Analytical Digest of Cases.-Superior Courts: Lord Chancellor.

RIOR COURTS.

33

first instance is entitled to costs in cases where RECENT DECISIONS IN THE SUPE a rule nisi would, if granted, have operated to his prejudice. Rennie v, Beresford, 3 D. & L. 464; Higgins v. Ede, 3 D. & L. 470.

SOLICITOR AND CLIENT.

See Evidence; Legatee.

SUIT FOR COSTS.

Where the demand of the plaintiff is submitted to, and the only question between the parties is the costs of the suit, the cause ought not to be proceeded in, but an application ought to be made to the court to prevent the expense of further proceeding. Sivell v. Abraham, 8 Beav. 598.

TAXATION OF COSTS.

See Notice of Taxation.

TENDER.

Where, after writ issued, the defendant applies to a judge to stay proceedings on payment of a certain sum and costs, and the plaintiff refuses to accept the sum offered, alleging that more is due, but at the trial recovers no more, he is entitled to full costs, unless the amount offered has been paid into court. Clark v. Dann, 3 D. & L. 513.

VENDOR AND PURCHASER.

A defence to a bill for the specific performance of a contract for the sale of a leasehold estate, (upon an allegation that the vendor had employed puffers at the sale,) having failed, and a reference being made to the Master to inquire as to the title, the defendant (the purchaser) objected to the title upon the ground that fulfilment of a covenant to insure had not been proved, nor any waiver shown, supposing a breach had been committed. A waiver being produced, and the Master having reported in favour of the title shown in February, 1846, the cause having been heard in November, 1845, Held, that all costs subsequent to the decree for reference ought to be paid by the defendant. Woodward v. Miller, 33 L. O. 452.

REPORTED BY BARRISTERS OF THE SEVERAL
COURTS.

Lord Chancellor.

Landor v. Parr. March 26th, 1847. REMOVAL OF NEXT FRIEND.-SECURITY FOR

COSTS.

In a suit in which one of the plaintiffs, all of whom were out of the jurisdiction, appeared by her next friend, an order to substitute a new next friend for the then existing one, alleged to be a person of insufficient substance, and a menial servant of the solicitor who conducted the suit, and was also a defendant, or to give security for costs, was varied by allowing such next friend to continue security for costs being given by con

sent.

Quære, whether a defendant can demand security for costs in a case where all the plaintiff's are beyond the jurisdiction of the court, but one of whom, not being an infant, appears by a next friend within the jurisdiction.

Mr. Stuart and Mr. Welford stated, that in this suit the bill had been filed by a married woman by her next friend on behalf of herself and her children against the trustees of her marriage settlement, and the bill alleged certain breaches of trust. The plaintiff had been in reduced circumstances, and her next friend was a cook in the service of Mr. Gedye, the solicitor for the plaintiff, and also a defendant in the cause.

Mr. Gedye's interest in the suit arose from his having advanced a sum of money on the reversionary interest of the plaintiff and her children in the fund in question. All the plaintiffs were out of the jurisdiction, and the Master of the Rolls, on the motion of one of the defendants, had ordered all proceedings to be stayed until a new next friend should be apThe pointed, or security given for the costs. learned counsel urged, that such removal would be tantamount to putting an end to the suit; that the next friend was a person of some means, being in the receipt of wages and possessing money in the savings' bank; that the bill had been filed bona fide; and that nothing could be alleged against the conduct of Mr. Gedye. They cited Anon. 1 Ves. jun., 409; Ogilvie v. Hearne, 11 Ves. 598; Dowden v. Hook, 8 Beav. 399, and the cases there referred to.

Mr. Freeling said, that the order of the Master of the Rolls had been made upon the ground that the solicitor had caused a bill to be filed for his own benefit, and submitted, that under the circumstances, his lordship's order ought to be sustained.

The Lord Chancellor, having remarked that the defendants were protected by the court in requiring security for costs to be given whilst the plaintiffs were out of its jurisdiction, and that, of course, it could not intend such security

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Superior Courts: Rolls.-Vice Chancellor.

to be merely nominal, asked if there was any case which decided that the necessity of giving security for costs by plaintiffs abroad was obviated by the fact that one of them appeared by a next friend: it being stated at the bar that no such authority occurred to the counsel, his lordship observed, that he could see nothing against the present next friend, who seemed to have been actuated by real friendship; nor could he see anything against the conduct of the solicitor, whose interest in the result arose from his interest in the cause, and who might notwithstanding be well disposed to do justice to his clients; but his lordship thought the best course would be to discharge so much of the order appealed against as directed the substitution of a new next friend, and that security for costs should be given by consent.

As the order of the Master of the Rolls was varied, Mr. Freeling's application for costs was not granted.

Rolls Court.

Pattison v. Hawksworth.

LEGACY.-PRESUMPTION OF SATISFACTION.

After the lapse of several years without claim or payment on account, the court will presume a legacy to be satisfied, although the benefit of the Statute of Limitations may not have been taken by the answer. THE testator, Martin Hawksworth, by his will, dated in January, 1815, gave to his wife, Grace Hawksworth, for her life, an annuity of 251., and also 70l. to be paid within one month after his decease. He also gave to his daughters, the plaintiff, and Ellen Pattison, legacies of 1,550l. each.

The testator died in May, 1815, and his will was proved in June, 1815, shortly after which the defendant, as his executor, realized his assets, and, as was alleged by the answer, paid legacies and debts (including the two legacies of 1,5501.) to the amount of 3,8217., although the testator's personal estate produced only

3,3421.

The testator's widow died on the 18th of June, 1843, having by her will appointed the plaintiff her sole executrix and residuary legatee, who instituted this suit to recover the legacy and arrears of the annuity bequeathed to her mother by the testator's will, which she alleged had never been paid.

Mr. Barrett for the plaintiff.

Mr. Kindersley and Mr. Acworth, for the defendant, urged, that although the benefit of the Statute of Limitations was not claimed, the court would allow the objection, and that was an answer to the plaintiff's claim, independently of which the court would not take notice of so stale a demand.

Mr. Barrett, in reply, said, that in Harrison v. Bowell, 10 Sim. 382, the Vice-Chancellor of England held, that a defendant cannot take advantage of the Statute of Limitations without claiming the benefit of it by his answer. He also referred to Barnard v. Pumfrett, 5 Myl. &

Cr. 63, to show that the admission of assets to one legatee by an executor was an admission to all.

The Master of the Rolls said, it was clear that no claim was made until many years after the death of the testator. His lordship then referred to the dates of the testator's death and of the proof of his will, and added, that after so great a lapse of time the legacy and annuity must be presumed to be satisfied; that alone was sufficient ground for dismissing the bill. Bill dismissed with costs.

Vice-Chancellor of England.

DEMURRER.

Gatland v. Tanner.

--

CONSTRUCTION OF 38TH ORDER OF AUGUST, 1841.

Where a bill is generally demurrable, a defendant may, under the 38th Order of August, 1841, decline to answer any parts of the bill that he may not choose to answer, although he may have answered several other parts.

THE suit in this case was instituted to recover possession of an estate which was claimed by the plaintiff as the right heir of the testator named in the pleadings, who had created an estate tail in the estate, with an ultimate limitation in favour of his right heirs. The defendant answered a considerable portion of the bill, and then stated that the plaintiff's claim was barred by a recovery suffered by the tenant in tail through whom he, the defendant, claimed, but declined stating the particulars of the recovery, or giving any further answer, and claimed the benefit of the 38th Order. To this answer the plaintiff filed exceptions, all of which, after considerable discussion, were allowed by the Master, and the matter was now argued upon exceptions to his report.

Mr. Bethell and Mr. Lewin, for the defendant, urged, that inasmuch as the bill was generally demurrable, the defendant was not bound to answer any part of it, and cited Tipping v. Clarke, 2 Hare, 392; Mason v. Wakeman, 10 Jur. 628.

Mr. Cooper and Mr. Miller, contrà, urged,1st, that the bill was not demurrable, and that even if it were, the 38th Order of August 1841, did not admit of the construction sought to be put upon it by the defendant. The ViceChancellor Bruce and nearly all the Masters were opposed to such a construction.

The Vice-Chancellor said, that he had consulted both Vice-Chancellor Bruce and ViceChancellor Wigram, before giving his judgment in Mason v. Wakeman, and although the opinions of those learned judges differed, he considered that as Vice-Chancellor Wigram was more cognizant of the intention of those who framed the orders, his opinion upon a question of construction, his Honour thought, should be preferred. He should therefore allow the exceptions to the report.

Superior Courts: Vice-Chancellor Wigram.—Queen's Bench.

Vice-Chancellor Wigram.

Hughes v. Williams. Feb. 24th, 1847. MASTER'S ORDER.-IRREGULARITY. COSTS.-116TH ORDER OF MAY, 1845.

35

liable to pay the costs. Carr v. Appleyard, 2 Myl. & Cr. 476;a Brydges v. Branfill, 9 Sim. 643; Chuck v. Cremer, 2 Phillips, 113.b

Mr. Chandless, for the defendant Lawrence, asked for his costs.

The Master clearly had no jurisdiction; and the Mr. Freeling, on behalf of the De Wintons. defendants, the De Wintons, were entitled to treat his order as a nullity. It was true, that, on the 18th of January, the De Wintons had been informed by letter of the order in question, but they had not been served with it, and they of it. The cause had been set down only as could not be deemed to have legal knowledge between the plaintiff and the defendants, the De Wintons, but not as to the defendant, Lawrence, as to whom, as he had been brought before the court unnecessarily, upon this mo tion, the plaintiff must pay his costs.

Queen's Bench.
(Before the Four Judges.)

The court refused to strike out a cause from the registrar's book, on the ground that it had been improperly set down before publication, inasmuch as an order of the Master which was irregular and had been treated as a nullity, ought not to have been so treated so long as it remained undischarged. The defendant who had obtained the irregular order was allowed his costs, having been improperly made a party to the motion. Mr. Wood, (with whom was Mr. Shapter,) moved that this cause, which had been set down at the instance of one of the defendants (De Winton) might be ordered to be struck out of Sir James Wigram, V. C. I cannot enter the registrar's book, having been improperly into the question, whether the irregularity of set down before publication had passed; that the Master's Order of the 11th of January was the subpoena to hear judgment issued in the more or less obvious. The regularity or irregucause and bearing date the 9th day of February larity of the order is immaterial. Here is the instant, together with the service thereof re-order, of which, on the 18th of January, the despectively, might be set aside; and that either fendants, the De Wintons, had notice, and the defendants at whose instance the cause until the order was set aside, they were bound had been set down, or the defendant Lawrence, to respect it. Lawrence must be paid his costs might pay the costs of this application, and all of this motion. It is true he obtained the costs, consequent thereupon. The facts ap-order, but that order is good until set aside, peared to be these:-On the 7th of January and the plaintiff is proceeding upon it as a valid last, publication in the cause had passed. On order. As he is unnecessarily brought before the same day, one of the defendants (Lawrence) the court, the plaintiff must pay him his costs. obtained a warrant, returnable on the 11th, to attend application to enlarge. This warrant was served upon the plaintiff, but was not served upon the other defendants. On the 11th the Master enlarged publication until the 20th of February; the plaintiff and Lawrence attended the Master on this occasion, but not the PLEADING.-SEPARATE COUNTS UNDER NEW defendant De Winton, who threatened to dismiss for want of prosecution. The plaintiff wrote, on the 18th of January, informing the defendants of the order of the 11th, enlarging publication. Notwithstanding this notice, the defendants, the De Wintons, (pursuant to the 116th of the General Orders of May, 1845,) set down the cause for hearing on the 9th of February, and issued subpoena to hear judgment. In support of the motion, it was admitted that it might be urged that the Master had no jurisdiction to give leave to examine witnesses after publication had passed, and that even supposing the Master had jurisdiction, one defendant could not regularly obtain the order without THIS was an action of assumpsit by a railnotice to his co-defendants, by service of the way surveyor. The declaration consisted of warrants upon them. But, it was submitted two counts, one upon a special contract, and that the plaintiff was not blameable, it being the other for work and labour, and materials his duty to treat the Master's order as regular provided. The plaintiff was employed to suruntil it was set aside, and that all the defend-vey a district preparatory to an application to ants were also bound to do so. As to the costs parliament, and an agreement was entered into of the motion, it was not material whether they that the plaintiff was to be paid by instalments, were paid by the defendants, the De Wintons, the two first at certain periods specified in the who had disregarded the Master's order, or the defendant, Lawrence, who had erroneously * 14 L. (. 354. b 33 L. O. 112. obtained it. The motion was in the alternative, On the 26th of March, 1847, the De but, it was submitted that the De Wintons, Wintons appealed from so much of the order (by whose conduct, in particular, the motion as related to them. The Lord Chancellor dishad been rendered necessary,) were primarily missed the motion with costs.

Bulmer v. Bousfield.

Hilary Term, 1847.

RULES.

A surveyor contracts for the performance of certain surveys for a railway, payment to be made by instalments, the two first at certain fixed periods, the third when the plans and sections are deposited, and the last when it is certified that the standing orders of the House of Commons have been complied with. In an action on the contract by the surveyor, a count on the special contract, and the common count for work and labour, are allowable under the Reg. Gen. H. T. 4 W. 4, rule 5.

Ex relatione.

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Superior Courts: Queen's Bench.-Common Pleas.

agreement, the third when the plans and sections were deposited, and the last when it was certified that the standing orders of the House of Commons had been complied with. On this state of fact, on application to Mr. Justice Erle at chambers, he made an order that one of the counts in this declaration should be struck out as being in apparent violation of the new rules of pleading, one of which being, that several counts shall not be allowed, unless a distinct subject-matter of complaint is intended to be established in respect of each. A rule nisi was obtained to set aside the judge's order.

Mr. Brown showed cause, and contended, that all the instalments mentioned in the declaration might be recovered under the count for work and labour, or on the quantum meruit, if the work had been performed. This case is similar in principle to the one mentioned in the new rules, that counts upon a demise and for use and occupation of the same land for the same time are not to be allowed.

Mr. Peacock contrà. The nature of the plaintiff's claim requires that both these counts should be retained. If the plaintiff relies on the special count alone, he is liable to be defeated altogether if he fails to prove the contract as alleged. On the other hand, the common count alone is insufficient, because the two first instalments are payable at certain fixed periods which may happen before any of the work is commenced, therefore the implied assumpsit would only apply to the two last instalments. There is no implied contract to pay the two first instalments. He cited Cahoon v. Burford, and Gilbert v. Hales.b

Lord Denman, C. J. I think the plaintiff is entitled to retain both these counts in the declaration.

Mr. Justice Patteson. I am of the same opinion. This case appears to me most like the instance given in the new rules, that a count for freight upon a charter party, and for freight pro rata itineris upon a contract implied by law, may be allowed.

Mr. Justice Coleridge. I think there might be some difficulty in recovering the two first instalments under the last count, unless all the work was completed.

Mr. Justice Wightman concurred.
Rule absolute.

Common Pleas.

The de

it, the court entertained an application for a new trial on the ground of misdirection, after the lapse of several terms. TRESPASS for false imprisonment. fendants pleaded first, not guilty, and secondly, a justification under a ca. sa.; and at the trial before Tindal, C. J., at the London sittings after Hilary Term, 1845, a verdict was found, under his lordship's direction, for all the defendants upon the second plea, and against them, with the exception of one, on the first plea. A bill of exceptions was tendered on behalf of the plaintiff, and was sent to the Chief Justice to be signed, but in consequence of the note of the exceptions taken at the trial by the Chief Justice having been mislaid, which his lordship desired to see, the bill remained in his possession unsigned at the time of his death, in July, 1846. In the following November the defendants signed judgment, to set aside which on the ground of irregularity, and for a new trial on the ground of misdirection, a rule nisi had been obtained during last term.

Talfourd, Sergeant, (Channell, Sergeant, and Cowling with him,) now showed cause. It is said that a term's notice ought to have been given before the signing of judgment by the defendants. But it is submitted that the rule requiring such notice relates only to proceedings before verdict; 2 Tidd's Pr. 903. As to the bill of exceptions, the proper course was to have argued all the facts before a judge at chambers on summons, but that course was not taken, and judgment therefore was signed. Hinton v. Acraman, 16 Law J., N. S., C. P. 3; May v. Wooding, 3 M. & S. 500; Lord v. Wardle, 15 Law J., N. S., C. P., 259. were stopped by the court on the point of misdirection.

They

Newton in person contrà. The delay in the bill of exceptions was merely such, and not a refusal. Cottam v. Partridge, 3 Scott, N. S. 174. There has been no proceeding here for a year, and therefore a term's notice was clearly necessary. The mere leaving the bill of exceptions with the Chief Justice could not be considered any proceeding in the cause in the proper sense of a proceeding.

Wilde, C.J. The parties who tendered the bill of exceptions should have used more diligence in prosecuting it. It was tendered in 1845, and the Chief Justice was living in 1846.

Newton and wife v. Boodle and others. Hilary The court is unable to reinstate the parties in

Term, 1847.

the same position as if the bill of exceptions had been duly sealed, and in order to remedy as far as possible the inconvenient consequences of the want of the bill of exceptions, the court has treated the motion as one for a new trial.

On, however, examining carefully the learned Chief Justice's notes of the evidence, we think his direction to the jury was right, and therefore that there is no ground for a new trial. The other point seems to be decided by the case of May v. Wooding, cited in the argument. The rest of the court concurred.

Rule discharged with costs.

Superior Courts: Court of Review.-Nisi Prius Cause Lists-London.

Exparte Cocks, re Barwise. Monday, Feb. 22, independently of the stat. 6 Geo. 4, c. 16, the