to cases of personal service of the writ. 
 
 Huddleston, B. — It is not necessary to indorse a writ issued 
 under Order X. in the manner described in rule 13, Order IX. In 
 
Reports of Practice Cases. 71 
 
 such oases it is sufficient to file an affidavit o£ service ; and on such 
 affidavit being produced I order the judgment-officer to sign 
 judgment. 
 
 Wednesday, Dee. 15. 
 No. CLVI. 
 Lynch v. Oversall Coal Company. 
 Jurisdiction of District Registrar — Judicature Act 1875, Order XVI., 
 
 rule 10 ; Order XXXV., rules 1, 2, 3. 
 This was an action commenced in the Liverpool District Registry. 
 Judgment had been obtained there, which was afterwards entered 
 in London, under Order XXXV., rule 2. The present application 
 was for the names of persons who were co-partners in defendant's 
 firm, under Order XVI., rule 10. An objection taken that, under 
 Order XXXV., rules 1, 3, the application should have been made 
 to the District Registrar, and not to the Judge in Chambers, was 
 overruled. 
 Order made. 
 
 No. CLVII. 
 
 Chas. Leathley (on behalf of himself and all others, the under- 
 writers on the steamship or vessel Oid, at the time of the loss 
 in the year 1873) v. Robert MacAndrew and Co. 
 
 Judicature Act 1875, Order XVI., rules 9, 10 ; Order IV. % rule 1. 
 This was an appeal from Master Gordon's order that the plaintiff 
 should give the names and addresses of the persons on whose 
 behalf he was suing. On behalf of the plaintiff, it was said that 
 the order had been made under Order XVI., rule 10, which applied 
 to co-partners, and with which the present action had nothing to 
 do. The action was brought under the provisions of Order XVL, 
 rule 9. On behalf of the defendant it was argued that, conceding 
 that Order XVL, rule 10, did not apply, the defendant was 
 entitled to addresses of the plaintiff s under Order IV., rule 1 ; and 
 further that he might apply under sect. 7 of Common Law Pro- 
 cedure Act, and that, under the 21st section of the Judicature Act 
 of 1875, that was still in force. 
 
 Huddleston, B. — There is only one plaintiff in this case, and 
 his address has been given ; the other persons mentioned in the 
 title are not plaintiffs. It has been conceded that rule 10 of 
 Order XVI. does not apply here. Order XVL, rule 9, is bor- 
 rowed from the Chancery procedure in administration suits, where 
 one creditor might sue for all. Its object is to avoid multiplicity 
 of legal proceedings. No rule to which my attention has been 
 called justifies me in ordering that the names and addresses of the 
 
72 Reports of Practice Cases. 
 
 persons on whose behalf, under rule 9, this action is brought, 
 Bhould be given. 
 
 Decision of master reversed. 
 
 Solicitors for the plaintiff, Waltons, Bubb, and Waltons. 
 
 Solicitors for the defendants, Lawless and Co. 
 
 Ho. OLVIII. 
 
 "Warne v. Dell. 
 
 Application to tra/nsfer partnership matters to Chancery Division— 
 
 Judicature Act 1873, s. 34. 
 This was an action commenced under the old procedure for money 
 lent, in which the plaintiff was a publisher and the defendant an 
 artist. An order had been obtained by the defendant to continue 
 the proceedings under the Judicature Acts. The defendant had 
 then set up a counterclaim for a partnership account. The dis- 
 pute between the parties arose out of a publication of the plain- 
 tiff's which the defendant had illustrated, and the counterclaim 
 alleged a right to a share of the profits of such publication. A 
 summons had been taken out to strike out the counterclaim, 
 which, together with the statement of defence, consisted of twenty- 
 four folios. On the hearing of this summons, the Master had 
 dismissed it with the suggestion that an application should be made 
 tO' transfer the proceedings to the Chancery Division, where the 
 claim for a partnership account could be gone into. The defend- 
 ant then took out the present summons. 
 
 Oswald, for the defendant. — There are two descriptions of part- 
 nership, general and for a particular purpose ; the one we allege is 
 of the latter kind. Sect. 34 of the Act of 1873 assigns to the 
 Chancery Division of the High Court all matters with respect to 
 the taking of partnership accounts. 
 
 Tatham, for the plaintiff. — The agreement as to division of 
 profits between the parties in this case does not amount to a 
 partnership at all. 
 
 Huddleston, B. — The reason of the provision in the Act with 
 regard to partnership matters is that the machinery of the 
 Chancery division is the best suited for dealing with complicated 
 partnership accounts, but this is not a matter of that kind. It is 
 unnecessary to go through the cumbersome form of a suit in 
 Chancery to decide the present question, and I think that it is one 
 that should be referred. 
 
 Order to refer to master. 
 
 No. CLIX. 
 
 Society op Apothecaries v. Nottingham. 
 
 Discovery in action for penalties — Judicature Act 1875, 
 
 Order XXXI., rule 12. 
 
 The above action was one for penalties, under the Apothecaries' 
 
 Act, for carrying on business as a chemist without being duly 
 
Reports of Practice Cases. 73 
 
 licensed. An application for disoovery by the plaintiffs had been 
 refused by Master G. Pollock, and that decision was now appealed 
 against. 
 
 Olyn, for the plaintiffs, argued that as interrogatories were 
 allowed in actions of libel to prove the libel, which was a punish- 
 able offence, discovery should be allowed in actions for penalties. 
 
 Rose, for the defendant, relied upon the recognised practice in 
 equity, and upon a decision of Mr. Justice Lush, refusing dis- 
 covery in an action for penalties : (No. LXI. ante, p. 27). 
 
 Httddleston, B. — It is quite clear from the case of Bickford v. 
 .Darcy (L. Eep. 1 Ex. 354), that I have the power to grant 
 discovery in this action; it is a question of discretion. That being 
 so, I shall in this case, in exercise of my discretion, allow dis- 
 covery. 
 
 Master's decision reversed. Order for discovery. 
 
 No. CLX. 
 
 Signing judgment on specially indorsed writ — Judicature Act 1875, 
 Order XIV., rule 1. 
 
 This was an appeal from an order of a master, giving the 
 plaintiff leave to sign judgment under the above rule. It was 
 stated that the defendant was now at sea on his way to join his 
 regiment, and that he had been served with the writ the day before 
 leaving England. 
 
 Httddleston, B. — To accept that as a reason for refusing the 
 order would be to render this provision of the Act a dead letter. 
 
 Order of master affirmed. 
 
 No. CLXI. 
 TTattrttby and others v. Noone. 
 Equitable defence — Judicature Act, 1873, sect. 24, sub-sect. 2. 
 In this case, an action of debt and one of ejectment, by mort- 
 gagees against the mortgagor, had been consolidated. The defen- 
 dant in his statement of defence claimed a right to redeem ; and, 
 on the hearing of a summons to strike this defence out, Master 
 Gordon ordered the defence to be struck out unless the defen- 
 dant brought the debt and interest into court in six days. 
 
 That decision was now appealed against. 
 
 Warburton Pike for plaintiff. 
 
 Huddleston, B. — The defendant here claims a right to redeem. 
 He can no longer get an injunction from the Court of Chancery, 
 and he is now entitled to plead his equitable rights. But in the 
 meantime the mortgagee must not be kept out of possession. 
 
 No order. 
 
74 Reports of Practice Cases. 
 
 Thursday, Bee. 16. 
 No. CLXtl. 
 Mostyn 7;. The Western Coal and Iron Co. 
 Discovery— Judicature Act 1875, Order XXXI., rule 12. 
 This was an application for discovery by the defendants in an 
 action for half a year's rent. A question arose whether the defen- 
 dants were not now entitled to the order as a matter of course. 
 
 Huddleston, B. — There must be some slight grounds shown; 
 but I have always thought that the fullest opportunities of dis- 
 covery of every kind should be given ; and the Act has now 
 abolished the necessity of an affidavit for discovery, and of an order 
 for interrogatories. 
 
 For the defendants it was then stated that discovery was de- 
 g ired of receipts of rent, &c, and the order was then given. 
 
 No CLXIII. 
 Harrison v. Markins and another. 
 Judicature Act 1873, sect. 22. — Application to proceed under the 
 
 Judicature Acts. 
 This was an action on a contract, and the present application was 
 made, on appeal from Master Gordon, by one of the defendants to 
 proceed under the new Acts, for the purpose of claiming a set-off 
 against the plaintiff, and contribution from the co-defendant. 
 Order made. 
 
 No. CLXIV. 
 Signing judgment on specially indorsed writ — Judicature Act 
 
 1875, Order XIV., rule 1 ; Order III., rule 6. 
 This was an application to sign judgment under the above rule ; 
 the writ had been issued on the 7th Aug., and appearance had 
 been entered on the 17th. Master G. Pollock, following Mr. 
 Justice Quain's decision, that the words in Order XIV., rule 1, 
 " under Order III., rule 6," must be taken literally, had refused 
 the application. The special indorsement on the writ was in the 
 same form as it would now be under Order III., rule 6. A sum- 
 mons had been taken out in respect of this application, but the 
 defendant did not appear. 
 
 Huddjjbston, B. — I shall allow judgment to be signed in this 
 case. 
 
 Order made. Decision of master reversed. 
 
 No. CLXV. 
 
 Tebb v. Lewis, Kemp, and Green. 
 
 Application for direction as to third party — Judicature Act 1875, 
 
 Order XVI., rule 21. 
 This was an action brought to recover a deposit from an 
 auctioneer by the vendee. On the application of Lewis, the 
 
Reports of Practice Cases. 75 
 
 auctioneer, Mr. Justice Lush had made an order to Berve Green, 
 the vendor, with a notice, under Order XVI., rules 17, 18 (No. 
 XL VIII. ante, p. 21,) Green had now appeared under that notice, 
 and the present application was for a direction as to future pro- 
 ceedings. 
 
 W. A. Lewis, for the defendants Lewis and Kemp. My appli- 
 cation is mainly formal ; it is necessary that I should apply under 
 Order XVI., rule 21. 
 
 Beasley, for the plaintiff. We do not wish to deliver a state- 
 ment of claim to Green. 
 
 Huddleston, B. — I direct that Green be at liberty to defend 
 upon the terms that he accepts the declaration or statement of 
 claim as it now stands, and delivers his statement of defence and 
 counterclaim, if any, to the plaintiff and Lewis. The plaintiff to 
 be at liberty to apply, and Lewis to amend his defence, if neces- 
 sary, within six days. Further hearing adjourned. 
 
 Solicitors for the plaintiff, Lewis and Son. 
 
 Solicitor for the defendants Lewis and Kemp, Philbrick. 
 
 Solicitors for the defendant Green, Gover and. Norton. 
 
 No. CLXVI. 
 
 Wavell v. The National Provincial Bank as England. 
 
 Application to strike out cownter claim — Judicature Act 1875, Order 
 
 XIX., rule 3. 
 This action was brought by the executor of a deceased under- 
 writer against the defendants, who were the bankers of the deceased, 
 for money due. The defendants had set up a counter claim for 
 payment of a joint and several promissory note, signed by the de- 
 ceased, held by them, and now overdue. 
 Oastle for the plaintiff. 
 Mansel Jones for the defendant. 
 Hubdleston, B. — I shall not strike out this counter claim. 
 
 Friday, Dec. 17. 
 
 No. CLXVEI. 
 
 Marsh v. The Mayor, Aldermen, &c, or Ponteeract. 
 
 Striking out statement of claim as prolix — Judicature Act 1875, 
 
 Order XXVIL, rule 1 ; Older XIX., rules 2, 4, 9. 
 This was an action for work done in building a reservoir for the 
 defendant corporation. Master Walton had ordered twenty-two 
 paragraphs of the statement of claim to be struck out, with leave 
 to the plaintiff to condense. The present hearing was on appeal 
 from that order. 
 
 Tapping for the plaintiff. — This action is brought on two con- 
 tracts, the first in May 1874, the second in Jan. 1875. The master 
 
76 Reports of Practice Cases. 
 
 thought that the second contract was in substitution of the first ; 
 but that is not so. Therefore, by Order XIX., rule 9, I 
 was compelled to set out both contracts. Even if this 
 statement of claim was held to be prolix, that of itself is no 
 ground for striking out any part of it ; the proper remedy for 
 prolixity in the pleadings being under rule 2 of Order XIX. 
 Making an order for ths amendment of a statement of claim is a 
 very different thing to ordering the amendment of a declaration 
 under the old system, as now the whole has to be reprinted. Part 
 of the claim is for extras outside the contracts. 
 
 Butterworth, for the defendant. — I contend that for the purposes 
 of this action the second contract was in substitution of the first. 
 The statement of claim sets out both the contracts ; and it 
 alleges that there were borings made, and a staking-out of the 
 ground, which was wrong and useless ; -that we refused to fence, 
 and interfered with the works ; that the plaintiff was apprehensive 
 of an arch falling ; and that his work was exposed to the weather. 
 None of these allegations are assigned as breaches, and they are 
 simply put in to create prejudice in the minds of the jury. By 
 the second contract the parties agreed that the plaintiff should 
 complete the reservoir in a good and businesslike manner. There 
 is no breach alleged of the first contract ; and what is claimed 
 in this action arises entirely under the second contract. I am 
 not able to answer the allegations that are made in respect of 
 matters not assigned as breaches, and at the trial the jury will 
 take them as admitted. Order XIX., rule 4, Bays that every 
 pleading is to be made as concise as may be. 
 
 HiTddleston, B. — The statement of account between the parties 
 shows that the whole claim arises out of the second contract. It 
 would have been sufficient to have stated that there was a con- 
 tract made in May 1874, between the plaintiff and the defendants, 
 for certain works ; that on that contract certain disputes arose ; 
 and that another contract was then entered into in Jan. 1875, by 
 which it was agreed that the plaintiff should complete the works 
 in a good and business-like manner. I would undertake to put 
 this statement of claim, which now occupies five sheets, which is 
 equa^l to fifty folios, into half a sheet, which would be equal to 
 about four folios. The first principle of pleading under the Judi- 
 cature Acts is to avoid prolixity. 
 
 Appeal dismissed. 
 
 Solicitor for the plaintiff, Wood. 
 
 Solicitors for the defendants, Torr, Janeway, Tagart, and Oo. 
 
 No. OLXVIII. 
 
 Hurst and Son v. Lloyd. 
 Oonnty Court appeal — Judicature Act 1873, s. 45. 
 In this case, Rose made an ese parte application for a new trial on 
 the ground of misdirection by the County Court judge. 
 
Reports of Practice Cases. 77 
 
 Rule nisi, calling upon the other side to show cause before the 
 divisional court. 
 
 No. CLXIX. 
 
 Injunction — Judicature Act 1873, s. 25, subs. 8 — Judicature Act 
 1875, Order MI., rule 4. 
 
 In an action for the obstruction of light and air, an application 
 was made by the plaintiff for an injunction, compelling the 
 defendant to take down a hoarding erected by him, till the trial. 
 In support of the application it was stated that if the hoarding 
 was allowed to remain during the winter months, the plaintiffs' 
 kitchen and parlour would be in total darkness. 
 
 On the other side it was alleged that the plaintiff had built an 
 additional story to his house, and that the defendant had then 
 erected the hoarding in question to avoid being overlooked. 
 
 Htjddleston, B. — The plaintiff claims an injunction in his 
 statement of claim, and the action will be tried in March. He 
 does not show me that the defendant had not a perfect right to 
 put up this hoarding. 
 
 Injunction refused. 
 
 (Before Quain, J.) 
 
 Saturday, Dec. 18. 
 
 No. OLXX. 
 
 Andrews v. Stewart. 
 
 Application to sign judgment — Judicature Act 1875, Order XIV., 
 
 rule 1. 
 This was an action by a broker tor £214, the loss on a resale of 
 1357 bags of sugar bought by the defendant, and subsequently not 
 accepted by him. An application had been made to Master 
 Hodgson to allow judgment to be signed, which had been refused ; 
 and this decision was now appealed against. 
 
 On behalf of the defendant a counter claim was set up for money 
 deposited with Mnlay and Co., as security for a bill drawn upon a 
 Liverpool firm, which bill had been duly honoured. The plaintiff 
 Andrews was now the representative of Finlay and Co. 
 
 Quaest, J. — On the hearing of these applications I do not 
 pretend to try the action ; all that I require is to see that there 
 is a bond fide defence. I think the question as to the counter 
 claim is too doubtful a one to allow the plaintiff to sign judgment. 
 
 Decision of master affirmed. 
 
78 Reports of Practice Cases. 
 
 Monday, Dec. 20. 
 No. CLXXI. 
 
 AlNSWOETH AND ANOTHER V. STABKIE AND ANOTHEB. 
 
 Action for discovery — Judicature Act 1873, sect. 24, sub-sect. 1; 
 Judicature Act 1875, Order XIX., rule 8. 
 
 This was an action for discovery, and the defendants had 
 taken oat a summons to set aside the statement of claim of 
 discovery on the ground that it did not show that it was 
 brought by the persons and for the objects and under the 
 circumstances entitling it to be maintained. There was a 
 further summons to set aside the interrogatories annexed to 
 the statement of claim. The statement of claim, after alleging 
 the facts of the dispute, which was as to water rights, Btated 
 that the matter had been referred to arbitration, and was still 
 subsisting, and concluded as follows : 15. The plaintiffs are 
 * unable to obtain evidence of the matters mentioned in the in- 
 terrogatories annexed hereto, and the defendant, Le Grendre 
 Nicholas Starkie, has refused to give any information in respect 
 thereof. 16. The plaintiffs claim a discovery of the matters men- 
 tioned in the interrogatories annexed hereto. 
 
 Williams for the plaintiffs. — We have authority for this pro- 
 ceeding in the concluding words of Order XIX., rule 8. The 
 practice in equity, when there was a compulsory, or, I presume, a 
 voluntary arbitration, was to allow a bill for discovery only. 
 Starkie was not a party to the action ; Starkie's tenant defended 
 it. But we want the information from Starkie, the landlord, the 
 real defendant. 
 
 Green for the defendants. — In equity the plaintiffs would have 
 been bound to have shown by the bill how the documents were 
 necessary to them, and to have specified those in respect of which 
 they asked discovery. But I am only applying now for an ad- 
 journment," to see if the reference is carried out. 
 
 Qtxain, J. — We have often made here an order for interroga- 
 tories, pending an arbitration. I do not see the object of this 
 statement of claim. Mr. Starkie has made himself a party under 
 the reference, and he might have been joined as a party to the 
 action, if you had applied to continue the proceedings under the 
 Judicature Acts for that purpose. In equity, if discovery was 
 required from someone who was not a party to the action, he was 
 made a defendant. I will adjourn to see if the reference is carried 
 out. 
 Adjourned. 
 
Reports of Practice Cases. 79 
 
 No. CLXXII. 
 
 Amis v. Clark. 
 
 Courtty Court appeal — Qoimty Courts Actl875, s. 6 — Judicature Act 
 
 1873, s. 45. 
 
 A rule nisi having been granted calling upon the plaintiff in this 
 action to show cause before a judge in chambers why the decision 
 of the County Court Judge in his favour should not be reversed 
 (No. XCVII. ante, p. 41,), cause was now shown. An application 
 had been made to the County Court Judge for his notes of the case ; 
 but it appeared that he had taken none. He sent, however, a 
 letter giving the reasons for his decision, which letter was duly 
 verified; and certain affidavits had been agreed upon by the 
 parties to supplement the letter. The County Court Judge had 
 decreed specific performance of a contract to sell a house, 
 and the defendant appealed from this decision on the 
 grounds that he had never given his authority for the sale, 
 and that, if he ever had given such authority, he had 
 subsequently revoked it. The question turned upon whether 
 the construction to be put upon a letter written by the defen- 
 dant's wife to the agent, and the statements made in the affidavits 
 as to a conversation between the parties, supported the alleged 
 revocation. 
 
 Qtjain, J. — I am of opinion that this case has not been suffi- 
 ciently made out for a decree for specific performance to be 
 granted. In such cases the onus lies on the plaintiff ; and the 
 Court of Chancery would never grant specific performance except 
 in clear cases. It is clear from the affidavit of the defendant 
 himself, that there was a conversation between the defendant and 
 the agent Bridge, about the house, and, as the plaintiff speaks to 
 the exact sum of £160 as being mentioned by Bridge to him as 
 the purchase-money, it seems probable that authority was given 
 by the defendant to Bridge to sell. The question then arises whether 
 that authority had been revoked. I am clearly of opinion that 
 the letter of Mrs. Clarke to Bridge is a revocation of the authority 
 that had been given ; and that construction of the letter is borne 
 out by the positive testimony of two witnesses, Mrs. French and 
 Mrs. Clarke, as to a conversation between the parties on a subse- 
 quent occasion. With regard to that conversation, the agent only 
 says that the authority given to him was not revoked, but does 
 not say what did take place ; whereas Mrs. French and Mrs. 
 Clarke positively swear that the agent was then expressly told 
 that he was not to sell the cottage. The County Court Judge was 
 of opinion that a portion of Mrs. Clarke's letter was inconsistent 
 with the idea that it was intended to revoke the authority to sell ; 
 but that is not how I interpret the words. The decision in the 
 
80 Reports of Practice Cases. 
 
 County Court will be reversed ; and, following the new practice, 
 the appellant will have the costs of the proceedings in the County 
 Court, as well as of the appeal. 
 
 No. CLXXIII. 
 Bakes v. Newton. 
 
 Judicature Act 1875. Order XXXI., rule 5. — Interrogatories. 
 This was an action by a principal against his agent for money 
 received. The defence was that the transaction in question was 
 not entered into by defendant as agent. The present application 
 was to strike out interrogatories that had been delivered by the 
 defendant to the plaintiff. 
 
 QuApr, J. — I would allow any interrogatories that went to prove 
 your case; but I will not allow interrogatories for the purpose of 
 shaking the plaintiff's character. I shall order all these interro- 
 gatories to be struck out, except the 7th. Costs to be costs in the 
 cause. 
 
 No. CLXXIV. 
 
 Injunction. Judicature Act 1873, sect. 25, sub-sect. 8. 
 
 An application was made for an injunction to restrain purchasers 
 
 of property belonging to the defendant in an action on two bills of 
 
 exchange from paying the purchase-money to the defendant. 
 
 Qtjain, J. — The purchasers are not parties to the action. The 
 plaintiff has no lien or claim upon this money at all. He is 
 attempting to get an attachment before judgment. Application 
 refused. 
 
 Tuesday, Dec. 21. 
 
 No. CLXXV. 
 
 Lee v. Colyee. 
 
 Strihmg out counter claim— Judicature Act 1875, Order XIX rule 
 
 3; Order XXIL, rule 9. 
 This was an action for assault, and for calling the plaintiff a 
 scamp, a liar, and a thief. With the statement of defence a 
 counter claim had been delivered for breach of an agreement to 
 repair. Master Manley Smith had refused to order this counter 
 claim to 'be struck out, and that decision was now appealed 
 a S^ D !*:, J he a^ged assault was that the defendant spat in the 
 plaintiff s face. There was no written agreement to repair. 
 
 Raymond for the plaintiff. 
 
 Fmlay, for the defendant, stated that the Master decided on 
 the ground that the assault and abuse were used when the plaintiff 
 
Reports of Practice Cases. 81 
 
 and defendant were disputing as to the non-repair of the 
 premises. 
 
 Quain, J. — If the plaintiff holds under a written agreement, .<■ 
 parol promise to repair would not bind him, according to AngeU v. 
 Duke (32 L. T. Eep. N. S. 320.) But without entering into that 
 question, the matters alleged in the counter claim are not really 
 in any way connected with the plaintiff's cause of action. The 
 assault alleged here is of » very serious kind, and that when it 
 took place the parties happened to be talking about the state of 
 this house is not sufficient to connect these twp claims. I shall 
 order that this counter claim be struck out. 
 
 Decision of master reversed. 
 
 No. CLXXVI. 
 
 County Court Appeal — Judicature Act 1873, s. 45. 
 This was an appeal from the decision of a County Court judge, in 
 an action for the use and occupation of a foreshore, which the cor- 
 poration of Penrhyn alleged that they had inherited. The County 
 Court Judge had stated that his decision was given solely with a 
 view to ensuring an appeal. 
 
 Rule nisi granted ; cause to be shown before the newly consti- 
 tuted Divisional Court. 
 
 No. CLXXVII. 
 
 Clarkson v. The British and Foreign Marine Insurance 
 Company. 
 
 Application to vroceed under the Judicature Act — Judicature Act 
 
 1873, s. 22. 
 This was an action brought by Clarkson, a broker in England, on 
 a policy of insurance. The declaration had been delivered in 
 January. 
 
 French for the defendant. The real plaintiff in this case is 
 Rivano, an Italian, he being the person interested in the policy. 
 The circumstances of the loss were so suspicious that the Italian 
 authorities ordered an investigation, with the idea of bringing a 
 charge of fraud against Rivano. We have obtained an order for 
 discovery of ship's papers from Clarkson ; but he can only pro- 
 duce what Rivano chooses to send. Mr. Justice Brett refused to 
 make an order upon Rivano for an affidavit of ship's papers. We 
 desire to proceed under the Judicature Acts, in order to make 
 Rivano a party to the action. 
 
 /. C. Mafhew, for the plaintiff. 
 
 Quain, J. — I thought that it was the practice here to order the 
 party interested to make an affidavit of ship's papers. 
 
 Application granted. 
 
82 Reports of Practice Cases. 
 
 No. OLXXVIII. 
 
 Askew v. North-Eastern 'Railway Company. 
 
 Amending statement of claim — Judicature Act 1875, Order XXVII., 
 
 rule 1. 
 An application was made to strike out a paragraph from the 
 statement of claim in this case. The paragraph had already been 
 ordered to be struck out ( No. CXXL, ante, p. 52), but had been 
 re-inserted with a few verbal alterations. 
 Order to strike out amended paragraph. 
 
 No. CLXXIX. 
 
 » Btjtterwokth v. Tee and Wife. 
 
 Application to sign judgment — Judicature Act 1875, Order XIV., 
 
 rule 1. 
 
 This was an action on a guarantee for the price of goods sold, 
 given by a married woman in respect of her separate estate. 
 The plaintiff now sought to sign judgment under Order XIV., 
 rule 1. The matter had been before a master, who had referred it 
 to the judge. 
 
 Bruce, for the defendant!. 
 
 Charles, for the plaintiff. 
 
 Quain, J. — Under any circumstances, I could only give you in 
 this action a judgment against the wife's separate estate, as you 
 are not suing her personally on a guarantee. But I doubt whether 
 Order III., rule 6, refers to anything but a monetary demand ; 
 and here you seek to charge the defendant's separate estate. I 
 will give you liberty to amend your writ, but I question whether 
 that will enable you to avail yourself of this rale. 
 
 No order, with liberty to amend the writ. 
 
 No. CLXXX. 
 
 Garnishee order-^Judicature Act 1875, Order XLV., rule 2. 
 
 An application having been made to a master for a garnishee 
 order, and having been refused, on the ground that the affidavit 
 did not state that the debt was due, that refusal was now appealed 
 against. The affidavit stated that the debt was "owing and 
 accruing,'' and the appellants referred to the decision in Wilson v. 
 Dundas (No. CXIL, ante, p. 48). 
 
 Quain, J. — I will make the order ; but the attachment must be 
 confined to that part of the sum which is stated in your affidavit 
 td be accruing at the time of the judgment. 
 
 Decision 6f Master reversed. 
 
Reports of Practice Cases. 83 
 
 No. OLXXXI. 
 Owens v. Steam Coal Company. 
 Stay of proceedings. Judicature Act 1873, sect. 24, sub-sect. 5. 
 A resolution for a voluntary winding-up of the defendant com- 
 pany had been made in November, and an application was now 
 made to stay proceedings in this action. 
 
 • Order made to stay proceedings, the plaintiff to add his costs 
 up to the present time to his claim. 
 
 No. CLXXXII. 
 County Court appeal. Judicature Act 1873, sect. 45. 
 An application was made for an extension of the time for appealing 
 from the decision of a County Court Judge. 
 
 Quain, J. — You might have applied to me at once for a rule 
 nisi, but I will give you the extension of time you ask for. 
 
 Tuesday, Jan. 4. 
 
 No. CLXXXIII. 
 
 Denison v. Fkankltn and others. 
 
 Signing judgment on specially indorsed writ — Judicature Act 1875, 
 
 Order XIV., rule 1, Order III., rule 6. 
 This was an appeal from the decision of Master Johnson, refusing 
 leave to sign judgment on a specially indorsed writ. 
 
 The writ was issued on the 12th May, renewed on the 3rd Nov., 
 and an order for substituted service made on the 7th Dec. 1875. 
 
 The plaintiff's affidavit showed that there was no defence to the 
 action. The special indorsement on the writ was, " The following 
 are the particulars of plaintiff's claim : Balance of banking account 
 due from the defendants to the plaintiff as bankers, 50Z." 
 
 It was contended for the defendants that the case decided by 
 Quain, J. (No. CXIX., ante, p. 51) governed the present, and that 
 this was not a specially indorsed writ under Order III., rule 6. 
 
 For the plaintiff it was contended that this case was dis- 
 tinguishable from the case referred to, as the writ was renewed, 
 and an order for substituted service made and an appearance 
 entered subsequently to the Judicature Act, and cited the case 
 decided by Huddleston B., and reported ante, No. CLX., p. 73 
 
 Lindlet, J. discharged the order of Master Johnson, and 
 ordered the indorsement, on the writ to be amended by stating 
 dates, plaintiff to be at liberty to sign final judgment for debt, 
 and costs to be taxed. 
 
 Solicitor for the plaintiff, Lamnvi.n. 
 
 Solicitor for the defendants, Tatha/m. 
 
 o 2 
 
84 Reports of Practice Cases. 
 
 No. OLXXXIV. 
 
 Discovery — Judicature Act 1875, Order XXXI./wMI &■ 
 An application for discovery was made by the defendant in an 
 action of ejectment. On behalf of the plaintiff it was objected 
 that inspection had already been offered of the only two deeds 
 that were relevant. The old rule was that the defendant in eject- 
 ment could not see the plaintiff's title deeds. The defendant was 
 mortgagor, and the plaintiff mortgagee. 
 
 Likdlby, J. — The defendant is not entitled to see documents 
 that are not .relevant to his case; unless he can show me what he 
 wants, I shall not make the order. I do not understand what he 
 can want to see except the mortgage deeds. No order, without 
 prejudice to a future application. 
 
 No. OLXXXV. 
 
 Summons to refer — Common Law Procedure Act 1854, sect. 3 — 
 Judicature Act 1873, sect. 57. 
 This was an appeal from an order of Master Gordon's referring 
 the matter in dispute to a surveyor to be agreed upon by the 
 parties or, on failure of the parties to agree, to be named by the 
 Master, upon a summons to refer to a master. The appellant con- 
 tended that the Master had no jurisdiction to make such an order 
 on a summons to refer to a Master ; that the summons was 
 governed by sect. 3 of the Common Law Procedure Act 1854, 
 because it was to refer the whole question in dispute between the 
 parties ; that sect. 57 of the Act of 1873 only applies to particular 
 questions with relation to documents or other specified matters 
 arising incidentally in a cause ; and that the reference to the 
 surveyor would involve greater expense than to the Master, and 
 the sum in dispute was only £30. 
 
 Lindlet, J.— The Master had jurisdiction to make this order. 
 With regard to the exercise of his discretion, he was shown a 
 statement of account, and was of opinion that the questions arising 
 upon it could be better decided by a surveyor than by a master ; 
 and I cannot interfere with that opinion. 
 
 No order. 
 
 No. OLXXXVI. 
 
 Judicature Act 1875, Order XIV., rules 1,6 — Signing judgment — 
 Payment into court. 
 
 On a summons to sign judgment, under Order XIV., rule 6, the 
 master had given the order unless the money was paid into court. 
 That decision was now appealed from by the defendant. The 
 action was for goods sold and delivered, and the defence was that 
 the defendant never bought the goods and that^ they never were 
 
Reports of Practice Cases. 85 
 
 delivered to him. An affidavit was read for the defendant which 
 had not been before the master. 
 
 Lindley, J. — This comes before - me as a substantially fresh 
 application. On reading this new affidavit I think that the money 
 should not be ordered to be paid into court. 
 
 Order for payment into court to be discharged. Costs to be 
 costs in the cause. 
 
 No. CLXXXVII. 
 
 Signing judgment — Judicature Act 1875, Order XIV., rule 1. 
 On an application by the defendant in an action to sign judgment 
 according to the terms of the defence and the counter-claim, 
 Master Dodgson had referred the matter to, the Judge, as he could 
 not transfer to the Chancery Division of the Court, which he 
 thought was the course that should be taken. The action was 
 brought on a bill of exchange by executors ; the defendant 
 claimed an administration order as next of kin. 
 
 Order for administration of intestate estate, and transfer to 
 the Chancery Division ; costs of the action to be disposed of by 
 the Judge of that Division. 
 
 Tuesday, Jan. 4. 
 
 No. CLXXXVIII. 
 Bannicot and Frith (Exors.) u. Harris. 
 Amendment of statement of claim. — -Striking out interrogatories. — 
 Judicature Act 1875, Order XXVII., rule 1, Order XXXI., rule 5. 
 This was an action by executors for rent, due partly in respect of 
 leasehold and partly in respect of freehold premises. The present 
 summons called upon the plaintiff to show cause why the state- 
 ment of claim should not be amended by giving particulars of 
 dates and items as to rent claimed, and also of the title to the 
 freehold ; and there was another summons to strike out interro- 
 gatories delivered by the plaintiff. 
 
 Chitty for the defendant. — We are suing for large arrears of 
 rent, partly due in the lifetime of testator, partly due since his 
 death. They cannot claim rent as executors in respect of freehold 
 premises. 
 
 Wilberforce for the plaintiffs. — The action is brought in the 
 name of the executors by order of the Court of Chancery, the real 
 plaintiff being the cestui que trust. As a matter of fact, I believe 
 all the premises are leasehold, and that it is by a mistake that 
 freehold was inserted in the statement of claim. 
 
 Order to amend the claim by stating the title of the plaintiff, 
 if any. to the freehold premises, and the amounts and dates of 
 
86 Reports of Practice Cases. 
 
 rent due ; if the plaintiff has no title the claim to be amended 
 accordingly. 
 
 On the hearing of the summons to strike out the interrogatories, 
 the last one as to documents was struck out, Lindley, J., stating 
 that he did so simply for the purpose of keeping the practice 
 uniform. 
 
 No order as to costs. 
 
 clxxxix: 
 
 German Bank of London (Limited) v. Schmidt and Co. 
 Signing judgment on specially indorsed writ — Judicature Act 1875, 
 
 Order XIV., rule 1. 
 This was an action on a bill of exchange, ef which the defendants 
 were the acceptors, and the plaintiffs the indorsees and holders 
 for value. The present summons was an appeal from Master 
 Manley Smith's order, refusing to allow judgment to be signed 
 -under Order XIY., rule 1. 
 
 Safford for the plaintiffs. 
 
 Hornell for the defendants. — The drawer is being sued in Russia 
 on this bill, and if we defend the action, we can bring him in as a 
 third party, from whom we claim indemnity. 
 
 Order for judgment to be signed unless the defendants pay the 
 amount into court within ten days. 
 
 Wednesday, Jan. 5. 
 
 No. CXO. 
 
 Roberts v. Guest. 
 
 Signing judgment on specially indorsed writ — Judicature Act 1875 
 
 — Order XIV., rule 1. 
 This was an action brought to recover money on behalf of an 
 administration estate. The summons was an appeal from the 
 order of Master Watson, refusing leave to sign judgment under 
 Order XIV., rule 1. The nature of the defence which it was 
 desired to set up was a claim against the estate for costs in a 
 suit in the Court of Chancery under an agreement to pay costs. 
 
 Lindlet, J. — The defendant has no order yet for his costs, and 
 he may never get one. Judgment to be signed, unless the defen- 
 dant pay the amount claimed into court. 
 
 No. CXCI. 
 Hooper v. Giles. 
 Where there is no statement of claim no statement of defence neces- 
 sary—Judicature Act 1875— Order XIX., rule 2. 
 In this case the district registrar of Gloucester had set aside a 
 
Reports of Practice Cases. 87 
 
 judgment that bad been signed under his order, and that decision 
 was now appealed from. At the time of the defendant's appearance 
 in the action she gave notice that she dispensed with a statement 
 of olaim, according to 'the provision of Order XIX., rale 2. 
 Subsequently the defendant applied for an extension of time for 
 delivering her statement of defence ; but no defence having been 
 delivered within the extended time, judgment was signed by the 
 plaintiff under Order XXIX., rule 2, by order of the district 
 registrar. The judgment so signed was set aside by the registrar 
 on the defendant's representation that where no statement of 
 claim was required or delivered, no statement of defence was 
 necessary. 
 
 Lindley, J. — It seems clear that where the defendant dispenses 
 with the statement of claim, and no statement of claim is delivered, 
 no statement of defence can be required. Of course, where no 
 pleadings are necessary, judgment cannot be signed under Order 
 XXIX., rule 2. 
 
 Appeal dismissed with costs. 
 
 Solicitors for the defendant, Tliomas White and Sons. 
 
 Solicitors for the plaintiffs, Peacock and Goddard. 
 
 Friday, Jan. 7. 
 
 No. CXOII. 
 
 Johnson v. Whitehead. 
 
 Notice of appearance — Judicature Act, 1875, Order XII., rule 6. 
 
 The writ in this action was issued at the Leeds District registry 
 on 14th Dec, and judgment signed on 22nd Dec, in default of 
 appearance. The defendant had entered appearance in London 
 on 21st Dec, and had given notice on the same day to the 
 London agents of plaintiff's solicitor. On this ground he had 
 applied to master Sir I\ Pollock to set aside the judgment, and 
 the master had referred the application to the judge. For the 
 plaintiff, it was contended that notice of appearance must be 
 given to the plaintiff in person, or at all events to his solicitor in 
 the country; while the case on the other side was, that notice to 
 the London agent was sufficient. 
 
 Lindlet, J. — The defendant is bound to give notice of appear- 
 ance under Order XII. rule 6, and the question is what notice is 
 sufficient. Looking at Order VII., of the' additional orders of 
 December 1875, I think that notice to the agent in London is 
 sufficient. As, therefore, notice of appearance was given to the 
 plaintiff before judgment was signed, the judgment must be set 
 
Reports of Practice Cases. 
 
 aside. But as judgment was signed under a mistake, I shall 
 impose the condition on the defendants that no action be brought. 
 Costs to be costs in the cause. 
 
 No. OXCIII. 
 
 Ibbotson v. Whitwokth. 
 
 Procedure under Bills of Exchange Act — District registry — Pay- 
 ment into court- ^Judioatwe Act 1875, Order II, rule 6. 
 This was an action under the Bills of Exchange Act, in the 
 district registry of Sheffield. The defendant had obtained leave 
 to defend upon paying £40 into court. Judgment had been 
 signed and execution issued for non-compliance with this con- 
 dition, and the present summons was to set aside that judgment, 
 and stay execution. 
 
 For the plaintiff it was contended that the proceedings being in 
 the district registry of Sheffield, and the defendant having entered 
 appearance there only, the money should have been paid into 
 court at Sheffield, and not in London ; and further that the £40 
 was not paid into court in London till after the time given by the 
 registrar had expired. 
 
 For the defendant it was argued, that the proceedings being 
 under the Bills of Exchange Act, the money was rightly paid into 
 court in London; that he had entered appearance in London 
 as well as at Sheffield ; and that the delay in paying it in had 
 arisen entirely from the difficulty of finding out where to pay 
 it in. Order II., rule 6, was referred to. 
 
 Lindley, J. — I think the defendant has waived the objection 
 that proceedings under the Bills of Exchange Act cannot be 
 taken in a district registry by appearing there, and, therefore, 
 the £40 should have been paid into court in Sheffield. Whether 
 the objection would have been a tenable one, it is not necessary 
 now to decide. I am disposed to give the defendant leave* to 
 defend, as there was a mistake, but as the judgment has been 
 regularly signed, I must put him under terms. 
 
 Order to set aside the judgment and the execution on the terms 
 following : That the defendant brings no action against the 
 plaintiff or his solicitor or the sheriff, and pays the expenses of 
 the execution, and pays into the Sheffield Registry £95 2s. 6d. 
 within a week, the plaintiff consenting to the defendant's obtain- 
 ing back the £40 paid into court in London. The sheriff to with- 
 draw when the money has been paid into court ; no sale in the 
 meantime. If the money be not paid within the week, judgment 
 to stand and execution to proceed. The defendant to pay the 
 costs of this application. 
 
Reports of Practice Cases. 89 
 
 No. CXOIV. 
 
 AlWOOD V. MlLLEIt. 
 
 Counter claim — Judicature Act, 1873, s. 24, subs. 2 — Judicature 
 
 Act 1875, Order XIX., rule 3. 
 This was an action for rent, in which the defendant set off the 
 price of butcher's meat delivered, and had also a counter claim 
 for damages as tenants from year to year of the plaintiff, and for 
 specific performance of an agreement to grant a lease. The 
 Master had refused to strike out the counter claim, and that deci- 
 sion was now appealed against. 
 
 Wardlow, for the plaintiff. — This is a simple claim for two 
 years and three quarters rent under a written agreement. The 
 defendant has admitted that the rent is due, and the only real 
 question in the action is whether we owe him a butcher's bill. 
 Nothing has been done under the agreement of which he sets up 
 specific performance, and therefore it would not be granted him. 
 In any case, specific performance would not be ordered in this 
 division, and the cause would have to be transferred to the 
 Chancery Division. I admit that the question is one entirely in 
 your Lordship's discretion; but I submit that this is an em- 
 barrassing counter claim, and should therefore be struck out. 
 
 F . Turner, for the defendant. — The counter claim is not' simply 
 for specific performance ; it is also for damages for non-performance 
 of the conditions in the agreement to let. The plaintiff let ns pre- 
 mises with certain easements attached, and has shut us out from the 
 enjoyment of them ; and for this we claim damages. Any division 
 of the High Court can grant specific performance under sect. 24 
 of the Act of 1873, sub-sect. 2. Why should there be two pro- 
 ceedings when everything can be decided in one ? We have a 
 right to set up two distinct claims — one for damages as tenants 
 from year to year, and the other for specific performance of an 
 agreement. 
 
 Likdlet, J. — At first sight it appeared doubtful whether the 
 defendant could conveniently make both these claims together, 
 and I was inclined to think that the claim for specific performance 
 should be postponed, and tried separately. But I do not think 
 that is necessary. I cannot hold that this counter claim is suffi- 
 ciently embarrassing to be struck out, and I think if I were to do 
 so, I should be acting against the spirit of the Act. 
 
 No order. 
 
 No. CXCV. 
 
 Atkins v. Taylor. 
 
 Judicature Act 1875, Order XIV., rule 1; Order XIX., rule 2; 
 
 Order XXL, rule 4 ; Order XXII., rule 3 ; Order XXIX, rule 2 
 
 — Specially indorsed writ — Notice inlieu of statement — Judgment 
 
 signed in default of statement of defence. 
 This was an appeal from the order of the District Registrar of 
 
90 Reports of Practice Cases. 
 
 Birmingham setting aside judgment. The writ had been specially 
 indorsed under Order XIV", rule 1 ; and the plaintiff had applied 
 to the district registrar for leave to sign judgment, which applica- 
 tion the defendant had successfully opposed. No further step was 
 taken by either side until the plaintiff applied to the district 
 registrar for leave to sign judgment under Order XXIX., rule 2, 
 as no statement of defence had been delivered. This application 
 was granted, but the defendant subsequently obtained an order 
 from the registrar setting aside the judgment on the ground that 
 no statement of claim had been delivered. 
 
 Ohannell for the plaintiff. — The plaintiff filed an affidavit verify- 
 ing the indorsement on his writj when the application was made 
 to the registrar for leave to sign judgment ; and no statement of 
 claim is necessary where the writ is specially indorsed. As there 
 was a misapprehension, I cannot ask for judgment, but as the 
 judgment was regularly signed, the defendant should be put under 
 terms. What we really wish to know now is who is to take the 
 next step, as we have come to a dead lock. 
 
 Butterworth for the defendant. — No notice was given by the 
 defendant that he dispensed with a statement of claim ; and the 
 plaintiff was bound to give the notice that his claim was as on 
 writ, according to Order XXI., rule 4. 
 
 Lindley, J. — It cannot be necessary to deliver any statement of 
 claim where the writ is specially indorsed. Order XIX., rule 2, 
 and Order XXI., rule 4, are general rules, and Order XXII., rule 
 3, is a special rule, and therefore to be followed. I think, according 
 to the true construction of the Act, the judgment was regular. I 
 will set aside the judgment, however, and order the defendant to 
 deliver a statement of defence in eight days. Costs to be costs in 
 the cause. 
 
 No. CXCVI. 
 
 Yotjns v. King. 
 
 Transfer of cause — Judicature Act 1873, s. 3$Ts.P<A.£uA— s. £1 
 
 An application was made to stay proceedings in this action, or to 
 send it over to the Rolls Division, where an action of ejectment 
 (King v. Young) had been commenced. The action was by a 
 mortgagee to be let into possession. 
 
 Eyre for the plaintiff. 
 
 F. Turner for the defendant. 
 
 Case transferred to the Rolls, with liberty to the plaintiff to 
 apply for possession. 
 
 Costs in the cause. 
 
Reports of Practice Cases. 91 
 
 Saturday, Jan. 8. 
 (Before Archibald, J.) 
 
 No. CXOVII. 
 Interrogatories — Judicature Act 1875, Order XXXI., rule 1. 
 This was an action for damages for breach of contract in not 
 taking fruit, and for the price of the fruit. The defendant now- 
 applied for an order to administer interrogatories before the deli- 
 very of a statement of defence. He wished to interrogate as to 
 the weight of fruit sold. The statement of claim gave the number 
 of pots of fruit sold. 
 
 Archibald, J. — The defendant does not want these interroga- 
 tories at all ; the plaintiff's case is that the fruit was sold by pots. 
 Tf the defendant's case is that the fruit was sold by weight he can 
 set that up in his statement. 
 
 No order. 
 
 No. CXCVIII. 
 
 Discovery — Judicature Act 1875, Order XXXI., rule 12. 
 
 This wag an action of ejectment by the owner of a vicarage house, 
 and discovery was now applied for by the plaintiff. In his state- 
 ment of claim he said he was inducted on the 28th Oct., and that 
 he then became entitled to enter the vicarage house. Defendant 
 in his statement of defence asserted that he was tenant from year 
 to year ; and the plaintiff desired to see the agreement on which 
 the tenancy was founded. The defendant objected to give dis- 
 covery, on the ground that the application was too late, issue 
 having been joined. 
 Order for discovery. 
 
 No. CXCIX. 
 
 Caster v. Leeds Daily News Company and Jackson. 
 
 Interrogatories — Judicature Act 1875, Order XXXI., rules 4, 5. 
 This was an action of libel, and the defendants now applied to 
 strike out interrogatories that had been delivered. 
 
 Tennant (for the defendant company). — These interrogatories 
 have been delivered to us without an order, in violation of Order 
 XXXI., rule 4. I therefore ask that, as regards us, they may be 
 struck out. 
 
 Lumley Smith (for the defendant Jackson) cited Wilton v. Brig- 
 nell (No. CXXIX., ante, p. 56), and Pitten v. Ohatterburg (No. 
 CXLL, ante, p. 62). 
 
 Crompton (for the plaintiff) cited Bamsden v. Brearley (33 
 L. T. Rep. J. Ch. 322). 
 
 The following were the interrogatories that had been de- 
 livered : 
 
 Interrogatories on the part of the plaintiff, to be answered by an officer 
 
92 Reports of Practice Cases. 
 
 of the Leeds Daily News Company (Limited), and by the defendant, 
 William Lauries Jackson. 
 
 1. Is the defendant, William Lanries Jackson, the editor or publisher of 
 the Leeds Daily News, and what position does he occnpy in respect of the 
 said newspaper p 
 
 2. Is William Lanries Jackson a shareholder in the said company ? 
 
 3. Is it the duty of the said William Lanries Jackson to exercise a super- 
 vision over paragraphs of the nature of those set out in the statement of 
 claim P 
 
 4. Did the said William Lanries Jaokson write, or have anything to do 
 with the writing of, any and which of the paragraphs mentioned in the 
 statement of claim ; and, if not, who was the writer of such paragraphs, 
 and of each of them P 
 
 5. Did the said William Lauries Jackson see any and which of the said 
 paragraphs before they were inserted in the newspaper or before the news- 
 paper was published or circulated, and did he sanction the publication of 
 the said paragraphs, or of any and which of them p 
 
 6. By whom, and in what way, were the said paragraphs brought to the 
 office of the Newspaper Company, or by anyone else, and whom on their 
 acoount, at one time, and, if not, when they were received p 
 
 7. Were the numbers of the Leeds Daily News of the 13th August 1875, 
 19th August 1875, 10th Sept. 1875, and the number of the Leeds Daily News 
 containing the paragraph commencing with the word "Query," printed 
 and published by the Leeds Daily News Compan y (Limited) or by the de- 
 fendant William Lauries Jackson, or by both of them P 
 
 8. Has the said company, or has the said William Lanries Jackson, or 
 have they at any time, and when, had in their or his possession or con- 
 trol, the original writings of the paragraphs mentioned in the statement 
 <>f claim, or any letters or documents original, or copies relating to the 
 matter mentioned in the said paragraphs or to the subject matter of this 
 aotion P 
 
 9. Have yon any and what objections to the production, inspection, and 
 copying of any and which of the said writings and documents, and where 
 and in whose possession and control are they now P 
 
 Archibald, J.— As regards the first interrogatory, I can only 
 allow the plaintiff to ask whether Jaokson is the publisher. He can- 
 not be asked whether he is the editor. I will allow the second and 
 third. The fourth and fifth must be struck out. The sixth and 
 seventh allowed. The eighth and ninth struck out. 
 
 All the interrogatories struck out as regards the company. 
 
 Monday, Jan. 10. 
 
 (Before Lindlet, J.) 
 
 No. CO. 
 
 Signing judgment on specially indorsed writ — Judicature Act 1873, 
 
 s. 22 — Judicature Act 1875, Order XIV., rule 1. 
 This was an action on two promissory notes that were over due 
 and unpaid. An application had been made to sign judgment 
 under Order XIV., rule 1, on a writ issued in September, the 
 
Reports of Praotice Cases. 93 
 
 indorsement on which was similar to what it would now be under 
 Order III., rule 6, and had been refused by a master ; and, on 
 appeal to the judge, the case had been adjourned to see if the 
 defendant could make an affidavit showing a good defence. The 
 adjourned summons now came on, and the defendant produced no 
 affidavit. For the defendant, decisions of Mr. Justice Quain were 
 relied on, refusing to allow judgment to be signed under similar 
 circumstance ; for the plaintiff, a decision of Baron Huddleston's 
 (No. CLXIV., ante, p. 74), was referred to. 
 
 Lindlby, J. — -If the defendant could have produced an affidavit 
 that he had a good defence, this point need not have been 
 decided. But as no affidavit has been filed, I must assume that 
 there is no substantial defence to the action. It is quite clear 
 that I could not allow judgment io be signed upon this writ, if it 
 were not for sect. 22 of the Act of 1873; but I think that gives me 
 power to do so. But I think the court should decide whether 
 that is so ; and I shall give the defendant time to appeal. Order 
 for judgment to be signed, but no execution to issue within ten 
 days. 
 
 No. CCI. 
 
 MoORHOTJSE V. COLVILLE. 
 
 Judicature Act 1875, Order XXVIL, rule 1 — Amendment of claim. 
 
 This was an action for unlawful distress. Master Dodgson had 
 ordered the statement of claim to be struck out ; and that order 
 was now appealed against. 
 
 B. Williams for the plaintiff, contended that the only objection 
 to the statement of claim was that it was prolix, which was only 
 a matter of costs. 
 
 A. L. Smith for the defendant. 
 
 Lindlbt, J. — This statement is not only prolix, it is obscure. 
 But I will give the plaintiff an opportunity of seeing whether he 
 cannot amend the claim. " Or amended " to be added to Master's 
 order. Costs of this application to be defendant's. 
 
 No. CCH. 
 Injunction — Judicature Act 1873, s- 25, subs. 8. 
 An ex parte application was made for an injunction to restrain a 
 distress for rent. It was stated that a condition precedent to the 
 landlord's right to rent was that he should put the house in 
 repair. The applicant had commenced an action on this agree- 
 ment of the landlord, in which they claimed £150. He was 
 willing to pay the amount of the distress into court. 
 
 Lindlet, J. — Prima facie, an injunction ought not to be granted 
 ex parte. In cases of emergency it will be granted ; but an 
 injunction is very rarely given without hearing both sides. You 
 
94 Reports of Practice Cases. 
 
 must serve the other side with a notice that you intend to apply 
 for an injunction on a given day. 
 
 Tuesday, Jan. 11. 
 No. OOIII. 
 ' Transfer from County Court — Judicature Act 1873, sect- 90. 
 An ex parte application was made to transfer all proceedings 
 from a County Court. The applicant was directed to proceed by 
 summons, a stay oLproceedings in the County Court in the mean- 
 time being granted. 
 
 No. COIV. 
 
 VoTSET V. COX. 
 
 Interrogatories — Judicature Act 1875, Order XXXI, rules 5, 8. 
 On a summons to strike out interrogatories in this case, the point 
 arose as to the proper method of taking an objection to answer ; 
 whether it might be taken under rule h or rule 8 of Order XXXI. 
 indifferently. 
 
 Lindley, J.— There was a rule in equity, that if you answered 
 at all you must answer fully ; and it is quite plain to me that 
 rule 8 was intended to do away with that difficulty. Speaking 
 generally, I should say that the proper method of taking objection 
 to an interrogatory as bad in substance is to apply to strike it out, 
 under rule 5 ; and that the proper method of taking an ob- 
 jection td an interrogatory not bad in itself, but which there 
 are special reasons for objecting to answer, is in the affidavit in 
 answer, under rule 8. 
 
 Monday, Jan. 10. 
 
 No. CCV. 
 Bkoadhtjrst v. Willey. 
 Application to deprive plaintiff of costs — Payment into court — 
 Judicature Act 1875, Orders XXX., LV. 
 This was an action in the County Court, and there was now an appeal 
 from the master as to costs. The defendant had purchased wool 
 to the value of £500 odd, and he paid nearly the whole price 
 before receiving the goods. The question between the parties was 
 whether the remaining balance due was £33 or £43. The de- 
 fendant sent a cheque for £33 to the plaintiff, which was returned. 
 The plaintiff's solicitor then sent a letter to the defendant, asking 
 
Reports of Practice Cases. 95 
 
 for £43. In reply, the defendant offered to pay the £33, 
 and try the question as to the £10 in the County Court. This 
 the plaintiff declined to accept, and served a writ for £43 upon the 
 defendant. The defendant paid £33 into court, and the plaintiff 
 took it out in satisfaction of the entire cause of action. For the 
 defendant it was now asked that the plaintiff should not have the 
 costs of the action, and it was contended that Order LV. gave the 
 Judge a discretion in the matter. For the plaintiff, it was con- 
 tended that there was no discretion as to costs in these cases, and 
 that the master had acted in accordance with Order XXX., and 
 also in accordance with the practice before the Judicature Acts. 
 The Judge took time to consider the question, and to-day gave 
 judgment. 
 
 Lindlbt, J. — The true construction of Order XXX., rule 4, and 
 Order LV., is that Order XXX., rule 4, is subject to Order LV., 
 and the effect of the two rules is that, in cases falling within Order 
 XXX., rule 4, the plaintiff is entitled to his costs, unless there are 
 some sufficient reasons for depriving him of them ; but if there are, 
 he can be so deprived. In this case, I am of opinion that there are 
 sufficient reasons for depriving him of his costs ; for it is plain 
 that the writ was not required to enable the plaintiff to obtain 
 the money paid into court, and accepted in satisfaction of the 
 plaintiff's claim. The real dispute between the parties was as to a 
 sum of £10„ and the writ was issued to obtain this sum. The 
 plaintiff has thought proper to abandon his claim ; the writ has, 
 therefore, served no useful purpose whatever. Under these 
 circumstances, I think it would be unjust to compel the defendant 
 to pay the plaintiff's costs of the action. I reverse the order of 
 the Master, and stay proceedings, and leave each party to pay his 
 own costs. * 
 
 No. CCVI. 
 
 Order for suhstituied service — Injunction — Judicature Act 1873, 
 
 s. 25, sub-sect. 8 — Judicature Act 1875 — Order IX., rule 2. 
 This was an ex parte application for an order for substituted 
 service of a writ upon defendant's manager, Mackenzie, defendant 
 being abroad. An injunction was also asked for to restrain 
 M'Arthur, the defendant, from negotiating a bill of exchange, 
 which had been put into, his hands by the plaintiff, who was holder 
 for value, to discount. He had not discounted the bill, and 
 refused to return it, and it was this bill that was the subject of 
 the action. In support of the application, it was stated that the 
 plaintiff apprehended the defendant's presenting the bill for pay- 
 ment, getting the money, and going off with it. The bill was 
 indorsed, and, therefore, negotiable. It had been in M' Arthur's 
 hands since the 17th Dec, and would be due on the 23rd Jan. 
 Mackenzie had stated two days previous to this application that 
 the bill was not as yet discounted. 
 
96 Reports of Fractice Cases. 
 
 Lindley, J. — I can grant an injunction to restrain M' Arthur 
 from receiving the money on this bill, as this is one of the cases 
 where the application may be made ex parte. Of course, if notice 
 is given of an application for an injunction to restrain anyone 
 from negotiating a bill, the bill might be negotiated before the 
 injunction could be obtained. But you must take care that the 
 indorser is not discharged, which would be the effect of its not 
 being duly presented for payment. 
 
 Order for substituted service of writ on Mackenzie. Injunc- 
 tion to restrain the defendant from parting with the bill before 
 the 18th Jan. ; liberty for the plaintiff, on notice to the defendant, 
 to apply in the meantime for further order. Service of this order 
 on Mackenzie to be good service on defendant, plaintiff under- 
 taking to abide by any order as to damages, and to accept short 
 notice. 
 
 Tuesday, Jan. 11. 
 
 No. OCVII. 
 Winters v. Dabbs. 
 Interrogatories — Judicature Act 1875, Order XXXI., rule 5. 
 On an application to strike out interrogatories that had been 
 administered by a defendant to support his counter claim, 
 
 Lindley, J. — I think that interrogatories should only be struck 
 out when they are objectionable or oppressive. The mere fact 
 that they are open to criticism is not a reason for striking them 
 out. I do not understand that it is the business of the Judge to 
 settle interrogatories. 
 No order. Costs in the cause. 
 
 No. COVIII. 
 Johnson v. Moffat. 
 
 Application to transfer to Chancery Division — Judicature Act 1873, 
 
 s. 36. 
 This was an application to transfer the above action to the 
 Chancery Division, on the ground that it was substantially a 
 breach of an order made in the suit of Moffat v. St. James's Bank, 
 pending in the Chancery Division. In that suit the following 
 order had been made : Motion to stand until hearing, defendant 
 undertaking to take no proceedings at law. Shortly after this 
 order was made, a letter was sent to the defendant (the plaintiff 
 in the Chancery suit), demanding payment of dishonoured accept- 
 ance placed in the hands of the writers by their client, Dear. This 
 letter was sent by Eees and Co., who were Dear's solicitors. The 
 
Reports of Practice Cases. 97 
 
 bill had been indorsed to Johnson, as it -was suggested, for the 
 purposes of this action. The defendant had amended his bill in 
 Chancery, and made Johnson a defendant. 
 
 E. Cutler, for the defendant. 
 
 B. Williams, for the plaintiff. 
 
 Cause transferred to the oourt of Yioe-Chanoellor Malins, the 
 defendant undertaking to bring the matter to a hearing. 
 
 Wednesday, Jan. 12. 
 
 CCIX. 
 
 Costs — Schedule to Order VI. of the Additional Rules of Court of 
 
 12tA Aug., Judicature Act 1875. - 
 An application was made on appeal from a decision of Master 
 Johnson's as to costs. The applicant stated that all the Masters 
 of the Exchequer Division agreed with Master Johnson, but that 
 all the masters of the other divisions were of a contrary opinion. 
 The decision in question was as to whether the sum of 3s. allowed 
 in the schedule as to costs of the Act of 1875, for a summons to 
 attend at Judges' Chambers, included the allowance subsequently 
 mentioned, as to summons to attend at the Judges' Chambers, 
 for each copy to serve, Is. Master Johnson had considered that 
 the 3s. must include the court fees, as the note just above that 
 allowance expressly stated that the preceding allowances did not 
 include the court fees. 
 
 Lindlet, J., took time to consider the question, and subse- 
 quently reversed the decision of the master. 
 
 No. OCX. 
 
 Discovery — Judicature Act 1875, Order XXXI., rule 12. 
 On an application for an order for disoovery of documents, an 
 objection was taken that the action was one of ejectment, and that 
 the applicant named no document of which he sought discovery. 
 
 Lindlet, J. — You can protect yourself in your affidavit with 
 regard to any documents for which you claim privilege. 
 
 Order. 
 
 No. CCXI. 
 
 Transfer of action — Judicature Act 1873, s. 36. 
 This was an action on a guarantee by a married woman, and leave 
 had been obtained to amend the indorsement on the writ, so as' 
 to charge her separate estate. It was now desired to transfer the 
 
 H 
 
98 Reports of Practice Cases. 
 
 action to the Chancery division, in order to obtain an order- 
 against her separate estate. 
 
 Order to transfer the action from the Qiieen's Bench Division-, 
 to the Chancery Division (Hall, V.C.) ; costs in the Queen's Bench 
 and costs of this application to be disposed of by the Vice-Chan- 
 cellor. 
 
 No. CCXII. 
 
 Sivibe v. Harms. 
 Interrogatories — Judicature Act 1875, Order XXXI., rule 5. 
 This was an action against an auctioneer for the price of a horse, 
 that had been sold, by him for the plaintiff. The defence was one- 
 of fraud, and was, that the plaintiff had represented the horse to 
 be quiet and a good worker, well knowing it not to be so, and that 
 the auctioneer had represented this to one Coulson, the purchaser. 
 
 An application was now made to strike out interrogatories that 
 had been delivered by the defendant to the plaintiff. 
 
 The two following interrogatories were ordered to be struck 
 out: 2. Was the horse, which is the subject of this action the 
 property of the plaintiff at the time of the sale ? 3. If it was 
 your property, how did it become so ? 
 
 No. CCXIII. 
 
 Interrogatories — Judicature Act 1875, Order XXXI., rule 5. 
 In an action for breach of promise of marriage, interrogatories, 
 administered by the plaintiff to prove mere expectations of means 
 by defendant, as to the means of his relations, and as to any settle- 
 ment made by them on defendant's present wife,' were struck out. 
 
 No. CCXIV. 
 
 Cotton v. Housman. 
 Summons for further particulars than those indorsed on writ, 
 Judicature Act, 1875, Order XXI., rule 4. 
 This was an action by a widow, as administratrix, against the 
 solicitor of her deceased husband, who was an auctioneer. The 
 writ was specially indorsed, and the plaintiff gave a notice that 
 the claim was as on writ. The present summons was taken out 
 by the defendant for a statement of claim and particulars. The- 
 master had refused the application. 
 
 Archibald, for the plaintiff, said that no further particulars of 
 the claim could be given than those indorsed on the writ. 
 
 Will, for the defendant. 
 
 Order for the plaintiff to deliver the best particulars she can in 
 a week ; defendant to have eight days after delivery of particulars 
 to put in his statement of defence. Summons adjourned generally. 
 
Reports of Practice Cases. 99 
 
 No. CCXV. 
 
 CORMACK V. GrROFRIAN AND ANOTHER. 
 
 Joinder of plaintiff — Judicature Act 1873, s. 24, sub-sect. 3 — Judi- 
 cature Act 1875, Order XVI., rule 13— Order XIX., rule 12— 
 Order XXII., rules 5, 6. 
 This was an action by a shipowner, against two consignees of 
 goods carried by him, for demurrage. A counter-claim had been 
 delivered for damage to cargo. The plaintiff then took out the 
 present summons, which was to add other parties as plaintiffs, on 
 the ground that they were part owners, and, therefore, partly 
 liable on the counter-claim. Master Hodgson had refused to make 
 the order. 
 
 Webster, for the defendants. — Under Order XVI., rule 13, no 
 plaintiff can be joined without his consent ; under the old prac- 
 tice, that consent had to be verified by affidavit. 
 
 Witt, for the plaintiff. — The rights of the parties whom I wish to 
 join are the same as those of the present plaintiff. This action 
 is being brought for their benefit. Under the old system we 
 might have been nonsuited for not joining these parties. "We can 
 no longer plead in abatement to the counter claim, and it would 
 be very hard if, because the plaintiff brings the ac'tion alone, Which 
 he is entitled to do, we should have to meet alone a subsequent 
 claim with regard to which, other persons are liable as much as 
 himself. 
 Appeal dismissed with costs. 
 
 Thursday, Jan. 13. 
 
 No. CCXVI. 
 Strong v. Tappin. 
 Interrogatories — Judicature Act 1875, Order XXXI, rule 5. 
 This was an action, commenced under the Bills of Exchange Act, 
 on five bills of exchange. Interrogatories had been delivered to 
 the defendant, who had obtained leave to appear, but had not yet 
 delivered a statement of defence. 
 
 W. Pike, for the defendant, said that the statement of defence, 
 which was about to be delivered, began by admitting the plaintiff's 
 case ; so that the interrogatories, which were for the purpose of 
 proving the plaintiff's case, were unnecessary. 
 
 F. Knight, for the plaintiff, said that Order XXXI., rule 1, said 
 that interrogatories might be delivered at the same time as the 
 statement of claim. 
 
 LiNDLET^rJV— This is the bad practice, that used to prevail in 
 equity, of ffljS^ iBSSrrogatories on the bill without knowing or 
 caring what the answer will be. The plaintiff should have waited 
 
 H 2 
 
100 Reports of Practice Cases. 
 
 to file interrogatories until the statement of defence had been 
 delivered. There may be cases, as where fraud is alleged, where 
 interrogatories may be filed before the statement of defence is 
 delivered, but they are exceptional. I shall not do anything to 
 encourage the revival of the old Chancery abuse. 
 
 Order for interrogatories to be struck out, without prejudice 
 to any fresh interrogatories which the plaintiff may desire to 
 deliver after the statement of defence. 
 
 No. CCXVII. 
 
 Judicature Act 1875— Oder LVIIL, rule 12 — Printing evidence. 
 
 Undeb the above rule, on the application of parties, Lindlet, J., 
 
 ordered that a copy of the Judge's notes should be printed for the 
 
 purposes of the appeal. 
 
 No. CCXVIII. 
 
 Let v. Marshall. 
 
 Discovery before statement of claim — Judicature Act 1875, Order 
 
 XXXI., rule 12. 
 This was an action for damages for breach of duty in and about 
 the carrying of goods by sea. An application was now made by 
 the plaintiff for an order for discovery. The statement of claim 
 had not yet been delivered. 
 
 /. 0. Mathew, for the plaintiff. — The plaintiff's case is that the 
 ship was overladen. We could have delivered a declaration, but 
 not a statement of claim, without discovery. 
 
 Hollams for the defendant. 
 
 Order for usual affidavit of documents relating to cause of action 
 mentioned in the affidavit of J. H. White, within a week. 
 
 No. OOXIX. 
 
 Signing judgment on specially indorsed writ — Judicature Act, 
 
 1875, Order XIV. rule 1. 
 In an action for £609 as commission on the sale of tea, in which 
 leave had been obtained to serve out of the jurisdiction the 
 specially indorsed writ, issued 4th Dec, and of which service was 
 effected in New York on 5th Jan., 
 
 Held, on a summons taken out on 7th Jan. to sign judgment 
 and heard to-day, that it was a sufficient reason for not allowing 
 judgment to be signed or ordering the defendant to pay money 
 into court, that the defendant had not had time to communicate 
 by post with his solicitors his instructions with reference to the 
 summons taken out on 7th Jan. Per Lindlet, J. 
 
Reports of Practice Cases. 101 
 
 Friday, Jan. 14. 
 
 (Before Pollock, B.) 
 
 No. CCXX. 
 
 Signing judgment on specially indorsed writ — Judicature Act 1875, 
 
 Order XIV. rule 1. 
 This was an appeal from the order of Master Dodgson, allowing 
 judgment to be signed. The action was by a stockbroker for 
 commission to the amount of £326. The defendant alleged that 
 he had taken proceedings in bankruptcy, and that he disputed the 
 correctness of the account delivered. 
 Appeal dismissed with costs. 
 
 No. COXXI. 
 Commissioners op Watekfokd v. Veale, Begs, and Evans. ~ 
 Notice of indemnity — Judicature Act 1875, Order XVI. rules %', 21. 
 This was an action for expenses incurred in removing wreck. 
 
 Sutton for the defendants. — We have served the Great Western 
 Railway Company with a notice that we claim indemnity from 
 them ; they consent to come in and defend the action, and to our 
 withdrawing. 
 
 C. Bowen, for the plaintiffs. — We object to that, unless the 
 Great Western Railway Company admit their liability ; the present 
 defendants have done so. 
 
 Myburgh (for the Great Western Railway Company). — We are 
 willing to admit our liability. • 
 
 Order for the Great Western Railway Company to be defend- 
 ants, they admitting the cause of action and their liability. 
 
 (Before Lindlet, J.) 
 
 No. CCXXII. 
 
 Inspection — Judicature Act 1875, Order XXXI., rule 14 — Counter 
 
 claim. 
 Application was made for leave to inspect a document men- 
 tioned in the second paragraph of the statement of claim. The 
 action was one of ejectment by mortgagees against the executors 
 of the deceased mortgagor. The defendants desired to inspect the 
 mortgage deed. 
 
 Mead, for the plaintiff. 
 
 F. 0. Crump (for the defendants) cited Patch v. Ward (L. Rep. 
 1 Eq. 436), and stated that the defendants wished to know the 
 amount of the mortgage in order to redeem. 
 
 Lindley, J. — I shall make no order for production, the plaintiff 
 undertaking to give in a week a statement of principal, interest, 
 
102 Reports of Practice Cases. 
 
 and amount of costs, and of the particulars of all other subsequent 
 encumbrances. The defendant will have to make the first mort- 
 gagee and all subsequent holders of charges parties to his claim to 
 redeem. 
 
 There was a further summons in the same case to strike out 
 defendant's counter claim, which merely asserted a right to 
 redeem, on the ground that it was no defence to the action. 
 
 No order. 
 
 Saturday, Jan. 15. 
 
 No. CCXXIIL 
 Action under Bills of Exchange Act — Application to join third party 
 
 — Judicature Act 1875, Order XVL, rule 13. 
 An ex parte application was-, made for leave to add another defen- . 
 dant in an action under the Bills of Exchange Act. The master 
 had refused the application on the ground that the defendant could 
 not avail himself of the provisions of. the Judicature Act at this 
 stage. The defendant had obtained leave to appear, and a state- 
 ment of claim had been delivered. 
 
 Order that the defendant be at liberty to join a third party as 
 defendant. 
 
 No. OOXXIV. 
 
 Macdonald v. Bode. 
 
 Striking out counter claim — Third parties — Judicature Act 1873, 
 
 s. 24, sub.-s. 3 — Judicature Act 1875, Order XVL, rules 17, 18 — 
 
 Order XIX., rule 3. 
 This was an action on a bill of exchange,' and the defendant now 
 appealed from Master Hodgson's order, striking out the counter 
 claim which had been delivered. The statement of defence 
 alleged that the bill had never been indorsed by Alexander, the 
 drawee, to the plaintiff, or, if it had been so indorsed, that there 
 had been no consideration for such indorsement, and that it was 
 held by the plaintiff solely as trustee for Alexander. The set-off 
 and counter claim alleged that Alexander and the defendant were 
 jointly engaged to act for a company, and that they agreed that 
 the commission which they should receive for their services was 
 to be equally divided between them, and that Alexander fraudu- 
 lently refused to account for commission he had received. 
 
 Foord for the plaintiff. — That Macdonald is a trustee for 
 Alexander is a mere allegation ; they do not show that it is. true. 
 This is not a claim within the action. There must be a distinct 
 and specific claim ; and here there is no distinct olaim. 
 
 Kelly for the defendant. 
 
 Lindley, J.— From Order XVI., rules 17, 18, it would appear 
 
Reports of Practice Cases. 103 
 
 that to bring in a third party, the defendant's claim against him 
 must be in the aotion. But sect. 24, sub-sect. 3, of the Act of 
 1873, gives a wider power. Supposing Alexander was the plaintiff, 
 the set-off would be certainly good. Then they allege that 
 Alexander is the real plaintiff. As they raise the defence that 
 Macdonald is trustee for Alexander, I shall allow them to set up 
 this counter-claim and set-off. 
 
 Order of Master rescinded. Costs in the cause. 
 
 No. CCXXV. 
 
 LACEY V. WrELOTD. 
 
 Interpleader before action, — Judicature Act 1873, sect. 25, subs. 6. 
 Shwess Will for the defendant. — An award has been given against 
 us. and judgment signed by Lacey, the present plaintiff. We are 
 quite' ready to pay, but two claims have been made upon the 
 judgment debt. Notice in writing of an assignment has been 
 given us, and Lacey has become bankrupt, and the assignee under 
 his bankruptcy claims the money. It is right to say that an 
 appeal, on Lacey's part, is pending against the order of bank- 
 ruptcy. 
 
 Order that the defendant be at liberty to pay the money into 
 court, less his costs to be taxed. Proceedings as against defendant 
 to be stayed. 
 
 No. OOXXVI. 
 Coop and othees v. Ince Hall Company. 
 
 Inspection of property — Judicature Act 1875, Order III., rule 3. 
 This was an action of trespass between adjoining colliery pro- 
 prietors ; the plaintiffs now applied for an order for inspection of 
 defendants' mine, and, for that purpose, for the removal of barriers 
 erected by the defendants between the mines, or for liberty to go 
 down into the defendants' mine and for liberty to take measure- 
 ments, samples, &c. 
 
 Myburgh,<foT the plaintiffs. — We want to inspect their mine, in 
 order to see how far they have trespassed upon our ground, and 
 how much of our 'coal has been taken away. 
 
 Oulh/, for the defendants. — The whole question between us is 
 where the boundary is. This rule was never intended to enable a 
 colliery proprietor to get an inspection of his neighbour's mine 
 by a mere allegation of trespass. Our colliery covers 800 acres, 
 and theirs about seven acres. The affidavit of defendants' manager 
 states that it is most important for reasons apart from this action 
 that the working of defendants' mines should not be seen by the 
 plaintiffs. 
 
 Lindlet, J. — An order for inspection of this kind is so com- 
 mon in Chancery that I should have thought this was a matter of 
 course. My impression is that the plaintiffs are entitled; almost 
 
104 Reports of Practice Cases. 
 
 as a matter of course, to inspect the defendants' mines about the 
 alleged boundaries ; but that if the defendants can suggest any 
 method by which that can be done without the plaintiff seeing the 
 whole of their mines, they are entitled to have the inspection so 
 limited. I skall make no order as to removing barriers, or as to 
 taking samples. 
 
 Order to inspect the mine and workings of the defendants under 
 and near the plaintiff's mines as delineated or described, and to 
 measure the coal taken away from under the plaintiff's lands. 
 Two days' notice of inspection to be given. Inspection to be 
 made through the pits of defendants, unless other access is pro- 
 vided. No notice to inspect for a week. Costs of this applica- 
 tion to be costs in the cause. Statement of claim to be delivered 
 a week after inspection. 
 
 Monday, Jan. 17. 
 
 (Before Lindlbt, J.) 
 
 No. OCXXVII. 
 
 Discovery— Judicature Act 1875, Order XXXI., rule 12. 
 
 An application being made for discovery of documents, it was 
 
 objected that the applicant named no document in his opponent's 
 
 possession. 
 
 Lindley, J. — That is an exploded doctrine. He is entitled to 
 discovery as a matter of course, unless you can make out an 
 objection to his having it. The onus is on you. He cannot know 
 what documents you have until he gets your affidavit. 
 
 No. CCXXVIII. 
 Striking out claim — Judicature Act 1875, Order XXVII., rule 1. 
 In an action of trespass, an application was made to strike out 
 the statement of claim. The writ was issued in June, and Master 
 Dodgson had ordered a statement of claim to be filed within eight 
 days. The plaintiff then served a copy of the indorsement on the 
 writ as a statement of claim. The defendant now contended that 
 this was no statement of claim. , 
 
 Lindley, J. — It is an informal statement, but it need not be 
 struck out. 
 
 Statement to be amended in a week, otherwise order. Costs in 
 iiie cause. 
 
 No. CCXXIX. 
 
 Preston and others v. Lamont, Reubin, and Rodger. 
 
 Service out of the jurisdiction — Judicature Act 1875, Order XI., 
 
 rule 1. 
 
 This was an ex parte application for leave to serve out of the 
 
 Jurisdiction, on appeal from Master Walton. 
 
Reports of Practice Cases. 105 
 
 0. Dodd, in support of the application. — We want to serve the 
 defendant in Scotland. The terms of the contract were that the 
 money should be sent direct to the plaintiff, who resides at Dept- 
 ford. The money has not been sent. 
 
 Lindley, J. — That is a breach within the jurisdiction. 
 
 Order, Master's decision reversed. 
 
 No. CCXXX. 
 Barnicot v. Hann and Cross. 
 
 Amendment of pleadings — Judicature Act 1875, Order XXVII., 
 rule 1. 
 This was an action for money lent. A summons had been taken 
 out by the plaintiff to strike out the statement of defence. 
 
 Wilberforce for the plaintiff. — The statement of defence contains 
 four distinct and inconsistent allegations, namely, that the plain- 
 tiff never lent the money ; that, if he did, he lent it to somebody 
 else; that the defendant had paid the money ; and that the plaintiff 
 had released the defendant. This is the old form of pleading, 
 which the Judicature Act has abolished. 
 
 Witt for the defendant. 
 
 Lindley, J. — Where the old form of pleading is applicable, 
 there is no objection to it. A defendant is entitled to say that 
 he never was lent the money, and that, if he was, he has paid it, 
 or been released. No order. 
 
 No. CCXXXI. 
 
 Leave to plead and demur — Judicature Act 1875, Order XXVIII,' 
 
 rule 5. 
 An application having been made to a district registrar for leave 
 to plead and demur — the ground of demurrer being that the 
 statement of claim disclosed no cause of action — and having beea 
 refused. 
 
 Lindley, J., reversed that decision, and made the order. 
 
 Mort/ton for the plaintiff. 
 
 Anstie for the defendant. 
 
 Tuesday, Jan. 18. 
 No. COXXXII. 
 
 Dismissing action for want of prosecution — Judicature Act 1875, 
 
 Order XXIX., rule 1. 
 This was an appeal from a master's decision, refusing to dismiss 
 an action for want of prosecution. The action was on a bill of 
 
106 Reports of Practice Cases. 
 
 exchange, and the writ was served in August last. Leave to 
 appear was obtained on August 12, and notice of appearance sent 
 to the plaintiff on the Mlowingjday . Nothing had since been 
 done. On behalf of the ia aro h fefr Dffi, was stated that as he had 
 been paid by the acceptor he had nM gone on against the indorser, 
 and that the indorser had givsn him a cheque for the amount, which 
 on endeavouring to cash was found to be stopped. On behalf of 
 the defendant, it was argued, that under the old procedure, a 
 notice to deliver the declaration in four days could have been 
 delivered, and if not complied with, judgment signed for amount 
 of claim and costs; that the money paid was paid in a different 
 action, and that the present defendant had paid nothing ; that he 
 gave a cheque for the amount of the bill to the plaintiff on the 
 condition that it should not be cashed if the plaintiff recovered 
 from the acceptor ; and that the plaintiff should not have issued 
 two writs, one against the indorser and another against the 
 acceptor ; both should have been included in one writ. 
 
 Lindlet, J. — I shall certainly not let the action go on simply 
 to determine who is to pay the costs. All further proceedings 
 in the action to be stayed ; the defendant to pay the costs of the 
 writ. 
 
 No. CCXXXIII. 
 
 Injunction — Judicature Act 1873, sect. 25. tuxJti-. a. 'S 
 This was an ess, 'parte application for an interim injunction in an 
 action on a bill of exchange. 
 
 Moutton, for the plaintiff, said that be was applying ex parte, but 
 that notice of this application had been given that day to the 
 other side. It wits desired to restrain the defendant from negotiat- 
 ing a bill of exchange obtained without any consideration, until 
 the action. 
 
 Order to restrain defendant from parting with the bill before 
 judgment in action or further order, plaintiff undertaking to abide 
 by any order the court may make as to damages, and to accept one 
 day's notice of any application the defendant may make to dissolve 
 the injunction. 
 
 No. ccxxxrv. 
 
 Nicholson v. Jackson. 
 Counter-claim — Judicature Act 1875, Order XXII., rule 9. 
 This was an application to strike out a counter-claim in the above 
 action, which was for libel. The alleged libel was contained in a 
 circular letter published by defendant among the shareholders of 
 theJHaune Colliery Company (Limited). The plaintiff was one of 
 the directors of the company, who were charged in the letter 
 with conspiracy and fraud. The defenoe was that the communica- 
 tions were privileged, and there was a counter-claim for damages 
 
Reports of Practice Cases. 107 
 
 for loss sustained in respect of shares bought on false representa- 
 tions. 
 
 Forbes, for the plaintiff. — The plaintiff alone is not responsible 
 on this counter-claim, but the other directors also. The action 
 for libel is a simple one ; the counter-claim will be long and in- 
 Tolved. The libel is a very gross one, and this counter-claim 
 must prejudice the plaintiff. 
 
 Underhill, for the defendant- — If we have really been induced 
 to buy shares by their fraud, it would be absurd that they should 
 be allowed to bring an action of libel against us, and perhaps 
 recover damages, merely because we cannot technically justify. ' 
 
 Lindley, J. — This is one of tho-e cases where it would be very 
 difficult to keep the jury from mixing up the two claims. Order 
 to' strike out counter-claim, without prejudice to any action the 
 defendant may bring, and on the terms that the plaintiff in this 
 action shall not issue execution on any judgment he may obtain 
 without leave of a court or a judge. Costs in the cause. 
 
 In this case, under the provisions of the new scale of costB, a 
 special allowance of £1 Is. was made to the solicitor on each side. 
 
 No. CCXXXV. 
 Discovery — Judicature Act 1875, Order XXXI., rule 12. 
 An application was made for further discovery of documents. The 
 defendant's affidavit stated that he had no documents in his power, 
 possession, or control. It appeared that the defendant was a bank- 
 rupt, and that all his books and papers had been handed over to 
 the trustee. 
 
 Lindley, J. — The defendant must state what documents passed 
 from him to the trustee, and the fact of their so passing. 
 
 Order for further affidavit within a week, as to documents that 
 have been in defendant's power, possession, or control. 
 
 Wednesday, Jan. 19. 
 
 CCXXXVI. 
 
 Hope v. Banks. 
 
 Amendment of pleadings — Judicature Act 1875, Order XXVII., 
 
 rule. 1. 
 This was an action for an alleged breach of an agreement to take 
 a house. The plaintiff was to have assigned his lease to the 
 defendant, and had written naming a day upon which he could 
 give up possession ; but before the day named his wife became ill, 
 and he wrote to the defendant saying he should be unable to give 
 possession on that day. The defendant then took another house ; 
 
108 Reports of Practice Cases. 
 
 and shortly after having done so received a letter from the plain- 
 tiff, offering to give possession in three weeks. The plaintiff, in 
 his statement of claim, had set out certain of the letters between 
 the parties, and alleged, that they contained a contract on the part 
 of the defendant to take an assignment of plaintiff's lease. 
 
 Grantham had applied to the master, and now appealed to the 
 Judge, to strike out this statement of claim as embarrassing, and 
 as not setting out the facts on which the plaintiff relied. 
 
 Macleod, for the plaintiff. 
 
 Appeal dismissed with costs. 
 
 No. CCXXXVII. 
 
 Injunction. — Judicature Act 1873, sect. 25, sub-sect. 8. 
 An ex parte application was made for an injunction to restrain the 
 defendant in an action of trespass from continuiug nis tres- 
 passes. It was stated in the plaintiff's affidavit that the defen- 
 dant had destroyed the grass on part of plaintiff's land by "driving 
 a horse and cart over it. 
 
 Lindley, J. — I never heard of an injunction to restrain a man 
 from trespassing on land with a horse and cart. Injunctions are 
 not ordinarily granted for mere trespass, unless serious injury is 
 threatened to the property. This affidavit speaks of an injury 
 that has been done. You can serve the defendant with notice, if 
 you like, and apply again ; but I do not advise that course, as I 
 think you will not get an injunction. 
 
 No. CCXXXVHI. 
 
 Southwell v. Eowditch. 
 Stay of ■proceedings— Judicature Act 1875, Order LVIII., rule 16. 
 This was an application for a stay of proceedings for the purpose 
 of an appeal. 
 
 Aspland, for the plaintiff. — As an appeal is now no stay of exe- 
 cution, I ask that the defendant pay 330?. into court ; and also 
 that he pay the costs of this summons, and be under terms to give 
 notice of appeal within fourteen days ; otherwise no stay. 
 
 Lumley Smith, for the defendant. — I object to being ordered to 
 pay the money into court. This is an action between two mer- 
 chants, and there is no suggestion of insolvency against the defen- 
 dant. The action is bi-ought on the technicalities of a bought note. 
 
 Lindley, J. — I shall not order the money to be paid into court. 
 
 Order for stay of proceedings, notice of appeal to be given within 
 fourteen days ; costs of this application to be plaintiff's. 
 
Reports of Practice Cases. 109 
 
 Thursday, Jan. 20. 
 
 No. CCXXXIX. 
 
 Billing v. Nicholson. 
 
 County Court appeal. — County Courts Act 1875, sect. 6. — Judica- 
 ture Act 1873, sect. 45. 
 Wheeler moved ex parte for a rule nisi in this case, calling upon 
 the other side to show cause why the decision of the County 
 Court Judge in their favour should not be reversed. The Judges 
 of the Divisional Court were appointed, but the court not yet 
 constituted. Brett, J., had directed this application to a Judge at 
 Chambers. 
 
 Lindley, J. — I think the better course now is to extend the 
 time for moving until such time as the Divisional Court shall sit 
 to hear appeals. 
 
 Order accordingly. 
 
 No. CCXL. 
 
 Leathley (on behalf of himself and all others the underwriters, 
 &c.) v. Macandkew and another. 
 
 Agreement to refer — Undisclosed plaintiffs — Judicature Act 1875, 
 
 Order XVI., rule 9. 
 This was an application to stay the above action on the ground 
 of an agreement to refer. 
 
 /. C. Mathew for the defendants. — Leathley is bound by an 
 agreement to refer. I am willing to admit that we contracted 
 personally, but not that we are owners. 
 
 Butterworth, for the plaintiffs. — The other plaintiffs are not 
 bound, who were not parties to the agreement to refer. If the 
 defendants admit that they are owners, then we do not object to 
 the reference. If they admit their ownership, then of course they 
 are liable to us in this action. 
 
 Lindley, J. — This form of action is familiar to Chancery prac- 
 titioners, and it has always been held that a defence to the 
 plaintiff on the record is a defence to the suit. I do not think the 
 personal liability of the plaintiffs on the agreement to refer is 
 quite the question. If the defendants do not admit ownership 
 there is a question for the jury, and the agreement to refer does 
 not apply. 
 
 No order, unless the defendants admit that they were owners 
 of The Cid ; if they do, order with liberty to apply to settle 
 terms of reference. Costs in the cause. 
 
110 Reports of Practice Cases. 
 
 Friday, Jan. 21. 
 No. COXLI. 
 Interrogatories — Judicature Act 1875, Order XXXI., rule 5. 
 An application was made to strike out forty-five interrogatories, 
 as irrelevant, delivered by the defendant, in an action of eject- 
 ment by a mortgagee against a mortgagor. 
 
 Lindley, J. — Interrogatories must have some connection with 
 the pleadings. I shall strike these out on the general ground 
 that they have nothing_ to do with the matter in question as it 
 appears on the pleadings. Interrogatories to be struck out, 
 without prejudice to any fresh interrogatories the defendant may 
 be advised to deliver. Costs to be plaintiff's in any event. 
 
 No. OCXLII. 
 
 Lerectjley v. Harrison and others. 
 
 Joinder of defendant — Judicature Act 1875, Order XVI., rules 
 
 13, 17, 18, 19. 
 This was an action by a merchant against solicitors for negli- 
 gence. The defence was that the negligence, if any, was one 
 W. Andrew Kilby's, whom the defendants had instructed. Master 
 Manley Smith had made an order, joining W. Andrew Kilby 
 as a defendant in the action, and the plaintiff appealed against 
 this order. 
 
 Home Payne for the plaintiff. — The defendants do not apply, as 
 they might have done, under rules 17, 18, 19 of Order XVI., in 
 which case notice must have been given to the third party from 
 whom they claimed indemnity ; but they apply under rule 13 of 
 that order. Williams v. Andrews (No. OXVL, ante, p. 50) 
 and Smith v. Haxeltine (No. CLIII;, ante, p. 68) are the only 
 two cases I have found where this rule has been applied ; and 
 in those cases the circumstances are quite different to those in this 
 case. The rule was probably intended to meet any difficulty which 
 might arise from the abolition of pleas in abatement. The Master 
 has now ordered us to sue a defendant, whose liability we do not 
 recognise. 
 
 Bullen, for the defendants. — We say that Kilby is the party who 
 is really liable. We admit retainer by the plaintiff, but we say 
 that with his consent our managing clerk put the matter in Kilby's 
 hands. I submit that one of the objects of rule 13 was to meet 
 the difficulty of not being able to put in evidence at the trial every- 
 thing that was material, through persons who were connected with 
 the matters in question not being joined. If we had served Kilby 
 witb a notice of indemnity under rule 18, he need not have made 
 himself a party to the action unless he chose to do so ; and if he 
 ohose not to put in an appearance, the essential part of our 
 
Reports of Practice Cases. Ill 
 
 evidence would have been shut out. If it should turn out that the 
 joinder x>f Kilby was unnecessary or unreasonable, the costs 
 occasioned by such joinder will fall upon us. 
 
 Llndlby, J. — I think that this application is not within rule 13 
 of Order XVI., and that the master was mistaken. 
 
 Defendant Kilby to be struck out ; decision of master reversed. 
 
 No. OCXLIII. 
 
 McCOEQUODALE V. BbLI AND ANOTHEE. 
 
 Interrogatories — Judicature Act 1875, Order XXXI., rule 1. 
 This was an action for improper tender ; issue had been joined, 
 and an order was now applied for by the plaintiff to deliver in- 
 terrogatories. 
 
 English Harrison, for the plaintiff. — Our case is that the defen- 
 dants improperly got hold of our tender for stationery to the 
 Great "Western Railway Company, and then altered their tender so 
 as to make it lower. We allege that the defendants and one 
 Becket maliciously conspired together for that purpose. The in- 
 terrogatories go to prove that the defendants, Becket, and Syden- 
 ham, a clerk of the Great Western Railway Company, were in 
 the room together when this took place, and as to what occurred. 
 As they have denied our allegations, we are entitled to ask them 
 questions to prove them. 
 
 /. Francis, for the defendants. — My objection to these interroga- 
 tories is that they tend to implicate other persons than the defen- 
 dants. 
 
 LufDLET J. — I think that, under the circumstances of the de- 
 fendants having denied this charge, the plaintiff is entitled to put 
 these interrogatories. 
 
 Order. 
 
 No. CCXLIY. 
 Stay of proceedings — Judicature Act 1873, s. 24, sub-s. 5. 
 This was an application to stay proceedings in an action on two 
 solicitors' bills of costs. The writ had been issued on Oct. 21, 
 declaration Oct. 30, statement of defence Nov. 10, reply Nov. 27. 
 A summons had been taken out now in the Rolls Court for an 
 order to tax, and it was asked to stay proceedings in the action. 
 An objection was taken that the application had been delayed too 
 long ; but, on the. defendant agreeing to withdraw all his defence 
 except as to the costs being taxed, 
 
 Lindlby, J., said that he would make the order, putting the 
 plaintiff in the same position as he would have been in, if the 
 defendant had made this application promptly. 
 
 Order to stay all further proceedings in the action. The de- 
 fendant to pay the plaintiff's costs of the action subsequent to the 
 
112 Reports of Practice Cases. 
 
 writ up to the present time, including the costs of this applica- 
 tion ; defendant undertaking to obtain an order to tax with all 
 practicable speed. 
 
 No. CCXLV. 
 
 Answers to interrogatories — Judicature Act 1875, Order XXXI., 
 
 rule 23. 
 An objection was taken to an answer to an interrogatory adminis- 
 tered by the plaintiff in an action, on the ground that it stated the 
 defence to the action as well as answering the interrogatory. 
 
 Warburton Pike, for the plaintiff. — I do not object to his put- 
 ting that part of his answer which states his defence into a 
 separate answer, because then I can object at the trial to its being 
 read, and ask that it may be proved by witnesses. But if it 
 •remains part of another answer it renders the whole answer use- 
 less, as I cannot read part of an answer. 
 
 Bighorn, for the defendant. — My friend cannot ask me to give 
 two answers to one question. 
 
 Lindlbt, J. — I cannot say that the defendant must split up his 
 answer to suit the plaintiff's convenience. I think there may 
 arise cases where such an application would be granted; but 
 here, I think, the latter part of the answer, which is objected to as 
 matter of defence, is a qualification of the former part. 
 
 No order. 
 
 No. OCXLVI. 
 
 Discovery — Judicature Act 1875, Order XXXI., rules 12, 13, 
 
 Appendix B., Form 9. 
 In the same action as the above, an objection was taken by War- 
 burton Pike that the affidavit of documents filed by defendant was 
 insufficient, as it made no mention of books, and had not followed 
 the statutory form. 
 
 Bigham. — The form given by the Act is optional. 
 
 Lindlbt, J. — The statutory form is the right form, and is in- 
 tended to be the common form. An affidavit of documents is in- 
 tended now to be exhaustive, and the form given in the Act 
 is so. 
 
 Order for better affidavit of documents. 
 
 Saturday, Jan. 22. 
 
 No. CCXLVH. 
 Discontinuance— Judicature Act 1875, Order XXIII. 
 This was an application by a defendant to vary an order of Master 
 Walton, staying an .action on payment of costs. It was contended 
 
Reports of Practice Cases. 113 
 
 that he had no power to make such an order, and that the 
 summons, the wording of which the order followed, was miscon- 
 ceived, as it followed the old practice. It was further contended 
 that this order would enable the plaintiff to go on with the action 
 subsequently, and that the defendant had now a right to be put in 
 the same position as if he had a judgment in his favour. 
 
 Lindley, J. — It seems to me to be very immaterial ; but I will 
 vary the order by substituting the word " discontinued " for 
 " stayed." 
 
 No. CCXLVHI. 
 
 Beck v. Dear. 
 
 Joinder of plaintiff— Judicature Act 1875 — Order XVI., rule 13. 
 
 This was an action by an auctioneer, for his commission on 
 
 goods sold. 
 
 R. Williams, for the defendant. — A company built a large hotel, 
 which Dear furnished ; the company has been wound-up, and the 
 furniture has been sold by auction by agreement of all parties. 
 The auctioneer has brought this action against us, and we have 
 a claim against the official liquidator of the company in respect 
 of an alleged property in half the furniture. We say that the 
 auctioneer sold for the liquidator. We wish the official liquidator 
 to be joined as a plaintiff, that we may bring our counter-claim, 
 which arises out • of the same matter, against him, and have it 
 decided in this action. 
 
 Bullen, for plaintiff. 
 
 No order. Costs to be plaintiff's in any event. 
 
 No. CCXLIX. 
 Stokee v. Simmons and others. 
 
 Gross-examining defendant — Judicature Act, Order XXXVII. r 
 
 rules 2, 4. 
 This was an issue directed by Master Dodgson, between a judg- 
 ment debtor ami a i ju i ilguamit creditor and garnishees. 
 
 Lumley Smith, for the plaintiff. — I apply now, under rules 2 and 
 4 of Order XXXVII., for an order against the defendants to come 
 up and be cross-examined. Judgment has been obtained in our 
 favour against Simmons for 1740J. We have obtained a garnishee 
 order against Arnold and Lewis. In Dec. 1875, Arnold and Lewis 
 denied that they had money owing or accruing to Simmons ; they 
 now admit 640Z., and deny as to the remainder. They bought 
 Simmons' business in October 1874, for 30.000J., giving a bill of 
 sale to Simmons on the whole property. This bill of sale is still 
 registered with no satisfaction against it. The question is 
 whether we are not entitled to cross-examine them as to the truth 
 of their statements, Even in an ordinary unliquidated claim,. 
 
 I 
 
114 Reports of Practice Cases. 
 
 under Order XIV., rule 3, the defendant may now be ordered to 
 come forward and be cross-examined. The whole spirit of the Act 
 is opposed to our being driven to trial, when an interlocutory 
 proceeding such as this may render it unnecessary. 
 
 F. Knight, for the defendant. — The affidavit of the garnishees 
 gives a perfectly natural account of the transaction. They show 
 exactly how the money has been paid by degrees. It would be an 
 undeserved reproach to order them to be cross-examined. As to 
 what my friend says about being driven to trial, there will be no 
 trial of this issue ; it must be referred to an accountant. 
 
 Lindley, J. — It is quite obvious that there is a great difference 
 between these persons, though they are witnesses, and ordinary 
 witnesses ; because they are not only witnesses, but you have a 
 question to try with them, which renders this course unnecessary. 
 The rule was inserted, to meet the case of an ordinary witness, not 
 a party to the case, against whom there would be no other power. 
 
 Appeal dismissed with costs. 
 
 No. CCL. 
 
 Golding v. TheWhaeton Rah and River Sait Company. 
 
 Amendment of pleadings — Judicature Act 1875, Order XXVII., 
 rule 1. 
 This was an action for the breach of a contract to deliver as much 
 salt as the plaintiff should require for three months. Master 
 Manley Smith had refused to strike out several paragraphs from 
 the statement of defence, and that decision was now appealed 
 against. One of the paragraphs which it was desired to strike 
 out denied the breach on the ground that the plaintiff's requisi- 
 tions were unreasonable. The other paragraphs objected to 
 stated that the contract was entered into with the plaintiff as 
 director of a company. The contract was also set out, but there 
 was nothing upon its face to show that the contract was other 
 than a contract with the plaintiff personally. 
 
 F. 0. Orurrvp, for the plaintiff. — The salt was to be delivered by 
 rail or river as the plaintiff should require. Our requisitions 
 were for 480 tons per week. If there was any doubt as to the 
 law, it would be right to drive me to demur. But the law 
 is clear that the defendant should have protected himself 
 in the contract ; as he has contracted without reservation, he 
 must either deliver what we require, or indemnify us, unless he 
 alleges that our demands were made not for the 1 purposes of our 
 business, but for the purpose of defrauding him. As to the 
 defence that the contract was with the plaintiff as a director, parol 
 evidence will only be admitted to prove that there was no contract, 
 aDd is not admissible for the purpose of varying the written con- 
 tract. This paragraph of the defence raises a false issue. 
 
Beports of Practice Cases. 115 
 
 /. B. Allen for the defendant. — One of the chief questions in the 
 action will be whether the requirements made were the require- 
 ments of Golding, Davis, and Co., or of Golding personally. We 
 say that we contracted with him in one capacity, and that he 
 made his requisitions in another capacity. 
 
 Lindley, J. — There are two questions to be decided in this 
 action ; first, what is the intention of the contract P and, secondly, 
 what is the true character of the requirements that have been 
 made. I do not think that these paragraphs of the statement of 
 defence are embarrassing, and I shall not strike them out. 
 
 Appeal dismissed with costs. 
 
 (Before Archibald, J.) 
 
 Satu/rday, Jan. 22. 
 
 No. OCLI. 
 
 Inspection of documents — Judicature Act 1875, Order XXXI., 
 
 rule 18. 
 This was an action of tresDass, and the plaintiff asked for inspec- 
 tion of two documents named in the pleadings. For the de- 
 fendant, it was objected that he was freeholder, and these docu- 
 ments were his title-deeds ; that the plaintiff set up a twelve 
 years' possession, but without stating whether as tenant or free- 
 holder ; and that the defendant denied his title altogether. For 
 the plaintiff, it was said that if these title-deeds were shown, the 
 plaintiff might at once discontinue the action. 
 No order. Defendant's costs in the cause. 
 
 Monday, Jan. 24. 
 No. CCLII. 
 
 Application to proceed under the Judicature Acts — Judicature Act 
 
 1873, s. 22. 
 This was an action on a bond against a surety. The declaration 
 was delivered on 26th Oct., and a statement or defence was after- 
 wards delivered, which was struck out by the master, who also 
 refused defendant's application to proceed under the Judicature 
 Acts. The defendant's affidavit stated that he had a good equit- 
 able defence to the action. 
 
 Archibald, J. — Ton do not say what your equitable defence is. 
 If you could have shown a good reason for the reform, I would 
 have made it ; but your statement of defence is very bald, and 
 your affidavit does not supplement it. 
 
 No order. Appeal dismissed with costs. 
 
116 Reports of Practice Cases. 
 
 No. OCLIII. 
 
 The Margate Pieb and Habbotjb. Compact v. Perry. 
 Judgment in default of defence— Judicature Act 1875, Order XIV., 
 
 rule 1 ; Order XXL, rule 4; Order XXII., rule 3. 
 An application had been made in this case to Master Bennett for 
 leave to sign judgment under Order XIV., rule 1 ; the application 
 was refused, and the summons indorsed ",No order." After the 
 expiration of eight days, no statement of defence having been de- 
 livered, the plaintiff signed judgment for his claim. The present 
 summons was to set aside that judgment, and it was contended 
 that as no notice that the defendant dispensed with a statement of 
 claim had been delivered, the plaintiff was bound to deliver such 
 statement. 
 
 Archibald, J.— Looking at Athms~ v. Taylor (No. CXCY. 
 cmte, p. 89), I am inclined to think that the judgment was 
 regular. My only doubt arises from the fact of the master not 
 having expressly given the defendant leave to defend. The rules 
 seem to contemplate that where a plaintiff is not allowed to sign 
 judgment under Order XIV., rule 1, express leave shall be given 
 to the defendant to defend. But I think the indorsement " No 
 order " is equivalent to leave to defend, no time for delivery of a 
 statement of defence being named, and therefore brings this case 
 within the words of rule 3 of Order XXII., " or if no time be 
 limited, then within eight days." I shall, however, give the defen- 
 dant leave to defend, and I will make the costs costs in the cause. 
 
 No. CCLIV. 
 
 Inspection of premises — Judicature Act 1875, Order LLT., rule 3. 
 In an action for obstruction of light and air, an application was 
 made, on appeal from Master Pollock, for inspection of the plain- 
 tiff's premises by the defendant. No statement of defence had yet 
 been delivered, and it was stated none could be until inspection had 
 been obtained. 
 
 Archibald, J.— I must see whether your defence is that there is 
 no obstruction, or that the plaintiff has no ancient lights. Tou 
 must deliver your statement of defence before you can have 
 inspection. 
 
 No order. 
 
 No. CCLV. 
 Discovery— Judicature Act 1875, Order XXXI., rule 12. 
 This was an action for damages for wrongfully building houses, 
 &c, on land adjoining the plaintiff's. No statement of claim had 
 yet been delivered. The plaintiff now applied for an order for 
 discovery. 
 Archibald, J. — I think you must deliver a statement of claim 
 
Eeports of Fracbice Cases. 117 
 
 before you can have discovery, except under special circumstances. 
 I can conceive that this might be used for very oppressive pur- 
 poses ; a writ might be served, and then an application of this 
 sort made in order to fish out a case. 
 Adjourned till after delivery of statement of claim. 
 
 No. CCLVI. 
 Loveix v. Holland. 
 Joinder of defendant — Judicature Act, 1875, Order XVI., rule 13. 
 This was an action for mesne profits against the defendant, who 
 had been tenant of the plaintiff's land during his incarceration 
 in an asylum. An action of ejectment had already been 
 successfully brought against the same defendant. The damages 
 were assessed by the plaintiff at the rent which the defendant had 
 been paying. The present application was on appeal from Master 
 Hodgson by the defendant, and was that Miss Lovell, the plaintiff's 
 sister, might be made a party to the action, and might be ordered 
 to deliver a statement of defence in the place of the present defen- 
 dant. The defendant's case was that he had paid rent to Miss 
 Lovell, and that she had applied the money so paid to the 
 expenses of the plaintiff's residence in the asylum. 
 
 Archibald, J. — The procedure of which the defendant wishes to 
 avail himself rather contemplates the case of a defendant who 
 is not liable, or who is to a great extent free from any default. 
 Here the defendant is a trespasser. Why should the plaintiff be 
 put to prove that any money was paid to Miss Lovell P If the 
 defendant was led to believe that Miss Lovell was the person to 
 whom the rent should be paid, and paid under a mistake of fact, 
 he has a simple remedy against her for money had and received. 
 
 Appeal dismissed with costs. 
 
 No. CCLVII. 
 Discovery — Judicature Act 1875, Order XXXI., rule 12. 
 On an application for discovery, it was objected that no statement 
 of claim had yet been delivered. It was stated that the indorse- 
 ment on the writ gave full particulars. 
 Adjourned till delivery of statement of claim. 
 
 No. COLVIH. 
 
 Signing judgment on specialty indorsed writ — Judicature Act 1875. 
 
 Order XIV., rule 1 ; Order III., rule 6. 
 A merely formal difference (such as the misplacing of a date) 
 between the indorsement on a writ and the form of indorsement 
 given under Order III., rule 6, will be no answer to an application 
 to sign judgment under Order XIV., rule 1. . 
 
 Per Archibald, J. (reversing the Master's decision). 
 
118 Reports of Practice Cases. 
 
 No. COLIX. 
 Discovery — Judicature Act 1875, Order XXXI., rule 12. 
 This was an action for negligence against a railway company, and 
 cross-summonses had been taken out for discovery. The de- 
 fendant's summons asked for discovery of the plaintiff's business 
 accounts for the past five years, and this was allowed. The 
 plaintiff's summons asked for discovery of reports of other acci- 
 dents at the same station, of documents showing number of 
 tickets issued at the station, and of documents relating to the 
 lighting of the station. 
 
 An order for discovery as to the two first items was refused, but 
 made as to $he last (insufficient lighting being alleged as one of 
 the causes of the accident.) 
 
 No. CCLX. 
 Discovery — Judicature Act 1875, Order XXXI., rule 12. 
 An application for discovery by a defendant, who had not yet 
 delivered his statement of defence, and who showed no special 
 ground for applying at this stage, was adjourned till after state- 
 ment of defence, Archibald, J., stating that that was the proper 
 time to apply, except under special circumstances, and that the 
 order would then be given as a matter of course, unless the plead- 
 ings showed the case to be one in which discovery could not be 
 wanted. 
 
 No. OCLXI. 
 
 Signing judgment for part of claim — Judicature Act 1875, Order 
 
 XIV., rule 4. 
 Upon an application to sign judgment under Order XIV., rule 4, 
 Master Dodgson had refused to order judgment to be signed for 
 any part of the claim, but had ordered 1001., which the defendant 
 practically admitted, to be paid into court. The plaintiff appealed 
 from this order. 
 
 Order that plaintiff be at liberty to sign judgment for 100J., 
 unless that sum be paid to him within a week. 
 
 No. CCLXIL 
 
 Kevebs v. Michell. 
 Stay of proceedings — Judicature Act 1873, s. 24, sub-sect. 5. 
 W. V. Rawlins, on behalf of the defendants, applied em parte for a 
 stay of proceedings in this action. — Unless we obtain this stay 
 execution will issue to-morrow. A Chancery action is pending, 
 brought by the defendant for an account. We are willing to 
 pay the amount of the judgment into court. 
 
 On payment into court of 504J., stay of proceedings for ten 
 
Reports of Practice Cases. 119 
 
 No. CCLXIII. 
 
 Hill v. Peesse. 
 County Court appeal — County Courts Act 1875, s. 6 — Judicature 
 
 Act 1873, s. 45. 
 An ex parte application was made in this case for an extension 
 of the time for appealing from the decision of the County Court 
 Judge in this case. 
 
 Archibald, J. — This is an appeal given hy statute, and there is, 
 therefore, a difficulty with regard to extending the time. But as 
 I have power to hear the appeal, I can treat this as a first hearing 
 of a motion for a rule nisi. 
 
 Further hearing of motion adjourned till the first sitting of the 
 Divisional Court of Appeal. 
 
 Tuesday, Jan. 25. 
 No. CCLXIV. 
 Phillips and another v. Baeeon and another. 
 Interrogatories — Judicature Act 1875, Order XXXI., rule 5. 
 In an action for refusal to accept goods sold, the goods in question 
 being patent button-fastening machines, seven interrogatories as 
 to the French law on the subject, delivered by the defendant to 
 the plaintiff, were struck out, Archibald, J., remarking that the 
 plaintiff could not be regarded as an expert in French law. Two 
 other interrogatories were also struck out, which went to prove 
 that the plaintiffs had themselves bought the goods delivered to 
 the defendants at a cheap price. 
 F. Knight, for the defendant. 
 Bighorn, for the plaintiff. 
 
 Wednesday, Jan. 26. 
 
 No. CCXLV. 
 
 Phillips v. Harris. 
 
 Signing judgment on specially indorsed writ — Judicature Act 1875, 
 
 Order XIV., rule 1. 
 This was an appeal from the District Registrar of Monmouth, 
 who had ordered judgment to be signed on a specially indorsed 
 writ, unless the amount of the claim was paid into court by the 
 defendant. The action was for £65 for the hire of a steam pump 
 and work in putting it up. 
 
 F. A. Knight, for the defendant. — The object of that rule was to 
 provide for cases where there was really no defence suggested. 
 We allege that the pump provided was insufficient for the pur- 
 pose for which it was expressly ordered. 
 
120 Reports of Practice Cases. 
 
 A. Charles, for the plaintiff. — The district registrar acted on the 
 affidavit of the plaintiff, and the plaintiff's bookkeeper, stating 
 that the defendant had called and admitted his claim. The work 
 the pump was hired for was done, and the pump then returned : 
 (W. N. p. 294, referred to.) 
 
 Archibald, J. — To a certain extent, on these applications, the 
 question of liability must be tried ; but how far one is to try it is 
 a nice question. The rule must not be rendered inoperative. 
 
 Appeal dismissed with costs. 
 
 No. CCLXVI. 
 
 Lord Hanmeb v. Flight. 
 
 Application to sign judgment — Judicature Act 1875, Order XIV., 
 
 rule 4. 
 
 This was an action for rent or for use and occupation in the alter- 
 native. Master Dodgson had refused to make any order. 
 
 C. Bowen, for the plaintiff. — The defendant does not deny that 
 he has been in possession from Sept. 1874, to the present time ; 
 we are, therefore, entitled to sign judgment for that amount. 
 
 Beasley, for the defendant. — The defendant is charged through- 
 out the statement of claim as assignee of the lease. His defence 
 is that he is not assignee of the lease. The assignee of the lessor 
 brings this action against the assignee of the lessee. We pay 
 £24 into court for the mesne profits. 
 
 Archibald, J. — The defence set up is no answer to an action 
 for use and occupation, which is admitted for part of the time 
 during which the plaintiff claims. 
 
 Order of Master amended by giving liberty to the plaintiff to 
 sign judgment for £157 10s., arrears of rent. 
 
 On the question of costs being raised, Archibald, J., following 
 the new practice as to costs in appeals, which Mr. Justice Quain 
 had held to apply to appeals from Masters to the Judge, gave the 
 costs of both applications to the plaintiff . 
 
 No. CCLXVII. 
 Fenwick v. Johnston. 
 
 Interrogatories — Judicature Actl876, Order XXXI., rule 1. 
 This was an action on a bill of exchange, and an application was 
 made to strike out interrogatories delivered by the plaintiff with 
 his statement of claim. Strong v. Tappim (No. CCXVL, ante, p. 99,) 
 was referred to. 
 
 Order to strike out interrogatories on the ground that they were 
 premature, the statement of defence not having been delivered. 
 
Reports of .Practice Cases. 121 
 
 No. CCLXVIII. 
 Bartlett v. Bochb. 
 
 Amendment of pleadings — Judicature Act 1875, Order XIX., rule 4. 
 
 This was an action for money had and received for the plaintiff's 
 use. Master Sir P. Pollock had ordered the plaintiff to amend his 
 statement of claim by Btating the circumstances under which the 
 defendant received the £95, and when, where, and under what cir- 
 cumstances the account was stated between them. This order was 
 now appealed against. 
 
 G. B. Allen, for the plaintiff, cited Order XIX., rule 4. 
 
 Beresford, for the defendant, cited forms in the Act for cases 
 that would formerly have come under a count for money had and 
 received. 
 
 The statement of claim was as follows : — 
 
 1. One Christopher John Mursell paid to the defendant for the 
 use of the plaintiff £95, and the defendant had and received the 
 said sum from the said C. J. Mursell for the use of the plaintiff. 
 
 2. The defendant with the consent of the plaintiff retained £5 
 as commission for his trouble, and paid to the" plaintiff' the sum of 
 £45, parcel of the said £95 so received by him as aforesaid, leaving 
 a balance of £45, which is wholly due and unpaid to the plaintiff. 
 
 The plaintiff claims £45 and interest thereon from, &c. 
 
 Archibald, J. — The only material facts in this case are that, the 
 defendant received, the money, and that he received it for the 
 plaintiff's use. Where the old forms will serve as models, they 
 are not necessarily abolished by the Judicature Acts. Where the 
 defendant has received a sum of money for the plaintiff, the state- 
 ment of that fact is all that can be required. The master's decision 
 will be reversed, and, following the new practice, the whole of the 
 costs will be the plaintiff's in any event. 
 
 Thursday, Jan. 27. 
 
 No. COLXIX. 
 
 Lake and another v. Poolet. 
 
 Inspection of documents — Judicature Act 1875, Order XXXI., 
 rule 14. 
 This was an action for breach of covenant in a lease. The de- 
 fendant had made an assignment of one undivided moiety of lease- 
 hold property, consisting of land, brewery, and fixtures. The 
 plaintiff now applied for an order for inspection of documents, 
 and the defendant objected that the documents related solely to 
 his own title. 
 
122 Reports of Practice Cases. 
 
 Archibald, J. — I should not make the order if it was a distinct 
 property ; but this is an undivided moiety, the interest in which 
 can only be realised by the usufruct of the whole property. This 
 is an extremely complicated case, and I shall make the order and 
 leave the defendant to appeal if so advised. 
 
 Order for inspection. 
 
 No. CCLXX. 
 Drake v. Whitelet. 
 Interrogatories. — Judicature Act 1875, Order XXXI., rule 1. 
 This was an action for damages for the unskilful management of 
 a horse and cart by defendant's servant. Interrogatories had been 
 delivered by the plaintiff with his statement of claim, and an 
 application was now made to strike them out. 
 
 Archibald, J. — -After the decision in Strong v. Tappin (No. 
 CCXVL, ante, p. 99,), these interrogatories should not [have 
 been delivered before the statement of defence, which may make 
 them all unnecessary. Under the old system the practice of 
 delivering useless interrogatories was very prevalent, but now it 
 seems worse than before. 
 Order to strike out the interrogatories. 
 
 No. CCLXXI. 
 Discovery. — Judicature Act 1875, Order XXXI., rule 12. 
 On an application being made for discovery, it appeared that the 
 statement of claim had not been delivered, and the application 
 was at once adjourned till after the delivery of a statement of 
 claim. 
 
 No. OOLXXII. 
 
 Colonial Assurance Corporation (Limited) v. Prosser. 
 
 Particulars of statement of defence. 
 
 This was an action for slander, in which Master Sir F. Pollock 
 
 had refused to make an order for particulars of the statement of 
 
 defence. 
 
 Tmdal Atkinson for the plaintiff. — The defendant denies that 
 he spoke or published the words we charge him with. He then 
 goes on to say that as agent of the Union Life Assurance Com- 
 pany he met with one David Lamb and others, and that all such 
 statements as were made in conversation between them were made 
 for the purpose of advising Lamb as to insurance. He then says 
 that the words that were used were true. We want particulars 
 of what passed at the conversation referred to. 
 
 Pritchard, for the defendant. 
 
 Archibald, J. — The defendant admits that he had a conversa- 
 tion with Lamb, but denies that he used the words the plain- 
 
Reports of Practice Cases. 123 
 
 tiffs allege as slanderous ; and he says further that whatever was 
 said about the plaintiffs was true. It is wholly immaterial what 
 those statements were. 
 
 Appeal dismissed with costs. 
 
 No. CCLXXin. 
 
 Cotching v. Hancock. 
 
 Interrogatories — Judicature Act 1875, Order XXXI., rule 1. 
 
 Interrogatories delivered by the plaintiff in this case with his 
 
 statement of claim, before statement of defence, were struck out. 
 
 Costs to be defendant's costs in the cause. 
 
 No. CCLXXTV". 
 
 Smith and others v. West. 
 
 Amendment of pleadings — Judicature Act 1875, Order. XXVIL, 
 
 rule 1. 
 This was an action on a guarantee, and an application was made 
 to strike out the statement of defence. One objection to the 
 statement of defence was that it stated that a condition precedent 
 to defendant's liability on the guarantee was that the plaintiff 
 should make an open and unsecured advance, and that he had not 
 given a credit within this undertaking, without stating whether 
 that undertaking was verbal or in writing, when made, or the 
 parties to it. It was suggested that this would have been a viola- 
 tion of the rule that forbids the pleading of evidence. 
 
 Archibald, J. — There are many cases in which facds and evi- 
 dence are so mixed up that they are almost undistinguishable. 
 
 Other alterations were agreed upon by counsel, and an order 
 was made for particulars of the above paragraph of the statement 
 of defence, and to amend as arranged by counsel. 
 
 Arbuthnot for the plaintiff. 
 
 Forbes for the defendant. 
 
 Friday, Jan. 28. 
 No. CCLXXV. 
 
 Menhinick and another v. Turner. 
 
 Amendment of pleadings — Judicature Act 1875, Order XXVIL, 
 
 rule 1. 
 This was an action on an agreement to pay 100Z. as premium on 
 obtaining a spirit licence. The alleged agreement was contained 
 in a lease for three years, dated May 1871. The defence set up was 
 that the lease was void, and that there was a second lease in sub- 
 stitution of it. The statement of claim set out the agreement relied 
 upon. The master had struck out the fourth paragraph of the 
 
124 Reports of Practice Cases. 
 
 statement of defence, and that decision was now appealed against. 
 The paragraph in question stated that the agreement of 1871 had 
 been mutually rescinded by varying its final term ; that it was void 
 as an agreement and as a lease; that a lease made in Sept. 1874 
 was a new, final, and conclusive contract ; that the lease of 1874 
 was not granted upon the terms of the agreement sued on, but at 
 a higher rent ; and that, therefore, if the defendant was not before 
 released from that agreement, he was released by that circum- 
 stance. 
 
 Bray for the plaintiff. 
 
 FoUrd for the defendant. 
 
 Archibald, J. — These are all points of law proper to be raised 
 by a demurrer ; they are not matters of fact. I think the master 
 is right. 
 
 Appeal dismissed with costs. 
 
 No. COLXXVI. 
 
 Discovery — Judicature Act 1875, Order XXXI., rule 12. 
 In an action for the detention of a deed, the defendant's applica- 
 tion for discovery was adjourned till after the delivery of the 
 statement of defence. 
 
 Saturday, Jan. 29. 
 
 No. CCLXXVEL 
 Transfer of cause — Judicature Actl87S, s. 36. 
 This was an ex parte application by the defendant to transfer to 
 the Chancery division an action by an auctioneer to recover money 
 which had been paid to him as deposit by an intending purchaser, 
 arid handed over to the defendant, for whom the auctioneer was 
 selling. The sale had not been completed through an alleged 
 defect in the title. The defendant alleged, as matter of counter 
 claim, that the plaintiff did not use due diligence in taking sufficient 
 deposit money; and he had commenced an action for specific 
 performance in the Chancery Division. It was stated that the 
 plaintiff did not object to the transfer. 
 
 Archibald, J. — The plaintiff does not sue for money had and 
 received, but for money lent ; from which I should have supposed 
 that he took a different view of the transaction. I do not see that 
 this claim is mixed up with the question of title. Looking at your 
 statement of defence, this claim appears to be perfectly distinct 
 from your claim for specific performance. That both parties con- 
 sent is not a sufficient reason for transferring a cause. 
 
 No order. 
 
Reports of Practice Cases. 125 
 
 No. OOLXXVIII. 
 
 Bartholomew v. Eawlings. 
 
 Joinder of defendant — Judicature Aat 1875, Order XXIL, rules 
 5, 6, 9. 
 
 This was an action brought to recover the balance of money due 
 on the sale of a public house. It was desired to set up a counter- 
 claim for the return of money paid as deposit on false representa- 
 tions alleged to have been made by Eawlings and one Smith ; and 
 for this purpose an application had been made to Master Bennett 
 to join Smith as a co-defendant to the counter-claim, which was 
 refused. That decision was now appealed against. 
 
 Gl/yn, for the defendant. — Our answer to this claim is that the 
 takings were warranted to be up to a certain amount, and that 
 they were not equal to that amount. Smith was the plaintiff's 
 broker and agent, «and we allege that he made false representa- 
 tions to us as $o the value of the business, which induced us to 
 make the deposit^2X*_Lrcfe^- 
 
 Beard, for the j iofondant /ffMrs. Bartholomew has made no false 
 representations ; why should she be prejudiced in her action by this 
 counter-claim ? Besides prejudicing her case, it will postpone the 
 action, and therefore keep her longer out of this money which she 
 alleges is owing to her. If Smith has made false representations, 
 an action for damages can be brought against him. 
 
 Archibald, J.— There is no doubt whatever that a defendant is 
 entitled to set up any counter-claim that is not so incongruous as 
 to he incapable of being conveniently tried with the original 
 claim. I think a claim for the return of deposit money on the 
 ground of fraud may be very conveniently tried in an action for 
 the balance of purchase-money on a sale, when the whole defence 
 to the action is on the ground of fraudulent representation by the 
 agent. I cannot say that these claims are of such an incongruous 
 kind as to be unfit to be tried together. I regret that there may 
 be some delay in the trial of the action, owing to the joinder of 
 Smith ; but that cannot be avoided. 
 
 Order to join Smith as a party to the counter-claim ; and costs 
 to be defendant's in any event. 
 
 No. CCLXXIX. 
 
 Interrogatories — Judicature Act, 1875, Order XXXL, rule 5. 
 In the same case, an application was made to strike out the follow- 
 ing interrogatory, delivered by the defendant to the plaintiff : — 
 What were the monthly receipts of the business which formed the 
 subject of the alleged agreement P 
 
 Interrogatory allowed ; costs to be defendant's in any event. 
 
126 Reports of Practice Cases. 
 
 No. COLXXX. 
 
 Armitage v. Fitzwilliam and others. 
 
 Judicature Act 1875, Order XXXI., rule 5 — Interrogatories. 
 
 This was an action of fraud against the directors of a company. 
 
 The defendants now applied to strike out interrogatories delivered 
 
 to them by the plaintiff. 
 
 J. Bdgby, for the plaintiff, took the objection that the applica- 
 tion was too late, as more than four days had elapsed since the in- 
 terrogatories were delivered. 
 
 B. E. Webster, for the defendant. — That is provided for by 
 Order LVIL, rule 6. These interrogatories were delivered with the 
 statement of claim, and are the statement put into the form of inter- 
 rogatories. 
 
 Archibald, J. — If "this application had been made before the 
 delivery of the statement of defence, these interrogatories would 
 have been struck out as premature. As it is, they are so framed 
 that it would be almostimpossible to answer them. "Why should 
 they not be put in such a form that the defendant can answer Tes 
 or No to them ? 
 
 Order for interrogatories to be reformed. Costs to be defendant's 
 in any event. 
 
 No. CCLXXXI. 
 
 Aderis v. Thrigley. 
 
 Amendment of pleadings — Judicature Act 1875, Order XXVTL, 
 
 rule 1. 
 This was an action for malicious prosecution. Master Hod on 
 had made an order striking out certain paragraphs from the state- 
 ment of claim, and that order was now appealed against. 
 
 Moulton, for the plaintiff. — The master thought that I had set 
 out evidence in my statement ; but I submit that I have only set 
 out the res gestae. I have stated what we say does not amount to 
 reasonable and probable cause, so that, if the defendant takes a 
 different view, he can demur. The master treated this as a ques- 
 tion of fact, whereas it is really a question of law. I submit that 
 I am entitled so to state my claim as to raise the question of law. 
 
 Bullen, for the defendant.— .This is an infringement of the rule 
 against pleading evidence. J do not for a moment admit that the 
 plaintiff is entitled to have the facts so stated as to try by de- 
 murrer, if in doing so he infringes the Act. 
 
 Archibald, J. — It would have been sufficient to have stated 
 simply that there was no reasonable and probable cause. What is 
 the use of stating such facts as that the plaintiff denied the charge 
 of stealing which the defendant made against him ? That is what 
 everyone does when charged with theft. I think the master has 
 reduced the statement within proper limits. 
 
 Appeal dismissed with costs. 
 
Reports of Practice Cases. 127 
 
 No. CCLXXXII. 
 
 Barker and another v. Wood. 
 
 Particulars of indorsement on writ. 
 This was an action for money lent. Particulars were applied for 
 by the defendant. No dates were indorsed upon the writ. Notice 
 that a statement of claim was required had been served upon the 
 plaintiff, and such statement was ready for delivery containing 
 all dates and particulars. Master Unthank had ordered particulars, 
 and plaintiff now appealed. 
 
 F. 0. Orump, for the plaintiff. — The defendant has required a 
 statement of claim, which is drawn, and gives full particulars. The 
 practice here has been not to allow particulars before claim. It 
 is putting us to the expense of another docament. 
 
 Archibaij), J. — I can see a great convenience in allowing par- 
 ticulars before the statement of claim, as the defendant may with- 
 draw, and costs may be saved. There is one view of the Act 
 which regards particulars as being now altogether abolished ; but 
 I think that the power to order them has not been abolished. 
 
 Appeal dismissed with costs. 
 
 Solicitor for plaintiff, Pedley. 
 
 Solicitors for defendant, Gregory and Go. 
 
 Monday, Jam. 31. 
 
 No. OCLSXXIII. 
 
 The Xxeneral Steam Navigation Company v. The London and 
 Edinburgh Shipping Company. 
 
 Transfer of action— Judicature Act 1875, Order LI., rule 1. 
 An application was made by the defendants to transfer this action 
 to the Admiralty Division. The action was one of negligence, and 
 arose out of a collision between the plaintiff's and the defendant's 
 vessels in the river Thames, the former being at anchor, and the 
 latter being steered by a pilot. 
 
 Archibau), J. — If this had been out in the high seas, and there 
 had been questions of seamanship* of complicity, there might 
 have been a case for transferring this action. But if I transfer 
 this I must transfer every case of collision. 
 
 No order. Costs to be plaintiff's in any event. 
 
 No. CCLXXXIV. 
 
 OompuUory references — Judicature Act 1873, sect. 57 — Common 
 
 Law Procedure Act 1854, sect. 3. 
 Sect. 57 of the Act of 1873 is now practically inoperative as 
 
128 Reports of Practice Cases. 
 
 regards compulsory references, no official referees having yet been 
 appointed, and special referees being only by agreement between 
 the parties ; but the compulsory reference under sect. 3 of the 
 Common Law Procedure Act 1854, is still in force, and therefore 
 matters of account may be referred without consent: Per 
 Archibald, J. 
 
 CCLXXXV. 
 
 The National Provincial Bank of England v. The Bradly 
 Bridge Charcoal, Iron, and Foundry Company. 
 
 Notice claiming indemnity from third party. — Judicature Act 1875, 
 
 Order XVI., rule 21. 
 This was an action on a bill of exchange by the holders against 
 the acceptors, and a notice had been served by the latter upon 
 Hewetson, the drawer of the bill, that they claimed from him 
 part indemnity. Hewetson had appeared pursuant to the notice, 
 and the defendants, now applied, under rule 21, of Order XVI., for, 
 directions as to future proceedings in the action. 
 
 Moulton, for the defendant. — The ground of our claim for in- 
 demnity against the drawer is the partial failure of the consi- 
 deration for the acceptance. If the drawer will pay to us the 
 amount of the failure of consideration 'about 951.), we will allow 
 judgment to be signed for the whole sum. 
 
 Warburton Pike, for Hewetson. — I deny the failure of considera- 
 tion. As that is now the only question in dispute, I propose that 
 I should be substituted for the present plaintiffs, and sue the 
 defendants on the bill. 
 
 Archibald, J. — The defendants are willing to pay the amount 
 of the bill to the plaintiffs, less the amount of the alleged failure 
 of consideration; Hewetson must pay the plaintiffs what will 
 make up the whole amount due on the bill, and then can continue 
 this action to recover the sum so paid. 
 
 Order, defendants undertaking to pay plaintiffs I. and 
 interest, and on payment of the further sum of 9581. interest and 
 costs by Hewetson to the plaintiffs, Hewetson to be substituted as 
 plaintiff in this action, and to be at liberty to proceed for I. 
 
 Tuesday, Feb. 1. 
 No. CCLXXXVI. 
 
 When equity and the common law conflict, equity to prevail — 
 
 Judicature Act 1873, s. 25, subs. 11. 
 On a sheriff's interpleader summons, the claimant producing a 
 bill of sale purporting to pass after-ac quired property, it was held 
 (following the decision of Lush, J. {ante, p. 19, No. XLY.) 
 
Reports of Practice Cases. 129 
 
 that the principle of the common law that such an 
 instrument was void, as a transfer of property acquired since 
 its execution, was now abrogated, and that the sheriff seized sub- 
 ject to the equities — 
 
 Archibald, J., observing that he need not express any opinion 
 as to whether such a state of the law tended to encourage fraud. 
 
 No. CCLXXXVH. 
 
 Sickles v. Norbis. 
 
 Application for an account to be taken — Judicature Act 1875, 
 Order XXXIII. 
 
 This was an action by General Sickles upon an alleged agreement 
 to pay him a marginal surplus upon a contract for the sale of 
 33,000 Remington rifles, entered into between Messrs. Norris and 
 Remington. 
 
 G. Bowen now applied, on behalf of the plaintiff, for an account 
 to be taken of the amount of such margin in the hands of Messrs. 
 Norris, and stated that they had admitted a moral, if not a legal, 
 obligation. 
 
 Some Payne, for the defendant, referred to the note to Order 20 
 of the Chancery Consolidated Orders in Morgan's, Equity Practice, 
 that order being substantially the same as Order XXXIII. of the 
 Judicature Act 1875, under which the present application was 
 made. 
 
 Archibald, J. — I do not think any legal claim has been ad- 
 mitted by the defendant. Does equity enforce a gift, unless 
 something has been done in pursuance of it P If the money had 
 been paid, the defendants would probably not be able to recover 
 it. I think before making this order, it is necessary that a prima 
 facie legal or equitable case should be made out by the plaintiff. 
 I will refer the summons to the court. 
 
 No. CCLXXXVm. 
 
 Signing judgment on specially indorsed writ — Judicature Act 1875, 
 Order XIV., rule 1. 
 
 This was an appeal from the district registrar of Swansea, who 
 had refused to set aside an order giving defendant leave to appear. 
 The action was on a bill of exchange, and the defendant had 
 obtained leave to appear under the Bills of Exchange Act. The 
 plaintiff's affidavit stated that the consideration for the bill was 
 the withdrawal of an execution against a third party. Defen- 
 dant's affidavit denied the consideration. 
 
 Butterworth for the plaintiff. 
 
 Anstie for the defendant. 
 
130 Reports of Practice Cases. 
 
 Abchibald, J. — I think there is too much .contradiction and 
 doubt about this matter to allow the plaintiff to sign judgment. 
 No order. Costs to be defendant's in any event. 
 
 No. CCLXXXIX. 
 
 Duucand. Veeekeb. 
 
 Amendment of statement of defence — Judicature Act 1875, Order 
 XXVIL, rule 1. 
 
 This was an action brought on a voluntary bond, and the def enoe 
 set up was one of fraud. Master Gordon had ordered paragraphs 
 3, 4, 5, 6, 7, 8, 10, and part of 12, to be struck out of the statement 
 of defence, and that order was now appealed against. 
 
 Solomon, for the defendant. — The facts are set out as they would 
 have been in an answer to a bill in Chancery. 
 
 Nasmyth for the plaintiff. 
 
 Archibald, J. — It would have been sufficient for the defendant 
 to have set out that there had been cohabitation- between the 
 parties, and the false representations which induced the defendant 
 to give the bond without goin g into all these details. This comes 
 within the words of Order XXVIL, rule 1, " any matter which 
 may be scandalous." Matter of this sort is not fit to appear on 
 the pleadings. 
 
 Order of master affirmed. Costs of this application to be plain- 
 tiff's costs in any event. 
 
 Wednesday, Feb. 2. 
 
 No. CCXC. 
 Hawley v. Beade. 
 Interrogatories — Judicature Act 1875, Order XXXI., rule 1. 
 This was an action on a bill of exchange, and the defendant had 
 obtained leave to appear. The defence set up was that the 
 plaintiff was suing for the benefit of the drawer as his nominee, 
 and that there had been a total failure of consideration. The de- 
 fendant now applied for leave to deliver interrogatories before his 
 statement of defence ; the interrogatories went to. prove the above 
 defence. The defendant desired to obtain the information at this 
 stage, as it would enable him to see whether the failure of con- 
 sideration would be a defence to this action. 
 
 Aechibald, J.— I think this is a case for allowing interrogatories 
 before the statement of defence. To do so may save expense. If 
 the plaintiff is a holder for value without notice no statement of 
 defence will be put in. 
 
Reports of Practice Cases. 131 
 
 Order that the defendant be at liberty to deliver the interroga- 
 tories, and to have further time to deliver his statement of defence 
 until the interrogatories are answered. 
 
 No. CCXCI. 
 
 Mercantile Mutual Insurance Company v. Shoesmith. 
 
 Discovery — Judicature Act 1875, Order XXXI., rule 12. 
 In this case an application was made for discovery by the defen- 
 dant. The statement of defence had not been delivered. 
 
 Archibald, J. — I think in all these cases parties may be put to 
 very great expense unnecessarily. The object I have in view is to 
 keep down the costs, which would become enormous now, if no 
 check was to be put upon these applications. When the statement 
 of defence is delivered, unless that shows that discovery cannot 
 possibly be wanted, it will be allowed as a matter of course. 
 
 Adjourned till after statement of defence. 
 
 No. CCXCII. • 
 
 Plum v. Normanton Iron and Steam Co. (Limited). 
 
 Discovery — Judicature Act 1875, Order XXXI., rule 12. 
 In this case, an application for discovery by the defendant before 
 delivery of the statement of defence, was adjourned, as above, 
 
 Archibald, J., stating that these unnecessary applications 
 would soon be dismissed with costs. 
 
 No. CCXCIII. 
 
 Buchanan v. Taylor. 
 
 Interrogatories — Judicature Act 1875, Order XXXI, rule 5. 
 This was an action for libel, and the plaintiff now applied to 
 strike out interrogatories that had been administered by the 
 defendant. The gist of the alleged libel was that the plaintiff 
 had written anonymous criticisms disparaging the works of other 
 writers of reputation, and praising his own writings. The defence 
 was Not Guilty and justification as fair literary criticism. 
 
 MacCtymont, for the plaintiff. — The defendant attempts to fill 
 up a general plea of justification by interrogatories. He cannot 
 do that. A plea of justification must state particulars of every act 
 of misconduct that the defendant has charged the plaintiff with : 
 (Oourley v. Plimsoll, L. Rep. 8 C. P. 560.) The defendant is the 
 proprietor of the periodical in which the libel appeared. 
 
 R. Williams, for the defendant. — The plaintiff wrote an article 
 called " The Fleshly School of Poetry," 'in which he severely criti- 
 cised the writings of Swinburne, Rosetti, Morris; and others, and 
 
 k 2 
 
132 Reports of Practice Cases. 
 
 spoke favourably of his own works, under the pseudonym of 
 " Thomas Maitland." He has written us a letter saying that it was 
 owing to a misadventure that the article was signed under the 
 name of " Maitland," During the controversy he wrote a letter 
 to the* Athenceum, in which' he admitted having written under 
 pseudonyms. 
 
 Archibald, J. — The defendant first says that the plaintiff pub- 
 lished certain articles, and then seeks to interrogate him as to 
 what articles he has written. That the plaintiff wrote under an 
 assumed name will not justify the defendant in charging him with 
 writing anything that he has not written. The defendant must 
 know that the plaintiff has written the articles upon which he seeks 
 to justify, and not have to interrogate him to discover it. That is 
 fishing for a defence. The defendant might ask, Did you not in 
 certain papers write such and such articles ? but not what articles 
 did you write ? Nor can the defendant ask under what circum- 
 stances the FleBhly School of Poetry was published with the 
 signature of Thomas Maitland, and as to what was the nature of 
 the misadventure mentioned in the plaintiff's letter, by which the 
 signature of T. Maitland came to be affixed to it. He is only 
 entitled to put particular circumstances to the plaintiff, and to aBk 
 him whether it was under those circumstances. 
 
 Order to strike out three of the interrogatories. 
 
 No. CCXCIV. 
 
 Grant and another v. The Banqtje Franco Egyptienne. 
 
 Stay of further proceedings — Judicature Act 1875, Order LVIII., 
 
 rule 16. 
 In this action a demurrer had been argued, and decided against 
 the defendants, and the plaintiffs were going on to try the issues 
 of fact and to tax the costs of the demurrer. 
 
 Foard, for the defendants, now applied for a stay of proceedings, 
 pending an appeal. — The demurrer raises the question whether 
 the defendant being a corporation, the Lord Mayor's Court has 
 jurisdiction. The plaintiffs have declared in prohibition. In 
 consequence of the question having been virtually decided 
 by your Lordship's court we were unable to argue it. The 
 effect of the judgment is that the attachment which the 
 defendants had obtained still exists, but that the writ of prohibi- 
 tion issues, which prevents their acting upon it. 258,000?. was in 
 the hands of Grant, and we took the usual proceedings in the 
 Mayor's Court, which operated as a distringas. We are informed 
 that Grant has since parted with this money. We submitted to a 
 judgment on the demurrer simply for the purpose of an appeal. 
 
 Anderson, for th« plaintiffs — We deny that Grant has parted 
 with this money. We have got judgment on demurrer, and under 
 
Reports of Practice Cases. 133 
 
 Order LVIII., rule 16, an appeal is no stay unless otherwise 
 ■ordered ; and they have not given us notice under rule 2. We 
 are entitled to have security for the costs of the prohibition up 
 to this time, which will amount to nearly £2000. 
 
 Archibald, J. — The rule formerly was that there could not be 
 more than one judgment in an action ; there could not be separate 
 judgments on issues of fact and issues of law. But under the 
 Judicature Act that, no doubt, is altered. It is not now, as it 
 was formerly, considered of great importance to have only one 
 taxation of costs. I shall make the order to stay till after the 
 judgment of the Court of Appeal; and you can apply to the 
 Court of Appeal if you have any ground for asking for security. 
 
 Order, all further proceedings therein to be stayed till after the 
 judgment in the Court of Appeal. Costs in the cause. 
 
 No. CCXCV. 
 
 WlLKS AND OTHERS V. PARKER. 
 
 Demurrer — Judicature Act 1875, Order XXVIIL, rule 2. 
 
 In this case the defendant had demurred to the plaintiff's statement 
 of claim, and Master Johnson had refused to strike out the demurrer 
 as frivolous. The plaintiff now appealed. The action was for 
 -breach of an agreement to pay deposit money. 
 
 Cooper, for the plaintiff. — The case of Pordage v. Cole (1 Wms. 
 Saund. 548) shows clearly that this demurrer is bad. Moreover, 
 under the Judicature Act, this may be treated as a claim for specific 
 performance. Or the money I ask for as due under the agreement 
 may stand as the amount of damages I claim for the breach. 
 
 Sail, for the defendant. — By the agreement, 2000Z., being part 
 of the purchase-money on the sale an estate, was to be paid by a 
 certain date, and the time of conveyance was fixed at a certain 
 date. The plaintiff is entitled to damages for the breach of the 
 agreement to pay the deposit money ; but the statement of claim 
 ^asks for the 200M. deposit. He could only claim that in an action 
 for specific performance. 
 
 Archibald, J. — The real point is, Is this money due to the 
 plaintiff as a debt ? If it is not, the demurrer is good ; it is cer- 
 tainly not frivolous. 
 
 Appeal dismissed with costs ; the plaintiff to have liberty to 
 amend the statement of claim. 
 
134 Reports of Practice Oases. 
 
 Thursday, Feb. 3. 
 
 No. CCXCVI. 
 
 Cadogan Advance Company (Limited) v. Shepherd. 
 
 Amendment of statement of defence. — Judicature Act 1875, Order 
 XXVIL, rule 1. 
 
 This was an action on a promissory note for 901., given in 1871, 
 and renewed from time to time. The third paragraph of the 
 defendant's statement of defence, claimed by way of counter-claim, 
 and set-off payment of 190Z. in respect of scrip held by defendant 
 in plaintiffs' company. The Master had refused to strike this 
 out on the ground that it was a good counter-claim ; and, if not 
 good, then matter for demurrer. The defendant was the principal 
 shareholder in the plaintiff company, which was now being wound- 
 up voluntarily. 
 
 Cooper Wyld, for the defendant. 
 
 Archibald, Z. — The holder of scrip may be entitled to shares, 
 but not to money. The defendant must set out enough to show 
 that he has a claim for money against the plaintiffs — shares are 
 not money. 
 
 Order paragraph 3 to be amended or excluded. Costs to 'be 
 costs in the cause. 
 
 JSTo. CCXCVIL 
 Dawes and another v. Thornton and others. 
 
 Notice to third party— Judicature Act 1875, Order XVI., rules 17, 
 
 18, 19. 
 This was an action by builders for work done under a contract to 
 build a church. The defendants now desired to sorve a third 
 party with notice that they claimed indemnity from him. The 
 nature of the claim for indemnity was that Mr. Barry, the 
 architect, had ordered costly extras, and had no authority to order 
 them, and must, therefore, indemnify the defendants. It was 
 stated that the question would be whether these extras were a 
 reasonable outcome of the contract. 
 
 Order made for leave to serve notice on 0. Barry. 
 
Reports of Practice Cases. 135 
 
 No. CCXCVIII. 
 Padwick v. Scott. 
 
 Transfer of actisn — Judicature Act 1873, s. 24, sub-s. 2, s. 34. 
 
 This was an application to transfer an action on a deed to the 
 Chancery division of the Court. The defence was that the deed 
 was in equity void, and should be set aside on the ground of undue 
 influence. 
 
 Ghitty, for the plaintiff, referred to Judicature Act 1873, s. 24, 
 sub-s. 2. 
 
 G. Shaw, for the defendant, referred to s. 34 of the Act of 
 1873. 
 
 Archibald, J. — This case is assigned to the Chancery division, 
 as it relates to the rectification, setting aside, or cancellation of a 
 deed. 
 
 Order to transfer to Chancery division (V.C. Hall). 
 
 Friday, Feb. 4. 
 No. CCXCIX. 
 
 WOOLSTON AND ANOTHER V. BaTNES. 
 
 Signing judgment on specially indorsed writ — Judicatwe Act 1875, 
 
 Order XW., rule 1. 
 This was an action for money paid at the request of the defendant, 
 for differences on the Stock Exchange. Master Hodgson had. re- 
 fused to make an order to sign judgment, on the ground that there 
 was an arrangement to carry over the account between the 
 parties. 
 
 The plaintiffs relied on an admission of the defendant's that the 
 money was due. 
 
 Archibald, J. — How can the agreement between the parties to 
 carry over the account be an answer to this action ? It is a mere 
 matter of arrangement, a promise to postpone, for which the de- 
 fendant cannot suggest any consideration. 
 
 Order to sign judgment. 
 
 Decision of Master reversed. 
 
136 Reports of Practice Cases. 
 
 Saturday, Feb. 5. 
 
 (Before Denman, J.) 
 
 No. CCO. 
 
 Lane v. Eve and another. 
 
 Swearing the jury for judgment on default of plaintiff. — Judicature 
 Act 1875, Order XXXVL, rules 19, 20, 22. 
 
 This action had been tried before Pollock, B., and on its being 
 called on the plaintiff was absent, and the defendant appeared. 
 The jury was sworn, and a verdict taken for the defendant, the 
 Judge certifying for a special jury. Subsequently the plaintiff 
 applied to set aside the judgment, which was done on the terms 
 that the plaintiff should pay the costs of the day, all costs thrown 
 away, and the costs of the application to tax. The question now 
 arose on appeal from the taxing master, whether the sum of 
 121. 12s. should be allowed the defendant as costs of the special 
 jury. 
 
 Clay, for the plaintiff. — It was unnecessary to Swear the jury. 
 Under Order XXXVI., rule 19, it is not intended that a verdict 
 should be taken. 
 
 Immley Smith, for the defendant, referred to the words in 
 rule 22 of the same Order, " direct that judgment be entered for 
 any or either party, as he is by law entitled to upon the findings," 
 and doubted whether " judgment dismissing the action " would 
 be a final and conclusive judgment, so as to prevent the plaintiff 
 bringing another action. 
 
 Denman, J. — I agree that the practice of not swearing the jury 
 is right, but as it was done under a mistake, I think the fair 
 course would be for each party to pay half the costs. 
 
 Order by consent for each party to pay 6Z. 6s., costs in the 
 cause. 
 
 No. COOL 
 
 Bekridge v. Eoberis. 
 
 Signing judgment on specially indorsed writ — Judicature Act 1875, 
 
 Order XIV., rule 1. 
 This was an application for leave to sign judgment under the 
 above rule on appeal from the master. The action was to recover 
 5000 J. and interest, on a joint and several covenant. The defen- 
 dant set up a deed of release ; the answer to that being that the 
 release was an escrow. 
 
Reports of Practice Cases. 137 
 
 Howell, for the plaintiff, asked that if judgment was not allowed 
 to be signed, at all events the defendant might be ordered to pay 
 the money into court. 
 
 A. B. Harrison, for the defendant. 
 
 Dbnman, J. — This is a question for a jury to try. The plaintiff 
 brings simply an affidavit, stating that the money is due ; and the 
 defendant replies by alleging a deed of release. The plaintiff has 
 to resort to the -difficult affirmative proof that the deed of release 
 was only delivered as an escrow. I shall not order the money to 
 be paid into court. 
 
 No. COOII. 
 Transfer of pending business — Counter claim in County Court — 
 Judicature Act 1873, sect. 22 ; Judicature Act 1875, Order 
 XIX., rule 3. 
 
 This was an ex parte application for leave to proceed under the 
 Judicature Acts in order to file a counter claim. The action was 
 commenced under the old system, and the declaration was for 
 goods bargained and sold, the plea being never indebted. The 
 action was remitted from the Superior to the County Court on 
 Nov. 26. Ah application was subsequently made to the County 
 Court Judge for leave to file a counter-claim, and he adjourned 
 the action for two months to enable the defendant to apply to, a 
 Judge of the Superior Court for leave to proceed under the 
 Judicature Acts. It was stated that the application was made 
 ex parte by consent. 
 
 Denman, J. — There is no proof that the other side consent 
 before me ; and the cause has now gone on too long under the old 
 system to transfer it to the new. 
 
 No order. 
 
 Monday, Feb. 7. 
 
 No. CCCIII. 
 
 Fowler v. Lee. 
 
 Signing judgment on specially indorsed writ — Judicature Act 1875, 
 
 Order XIV., rule 1. 
 
 This was an appeal Jfrom the district registrar of Liverpool, who 
 hadjjrefused the plaintiff's application to sign judgment. The 
 action was brought under the old procedure, and the writ specially 
 indorsed in the same manner as it would now be under 
 Order III., rule 6. The special indorsement on the writ 
 was as follows :—" April 1875. To amount of account ren- 
 
138 Reports of Practice Cases. 
 
 dered for work done by the plaintiff for the defendant 
 at his request in and about the keeping and training of 
 a horse of the defendant, £51 5s." Conflicting decisions as to 
 whether judgment could be signed under Order XIV., rule 1, 
 under any circumstances when the writ had been indorsed before 
 the Judicature Acts came into operation were referred to. It was 
 stated that the district registrar had said that any rate he would 
 not make the order after issue joined. 
 
 Okarmell, for the plaintiff. — The general order of Mr. Justice 
 LuBh that where no declaration has been delivered before the 1st 
 Nov. the proceedings Bhould be continued under the old system 
 was expressly stated to be subject to special orders. If there 
 is no defence to this action, why should it go to trial? The 
 plaintiff's claim to a set-off is in reality only ground for an action 
 of trover. 
 
 W. G. Oully, for the defendant. — My claim to a set-off is in 
 respect of certain harness, &c:, left by the defendant with the 
 plaintiff. That might be for goods sold ; leaving goods in the 
 possession of another is, under certain circumstances, evidence of 
 a sale. We paid £25 on this claim, and this proceeding was not 
 taken by the plaintiff till after issue joined. Supposing the set- 
 off not to be good, if the plaintiff can avail himself of the new 
 procedure the defendant can also, and my defence is good as 
 a counter-claim. If this action goes on we shall apply to bring 
 it under the Judicature Acts in order to file our counter- 
 claim. 
 
 Denman, J. — I shall affirm the registrar's decision, and, if both 
 parties consent, I Will give the defendant leave now to file his 
 counter-claim. 
 
 No order ; costs to be defendant's in any event. Defendant to 
 be at liberty to proceed by way of counter-claim. 
 
 Paddison, Son, Tetley, solicitors for the defendant. 
 
 Owles and Co., for the plaintiff. 
 
 No. CCCIV. 
 
 Mebcantile Eiveb, Plate v. Isaac. 
 
 Substituting a plaintiff— Judicature Act 1875, Order XVI., 
 rule 2. 
 
 This was an action for the balance due on a promissory note 
 brought under the Bills of Exchange Aot. The present applica- 
 tion, on appeal from Master Manley Smith, was to substitute one 
 Hart as the plaintiff in the action. It appeared that the promis- 
 sory note had been drawn in favour of Hart, who was a banker ; 
 
Reports of Practice Cases. 139 
 
 that Hart, on leaving England, had put the note into the hands of 
 the Mercantile River Plate Bank, but without indorsing it ; and 
 that on its falling due, Hart, having been informed that he had 
 omitted to indorse it, forwarded to the River Plate Bank an 
 indorsed copy of the note. It was in consequence of this infor- 
 mality in the note sued upon that it was desired to substitute 
 Hart as plaintiff in the place of the Mercantile Biver Plate Bank. 
 An objection taken that this action being under the Bills of 
 Exchange Act the new procedure could not be taken advantage of, 
 having been overruled, 
 
 Denman, J. made the order asked for, reversing the decision of 
 the Master, the substituted plaintiff to pay the costs of both appli- 
 cations. 
 
 E. Jones for the substituted plaintiff. 
 
 T. Hastings for the defendant. 
 
 Solicitors for Hart, Mackerell and Co. 
 
 Solicitors for the defendant, Austin and Go. 
 
 Tuesday, Feb. 8. 
 
 No. OCCV. 
 
 Substituted service — Judicature Act 1875, Order IX., rule 2. 
 
 On an application for an order for substituted service of a 
 notice of application for an attachment, an affidavit having been 
 read, 
 
 Dbnman, J., said that supposing it to be taken to be proved that 
 the defendant was wilfully evading service, he knew of no power 
 of ordering substituted service except in the case of a writ of 
 summons in an action. 
 
 No. CCOVI. 
 
 Appearance— Judicature Act 1875, Order XII., rule 4. 
 This was an application to set aside an order of Master Unthank 
 giving the defendants time, on the ground that the application 
 should have been made to the District Registrar of Manchester. 
 The action was brought against the North-Western Railway Com- 
 pany to recover damages for personal injuries. The defendants 
 had appeared in the district registry o£ Manchester, where the 
 writ was issued; the statement of claim had been filed and 
 delivered there on the 18th Jan., and a summons for time had 
 then been taken out by the defendants in the district registry, on 
 
140 Reports of Practice Cases. 
 
 which they obtained an order. While that order was running, a 
 summons was taken out in London by the defendants for seven 
 days further time to plead, on which the order of Master Unthank 
 was made, which it was now sought to set aside. The explanation 
 on the part of the defendants was, that there had been a mistake 
 on the part of their agents in Manchester, and that they had no 
 authority to appear there. After some discussion as to whether 
 the defendants carried on business in Manchester within the mean- 
 ing of Order HI, rule 3, 
 
 Desman, J. — The defendants cannot disavow the act of their 
 agent in Manchester. If they wished the proceedings to be 
 carried on in London, the notice under Order XXXY., rules 11, 12, 
 should have been given to the plaintiff. I will let the master's 
 order stand, but making the defendants pay all the costs. 
 
 No order ; cause to be removed to London, costs of all pro- 
 ceedings in the District Eegistry after writ, and of this applica- 
 tion and that before the master, to be plaintiff's in any event. 
 
 No. CCCVH. 
 Plum v. Nobmamton Iron, &c. Company. 
 
 Venue— Judicature Act 1875, Order XXXVI., rule 1. 
 
 A PLADfUF? has now an absolute right of fixing the place of trial, 
 subject to the defendant's showing such a preponderance of 
 convenience in trying elsewhere as to [oust that right. — Per 
 Dknmax, J. 
 
 No. CCCYHI. 
 Marts v. Barrow. 
 
 Injunction — Judicature Act 1873, «. 25, sub-sect. 8. 
 
 Iif this case, Forbes applied for an interlocutory injunction to 
 restrain the defendant from committing certain trespasses. The 
 application had been originally made ex parte to Lindley, J., who 
 refused to make an order ; and the plaintiff now proceeded upon 
 summons. The plaintiff's affidavit stated that the defendant had 
 erected buildings on his own land, and in order to support such 
 buildings had subsequently erected five buttresses, which en- 
 croached upon the land of the plaintiff,; that since the issuing of 
 the writ in this action (14th Jan. 1876) the defendant's carts, con- 
 taining heavy weights, had passed and repassed over the plain- 
 tiff's land, thereby cutting up the said land and covering it with 
 ashes and other refuse. 
 
 Denmas, J. — As to the buttresses there can, of course, be no 
 interlocutory injunction. As to the other alleged trespasses, a 
 
Reports of Practice Cases. 141 
 
 doubt whether a sufficient case of continuing injury is shown for 
 me to grant an injunction. The affidavit seems to me to disclose 
 nothing but what may be compensated by damages. 
 
 Forbes. — The plaintiff cannot get damages for any injury since 
 the writ. 
 
 On behalf of the defendant it was then stated that he would 
 consent to damages being assessed up to the date of trial. 
 
 No order, the defendant consenting that the jury at the trial, if 
 a verdict should be found for the plaintiff, shall assess damages for 
 all injury done to the plaintiff's land up to the date of trial. Costs 
 in the cause. 
 
 No. CCCIX 
 
 Osur v. Bkadbt. 
 
 Procedure wider Bills of Exchange Act — District Registry — Judica- 
 ture Act 1875 — Order II., rule 6 ; Order V., rules 1 and 2, Order 
 XII., rule 3, Order XXXV, rule 4. 
 
 This was an action under the Bills of Exchange Act brought in 
 the district registry of Manchester ; and the important question 
 was now raised, having been referred by the district registrar ijO 
 the judge, as to whether an action under the Bills of Exchange Act 
 could be carried on in a district registry. The question is depen- 
 dent on the construction to be put upon the words of rule 6, 
 Order H. 
 
 Bruce for the defendant. — The only provisions for the issue of 
 writs out of a district registry are for the issue of writs in the 
 ordinary form. It was never intended that a defendant should 
 be compelled to appear in a district registry if residing elsewhere. 
 But under the Bills of Exchange Act the whole procedure would 
 have to be altered if the defendant is to have the option of not 
 appearing in the place where the writ is issued. If this action 
 can be brought in a district registry I must go before the district 
 registrar in order to obtain leave to appear. Law Times Judges' 
 Chambers Reports, No. CXLII. (ante, p. 63) was referred to. 
 
 Arthur Wilson for the plaintiff. — I think the apparent difficulty 
 here is overcome if the exact words of rule 6, Order II. are looked 
 to. The question is, what meaning is to be. attached to the words 
 " The procedure under the Bills of Exchange Act ? " It is con- 
 ceivable that that might be read as meaning that the whole pro- 
 cedure in the action was to be the same as it would have been 
 if the Judicature Acts had not been passed, but that interpretation 
 would be extremely inconvenient, and would further be incom- 
 patible with a decision of Mr 4 Justice Lindley, reported in W. N. 
 of Jan. 22, p. 23, allowing a party in an action under the Bills of 
 Exchange Act to take advantage of the provisions of the Judica- 
 
142 Reports of Practice Cases. 
 
 ture Act, for the purpose of joining another defendant. The in- 
 terpretation that I would suggest was intended to be put on the 
 above words is "the procedure so far as it is governed by the 
 Bills of Exchange Act." This construction of the words would 
 not be at variance with the decision in the case cited by my friend, 
 which has been affirmed by the court. That decision went on the 
 ground that there was an express provision in the Bills of 
 Exchange Act for personal service of thewrit. This Act . deals 
 also with the form of the writ, and with the obtaining leave to 
 appear, and it is to those provisions that the rule in 
 question applies. As regards matters of procedure not dealt 
 with by the Bills of Exchange Act, an action commenced 
 under that Act should now be carried on under the 
 Judicature Acts, and not under the old practice. The Act in 
 question has been expressly extended to all the County Courts in 
 England. By Order V., rule 1, the plaintiff in any action other 
 than a probate action, may issue a writ out of the district registry. 
 Although this rule makes an express exception it does not in any 
 way except an action under the Bills of Exchange Act. The argu- 
 ment applies with especial force to the district registry of 
 Lancaster. The powers of prothonotaries are kept alive by the 
 Judicature Acts, and they had the power of issuing writs under 
 the Bills of Exchange Act. 
 
 . Dbnman, J. — If this action can be commenced in a district 
 registry no doubt the defendant will be at 'liberty to apply to 
 remove the action to London from the district registry under rule 
 13 of Order XXXV. My own impression is that Mr. Wilson's 
 interpretation of the rule is the correct one ; but I shall refer the 
 question to the court. 
 
 All proceedings stayed. Costs in the cause. 
 
 Solicitor for the plaintiff, Goldrmg. 
 
 Solicitors for the defendant, Pattison, Wigg, and Go. 
 
 No. CCOX. 
 Interrogatories— Judicature Act 1875, Order XXXT, rule 5. 
 
 This was an action on a policy of insurance, the defence being a 
 general denial and an allegation of unseaworthiness. The defend- 
 ant was an underwriter who had accepted an assignment of the 
 policy. The present application was to strike out interrogatories 
 delivered by the plaintiff to the defendant. In support of the 
 application it was argued that the interrogatories were simply the 
 whole statement of claim put into interrogative form; that, as the 
 defendant was only assignee of the policy, he could only say in 
 answer that he knew nothing of the matters interrogated upon ; 
 and that he had denied the allegations in the statement of claim 
 only with the ob-'ect of putting the plaintiff to strict proof of them. 
 
Reports of Practice Cases. 143 
 
 _ Denman, J. — If the defendant denies the facts which the plain- 
 tiff alleges, the plaintiff has a right to interrogate him as to them. 
 If the defendant is able to swear truly that he knows nothing about 
 the matters in question, that would be clearly a sufficient answer. 
 No order., 
 
 No. COCXI. 
 
 Signing judgment on writ specialty indorsed — Judicature Act 1875, 
 Order XIV., rule 1. 
 
 This was an application to sign final judgment in an action on a 
 guarantee on appeal from Master Pollock. 
 
 The defendant's affidavit stated that the guarantee was given 
 in respect of an undelivered bill of costs ; that it was given under 
 protest, and obtained by undue pressure ; and that the promise 
 was gratuitous. 
 
 Denman, J. — That the defendant should not have given this 
 guarantee is no defence to the action. Consideration appears on 
 the face of the guarantee, that consideration being the giving up 
 of a lease. It would be cruelty to the defendant to allow this 
 action to go on. 
 
 Order. 
 
 No. cccxn. 
 
 Wednesday, Feb. 9. 
 
 SOHOMBEEG V. ZOBBELLI. 
 
 Particulars of claim — Judicature Act 1875, Order XXL, rule 4. 
 
 This was an application for further and better particulars of claim 
 in an action where the writ was specially indorsed, and the plaintiff 
 had delivered a notice that his claim was as on writ instead of a 
 statement. 
 
 In support of the application it was stated that the plain- 
 tiff made a large claim for interest at 12 percent.; that, as re- 
 garded the interest, the defendant disputed the claim. The defen- 
 dant also desired to set up a claim for damages in respect of caps 
 sent to the plaintiff, a merchant at Singapore, to be sold for the 
 defendant, which caps had been transmitted by the plaintiff with- 
 out any authority to Hong Kong, where, having been spoilt on 
 the voyage, they were sold at a loss. 
 
 Denman, J. — The form of the summons should not have been 
 for particulars, but for further statement of claim. What the 
 defendant really wants is not particulars of the pleadings, but that 
 it should appear on the pleadings what is his case and what is 
 the plaintiff's. I think this is a case where it Will be better to 
 have a statement of claim. 
 
 Order for further statement of claim. 
 
144 Reports of Practice Cases. 
 
 No. CCOXIII. 
 
 WlNGAItD V. COX. 
 
 Particulars of statement of claim. 
 
 This was an action for slander, and the defendant now applied for 
 an account of the names and addresses of divers persons men- 
 tioned in the statement of claim, and in what respects the plain- 
 tiff's business was falling off. 
 
 DEMtuf, J. — The defendant is asking the plaintiff for the names 
 of persons who were passing in the street at the time of the 
 alleged slander being uttered ; that can certainly not be allowed. 
 To ask for particulars of damages in an action for slander is a very 
 novel application; and to ask for the particulars of damages 
 occasioned by the business falling off is only another way of 
 asking what business the plaintiff did before the slander. It is 
 very doubtful whether the plaintiff would be allbwed at the trial 
 to give particular evidence of damages occasioned by the falling 
 off of his business, 
 
 Dismissed with costs. 
 
 Solicitor for the plaintiff, Cooke. 
 
 Solicitor for the defendant, Froggart. 
 
 No. COOXIV. 
 
 Transfer of action — Amendment of claim — Judicature Act 1873, s. 
 34 ; Judicature Act 1875, Order XXVII., rule 1. 
 
 This was" an action brought under the following circumstances : 
 The plaintiff had been, in the year 1849, seduced by the defendant, 
 and by him had become the mother of six illegitimate children. 
 In consideration of the plaintiff's taking charge of the children, 
 the defendant promised to pay her 4500Z. on the sale of an estate 
 belonging to him, or 300Z. a year by quarterly payments. An 
 action had been brought and judgment recovered by the plaintiff 
 for quarterly payments then in arrear. Subsequent payments 
 not having been paid on their falling due, the present action was 
 commenced, but the defendant having now sold his estate, and a 
 Chancery suit in respect of the sale having terminated, the 
 plaintiff now claimed, in the alternative, either to recover the 
 payments in arrear or to be paid the sum of 4500!., or the invest- 
 ment of such sum in the name of trustees for her benefit. 
 
 A. Charles for the defendant now applied for an order that the 
 claim should be amended, or that the action should be transferred 
 to the Chancery division. This claim is embarrassing, as I can- 
 
Reports of Practice Cases. 145 
 
 not tell whether the plaintiff requires the investment of a lump 
 sum in the name of trustees, or payment of the arrears of the 
 annuity. The plaintiff claims execution of a trust, and that ia 
 peremptorily assigned to the Chancery division. 
 
 J. C. Mathew for the plaintiff. 
 
 Denmah, J. — The plaintiff does not pray for the execution but 
 for the creation of a trust ; what she asks for is often done by a jury. 
 
 No order. 
 
INDEX. 
 
 ACCOUNT : NttMBEBS. 
 
 order for 87, 287 
 
 partnership 158 
 
 compulsory reference in matters of 284 
 
 ADDRESS : 
 
 defendant's 149 
 
 of persons interested 157 
 
 ADMINISTRATION SUIT : 
 
 stay of action pending an 86, 87, 118, 127 
 
 procedure in, imitated 157 
 
 ADMISSIONS : 
 
 pleading 121, 128 
 
 AFFIDAVIT : 
 
 injunction granted without 22 
 
 for order for service out of the jurisdiction 37 
 
 printing „ 54 
 
 for order for substituted service 64 
 
 insufficient, for injunction 113 
 
 of documents , 136, 210, 235, 246 
 
 as to one document formerly necessary for discovery 141 
 
 of good defence, not conclusive 148 
 
 of substituted service 155 
 
 fresh, used on appeal 150 
 
 for garnishee order 180 
 
 AMENDMENT : 
 
 of indorsement on writ 2,183, 211 
 
 of pleadings ... 107, 111, 121, 128, 147, 154, 167, 178, 188, 201, 228, 
 230, 236, 250, 268, 274, 275, 284, 289, 295, 296, 314 
 
 ANSWER TO INTERROGATORIES : 
 
 insufficient ; 88, 245 
 
 ANTE-NUPTIAL SETTLEMENT 45 
 
 APPEAL: 
 
 enlarging time for 21, 47, 82, 97, 182, 239, 263 
 
 as to costs .' 32, 60, 205, 300 
 
 from County Court 47, 82, 97, 117, 168, 172, 176, 182, 239,"263 
 
 a re-hearing _ 68, 150 
 
 no stay 103, 119 
 
 from District Registrar :...106, 137, 191, 192, 193, 195, 231 
 
 where jurisdiction only by consent 137 
 
 costs of 266, 268 
 
 APPEARANCE 306 
 
 default of 20, 74, 115, 140, 146, 191, 192, 193, 300 
 
 attachment 180, 305 
 
 inspection before 74 
 
 particulars before 124, 130 
 
 extending time for 123 
 
148 Index. 
 
 ASSESSMENT OP DAMAGES: Numbers. 
 postponed till liability ascertained 12, 42 
 
 ASSIGNMENT : 
 
 effect of notice of 9 
 
 ATTACHMENT 112, 180, 305 
 
 BANKRUPT PLAINTIFF SUING FOE TEUSTEE 33 
 
 BILL OF SALE OF AFTER-ACQUIRED PEOPEETY 286 
 
 BILLS OF EXCHANGE ACT : 
 
 procedure under 5, 140, 142, 193, 223, 304, 309 
 
 CHANCEEY PEACTICE : 
 
 followed'. 22, 41, 45, 61, 64, 85, 86, 87, 108, 112, 226, 286 
 
 varied by Judicature Acts 75 
 
 referred to 79, 96, 118, 157, 161, 171, 172, 240, 287 
 
 CLAIM : 
 
 to indemnity by defendant...43, 48, 131, 139, 165, 221, 242, 285, 297 
 statement of, amended... 107, 121, 128, 154, 167, 178, 188, 201, 228, 
 
 236, 268, 281, 295, 314 
 particulars of 34, 105, HI, 124, 188, 214, 282, 312, 313 
 
 COMMON LAW AND EQUITY : 
 
 conflict between 45, 286 
 
 COMMON LAW PROCEDURE ACT, 1854, s. 3 131, 132, 185, 284 
 
 s. 11 29 
 
 „ „ s. 50 79 
 
 COMPANY : 
 
 interrogating a 62 
 
 discovery by a 79 
 
 stay of action pending winding-up of 127, 135, 181 
 
 COMPULSORY REFERENCE 284 
 
 CONSOLIDATION OF ACTIONS 100 
 
 CONTRIBUTION : 
 
 from co-defendant, claim for 163 
 
 COSTS .:. 32, 33, 59, 60, 81, 91, 95, 96, 102, 114, 135, 151, 172, 181, 205, 209, 
 
 232, 234, 244, 266, 268, 294, 300, 306 
 
 COUNTER CLAIM ... 4, 11, 19, 55, 59, 65, 66, 67, 68, 69, 70, 72, 77, 81, 89, 
 91, 98, 102, 113, 134, 151, 158, 166, 170, 175, 187, 194, 
 222, 224,.234, 248, 278, 296, 302, 303 
 
 form of heading of 113 
 
 particulars of 70 
 
 COUNTY COURT: 
 
 appeals from 47, 82, 97, 117, 168, 172, 176, 182, 239, 263 
 
 CROSS EXAMINATION BEFORE TRIAL 249 
 
 DATE OF SUBSTITUTED SERVICE 155 
 
Index. 149 
 
 DAMAGES, ASSESSMENT OF : Numbbbs. 
 
 postponed till liability ascertained 12, 42 
 
 DEBT: 
 
 equitable : 112, 180 
 
 DECREE : 
 
 order for aoeount equivalent to 87 
 
 DEFAULT : 
 
 judgment by 20, 74, 115, 140, 146, 195, 253, 300 
 
 DEFENCE : 
 
 striking' out on failure to give discovery 25, 50, 90 
 
 affidavit of good, not conclusive 148 
 
 right to redeem, good ■ 161 
 
 title of 72 
 
 inconsistent allegations in statement of Ill, 230 
 
 striking out paragraphs from statement of.. .111, 147, 230, 250, 274, 
 
 275,289,296 
 particulars of 272 
 
 DEFENDANT : 
 
 delay on the part of 25, 50, 90 
 
 names of 156 
 
 joinder of ...5, 18, 46, 116, 165, 223, 242, 256, 278 
 
 claim to indemnity by 43, 48, 131, 139, 165, 221, 242, 285, 297 
 
 trustee under bankruptcy substituted as 95 
 
 cross examination of, before trial 249 
 
 DELAY : 
 
 on the part of defendant 25, 50, 90 
 
 on the part of plaintiff 32, 58 
 
 DEMURRER 231, 275, 295 
 
 DIRECTION : 
 
 how to proceed, when third party appears to notice 165, 285 
 
 DISCONTINUANCE 247 
 
 DISCOVERT...3, 17, 27, 31, 32, 53, 57, 58, 75, 79, 114, 120, 136, 141, 143, 159, 
 177, 184, 198, 209, 218, 227, 235, 246, 255, 257, 259, 260, 271, 
 276, 291, 292 
 action for 171 
 
 DISMISSING ACTION : 
 
 for want of prosecution 32, 58, 232 
 
 DISTRICT REGISTRAR : 
 
 appeals from 106, 137, 191, 192, 193, 195, 231 
 
 jurisdiction of 137, 138, 156, 306, 309 
 
 power of, to refer to Judge 149 
 
 DIVISIONAL COURT 47, 82, 97, 239, 263 
 
 DIVISION : 
 
 transfer from one, to another ... 6, 38>, 96, 135. 158, 187, 196, 203, 
 
 206, 211, 277, 283, 298 
 DOCUMENTS : 
 
 prolonged examination of 
 
 insufficient affidavit of 136, 235, 246 
 
 interrogatory as to 141, 188 
 
150 Index. 
 
 EJECTMENT : Hvdees. 
 
 default of appearance in action of 20 
 
 injunction in action of 41 
 
 discovery in action of 184, 198, 210, 222, 241 
 
 EMBARRASSING PLEADING ' Ill, 128, 194, 236 
 
 ENLARGING TIME FOE APPEAL 21, 47, 82, 97, 182, 239, 263 
 
 to plead 306 
 
 EQUITABLE : 
 
 replication 52, 96 
 
 arrangement enforced '. •. 85- 
 
 defence 161 
 
 de*bt .....112, 180 
 
 set-off 144 
 
 EQUITY AND COMMON LAW : 
 
 conflict between 45, 286 
 
 EVIDENCE : 
 
 not to be pleaded 107, 154, 274 
 
 action to obtain 171 
 
 printing 217 
 
 EX PARTE APPLICATION : 
 
 for payment into Court 24 
 
 for an injunction 41, 92, 93, 94, 113, 125, 152, 202, 206, 233, 236 
 
 for enlargement of time to appeal 47,97, 263 
 
 for direction as to title of defence 72 
 
 for order for substituted service 64, 123, 206 
 
 for inspection of goods 94 
 
 for appointment of a receiver 108 
 
 for leave to sign judgment 20, 115 
 
 for stay of proceedings 118, 203, 262 
 
 on appeal from County Court for rule nisi 168 
 
 for transfer of action 277 
 
 "■ to join a defendant 223 
 
 for leave to serve out of the jurisdiction 229 
 
 as to pending business 302 
 
 EXECUTION : 
 
 stay of 85, 103, 119 
 
 EXECUTORS : 
 
 account, order for 87 
 
 joinder of, as defendants 116 
 
 action of trover against 118 
 
 FOREIGN CORPORATION : 
 
 counter-claim against 69 
 
 FORM : 
 
 of special indorsement on writ 80, 101, 106, 110, 258, 303 
 
 of heading of counter claim 113 
 
 of statement of claim 121, 154 
 
 of affidavit of documents 136, 246 
 
 NISHEE ORDER 112, 180 
 
Index. 151 
 
 ILLUSORY ADDRESS : Numbers. 
 given by defendant 149 
 
 INCONSISTENT ALLEGATIONS : 
 
 in defence Ill, 230 
 
 INDEMNITY : 
 
 olaim for 43, 48, 131, 139, 165, 221, 242, 285, 297 
 
 INDORSEMENT ON WEIT... 2, 80, 101, 106, 110, 119, 155, 160, 164, 179, 
 
 183, 200, 211, 214, 228, 258, 303 
 
 INJUNCTION ...22, 24, 41, 92, 93, 94, 113, 125, 152, 169, 174, 202, 206 233, 
 
 INSPECTION 269 
 
 before appearance 74 
 
 of goods 94 
 
 in ejectment 222 
 
 of property 226, 254 
 
 in trespass 251 
 
 INSUFFICIENT : 
 
 answer to interrogatories 88, 245 
 
 affidavit for injunction 113 
 
 affidavit of documents 136, 235, 246 
 
 INTERPLEADER 45, 48, 49, 286 
 
 before action 130, 225 
 
 INTERROGATORIES...16, 25, 61, 62, 71, 76, 88, 129, 128, 133, 141, 171, 173, 
 188, 197, 199, 204, 207, 212, 213, 216, 241, 243, 245, 
 264, 267, 270, 273, 279, 280, 290, 293, 310 
 
 JOINDER OF PARTIES 43,48, 131, 139, 285 
 
 as defendants 5, 18, 46, 116, 95, 165, 171, 223, 242, 256, 278 
 
 as plaintiffs 153,248, 304 
 
 JUDGMENT : 
 
 by default 20, 74, 115, 140, 146, 191, 192, 193, 195, 253, 300 
 
 summons 138 
 
 if entered in London, subsequent applications to be mads there 156 
 debt 225 
 
 JURISDICTION : 
 
 of District Registrar 137, 138, 156, 306, 309 
 
 to stay action 10 
 
 service out of the 8, 37, 69, 219, 229 
 
 by consent „ 137 
 
 "JUST AND CONVENIENT" 108 
 
 JUSTIFICATION : 
 
 and Not Guilty pleaded together Ill 
 
 form of plea of .« 147 
 
 LIABILITY: 
 
 trial of apart from damages 12, 42 
 
 LD3EL: 
 
 interrogatories in action of 129,199, 293 
 
152 Index. 
 
 LIQUIDATION, VOLUNTARY : Numbekb. 
 power to stay in 135 
 
 "LOCAL INVESTIGATION" 51, 109 
 
 MAEBIED WOMAN'S SEPARATE ESTATE : 
 
 action against 96, 179, 211 
 
 MORTGAGOR'S RIGHT TO REDEEM, PLEADABLE 161, 222 
 
 "MOTION IN A SUMMARY WAY" 41 
 
 NAMES OF CO-PAETNEES : 
 
 application for 156 
 
 NOT GUILTY : 
 
 and Justification in action of slander Ill 
 
 NOTICE : 
 
 of trial 35,78 
 
 of claim of indemnity 43, 48, 131, 139, 165, 221, 285, 297 
 
 of conflicting claims 130, 225 
 
 in lieu of statement 195, 214, 312 
 
 dispensing with statement of claim 191, 253 
 
 of appearance 192 
 
 of application for an attachment 305 
 
 of removal of proceedings from district registry 306 
 
 OBJECTION TO INTEEEOGATOEY : 
 
 mode of taking 88, 204 
 
 ORDEE : 
 
 to tax 10, 244 
 
 necessary to sign judgment by default in ejectment 20 
 
 unnecessary to sign judgment by default for return of specific 
 
 goods 146 
 
 for sale of goods 83, 118 
 
 for executor's account... 87 
 
 for an account to be taken . 87, 287 
 
 for administration 187 
 
 for cross-examination of witness before trial 249 
 
 "OWING AND ACCEUING" 112, 180 
 
 PARTICULARS : 
 
 of claim 34, 105, 111, 12^, 188, 214, 282, 312, 313 
 
 of counter-claim 70 
 
 of defence 272 
 
 PARTIES : 
 
 joinder of ... 5, 18, 43, 46, 48, 95, 116, 131, 139, 153, 165, 171, 223, 
 
 242, 248, 256, 278, 285, 304 
 
 PARTNEES : 
 
 service of writ upon...... 142 
 
 application for names of 156 
 
 PAETNEESHIP ACCOUNT 158 
 
Index. 153 
 
 Ntjmbees. 
 PAYMENT INTO COURT ... 24, 186, 193, 205, 219, 225, 238, 262, 265, 301 
 PENALTIES : 
 
 discovery in action for 61, 159 
 
 PENDING BUSINESS...1, 4, 7, 11, 12, 17, 18, 19, 23, 25, 33, 39, 48, 55, 56, 59, 
 60, 65, 66, 67, 68, 69, 71, 73, 77, 81, 89, 91, 95, 96, 99, 
 101, 102, 106, 110, 114, 115, 134, 136, 151, 158, 163, 
 177, 252, 302, 303 
 
 " PERSONAL SERVICE" ■- 
 
 of writ 142, 155 
 
 PETITION OF RIGHT 59 
 
 PLAINTIFF : 
 
 substituted 33, 285, 304 
 
 joinder of 153, 248 
 
 suing on behalf of all interested 157, 240 
 
 name and address of 157 
 
 default of 300 
 
 PLEADING ... 107, 111, 121, 128, 147, 154, 161, 167, 178, 188, 191, 201, 228, 
 230, 231, 236, 250, 268, 274, 275, 281, 289, 295, 296, 314 
 
 POSTPONEMENT OF TRIAL 35 
 
 PRINCIPAL : 
 
 action against, by surety 131 
 
 PRINTING AFFIDAVIT 54 
 
 evidence 217 
 
 PROCEDURE UNDER BILLS OF EXCHANGE ACT... 5, 140, 142, 193, 
 
 223, 304, 309 
 PROHIBITION, WRIT OF : 
 
 may be stayed by Judge in Chambers 30 
 
 PROLIX PLEADING 167, 201 
 
 PROTECTION OF PROPERTY 108 
 
 RECEIVER, APPOINTMENT OF 93, 108 
 
 RECORD : 
 
 withdrawal and re-entry of 14 
 
 EEDEEM : 
 
 right to, a good defence 161, 222 
 
 RE-ENTRY OF RECORD 14 
 
 REF ERJvES : , 
 
 special 15, 84, 89, 132, 284 
 
 REFERENCE 15, 29, 40, 44, 51, 84, 89, 98, 109, 131, 132, 158, 185, 284 
 
 RENEWAL OF WRIT 7 
 
 REPLICATION, EQUITABLE 52, 96 
 
 EIGHT TO REDEEM : 
 
 claim of, a good defence 161, 222 
 
154 Index. 
 
 RULE 112, ffil. Term, 1853 28 
 
 SALE OF GOODS : 
 
 order for „ 83, 118 
 
 specific performance of contract of 172 
 
 SCANDALOUS MATTER NOT TO BE PLEADED 289 
 
 SEPARATE : 
 
 trial of separate questions in action 12, 42 
 
 estate, action against married woman's ....96, 179, 211 
 
 SERVICE OP WRIT : 
 
 substituted 36, 64,123, 140; 155, 305 
 
 out of the jurisdiction 8, 37, 69, 219, 229 
 
 in ejectment 20 
 
 upon partners 142 
 
 SET-OPP 99,144, 145, 303 
 
 SETTLEMENT OF AFTER-ACQUIRED PROPERTY : 45 
 
 SIGNING JUDGMENT : 
 
 in ejectment 20 
 
 on specially indorsed writ, 80, 98, 101, 106, 110, 119, 126, 148, 160, 
 164, 170, 179, 183, 186, 189, 190, 195, 
 200, 219, 220, 258, 261, 265, 266, 288, 
 299, 301, 303, 311 
 
 in default of appearance 115 
 
 for recovery of specific goods 146 
 
 on defendant's giving an illusory address 149 
 
 in default of defence 195, 253 
 
 for part of claim , 261 
 
 SPECIAL CASE 13, 112 
 
 SPECIALLY INDORSED WRIT : 
 
 signing judgment on...80, 98, 101, 106, 110, 119, 126, 148, 160, 164, 170, 
 179, 183, 186, 189, 190, 195, 200, 219, 220, 
 258, 261, 265, 266, 288, 299, 301, 303, 311 
 
 SPECIAL REFEREES 15, 84, 89, 132, 284 
 
 SPECIFIC : 
 
 goods, signing judgment by default for return of 146 
 
 performance 172, 174, 277, 295 
 
 STATEMENT : 
 
 of claim, amended... 107, 121, 128, 154, 167, 178, 188, 201, 228, 236, 
 
 268, 281, 295, 314 
 
 of defence, amended Ill, 147, 230, 250, 274, 275, 289, 296 
 
 notice in lieu of 195 
 
 of defence cannot be required where there is no statement of 
 
 claim 191 
 
 of defenoe, particulars of 272 
 
Index- 155 
 
 STAT: Nothbers. 
 
 of action 10, 86, 87, 118, 127, 135, 181, 225, 238, 244, 247, 294 
 
 of writ of prohibition ,. 30 
 
 of execution 85, 103, 119, 193, 262 
 
 STRIKING OUT : 
 
 interrogatories...l6, 61, 76, 88, 129, 133, 141, 173, 188, 204; 207,212, 
 213, 216, 241, 264, 267, 270, 273, 279, 280, 293, 310 
 
 defence on failure \o give discovery 25, 50, 90 
 
 party to action 46 
 
 paragraphs from statement of claim 107, 121, 128, 154, 236 
 
 defence Ill, 147, 230, 250, 275 
 
 counter-claim 166. 194, 224, 234, 296 
 
 SUBSTITUTED : 
 
 plaintiff 33, 285 
 
 service 36, 64, 123, 140, 206, 305 
 
 defendant 95, 221, 256 
 
 SUMMARY MOTION 41 
 
 SUMMONS : 
 
 necessary before Registrar can refer to Judge 149 
 
 SURETY: 
 
 action against 131 
 
 TAXATION OF COSTS 60, 114, 244, 294, 300 
 
 TAXING-MASTER'S PERCENTAGE ON COSTS 114 
 
 THIRD PARTY 72 
 
 notice claiming indemnity from...43, 48, 131, 139, 221, 242, 285, 297 
 counter-claim against 224 
 
 TIME: 
 
 for appeal, enlarging 21, 47, 82, 97, 182, 239, 263 
 
 for appearance, enlarging 123 
 
 to plead, enlarging 306 
 
 TITLE OF DEFENCE J 72 
 
 TITLE DEEDS, DISCOVERY OF 184, 251, 269 
 
 TRANSFER OF ACTIONS ... 6, 38, 96, 135, 158, 187, 196, 203, 208, 211, 
 
 277, 283, 298, 314 
 TRUSTEE UNDER BANKRUPTCY : 
 
 substituted as plaintiff 33 
 
 defendant 95 
 
 TRUSTEE RELIEF ACT 13o 
 
 UNDERWRITERS : 
 
 action by one, on behalf of all 157 
 
 VENUE 122,307 
 
 VOLUNTARY LIQUIDATION : 
 
 power to stay in 135 
 
156 Index 
 
 WINDING-UP OF COMPANY : Numbers. 
 
 stay of action pending 127, 135, 181 
 
 WITHDRAWAL OF RECORD 14 
 
 WRIT: 
 
 renewal of 7, 183 
 
 service of, out of the jurisdiction 8, 37, 69, 219, 229 
 
 ,, in ejectment 20 
 
 substituted 36, 64, 123, 140, 155 
 
 „ personal 142 
 
 of prohibition, stay of 30 
 
 indorsement on ... 2, 80, 101, 106, 110, 119, 155, 160, 164, 179, 183, 
 
 200, 211, 214, 228, 258, 303 
 
I 
 
 ; f