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		Litigation Practice - From: 1849 To: 1899 This page lists 278 cases, and was prepared on 02 April 2018. Â Mudhoo Soodun Sundial v Suroop Chunder Sirkar Chowdry (1849) 4 Moore Ind App 431 1849 PC Dr. Lushington Litigation Practice "Both the Courts below have decided against the validity of the instrument; a fact which, considering the advantages the Judges in India generally possess, of forming a correct opinion of the probability of the transaction, and in some cases of the credit due to the witnesses, affords a strong presumption in favour of the correctness of their decisions, but does not, and ought not, to relieve this, the Court of last resort, from the duty of examining the whole evidence, and forming for itself an opinion upon the whole case." 1 Citers Â Gregory v The Duke of Brunswick and Hen Wellington Vallance [1849] EngR 422; (1849) 2 HLC 415; (1849) 9 ER 1149 26 Mar 1849 Litigation Practice Were it appeared to the House that a mistake, committed by an officer of the Court below, in entering the judgment, of that Court, was made the ground of a writ of error, the arguments on the writ of error brought on such judgment were stopped, and the case was ordered to stand over, to allow the parties to apply to the Court below to amend the error. The House made this order, after referring to the report of the opinions of the Judges of the Court below, as stated in the printed reports of the decisions of that court. [ Commonlii ] Â The Grand Junction Canal Company v Dimes [1850] EngR 243; (1850) 2 H & Tw 92; (1850) 47 ER 1610; [1849] EngR 682; (1849) 17 Sim 38; (1849) 60 ER 1041 2 Jun 1849 Litigation Practice The defendant disputed the right of the plaintiff to use the canal constructed across his land. After he had been ordered to allow the boats to pass, the defendant brought 15 actions in trespass. The company now sought an injunction to restrain those actions. The defendant had also challenged the validity of the existing orders. 1 Cites [ Commonlii ] - [ Commonlii ] Â Maria Pilgrim, Charles Henry Pilgrim, John Bunce Pilgrim, Charles Pilgrim, And Thomas Penrose, Clerk v The Southampton The Doe Chestee Railway Company [1849] EngR 728; (1849) 8 CB 25; (1849) 137 ER 417 12 Jun 1849 Litigation Practice [ Commonlii ] Â The Duke of Brunswick v Slowman And Others [1849] EngR 1084; (1849) 8 CB 617; (1849) 137 ER 649 24 Nov 1849 Litigation Practice The want of a date in the jurat of an affidavit, is not cured by a reference to it in another affidavit as "an affidavit of A B sworn on such a day." -- Semble, that this court will not give costs where a rule is discharged solely on the ground that the aaffidavit on which it is founded has a defective jurat. [ Commonlii ] Â Levy v Railton [1849] EngR 1090; (1849) 14 QB 418; (1849) 117 ER 164 26 Nov 1849 Litigation Practice If a plea be so pleaded that it is manifestly intended to embarrass the plaintiff, the Court, on affldavit that the plea is false will set it aside. As, where, to an action by the second indorsee of a bill of exchange against the acceptor, defendant pleaded that the acceptance was obtained from him by fraud of the drawer, that the bill was overdue when indorsed by the drawer to the first indorsee, and that both indorsees at the time of taking the bill, had notice of the premises. A plea under such circumstances is not treated as a mere irregularity. [ Commonlii ] Â Varivas v French [1849] EngR 1194; (1849) 2 Car & K 1008; (1849) 175 ER 424 12 Dec 1849 Litigation Practice [ Commonlii ] Â The Duke of Brunswick v The Duke of Cambridge [1849] EngR 1197; (1849) 12 Beav 279; (1849) 50 ER 1068 13 Dec 1849 Litigation Practice Exceptions for insufficiency will be overruled, if they vary, in a material particular, from the form of the interrogatory, as where the interrogatory is in the present tense and the exception is in the past. An interrogatory asked whether certain sums had not come to the Defendant's hands, and whether he had not applied "the same." The Defendant denied that any sums had come to his hands, but did not answer the remainder. Held, that the answer was sufficient. An interrogatory asked whether the Defendant had not had communication with A. B and C. D. and other persons. The answer admitted communications with A B but denied any with any other persons, omitting the name of C. D. Held, that being specially interrogated as to C. D., the general answer was insufficient. [ Commonlii ] Â Dimes v Lord Cottenham [1850] EngR 499 (A); (1850) 5 Exch 311 2 May 1850 Constitutional, Litigation Practice The Court will not, on the application of the plaintiff, grant a trial at bar merely because the defendant is Lord Chancellor and the plaintiff an attorney of the Court. 1 Cites 1 Citers [ Commonlii ] Â In Re Dimes [1850] EngR 769; (1850) 3 Mac & G 4; (1850) 42 ER 162 26 Jul 1850 Litigation Practice The claimant challenged his committal to prison saying that the order was invalid in that although made under an order of the Vice-Chancellor, the warrant had been endorsed with the letters CC. Held: Such an endorsement did not mean that the warrant ceased to be the order of the Vice-Chancellor, and it could not be challenged. On the return of a writ of habeas corpus, the court's task is limited to ensuring that the custody arises under a court having authority in that behalf. 1 Cites 1 Citers [ Commonlii ] Â Abley v Dale (1851) Jervis CJ 1851 Litigation Practice The court discussed the literal rule for the interpretation of statutes: "If the precise words used are plain and unambiguous, in our judgment we are bound to construe them in their ordinary sense, even though it does lead to an absurdity or manifest injustice" Â The Stockton And Darlington Railway Company v Fox [1851] EngR 193; (1851) 6 Exch 127; (1851) 155 ER 482 29 Jan 1851 Litigation Practice [ Commonlii ] Â Â Quennell v Turner; 17-Mar-1851 - [1851] EngR 293 (B); (1851) 13 Beav 240 Â Cawley, Applleant, Furnell And Another, Respondent [1851] EngR 638; (1851) 12 CB 291; (1851) 138 ER 915 21 Jun 1851 Litigation Practice An appeal will lie against the decision of a county-court judge, under the 13 & 14 Vict. c. 61, s. 14, though the question presented to the court of appeal be a mixed question of law and fact,-provided the court can clearly see that, in coming to the conclusion he did, the judge of the county court must have taken an erroneous view of the law. [ Commonlii ] Â Â Bluck v Gompertz; 15-Nov-1851 - [1851] EngR 878; (1851) 7 Exch 67; (1851) 155 ER 859 Â Crouch v Hooper 1852 16 Beav 182 1852 Sir John Romilly MR Litigation Practice Sir John Romilly MR discussed the possibilty of a witness being honest but mistaken: "it must always be borne in mind. . how extremely prone persons are to believe what they wish. And where persons are once persuaded of the truth of such a fact, as that a particular person was the uncle of their father, it is every day's experience that their imagination is apt to supply the evidence of that which they believe to be true. It is a matter of frequent observation that persons dwelling for a long time on facts which they believed must have occurred, and trying to remember whether they did so or not, come at least to persuade themselves that they do actually recollect the occurrences of circumstances which at first they only begin by believing must have happened. What was originally the result of imagination becomes in time the result of recollection, and the judging of which and drawing just inferences from which is rendered much more difficult by the circumstance that, in many cases, persons do really, by attentive and careful recollection, recall the memory of facts which had faded away, and were not, when first questioned, present to the mind of the witness. Thus it is, that a clue given or a note made at the time frequently recalls facts which had passed from the memory of the witness . . Once impress the witnesses with [a] belief that . . and further steps follow rapidly enough. In the course of a few years, by constant talk and discussion of the matter, and by endeavouring to remember past conversations, without imputing anything like wilful and corrupt perjury to witnesses of this description, I believe that in 1847 they may conscientiously bring themselves to believe that they remembered conversations and declarations which they had wholly forgotten in 1830, and that they may in truth bona fide believe that they have heard and remembered conversations and observations which in truth never existed, but are the mere offspring of their imaginations." 1 Citers Â Shedden v Patrick (1852) 14 D 727 1852 Lord Fullerton Scotland, Litigation Practice, Torts - Other Pleaded allegations of fraud must be based on clear and specific averments of fact from which an inference of fraud may legitimately be drawn 1 Citers Â Â Lumley v Wagner; 1852 - (1852) 1 De G M & G 604; [1852] EWHC Ch J96 Â Jones v Foxall (1852) 15 Beav 388; [1852] EngR 407; (1852) 51 ER 588 27 Mar 1852 CA Romilly MR Litigation Practice Romilly MR deplored attempts to convert offers of compromise into admissions of acts prejudicial to the party making them, saying: "I find that the offers were in fact made without prejudice to the rights of the parties; and I shall, as far as I am able, in all cases, endeavour to repress a practice which, when I was first acquainted with the profession, was never ventured upon but which, according to my experience in this place, has become common of late - namely, that of attempting to convert offers of compromise into admissions of acts prejudicial to the person making them. If this were permitted, the effect would be that no attempt to compromise a dispute could ever be made." 1 Citers [ Commonlii ] Â Hoghton v Hoghton (1852) 15 Beav 278; [1852] EngR 446; (1852) 15 Beav 278; (1852) 51 ER 545 16 Apr 1852 CA Romilly MR Contract, Equity, Litigation Practice When a person has made a large voluntary disposition the burden is thrown on the party benefitting to show that the disposition was made fairly and honestly and in full understanding of the nature and consequences of the transaction. Romilly MR discussed the "sacred" nature of "without prejudice" negotiation and that he would disregard "admissions made solely for the purpose of compromise". 1 Citers [ Commonlii ] Â Â Dimes v Proprietors of Grand Junction Canal and others; HL 26-Jun-1852 - (1852) 3 HL Cas 759; [1852] EngR 789; (1852) 3 HLC 759; (1852) 10 ER 301 Â Sargent v Wedlake And Others [1853] EngR 40; (1851, 1852, 1853) 11 CB 732; (1853) 138 ER 662 1853 Litigation Practice [ Commonlii ] Â Berkeley v Elderkin [1853] 1 El & Bl 805 1853 Litigation Practice An action in the High Court on a debt proved in the County Court did not lie: "But where a specific remedy is provided for the recovery of such damages or sums of money, this mode of proceeding cannot be resorted to, as in the case of the new County courts, on the judgments of which an action will not lie." 1 Citers Â Regina, On The Prosecution of The Duke Of Brunswick v Lowe And Clements [1853] EngR 512; (1853) 8 Exch 697; (1853) 155 ER 1532 3 May 1853 Litigation Practice An outlaw cannot enforce payment of damages recovered in an action of libel by sciere facias on th erecognisance of the Crown, under the 60 Geo J c ( s8 and 11 Geo 4 & 1 Will 4, e 73, s 3. And therefore, where notice of a rule to stay proceedings on the ground of his outlawry was served on the Attorney-General and he did not appear, the Court made the rule absolute. [ Commonlii ] Â Ramsden v Skipp [1853] EngR 541; (1853) 13 CB 601; (1853) 138 ER 1335 6 May 1853 Litigation Practice [ Commonlii ] Â Whyman v Garth [1853] EngR 603; (1853) 8 Exch 803; (1853) 155 ER 1578 26 May 1853 Litigation Practice [ Commonlii ] Â Fussell, Public Officer of The North Wilts Banking Company v Gordon [1853] EngR 718; (1853) 13 CB 847; (1853) 138 ER 1436 13 Jun 1853 Litigation Practice In ordering further and better particulars, the court will not compel the plaintiff to give particulars of payments made by the defendant. [ Commonlii ] Â Douthwaite v Spensley [1853] EngR 1103 (A); (1853) 18 Beav 74 16 Dec 1853 Litigation Practice Motion to pay money into Court, on a certificate of the Chief Clerk, signed and approved by the Judge, but made before the expiration of the eight days, refused. [ Commonlii ] Â Edwards v Regina (1854) 9 Ex.628 1854 CExc Coleridge J Insolvency, Litigation Practice The process of execution in respect of a Crown debt prevailed over the transfer of the personal estate of a bankrupt to an official assignee which took place earlier on the same day. Significantly, the Court's judgment added that even if the transfer to the assignee, by virtue of his appointment, was also a judicial act, and should therefore be taken, equally with the execution, to date from the beginning of the day so that the two acts were concurrent, nevertheless "it has never been disputed . . but that the Crown in such case has priority over the subject." 1 Citers Â Â Lumley v Gye (2); 14-Jan-1854 - [1854] EngR 95; (1854) 3 El & Bl 114; (1854) 118 ER 1083 Â Frederick William, Marquis of Bristol v Jane Mary Robinson [1854] EngR 299; (1854) 4 HLC 1088; (1854) 10 ER 788 24 Feb 1854 HL Litigation Practice On the hearing of a cause, in which the question intended to be brought-up for decision depended on the form of the pleadings, and the House, after argument, was of opinion that the pleadings would not allow that question to be properly decided, time was given to allow an arrangement between the parties, by which the pleadings might be altered for that purpose. [ Commonlii ] Â Hope v Hope [1854] EngR 468; (1853-1854) 19 Beav 237; (1854) 52 ER 340 3 May 1854 Litigation Practice The principle upon which the Court acts, in directing substituted service, is to sanction such service as affords a reasonable certainty that the Defendant will know of it. In a suit by infants, natural-born subjects and out of the jurisdiction, by their next friend, to which their father and mother (the latter being also out of the jurisdiction) were Defendants, service, under an order, of a bill on the solicitor who had acted for the mother in the institution of a suit in the Ecclesiastical Court against the father, waa held to be good service. The Infants, who were in the mother's custody, under an agreemento restore them to the father on B given day, which she refused to do, by their bill prayed that they might be restored to their father, to be educated in England. Held, that the Court had jurisdiction to take cognizance of the case, arid would interfere in the manner most for their benefit, provided it could see the mode of enforcing its order. Incompetency of the Courts in France to modify the legal conditions of marriage of English subjects there resident. [ Commonlii ] Â Rogers v Hunt [1854] EngR 955; (1854) 10 Exch 474; (1854) 156 ER 525 25 Nov 1854 Banking, Litigation Practice [ Commonlii ] Â Lloyd v Whitty [1854] EngR 954; (1854) 19 Beav 57; (1854) 52 ER 269 25 Nov 1854 Litigation Practice A motion for an injunction was ordered to stand over, with liberty to bring an action. Held, that a witness, who had made an affidavit on the occasion, might, afterwards and before the trial, be cross-examined. [ Commonlii ] Â Wenman v McKenzie (1855) 5 E&B 447 1855 Coleridge J Litigation Practice Coleridge J, quoting Lord Chief Baron Gilbert: "nobody can take benefit by a verdict that had not been prejudiced by it, had it gone contrary". 1 Citers Â Cannan v Reynolds (1855) 5 El & Bl 301; [1855] EngR 585; (1855) 119 ER 493 12 Jun 1855 Crompton J, Lord Campbell CJ Litigation Practice The Court has jurisdiction to set aside a judgment on the ground of mistake if an application to do so is made within a reasonable time after the judgment has been acted on. "the application must be made within a reasonable time after the judgment is acted on; and the only point on which I have had some doubt in the present case is, whether the lapse of time has not been so considerable that it ought in our discretion to be in itself a bar to this application" and "lapse of time becomes after a season a bar, as soon as the Court in its discretion sees that it has been such as must work prejudice." and "I think that, in the exercise of this discretion, time is of great importance." 1 Citers [ Commonlii ] Â Re Templeman [1855] EngR 675 (A); (1855) 20 Beav 574 13 Jul 1855 Litigation Practice Personal service on a solicitor of proceedings under a taxation dispensed with, and service by placing under his door substituted. An order was made, on the application of the client, for the taxation of a solicitor’s bill, and the delivery up of the papers, The bill was taxed and, including the costs of taxation, a balance was found due to the client. The solicitor having avoided personal service of the Taxing Master’s certificate, and kept the door of his chambers closed, Mr. Karslake applied for an order for substituted service. THE MASTER OF THE ROLLS ordered that putting a copy of the Master’s certificate through or under the door of the solicitor’s chambers, together with a copy of the present order, should be deemed good service. [ Commonlii ] Â Clarke v Law [1855] EngR 778; (1855) 2 K & J 28; (1855) 69 ER 680 12 Nov 1855 Litigation Practice A party to a cause, filing or giving notice to read an affidavit before the evidence is closed, may be cross-examined upon such affidavit at once, without waiting until the evidence is closed. A party having filed or given notice to read an affidavit is not at liberty to withdraw it. [ Commonlii ] Â Â John Trevor, Esq, Deceased v Matthew Blucke, Esq, Deceased, And Others And Between William Starismore v Richard Chiswell And Others; 12-Nov-1855 - [1855] EngR 777; (1854-1855) 6 De G M & G 170; (1855) 43 ER 1196 Â Cobbett v Ludlam, Executor of Oldfield [1855] EngR 839; (1855) 11 Exch 446; (1855) 156 ER 906 26 Nov 1855 Wills and Probate, Intellectual Property, Litigation Practice O, the defendant’s testator, instituted a suit in Chancery for the administration of the estate and effects of C, the plaintiffs testator. An order was made by the Court of Chancery, that the plaintiff be restrained by injunction from interferlng with the estate or effects of C. The plaintiff brought an action against the defendant for an alleged infringement by O of C’s copyright in certain books Held: First, that the action was in disobedience of the order of the Court of Chancery, since the damages, when recovered, would be assets of C. in the plaintiff‘s hands. Secondly, that under the 226th section of the Common Law Procedure Act, 1852, this Court had jurisdiction to stay proceedings in the action, although no writ of injunction had issued. Common Law Procedure Act 1852 226 [ Commonlii ] Â Gartside v Outram (1856) 26 LJ Ch113 1856 Wood V-C Litigation Practice An employee was told by his master "I am going to falsify these sales notes and deceive the customers. You are not to say anything about it to anyone." He thereafter falsified the sale notes. Held: The servant was entitled to say: "I am not going to stay any longer in the service of a man who does such a thing. I will leave him and report it to the customers." "There is no confidence in the disclosure of iniquity" 1 Citers Â Robinson v Kitchin [1856] 21 Beav 365 1856 Litigation Practice Contracting out of the privilege against self-incrimination. 1 Citers Â Winter v Bartholomew [1856] EngR 160; (1856) 11 Exch 704; (1856) 156 ER 1013 24 Jan 1856 Litigation Practice A sheriff entered the house of A and seized therein his goods, and also goods belonging to the execution debtor. A. brought an action of trespass against the sheriff, who thereupon obtained an interpleader summons, and the Judge ordered that the execution creditor be barred as to the goods of A., and that all further proceedings in the action be stayed:-- Held, that the Judge had power under the Interpleader Act, 1 & 2 Will. 4, e. 58, s. 6, to stay the proceedings, and that the power was properly exercised, it not appearing that the sheriff‘ had committed any excess. 1 Citers [ Commonlii ] Â Robert Pybus v Henry Gibb, John Bolton And William Hindmarsh [1856] EngR 871; (1856) 6 El & Bl 902; (1856) 119 ER 1100 7 Nov 1856 Litigation Practice [ Commonlii ] Â Gillespie v Russel (1857) 18 D. 677 1857 Lord President McNeill Scotland, Litigation Practice An allegation of fraud must be set our clearly in the pleadings. Â In Re The Electric Telegraph Company Of Ireland ex parte Bunn [1857] EngR 413; (1857) 24 Beav 137; (1857) 53 ER 309 20 Apr 1857 Litigation Practice A party interested being summoned to appear as witness, is not justified in refusing to be sworn before the Chief Clerk, on the ground that he will not be able to have the assistance of counsel before the Chief Clerk, and that he ought, therefore, to be examined before the Judge or the examiner. [ Commonlii ] Â Reed v Dabee [1857] UKPC 16 9 May 1857 PC Litigation Practice Supreme Court of Calcutta - In circumstances showing conflicting and opposite decisions by the Sudder Court upon the same question at issue, between the same parties, an appeal treated under the Statute, 8th and 9th Vict, c. 30, sec 2, as abandoned for non-prosecution, was restored upon terms of paying costs and undertaking to lodge cases forthwith, and to lodge security or a Bond in England, to the amount of Â£500. Where an appeal has been treated as abandoned by Statute, 8th and 9th Vict., c. 80, sec. 2, their Lordships have no power to grant leave to institute a new appeal: only a discretion to allow the original appeal to be restored. [ Bailii ] Â The Lancaster And Carlisle Railway Company v Heaton And Another [1858] EngR 349; (1858) 8 El and Bl 952; (1858) 120 ER 354 11 Feb 1858 Litigation Practice [ Commonlii ] Â Wright v Mills (1859) 4 HN 488 1859 Pollock CB and Watson B Litigation Practice A judgment was signed when the Court's offices opened at 11 am but the defendant had died at 9.30 the same morning. The Court held that the judgment was regular, applying the rule that judicial acts, being acts of the Crown, have precedence over private transactions which take place on the same day. The application of the rule did not not necessarily involve any fiction as to the time when the act and the transaction respectively occurred. 1 Cites 1 Citers Â Â Henderson v Broomhead; 1859 - (1859) 4 H & N 569 Â Â Regina v Edmundson; 1859 - (1859) 28 LJMC 213 Â Â Pretty v Solly; CA 24-Jan-1859 - [1859] EngR 249; (1859) 26 Beav 606; (1859) 53 ER 1032 Â Imperial Gas Light And Coke Company v Broadbent [1859] EngR 915; (1859) 7 HLC 600; (1859) 11 ER 239 4 Aug 1859 HL Lord Campbell LC Litigation Practice, Equity, Nuisance If a Plaintiff applies for an injunction in respect of a violation of a common law right, and the existence of that right, or the fact of its violation is denied, he must establish his right at law, but having done that, he is, except under special circumstances, entitled to an injunction to prevent a recurrence of that violation. For such a purpose the award of an arbitrator is equivalent to a verdict. If between the time of the case being referred and the award being made there has been an alteration in the mode of carrying on the business complained of, it may, if in diminution of the cause of injury, be shown as an answer to the application for an injunction; but if in increase of the cause of injury, it need not be the subject of a fresh proceeding at law; that is matter for the discretion of the Court of Equity. A Plaintiff brought an action to recover damages for an injury to his business occasioned by the erection. of gas works; the action was referred to arbitration; nearly two years elapsed before the award was made, in the course of which time alteratione in the mode of carrying on the business complained of were effected; two months after the date of the award the injunction was applied for: Held, that there had not been any such. acquiescence as to deprive the Plaintiff of his right to the injunction. 1 Cites 1 Citers [ Commonlii ] Â Liverpool Borough Bank v Turner (1860) 30 LJ Ch 379; (1860) 2 De GF&J 502; [1860] 45 ER 715 1860 Lord Campbell CJ Litigation Practice The court considered how to decide what would be the consequences of failing to comply with a statutory requirement. Lord Campbell CJ said that the court should look at the importance of the provisions in question and to look at the real intention of the legislature in deciding what the consequences of non-compliance were intended to be: 'No universal rule can be laid down . . It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.' 1 Citers Â Bland v Ross (Ship Julia) (Admiralty) (1860) 14 Moo PC 210; [1861] UKPC 8 1860 PC Lord Kingsdown Litigation Practice, Transport The court considered the care needed in an appellate court in reversing a decision on the facts. Lord Kingsdown said that: 'They, who require this Board, under such circumstances to reverse a decision of the court below upon a point of this description undertake a task of great and almost insuperable difficulty . . We must, in order to reverse, not merely entertain doubts whether the decision below is right, but be convinced that it is wrong.' 1 Citers [ Bailii ] Â Â Regina v Boyes; 1860 - [1860] EngR 170; (1860) 2 F & F 157; (1860) 175 ER 1004 Â Farrow v Blomfield [1860] EngR 62 (B); (1860) 1 F & F 653 1860 Litigation Practice A party to the action, being called as a witness on his own behalf, may be asked in cross-examination the contents of a letter which be has written, without producing the letter. [ Commonlii ] Â Whittall v Campbell [1860] EngR 733; (1860) 5 H & N 601; (1860) 157 ER 1320 7 May 1860 Litigation Practice, Armed Forces [ Commonlii ] Â Thomas v Thomas [1860] EngR 801 (B); (1860) 2 Sw & Tr 64 30 May 1860 Litigation Practice [ Commonlii ] Â Ormes v Beadel [1860] EngR 1096; (1860) 2 De G F & J 333; (1860) 45 ER 649 7 Nov 1860 Lord Campbell LC Litigation Practice 1 Citers [ Commonlii ] Â Wright v Hale (1860) 6 H & N 227; [1860] EngR 1191; (1860) 6 H & N 227; (1860) 158 ER 94 23 Nov 1860 Wilde B Constitutional, Litigation Practice When considering the retrospective effects of an Act, "where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act." 1 Citers [ Commonlii ] Â Holroyd v Marshall [1860] EngR 1305; (1860) 2 De G F & J 596; (1860) 45 ER 752 22 Dec 1860 Litigation Practice EngR Where equitable assignees of chattels to be subsequently acquired had neglected to perfect their titIe to the chattels by any act tantamount to taking possession before the chattels were taken under an execution : Held, that the title of the execution creditor was to be preferred. [ Commonlii ] Â Naragunty Lutchmeedavamah v Vengama Naidoo (1861) 9 Moore Ind App 66 1861 PC Lord Kingsdown Litigation Practice The Board restated its power to reconsider all points including the facts of an appeal brought before it. 1 Citers Â Bartley v Hodges 30 LJ (QB) 352; (1861) 1 B & S 375 1861 Litigation Practice 1 Citers Â Â Regina v Boyes; 27-May-1861 - (1861) 1 B & S 311; [1861] EngR 626; (1861) 121 ER 730 Â Wilkinson v Lewis [1861] EngR 1075; (1861) 3 Giff 394; (1861) 66 ER 463 19 Dec 1861 Litigation Practice [ Commonlii ] Â Gardiner v Houghton (1862) 2 B& S 743 1862 QBD Litigation Practice 1 Citers Â Elsy Lindsay And James Farquhar Hadden v George Smyttan Duff And George Smyttan Duff [1862] EngR 833; (1862) 15 Moo PC 452; (1862) 15 ER 565 19 Jun 1862 PC Litigation Practice, Commonwealth [ Commonlii ] Â Re Devonshire [1862] EngR 1180; (1862) 32 Beav 241; (1862) A) 18 Dec 1862 Litigation Practice [ Commonlii ] Â Glover v Daubney [1862] EngR 1178; (1862) 4 De G F & J 561; (1862) 45 ER 1302 18 Dec 1862 Litigation Practice Leave refused to a Defendant to adduce fresh evidence on the hearing of an appeal for the purpose of proving admissions made by the Plaintiff in conversation. [ Commonlii ] Â Cawley v Poole [1863] EngR 453; (1863) 1 H & M 50; (1863) 71 ER 23 27 Apr 1863 Litigation Practice [ Commonlii ] Â Farnworth And Another v Hyde [1863] EngR 591; (1863) 14 CB NS 719; (1863) 143 ER 627 28 May 1863 Litigation Practice A mandamus will not in general be granted for the examination of witnesses in one of the British coIonies, where the same end may be attained by the less expensive and less dilatory proceeding by commission. [ Commonlii ] Â Eliza Jarman, By John A Jarman, Her Guardian, v Lucas [1863] EngR 1013; (1863) 15 CB NS 474; (1863) 143 ER 870 25 Nov 1863 Litigation Practice Common Law Procedure Act 1852 [ Commonlii ] Â Keenan v Handley 1864 12 WR 1021 1864 Litigation Practice, Contract, Wills and Probate The court considered the availability of specific performance as a remedy to a personal representative. 1 Citers Â Swaine v The Great Northern Railway Company [1864] EngR 173; (1864) 4 De G J & S 211; (1864) 46 ER 899 25 Jan 1864 Nuisance, Equity, Litigation Practice Occurrences of nuisance, if temporary and occasional only, are not grounds for the interference of the Court of Chancery by injunction, except in extreme cases. Therefore, where a railway company carried down to and deposited on a siding to their line manure which was occasionally not proper manure, and they occasionally allowed it to remain there longer than it ought to have remained : Held, in a suit by a neighbouring landowner for an injunction to restrain the nuisance and for damages: 1. That the court would not interfere by way of injunction. 2. That the Court would not enter into the question of damages, the case being one which, in the judgment ofthe Court, could be more effectually disposed of at law than in equity, and Sir Hugh Cairns's Act (21 & 22 Vict. c. 27) only giving the Court of Chancery jurisdiction to give damages in any case where a bill is properly filed in it, while Mr. Rolt's Act (25 & 26 Vict. c. 42) does not make it compulsory on the Court so to do. [ Commonlii ] Â Cawley v Knowles [1864] EngR 202; (1864) 16 CB NS 107; (1864) 143 ER 1065 1 Feb 1864 Litigation Practice [ Commonlii ] Â Cogent v Gibson [1864] EngR 494 (B); (1864) 33 Beav 557 30 May 1864 Lord Romilly Intellectual Property, Litigation Practice A contract for the sale of a patent was specifically enforceable at the suit of the vendor, although all he required was the payment of the purchase money. [ Commonlii ] Â In Re Abrahams [1864] EngR 578; (1864) 2 Moo PC NS 241; (1864) 15 ER 892 14 Jun 1864 PC Litigation Practice, Commonwealth The Order in Council of the 12th of April, 1851, restricts the right of appeal to the Queen in Council, to matters where the property, or civil rights, amount to &300. Application for special leave to appeal from an Order of the Supreme Court of Jamaica, refusing to quash a fiat, or certificate of insolvency, made under the Jamaica Act, 1lth Vict, c. 25, refused, as the question at issue, namely, the validity of the fiat of insolvency, was not an appealable grievance within the Order in Council. [ Commonlii ] Â Talbot v Marshfield [1864] EngR 762; (1864) 2 Dr & Sm 285; (1864) 62 ER 630 17 Nov 1864 Trusts, Litigation Practice Payment into Curt. Discretionary Power in Trustees Over Fund, - Although the mere existence of a discretionary power in trustees over a fund affords no reason why the Court should not order payment of the fund into Court, unless such payment into Court would interfere with the exercise by the trustee of such discretion ; yet where it appeared that trustees were about in the due exercise of a discretionary power to deal with a fund, the Court refused to order payment into Court, although the trustees had not actually parted with the fund. 1 Citers [ Commonlii ] Â Bloxam v Chichester [1864] EngR 874; (1864) 34 Beav 76; (1864) 55 ER 561 21 Dec 1864 Litigation Practice [ Commonlii ] Â Anthony v Cowper [1864] EngR 873 (A); (1864) 34 Beav 77 21 Dec 1864 Litigation Practice [ Commonlii ] Â Bloxsome v Chichester [1864] EngR 875 (A); (1864) 2 De G J & S 444 21 Dec 1864 Litigation Practice [ Commonlii ] Â Wakefield v Duke of Buccleugh (1865) 12 LT 628 1865 Litigation Practice The practice of taking undertakings from a party at an interlocutory hearing: "aided the court in doing that which was its great object, viz. abstaining from expressing any opinion upon the merits of the case until the hearing." 1 Citers Â The Attorney-General, At The Relation Of Joseph Greenhill v Sidney Sussex College, Cambridge; Trinity College, Oxford, And Frederick Greenhill [1865] EngR 431; (1865) 34 Beav 654; (1865) 55 ER 788 4 May 1865 Charity, Litigation Practice Lord Chelmsford LC said, of an argument by that college that the leave of the Charity Commissioners ought to have been obtained to the plaintiff's proceedings but had not been, that: "The objection if persisted in must prevail, but in that case [he] would give leave to apply to the commissioners, and he would suspend the decree for that purpose." 1 Citers [ Commonlii ] Â Talbot v Marshfield [1865] EngR 589; (1865) 2 Dr & Sm 549; (1865) 62 ER 728 15 Jun 1865 Trusts, Litigation Practice, Legal Professions Trustees took counsel's opinion as to whether they should exercise a discretionary power to advance part of their trust fund for the benefit of some of the cestuis que trust: and others of the cestuis que trust having filed a bill to restrain them from exercising such discretion, they took a second opinion as to their defence in the suit. Upon summons for production by the Plaintiffs : Held, that, the first case and opinion having reference to the dealings with the trust estate, all the cestuis que trust had a right to inspection, and the Court ordered them to be produced ; but that the second case and opinion being after suit instituted, the Plaintiffs had no right to production. 1 Cites 1 Citers [ Commonlii ] Â Irwin v Sir George Grey, Bart [1865] EngR 664; (1865) 19 CB NS 585; (1865) 141 ER 916 10 Jul 1865 Litigation Practice [ Commonlii ] Â Purdie v Furness [1866] EngR 15; (1866) 4 F & F 942; (1866) 176 ER 859 1866 Contract, Litigation Practice [ Commonlii ] Â Clay v Oxford (1866) LR 2 Exch 54; 36 LJEx 15 1866 Litigation Practice The proceedings were a nullity, the plaintiff having died before proceedings were commenced. Held: There was no power to substitute another plaintiff such as the deceased's legal personal representatives to get around the nullity. 1 Citers Â Hamp v Hamp [1866] EngR 59; (1866) 35 Beav 189; (1866) 55 ER 867 18 Jan 1866 Litigation Practice [ Commonlii ] Â Windsor Against The Queen [1866] EngR 69; (1866) 6 B & S 143; (1866) 122 ER 1150 24 Jan 1866 Litigation Practice [ Commonlii ] Â Chard v Cox [1866] EngR 73; (1866) 35 Beav 191; (1866) A) 31 Jan 1866 Litigation Practice [ Commonlii ] Â Kenyon By Jones (Next Friend) v Kenyon Kenyon By Jane Kenyon, Widow (Next Friend) v Kenyon [1866] EngR 82; (1866) 35 Beav 300; (1866) A) 8 Feb 1866 Litigation Practice [ Commonlii ] Â Brighouse v Margetson [1866] EngR 80; (1866) 35 Beav 303; (1866) 55 ER 912 8 Feb 1866 Litigation Practice [ Commonlii ] Â Dalton v Furness [1866] EngR 137; (1866) 35 Beav 461; (1866) 55 ER 975 19 Apr 1866 Litigation Practice [ Commonlii ] Â Overman v Overman [1866] EngR 139; (1866) 35 Beav 477; (1866) A) 19 Apr 1866 Litigation Practice [ Commonlii ] Â Re The Anglo-Greek Steam Navigation And Trading Company (Limited) [1866] EngR 149; (1866) 35 Beav 419; (1866) A) 3 May 1866 Litigation Practice [ Commonlii ] Â Tareeny Churn Bonnerjee v Maitland (1867) 11 Moore Ind App 317 1867 Lord Cairns Litigation Practice When hearing a cae, the Board may itself reconsider the whole case including the evidence. 1 Citers Â Mayor etc of London v Cox (1867) LR 2 HL 239 1867 HL Litigation Practice The procedure called foreign attachment, on which the procedure under the 1854 Act was modelled, had existed by immemorial custom in London and other cities. The custom had been certified by the Recorder of London in 1481 but went back much further; enthusiastic City historians traced it to the Roman occupation and even to the laws of Troy. 1 Citers Â The Hannibal (1867) LR 2 Ad&E 53 1867 Sir Robert Phillimore Litigation Practice "for the future in causes of collision and salvage, heard before the Trinity Masters, he should not sum up the evidence; but that the Court and Trinity Masters would retire and, on their return, the judgment of the Court would be given". 1 Citers Â Haly v Barry (1868) 3 Ch App 452 1868 CA Page Wood LJ Insolvency, Litigation Practice A judgment creditor had obtained a charging order nisi but before it was made absolute a decree was made for the administration of the debtor's estate. An injunction was sought in order to restrain further proceedings by the judgment creditor, but that was refused on the basis that the charging order nisi having been made, it could only be defeated by something prior to it. The Master held that the charging order nisi was not to be regarded as something different from the charging order absolute. Held: A charging order absolute takes effect from the date of the charging order nisi. Page Wood LJ said "I do not think that such a case can be treated as one in which the creditor's title is incomplete." Selwyn LJ: "The language of the [Common Law Procedure Act 1852] appears to me quite opposed to this view, it speaks of one order which is at first an order nisi and is afterwards made absolute." 1 Citers Â Â Re Hotchkiss Trusts; 1869 - (1869) 8 Eq 643 Â Dickson v Neath and Brecon Railway Co (1869) LR 4 Ex 87 1869 Litigation Practice 1 Citers Â Appendix [1870] EngR 1; (1870) 12 Moo Ind App 9; (1870) 20 ER 447 1870 Litigation Practice [ Commonlii ] Â Appendix [1870] EngR 2; (1870) 13 Moo Ind App 9; (1870) 20 ER 682 1870 Commonwealth, Litigation Practice [ Commonlii ] Â Phillips v Eyre (1870) LR 6 QB 1 28 1870 CEC Willes J Litigation Practice The court considered the rule of double actionability. The court laid down the test for whether a tort committed abroad was actionable in this jurisdiction: "As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England . . Secondly, the act must not have been justifiable by the law of the place where it was done." Hoeever: "the law is clear that, if the foreign law touches only the remedy or procedure for enforcing the obligation . . such law is no bar to an action in this country." 1 Cites 1 Citers Â Burdick v Garrick (1870) LR 5 Ch App 233 1870 HL Lord Hatherley LC Litigation Practice In the courts of Chancery, the statute of limitations would not apply when the person in a confidential relationship had got the property into his hands. A court presumes against the party against whom relief is sought that he has made that profit from the misapplied money which persons ordinarily do make in trade: "the court does not proceed against an accounting party by way of punishing him for making use of the plaintiff's money by directing rests, or payment of compound interest, but proceeds upon this principle, either that he has made, or has put himself into such a position as that he is to be presumed to have made, 5 per cent., or compound interest, as the case may be". 1 Citers Â Henry Bulkeley And Another v Henry Gerald Scutz And Another [1870] EngR 15; (1870) 6 Moo PC NS 481; (1870) 16 ER 807 28 Feb 1870 PC Litigation Practice [ Commonlii ] Â Order In Council For The Establishment Of Certain Rules To Be Observed By Proctors, Solicitors, Agents, And Other Persons Admitted To Practise Before Her Majesty'S Most Honourable Privy Council [1870] EngR 19; (1870) 12 Moo Ind App 21; (1870) 20 ER 450 31 Mar 1870 PC Litigation Practice [ Commonlii ] Â George Lyall v Jardine, Matheson, And Co, Trading At Hong Kong, Charles Frederick Still, And George Francis Maclean, Petitioning Creditors, And Frederick Sowley Huffam, Official Assignee [1870] EngR 36; (1870) 7 Moo PC NS 116; (1870) 17 ER 45 8 Jul 1870 PC Commonwealth, Litigation Practice On a petition for special leave to appeal the petition must fully and truly state all circumstances which possibly can have any bearing on the leave asked for. Where, on the evidence submitted to the Court below, the Order was properly made, no appeal will lie on the ground that facts existed which would, if known to that Court, have led to a differen order being made, those facts not having been submitted to the Court. [ Commonlii ] Â Ellis v M'Henry (1871) LR 6 CP 228 1871 CCP Bovill CJ Litigation Practice A debt or liability arising in any country may be discharged by the laws of that country, and such a discharge, if it extinguishes the debt or liability, and does not merely interfere with the remedies or course of procedure to enforce it, will be an effectual answer to the claim, not only in the courts of that country, but in every other country. This is a principle of private international law adopted in other countries. Secondly, as a general proposition, it is also true that the discharge of a debt or liability by the law of a country other than that in which the debt arises, does not relieve the debtor in any other country. 1 Cites 1 Citers Â Â Smith v Sydney; 1871 - (1871) QB 203 Â Â Wytcherley v Andrews; 1871 - (1871) LR 2 P and M 327 Â Rodger v The Comptoir d'Escompte de Paris (1871) LR 3 PC 465 1871 Lord Cairns Litigation Practice Judgment had been first given, but reversed on appeal. The money had been paid following judgment. The appeal court had ordered the return of the money and the question was whether there should also be interest on the money. Held: Lord Cairns: "It is contended, on the part of the Respondents here, that the principal sum being restored to the present petitioners, they have no right to recover from them any interest. It is obvious that, if this is so, injury, and very grave injury, will be done to the Petitioners. They will by reason of an act of the Court have paid a sum which it is now ascertained was ordered to be paid by mistake and wrongfully. They will recover that sum after the lapse of a considerable time, but they will recover it without the ordinary fruits which are derived from the enjoyment of money. On the other hand, those fruits will have been enjoyed, or may have been enjoyed, by the person who by mistake and by wrong obtained possession of the money under a judgment which has been reversed. So far, therefore, as principle is concerned, their Lordships have no doubt or hesitation in saying that injustice will be done to the Petitioners, and that the perfect judicial determination which it must be the object of all Courts to arrive at, will not have been arrived at unless the persons who have had their money improperly taken from them have the money restored to them, with interest, during the time that the money has been withheld." 1 Citers Â Upmann v Elkan (1871) LR 12 Eq 140; 7 Ch App 130 1871 Lord Hatherley LC, Lord Romilly MR Litigation Practice If through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing, he is not personally liable, but he does have a duty when called upon to disclose the identity of the wrongdoer. 1 Citers Â Â Hebbert v Purchas; 1871 - (1871) LR 3 PC 605 Â Futteh Chund Sahoo v Leelumber Singh Doss And Others [1871] EngR 29; (1871) 14 Moo Ind App 129; (1871) 20 ER 734 4 Jul 1871 PC Litigation Practice The provisions of sect. 48 of the Registration Act, No. XX. of 1866, are imperative, and admit of no instrumen being received in evidence in a civil suit, without being registered : registration being cornpulsory. [ Commonlii ] Â Ali v Maharanee Inderjeet Singh, Baboo Ramkishen Singh, Ranee Asmodhee Kooer, Ranee Sooneth Koour, Run Bahadoor Singh, Moodeydhur Singh, Lall Narain Singh And Deoputtee Narain Singh [1871] EngR 36; (1871) 14 Moo Ind App 203; (1871) 20 ER 763 15 Jul 1871 Litigation Practice The High Court at Calcutta, at the instance of the Appellant's Counsel, agreed to confine the decision of that Court to one point, with an undertaking that no appeal to Her Majesty in Council should be made from the decree. Notwithstanding such undertaking, an appeal was brought to England. The High Court certified in the record the undertaking. Held. the Judicial Committee, on a preliminary objection being taken to the hearing, on the ground of the incompetency of the appeal, said that such undertaking precluded an appeal. [ Commonlii ] Â Â Baboo Lekraj Roy, Baboo Mahtab Chand And Others; PC 14-Dec-1871 - [1871] EngR 58; (1871) 14 Moo Ind App 393; (1871) 20 ER 833 Â Hodson v Walker (1872) LR 7 Exch 55 1872 CEC Channell B, Martin B, Piggott B Litigation Practice Premises known as the Red Lion Inn, Grasmere and certain outbuildings were let. In February 1852, Walker allowed one Usher, who owned the Red Lion Inn, to build a shed on his (Walker's) adjoining land in return for a rent of 1s. a year. In November 1852, Usher demised the Red Lion Inn to Hodson and the lease included the shed. In 1870 Walker brought proceedings against Usher for possession of the shed. He obtained judgment and a warrant was issued to the bailiff who recovered possession on Walker's behalf. Hodson, who thereby lost possession, brought proceedings for trespass. At trial Martin B ruled that Hodson had no cause of action on the basis that the order of the County Court bound him as well as Usher. Application was made to the Court of Exchequer Chamber to discharge the rule. Held: Pigott B: the statutory provisions giving the County Court power to make an order for possession did not bind persons who were not party to the proceedings and that accordingly the rule had to be discharged. It was arguable that Hodson could bring an action in trespass where the superior landlord had obtained judgment against the intermediate tenant. He must have accepted that Hodson was not bound by the judgment against Usher because, if he had been, that would have been a complete answer to his claim in trespass. Channell B, approving Doe v Earl of Derby: A verdict which is evidence against A is not admissible against B on the ground that B claims under A unless B acquired his interest from A's title subsequent to the verdict. The rule made by Martin B at trial had to be discharged. He came to the same conclusion as Pigott B on the question of statutory interpretation. Martin B, sitting on the application to discharge the rule he had himself made: Dissented on the question of statutory construction. He did not refer to the question of estoppel per red judicatam. Estoppel per rem judicatam cannot bind a person who claims under the person against whom a judgment was obtained, unless he obtained his interest from that person after the judgment was given. 1 Cites 1 Citers Â Macfarlan v Rolt (1872) LR 14 Eq 580 1872 Sir John Wickens V-C Legal Professions, Litigation Practice Communications between a client and his foreign lawyers were treated as being entitled as a matter of course to the same legal advice privilege as communications with English lawyers in like circumstances. 1 Cites 1 Citers Â Kristo Kinkur Roy And Another v Rajah Burrodacaunt Roy And Another [1872] EngR 7; (1872) 14 Moo Ind App 465; (1872) 20 ER 860 22 Jan 1872 Litigation Practice, Commonwealth [ Commonlii ] Â Saroda Prosaud Mullick v Luchmeeput Sing Doogur, Dhunput Sing Doogur, And Jodoonath Sannyal [1872] EngR 11; (1872) 14 Moo Ind App 529; (1872) 20 ER 883 26 Jan 1872 Litigation Practice [ Commonlii ] Â Charles Miller Aldridge v George Christopher Cato [1872] EngR 29; (1872) 9 Moo PC NS 69; (1872) 17 ER 440 28 Jun 1872 PC Commonwealth, Litigation Practice It is too late for the respondenat at the hearing to take an objection to the competency of the appeal, on the ground that the subject-matter of the suit did not invoke the prescribed appealable value; such objection not having been taken in the Respondent's case. The proper course would have been for the Respondent to move, in the first instance, to dismiss the appeal on that ground. [ Commonlii ] Â Â Dawkins v Lord Rokeby; 1873 - (1873) LR 8 QB 255 Â Beal v Smith (1873) LR 9 Ch App 85 1873 Lord Justice James Litigation Practice, Health Lord Justice James discussed the practice in the Court of Chancery on claims brought by people without mental capacity: "The law of the Court of Chancery undoubtedly is that in certain cases where there is a person of unsound mind, not so found by inquisition, and therefore incapable of invoking the protection of the Court, that protection may in proper cases, and if and so far as may be necessary and proper, be invoked by any person as his next friend. It is not by reason of the incompetency, but notwithstanding the incompetency, that the Court of Chancery entertains the proceedings." 1 Citers Â Cooke v Gill [1873] LR 8C P 107 11 Jan 1873 CCP Brett J Litigation Practice What constitutes a cause of action is "every fact which is material to be proved to entitle the plaintiff to succeed." 1 Citers Â Order in Council for the Better Prosecution of Appeals before Her Majesty in Council [1873] EngR 6; (1873) 14 Moo Ind App 9; (1873) 20 ER 916 26 Jun 1873 Litigation Practice [ Commonlii ] Â Â Cooper v Cooper; HL 1874 - (1874) LR VII HL 53 Â Â Aspden v Seddon; CA 1874 - (1874) LR 10 Ch 394 Â Â Dawkins v Lord Rokeby; HL 1875 - (1875) LR 7 HL 744 Â Â Anderson v Bank of British Columbia; CA 1876 - (1876) 2 ChD 644 Â Â Republic of Costa Rica v Erlanger; 1876 - (1876) 3 Ch D 62 Â Â Pickersgill v Rodger; 1876 - (1876) 5 Ch D 163 Â Â Cowan and Sons v Duke of Buccleuch; HL 1876 - (1876) 4 R (HL) 14 Â Â The Glannibanta; CA 1876 - (1876) 1 PD 283 Â Â Orr v Diaper; 1876 - (1876) 4 Ch D 92; 25 WR 23 Â Â Stone v Yeovil Corporation; 1876 - [1876] 1 CPD 691 Â Norris v Beazley (1877) 2 CPD 80 1877 Litigation Practice A person could not be added to a claim as defendant where the plaintiff has no claim against him and no wish to join him. 1 Citers Â Yeatman v Yeatman (1877) 7 Ch D 201 1877 Hall VC Litigation Practice, Trusts An action was brought by a residuary legatee against her mother-in-law's executors and another member of the family, who it was alleged, had failed to account for partnership monies to the mother-in-law. Held: A beneficiary of a trust could not sue in the name of the trustee merely because the trustee had refused to sue, but if in a case where the trustee refused to sue the court was satisfied that it would have given liberty to the trustee to bring proceedings even though there was no certainty that the proceedings would be successful, these would in general be special circumstances in which the beneficiary could sue in his own name. 1 Citers Â Â Howard v Bodington; Carc 1877 - (1877) 2 PD 203; 42 JP 6 Â Â River Wear Commissioners v Adamson; HL 1877 - (1877) 2 App Cas 743 Â Anthony v Halstead (1877) 37 LT 433 1877 Litigation Practice Where there has been a misdirection in a civil jury trial, it is for the party asserting that the judgment should stand to demonstrate supported by the evidence that any error did not affect the decision reached. 1 Citers Â Flower v Lloyd [1877] 6 ChD 297 1877 CA Jessell MR, James and Baggallay JJ Litigation Practice, Intellectual Property The plaintiffs tried to restrain the defendant from infringing their patent. They succeeded at first instance but the order was overturned on appeal. An expert went to inspect the process at the defendant's works. Later, employees gave affidavits suggesting that, on that visit, the defendant had fraudulently concealed a part of the process. The plaintiffs sought to have the appeal reheard in a 'bill of review'. Held: The application failed. Applying the 1873 Act, the High Court could exercise the powers formerly conferred on the Court of Chancery and rectify any miscarriage by setting aside the judgment on grounds of fraud. That was the appropriate remedy; reopening the appeal was not. Lord Justice James made general observations about the proper procedure where a judgment was allegedly obtained by fraud: "I agree with what has been said by the Master of the Rolls, that in the case of a decree (or judgment as we now call it) being obtained by fraud there always was a power, and there still is a power, in the Courts of Law in this country to give adequate relief. But that must be done by putting in issue that fraud, and that fraud only. You cannot go to your adversary and say "You obtained a judgment by fraud and I will have a re-hearing of the whole case" until that fraud is established. The thing must be tried as a distinct and positive issue; "You, the defendants" or "You, the plaintiff" obtained that judgment or decree in your favour by fraud; you bribed the witness, you bribed my solicitor, you bribed my counsel, you committed some fraud or other of that kind, and I ask to have the judgment set aside on the ground of fraud." That would be tried like anything else by evidence properly taken directed at that issue and wholly free from and unembarrassed by any of the matters originally tried." Judicature Act 1873 1 Citers Â Â Gilbert v Endean; CA 1878 - (1878) 9 Ch D 259 Â Â Davy v Garrett; 1878 - (1878) 7 ChD 473 Â Attorney General v Lamplough (1878) 3 Ex D 214 1878 CA Brett LJ, Bramwell LJ Litigation Practice Unaltered words in an Act are to be construed as meaning what they did before the others were amended. Parliament in deleting particular words from the section in question was to exclude particular articles from liability to tax. The subsequent general words could, looked at in isolation, have prevented that intent being achieved. Hence, in order to give effect to the clear intention of Parliament, the general words had to continue to be construed in the restrictive fashion appropriate when the particular words, subsequently repealed, were in the Act. Brett LJ said: "The schedule is as much a part of the statute, and is as much an enactment as any other part". 1 Citers Â Doherty v Allman [1878] 3 App Cas 709 1878 Lord Cairns LC Litigation Practice, Contract An injunction will always issue to restrain a breach of a negative term in a contract. Lord Cairns LC said: "If parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a court of equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant, that the thing shall not be done; and in such case, the injunction does nothing more than give the sanction of the process of the court to that which already is the contract between the parties. It is not then a question of the balance of convenience or inconvenience, or of the amount of damage or of injury – it is the specific performance, by the court, of that negative bargain which the parties have made, with their eyes open, between themselves." 1 Citers Â Freeman v Cox (1878) LT 8 ChD 148 1878 Litigation Practice 1 Citers Â Fisher v Owen (1878) 8 ChD 645 1878 Litigation Practice The fact that the answer to interrogatories sought to be administered would or might tend to incriminate the party interrogated, is no ground to objecting to leave being given to administer them. Â Beddow v Beddow (1878) 9 ChD 89 1878 CA Sir George Jessel MR Litigation Practice The power in the section embraced the grant of an injunction "in any case where it would be right or just to do so". Judicature Act of 1873 25 1 Citers Â Southwark and Vauxhall Water Company v Quick (1878) 3 QBD 315 1878 CA Cockburn CJ and Brett LJ Legal Professions, Litigation Practice The water company sued its former engineer. Anticipating the action, documents were prepared for the company’s solicitor's advice, though one (a shorthand transcript of a conversation between a chimney sweep employed by the company and the company’s current engineer) was not so used. Inspections was sought of the documents. Held: If a party seeks to inspect a document which comes into existence merely as the materials for the brief, or the equivalent, the document cannot be seen. It is privileged. If at the time the document is brought into existence its purpose is that it should be laid before the solicitor, if that purpose is true and clearly appears upon the affidavit, it is not taken out of the privilege merely because afterwards it was not laid before the solicitor. Cockburn CJ: "The relation between the client and his professional legal adviser is a confidential relation of such a nature that to my mind the maintenance of the privilege with regard to it is essential to the interests of justice and the well-being of society. Though it might occasionally happen that the removal of the privilege would assist in the elucidation of matters in dispute, I do not think that this occasional benefit justifies us in incurring the attendant risk" Brett LJ: ". . it is clear that if a party seeks to inspect a document which comes into existence merely as the materials for the brief, or that which is equivalent to the brief, then the document cannot be seen, for it is privileged. It has been urged that the materials, or the information obtained for the brief, should have been obtained 'at the instance' or 'at the request' of the solicitor; but I think it is enough if they come into existence merely as the materials for the brief, and I think that phrase may be enlarged into 'merely for the purpose of being laid before the solicitor for his advice or for his consideration'". 1 Citers Â Richardson v Wilson (1879) 7 R 237 1879 SCS Lord President Inglis Litigation Practice Lord President Inglis discussed the principle that the reporting of court cases had to be open: "The principle on which this rule is founded seems to be that, as courts of justice are open to the public, anything that takes place before a judge or judges is thereby necessarily and legitimately made public, and, being once made legitimately public property, may be republished" 1 Citers Â In re St Nazaire Company (1879) 12 Ch D 88 1879 CA George Jessel MR, Thesiger LJ Litigation Practice Sir Richard Malins V-C had permitted a petition to proceed which sought to vary an earlier order which he had made and which had been unsuccessfully appealed to the Court of Appeal. Held: He had no power to do so. Any such power had disappeared with the Judicature Acts. Thesiger LJ added that, "whatever may have been the practice in the High Court of Chancery before the Judicature Act as to the review of their decisions or the rehearing of their decisions, nothing can be clearer than that there was nothing analogous to that in the Common Law Courts" Sir George Jessel MR explained that the Judicature Acts had changed everything: "the hope of every appellant was founded on the change of the judge" 1 Citers Â Phosphate Sewage Co Ltd v Molleson (1879) 4 App Cas 801 1879 Earl Cairns LC Litigation Practice For an action making a collateral attack on a previous decision not to be an abuse of process the evidence had to be "fresh" i.e. unavailable at the time of the first hearing, and the "new evidence must be such as entirely changes the aspect of the case" 1 Citers Â Seear v Lawson [1880] 15 ChD 426 1880 CA Sir George Jessel MR Insolvency, Litigation Practice "If the trustee gets a right of action, why is he not to realise it? The proper office of the trustee is to realise the property for the sake of distributing the proceeds among the creditors. Why should we hold as a matter of policy that it is necessary for him to sue in his own name? He may have no funds, or he may be disinclined to run the risk of having to pay costs, or he may consider it undesirable to delay the winding up of the bankruptcy until the end of the litigation." 1 Citers Â Re Birchall; Wilson v Birchall (1880) 16 Ch D 41 1880 CA Jessel MR, James and Cotton LJJ Litigation Practice, Children In the administration of his estate the widow of the deceased took out a summons asking for a declaration that a large amount of personal property was held by the deceased as trustee for her and so did not fall into his estate. A compromise was suggested dividing the chattels between the widow and the estate. Counsel for infant beneficiaries refused to assent, the guardian being opposed to the compromise. Held: A court cannot force a litigation friend to enter into a compromise against his wishes. Jessel MR said: "This is not approving of a compromise, but compelling one. What jurisdiction has the court to do so? . . In my opinion the course which has been taken in this case is quite unprecedented. The court can approve of a compromise on behalf of infants, but it cannot force one upon them against the opinion of their advisers. The practice . . has been to require not only that the compromise should be assented to by the next friend or guardian of the infant, but that his solicitor should make an affidavit that he believes the compromise to be beneficial to the infant, and that his counsel should give an opinion that he considers it to be so . . This is the first time that I have known a compromise enforced upon infants, against the opinion of their guardians or next friend and of their legal advisers, and I am of the opinion that the orders cannot stand." 1 Citers Â Wallingford v Mutual Society (1880) 5 App Cas 685 1880 HL Lord Hatherley, Lord Selbourne LC, (Lord Blackburn Contract, Litigation Practice, Torts - Other Lord Hatherley said: "Now I take it to be as settled as anything well can be by repeated decisions, that the mere averment of fraud, in general terms, is not sufficient for any practical purpose in [a pleading]. Fraud may be alleged in the largest and most sweeping terms imaginable. What you have to do is, if it be matter of account, to point out a specific error, and bring evidence of that error, and establish it by that evidence. Nobody can be expected to meet a case, and still less to dispose of a case, summarily upon mere allegations of fraud without any definite character being given to those charges by stating the facts upon which they rest." Lord Selbourne LC said: "With regards to fraud, if there be any principle which is perfectly well settled, it is that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. And here I find nothing but perfectly general and vague allegations of fraud. No single material fact is condescended upon; in a manner which would enable any Court to understand what it was that was alleged to be fraudulent." 1 Citers Â Pharmaceutical Society v London and Provincial Supply Association Ltd (1880) 5 App Cas 857 11 Jan 1880 Lord Blackburn Litigation Practice Lord Blackburn spoke of the presumption at common law that the word 'person' in an Act of Parliament includes 'corporations': "Circumstances, and indeed circumstances of a slight nature in the context, might show in which way the word is to be construed in an Act of Parliament . . whenever you can see that the object of the Act requires that the word "person" shall have the more extended or less extended sense, then, whichever sense it requires, you should apply the word in that sense." 1 Citers Â Clarke v Bradlaugh (1881) 8 QBD 63 1881 CA Lord Coleridge CJ, Baggallay LJ, Brett LJ Litigation Practice The defendant had sat and voted in parliament without taking the statutory oath. The writ was issued on the same day. The defendant argued that since the writ was deemed to have been issued at the start of the day, the events on which the claim was based had not yet happened, and that the writ should be struck out. Held: The objection was dismissed on the ground that issuing the writ was not a judicial act and therefore the rule could not apply. Each member of the Court of Appeal expressed doubts about the scope and even the validity of the rule. Lord Coleridge CJ said: "I do not therefore recognise the universality of the rule even as to judicial acts" Baggallay LJ said: "I do not desire to be considered as holding this to be an inflexible rule" and Brett LJ said: "As for the rule that judicial acts relate back to the earliest moment of the day, I know of no principle on which it can be founded. It is an artificial rule, declared for a long number of years to be a part of common law procedure, and therefore it is assumed to be as old as the common law itself. But it is to be applied in the same way as it was applied when first promulgated." The issue of a writ should not be refused where it is properly endorsed. 1 Cites 1 Citers Â Â Chatterton v Watney; CA 1881 - (1881) 17 Ch D 259 Â Â Wheeler v Le Marchant; CA 1881 - (1881) 17 Ch D 675 Â Â Massey v Haynes; 1881 - [1881] 21 QBD 330 Â Ritchie v M'Intosh (1881) 8 R 747 10 Jan 1881 Lord Young Scotland, Litigation Practice Lord Young said that absolute impecuniosity is never the sole reason for making an order requiring payment of a sum by way of security for the costs on an appeal: "The conduct of the cause may be such, or other matters may transpire, which may make such an order necessary, but absolute impecuniosity will never be taken as the sole ground for making a party find caution for expenses." 1 Citers Â Taruck Chunder Bhuttacharjya v Bykuntnath Sannyal and Others [1881] UKPC 2 26 Jan 1881 PC Litigation Practice Fort William (Bengal) Appeal against stay of execution of debt [ Bailii ] Â Â Kitcat v Sharp; 1882 - (1882) 48 LT 64; (1882) 52 LJ CH 134; [1882] 31 WR 227 Â Â Ex parte Firth , In re Cowburn; 1882 - (1882) 19 ChD 419 Â Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 1882 CA Brett LJ Litigation Practice Brett LJ defined the test to identify which documents are relevant for disclosure in court proceedings: "It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words 'either directly or indirectly', because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences: the question upon a summons for a further affidavit is whether the party issuing it can shew, from one of the sources mentioned in Jones v Monte Video Gas Co (1880) 5 QBD 556, that the party swearing the first affidavit has not set out all the documents falling within the definition which I have mentioned and being in his possession or control. I agree that the party issuing the summons for a further affidavit is bound by the description given in the sources of information mentioned in Jones v Monte Video Gas Co: that is to say, he is bound to a certain extent: I do not think that he would be bound absolutely by every description of their contents if the Court can see, from the nature of them, that the description of them is not or may not reasonably be correct. I do not think that the Court is bound any more on the second summons than on the first to accept absolutely everything which the party swearing the affidavit says about the documents, but the Court is bound to take his description of their nature. The question must be, whether from the description either in the first affidavit itself or in the list of documents referred to in the first affidavit or in the pleadings of the action, there are still documents in the possession of the party making the first affidavit which, it is not unreasonable to suppose, do contain information which may, either directly or indirectly, enable the party requiring the further affidavit either to advance his own case or to damage the case of his adversary. In order to determine whether certain documents are within that description, it is necessary to consider what are the questions in the action: the Court must look, not only at the statement of claim and the plaintiffs' case, but also at the statement of the defence and the defendants' case." 1 Citers Â Curtis v Sheffield [1882] 21 ChD 1882 CA Jessel MR Litigation Practice Lord Jessel MR said: "Now it is true that it is not the practice of the Court, and was not the practice of the Court of Chancery, to decide as to future rights, but to wait until the event has happened, unless a present right depends on the decisions, or there are some other special circumstances to satisfy the Court that it is desirable at once to decide on the future rights. But where all the parties who in any event will be entitled to the property are of age and are ready to argue the case, the reason of the rule departs, and it becomes a bare technicality. The reason of the rule is this, that the Court will not decide on future rights, because until the event happens it does not know who may be interested in arguing the question, and therefore may be shutting out parties who, when the event happens, may be entitled to succeed, but where they are all of age, and every possible party is represented before the Court, as I said before, utility seems to say that there should be a power to determine their rights, as is the case in Scotland and in many other countries." 1 Citers Â Â In re Padstow Total Loss and Collision Assurance Association; CA 1882 - (1882) 20 Ch D 137 Â Scarf v Jardine [1882] 7 AC 345 1882 HL Lord Blackburn, Lord Selborne LC Litigation Practice, Estoppel, Contract If there has been a conclusive election by the plaintiffs to adopt the liability of one of two persons, alternatively liable, they cannot afterwards make the other liable. The two claims are mutually exclusive or impossible in law. To establish an estoppel it must be shown that the person seeking to assert an estoppel has acted on the faith of the representation: "I put rather an emphasis on those last words 'against those who acted upon the faith that the authority continued.'" An election to avoid a contract is not completed until the decision has been communicated to the other side "in such a way as to lead the opposite party to believe that he has made that choice". 'Novation' is a term derived from the civil law and therefore from Roman law. A novation operates where: "there being a contract in existence, some new contract is substituted for it, either between the same parties (for that might be) or between different parties; the consideration mutually being the discharge of the old contract." Lord Blackburn said: "The principle, I take it, running through all the cases as to what is an election is this, that where a party in his own mind has thought that he would choose one of two remedies, even though he has written it down on a memorandum or has indicated it in some other way, that alone will not bind him; but so soon as he has not only determined to follow one of his remedies but has communicated it to the other side in such a way as to lead the opposite party to believe that he has made that choice, he has completed his election and can go no further; and whether he intended it or not, if he has done an unequivocal act - I mean an act which would be justifiable if he had elected one way and would not be justifiable if he had elected the other way -the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election." 1 Citers Â North London Railway Co v The Great Northern Railway Co (1883) 11 QBD 30 1883 CA Cotton LJ Litigation Practice 1 Citers Â Cropper v Smith (1883) 26 Ch D 700 1883 CA Bowen LJ Litigation Practice Bowen LJ: "Now it is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights .... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace.... It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right." 1 Citers Â Â Bradlaugh v Clarke; HL 1883 - (1883) 8 App Cas 354, H L (E ) Â Â The Trustees of Clyde Navigation v Laird and Sons; HL 1883 - (1883) 8 App Cas 658 Â Abrath v North Eastern Railway Company [1883] 11 QBD 440 1883 CA Bowen LJ, Lord Brett MR Company, Litigation Practice A claim was brought against the company for malicious prosecution. The jury acquitted it. And the plaintiff appealed. Held: The judge's direction had been correct. Bowen LJ said: "Wherever a person asserts affirmatively as part of his case that a certain state of facts is present or is absent . . that is an averment which he is bound to prove positively." . . And "If there is a conflict of evidence as to these questions, it is unnecessary, except for the purpose of making plain what the judge is doing, to explain to the jury about onus of proof, unless there are presumptions of law, such as, for instance, the presumption of consideration for a bill of exchange, or a presumption of consideration for a deed. And if the jury is asked by the judge a plain question, as, for instance, whether they believe or disbelieve the principal witness called for the plaintiff, it is unnecessary to explain to them about the onus of proof, because the only answer which they have to give is Yes or No, or else they cannot tell what to say. If the jury cannot make up their minds upon a question of that kind, it is for the judge to say which party is entitled to the verdict. I do not forget that there are canons which are useful to a judge in commenting upon evidence and rules for determining the weight of conflicting evidence; but they are not the same as onus of proof. Now in an action for malicious prosecution the plaintiff has the burden throughout of establishing that the circumstances of the prosecution were such that a judge can see no reasonable or probable cause for instituting it. In one sense that is the assertion of a negative, and we have been pressed with the proposition that when a negative is to be made out the onus of proof shifts. That is not so. If the assertion of a negative is an essential part of the plaintiff's case, the proof of the assertion still rests upon the plaintiff. The terms "negative " and " affirmative" are after all relative and not absolute. In dealing with a question of negligence, that term may be considered either as negative or affirmative according to the definition adopted in measuring the duty which is neglected. Wherever a person asserts affirmatively as part of his case that a certain state of facts is present or is absent, or that a particular thing is insufficient for a particular purpose, that is an averment which he is bound to prove positively. It has been said that an exception exists in those cases where the facts lie peculiarly within the knowledge of the opposite party. The counsel for the plaintiff have not gone the length of contending that in all those cases the onus shifts, and that the person within whose knowledge the truth peculiarly lies is bound to prove or disprove the matter in dispute. I think a proposition of that kind cannot be maintained, and that the exceptions supposed to be found amongst cases relating to the game laws may be explained on special grounds come back to the question of the present trial, it is possible that the language of Cave, J., has been misunderstood; and must look and see out of the ways in which the question might possibly be tried, which way he has selected, because as soon as it is seen which mode of trial he has selected a great advance is made towards seeing that the criticisms which have been made on his direction are unsound. A judge may leave the jury to find a general verdict, explaining to the jury what the disputed facts are, telling them that if they find the disputed facts in favour of one side or the other, his opinion as to reasonable and probable cause will differ accordingly, telling them what, in each alternative, his view will be, and enabling them to apply that statement with reference to the issue as to malice; that is a way which in a very simple kind of case may be adopted. But I think it necessary only to state as much as I have stated about it, to see that a very clear head and a very clear tongue will be required to conduct a complicated case to a general verdict in that way. Accordingly, judges have, been in the habit of adopting a different course whenever there are circumstances of complication. A judge may accordingly, do this; he may tell the jury what the issues or questions are, and at the same time inform them what will be the effect upon the verdict, which they will ultimately be asked to find, of the answers they give to the specific questions, leaving the jury both to answer the questions and then to find a verdict, after he has explained to them what result the answers to the questions will involve. That is the way in which Cave, J. really did try this case. There is a third way in which a judge may conduct the trial, by asking the jury specific questions, and not leaving it to them to find the verdict, but entering the: judgment upon their findings himself. That is a third way, and that was not adopted in form by the learned judge, although it will be observed it differs only slightly in form from the second mode of procedure, which he, in fact, did adopt. Now, if the judge adopts the second method of procedure, it is obvious that he is putting specific questions to the jury with the intention, as soon as they have answered the specific questions, to request them to go still further, and to find a general verdict one way or the other on such answers." Lord Brett MR said that any party wishing to assert a negative proposition bears the onus of proving that negative. 1 Citers Â Clarapede and Co v Commercial Union Association (1883) 32 WR 262 1883 Sir Baliol Brett MR Litigation Practice Sir Baliol Brett MR: 'however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated in costs.' 1 Citers Â Â Dunford v McAnulty; HL 1883 - (1883) 8 AC 456 Â Â The Fore Street Warehouse Company Ltd v Durrant and Co; 1883 - (1883) 10 QBD 471 Â Gibbings v Strong (1884) 26 Ch D 66 CA 1884 CA Earl of Selborne LC, Cotton LJ Litigation Practice Earl of Selborne LC: "When no defence has been put in, then, by Order XXIX, rule 10 of the Rules of 1875, the plaintiff may set down the action or motion for judgment, ´and such judgment shall be given as upon the statement of claim the Court shall consider the plaintiff to be entitled to.´ and "This means that the Court is to exercise some judgment in the case: it does not necessarily follow the prayer, but gives the plaintiff the relief to which, on the allegations in his statement of claim, he appears to be entitled; and if a defence has been put in, though irregularly, I think the Court would do right in attending to what it contains. If it were found to contain nothing, which, if provided, would be material by way of defence, the Court would disregard it. If, on the other hand, it discloses a substantial ground of defence, the Court will not take the circuitous course of giving a judgment without regard to it, and obliging the defendant to apply, under rule 14, to have that judgment set aside on terms, but will take steps to have the case properly tried on the merits." Cotton LJ: "I think it is the duty of a Judge, when an action comes before him on motion for decree in default of pleading, to look at everything the knowledge of which may enable him to do justice between the parties. The Plaintiff was entitled to move under Order XXIX, rule 10, but, especially having regard to rule 14, I do not think that where a defence has actually been put in, rule 10 can be construed as obliging the Court to pay no attention to it, because it was put in after time and without leave." Rules of the Supreme Court 1875 1 Citers Â Gill v Woodfin (1884) 25 ChD 1884 Litigation Practice 1 Citers Â Preston v Luck (1884) 27 ChD 497 CA 1884 CA Cotton LJ Litigation Practice The court referred to the need to show 'a probability that the plaintiff is entitled to relief' 1 Citers Â Â Foakes v Beer; HL 16-May-1884 - (1884) 9 App Cas 605; [1884] UKHL 1 Â Â Pearce v Foster; CA 1885 - (1885) 15 QBD 114 Â Vint v Hudspith (1885) 29 ChD 322 1885 Litigation Practice In the Chancery division, and where judgment has been entered in default, the proper challenge is by request to the judge to set aside his judgment. Though an appeal to the Court of Appeal is possible, such appeals will be discouraged. 1 Citers Â Â Edwards v Hope; CA 1885 - (1885) 14 QBD 922 Â Societe Generale de Paris v Dreyfus Bros (1885) 29 Ch D 239 1885 Litigation Practice The court acknowledged how serious it was for a foreigner to be troubled by English proceedings, and therefore "the Court ought to be exceedingly careful before it allowed a writ to be served out of the jurisdiction". 1 Citers Â Smith v Critchfield (1885) 14 QBD 873 1885 CA Lord Brett MR Litigation Practice The court considered when relief should be granted to the Sherriff issuing executing against a complaint by the debtor. Brett MR said: "It seems to me that the sheriff is entitled to protection in respect of the whole of the act which through error he has wrongfully done under the writ, that is, in respect of his having entered the house and seized the goods. What do the authorities say? In the case of Winter v Bartholomew 11 Ex 704; 25 LJ (Ex) 62 it is said that the sheriff may be protected in such a case as this in respect both of the trespass to the land and of that to the goods where no real grievance has been sustained by the claimant. It is obvious that that cannot mean where there is no legal wrong, because by the hypothesis a tortious act must have been committed. It is clear, therefore, that by 'no real grievance' is meant no substantial grievance beyond the mere entry and seizure of the goods, such as might exist if the sheriff's officer were guilty of insolent or oppressive conduct in excess of his duty, and not justified by the writ. The consequences of the contention for the claimant would be absurd. The sheriff cannot seize the goods without entering, and in so doing he is only doing what is absolutely necessary for the purpose of seizing the goods; but it is contended that, though in respect of the seizure he may be protected, in respect of the entry he cannot be protected. It would follow that in every case of this kind, except where he happened to seize the goods in the street, he would be liable to an action of trespass for the entry on the land, and the protection intended to be given to sheriffs by the enactments relating to interpleader would be nugatory, for in every such case there would be an action against the sheriff." 1 Citers Â Farrer v Lacy, Hartland and Co (1885) 28 Ch D 482 1885 Bowen LJ Costs, Litigation Practice The court will seek not to allow the power to order security for costs to be used as an instrument of oppression, by stifling a genuine claim by an indigent company against a more prosperous company, particularly when the failure to meet that claim might in itself have been a material cause of the plaintiff's impecuniosity. 1 Citers Â Reading v The London School Board (1886) 16 QBD 686 1886 Wills J Litigation Practice Wills J said: "All the common law statutes as to interpleader are now repealed and the right to that class of relief is regulated by Order LVII, by which the old practice of the Court of Chancery is modified". 1 Citers Â Marriott v Chamberlain (1886) 17 QBD 151 1886 CA Lord Esher MR Litigation Practice The right to interrogate although not confined to facts directly in issue, extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue. 1 Citers Â Beale v MacGregor [1886] 2 TLR 311 1886 Litigation Practice The court has an inherent power to prevent the abuse of proceedings and to avoid oppression. 1 Citers Â Arbrath v North Eastern Railway Co (1886) 11 App Cas 247 1886 Litigation Practice The burden of proof of a matter can shift during the course of a trial. 1 Citers Â Re General Horticultural Company, Ex parte Whitehouse (1886) 32 Ch D 512 1886 ChD Chitty J Litigation Practice Section 62 describes the order nisi as binding the judgment debtor's chose in action in the hands of the garnishee. The effect of the order, is to give the judgment creditor execution against the debts owing to his debtor. Common Law Procedure Act 1854 62 1 Citers Â Â Meldrum v Scorer; 1887 - (1887) 16 LT 471 Â Urquhart v Butterfield (1887) 37 Ch D 37 1887 Cotton LJ, Sir James Hannen and Lopes LJ Litigation Practice A court may find a result different from that proposed by either party where there is no admission on the issue. 1 Citers Â Weldon v Neal (1887) 19 QBD 394 1887 CA Lord Esher MR Limitation, Litigation Practice An amendment to pleadings should not be allowed so as to allow a plaintiff to set up a cause of action which would otherwise be barred by the Statutes of Limitation. 1 Citers Â Â Post v Toledo, Cincinnati and St Louis Railroad Co; 1887 - (1887) 11 NERep 540 Â Â Grepe v Loam; Bulteel v Grepe; CA 1887 - (1887) 37 ChD 168; (1887) 75 LJ Ch 435; (1887) 58 LT 100 Â Read v Brown (1888) 22 QBD 128 1888 Lord Esher MR Litigation Practice Lord Esher defined the phrase 'cause of action' to mean "Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court." 1 Citers Â In Re Grove (1888) 40 Ch D 216 1888 Lopes LJ Family, Litigation Practice Lopes LJ discussed how a court should determine a party's intention: "in order to determine a person's intention at a given time, you may regard not only conduct and acts before and at the time, but also conduct and acts after the time, assigning to such conduct and acts their relative and proper weight and cogency." 1 Citers Â Â Cooke v New River Co; CA 1888 - (1888) 38 Ch D 56 Â Anlaby v Praetorius (1888) 20 QBD 764; 58 LT 671; 57 LJQB 287; 4 TLR 439 1888 CA Fry, Lopes LJJ Litigation Practice The court below had refused an application to set aside a judgment obtained irregularly. Held: The appeal succeeded. A Statement of Claim indorsed on the Writ is a pleading. Lopes LJ held: "the judgment entered by the plaintiff was premature and irregular . . without any right whatsoever. To obtain that judgment was a wrongful act, not an act done within any of the rules. The defendant is therefore entitled ex debito justitiae to have it set aside." Fry LJ said: "the judgment entered . . was premature and irregular. In such a case the right of the defendant to have the judgment set aside is plain and clear. The Court acts upon an obligation; the order to set aside judgment is made ex debito justitiae, and there are good grounds why that should be so, because the entry of judgment is a serious matter, leading to the issue of execution, and possibly to an action of trespass. We were pressed with the argument that Order LXX., r.1, gives discretion to the Court which applies here. Rule 1 provides that “non-compliance with any of these rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or a judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or a judge shall think fit.” But in the present case we are not concerned with an instance of non-compliance with a rule, nor with an irregularity in acting under any rule. The irregular entry of judgment was made independently of any of the rules; the plaintiff had no right to obtain any judgment at all. I do not think, therefore, that the case comes within r.1, and we must consider what is the right practice without reference to that rule. There is a strong distinction between setting aside a judgment for irregularity, in which case the Court has no discretion to refuse to set it aside, and setting it aside where the judgment, though regular, has been obtained through some through some slip or error on the part of the defendant, in which case the Court has a discretion to impose terms as a condition of granting the defendant relief." and "although the Court is bound to set aside an irregular judgment ex debito justitiae, it has always exercised a discretion as to costs." 1 Citers Â Â Brereton v Edwards; 1888 - [1888] 21 QBD 488 Â In re Suffield and Watts, Ex parte Brown [1888] 20 QBD 693 1888 CA Litigation Practice A High Court judge had made an order in bankruptcy proceedings which had the effect of varying a charging order which he had earlier made under the Solicitors Act 1860. Held: A judge has jurisdiction to reverse his decision at any time until his order is perfected but not afterwards. Unlike the bankruptcy jurisdiction, the Solicitors Act gave no power of variation. As Fry LJ said: "So long as the order has not been perfected the judge has a power of re-considering the matter, but, when once the order has been completed, the jurisdiction of the judge over it has come to an end." Solicitors Act 1860 1 Cites 1 Citers Â Â Jones v Andrews; 1888 - (1888) 58 LT 601 Â Reichal v Magrath (1889) 14 AC 665 1889 Litigation Practice The court has an inherent jurisdiction to strike out all proceedings before it which are obviously frivolous or vexatious or an abuse of its process. 1 Citers Â Holtby v Hodgson (1889) 24 QBD 103; (1889) 38 WR 68; (1889) 61 LT 297 1889 CA Lord Esher MR Litigation Practice A clear distinction is to be made between pronouncing judgment, that is, the giving of formal orders, and subsequently entering judgment. Entry of judgments or orders in the registry of the court achieves finality by bringing the litigation to an end. Lord Esher MR said: "and the intention of the rule clearly is that, from the moment when the judge has pronounced judgment, and entry of the judgment has been made, the judgment is to take effect, not from the date of entry, but from the date of its being pronounced; it is an effective judgment from the day when it is pronounced by the judge in court." He went on to contrast common law judgments with those given in Chancery ("without the verdict of a jury"), and then with those generally given after the Judicature Act, when, as he said, it was desired to make the relevant procedures identical, so that "power is given to the judge at nisi prius to do what he could not have done before, to direct judgment to be entered according to verdict, which is the same thing as giving him power to give or pronounce judgment" Â Â Walker v Wilsher; CA 1889 - (1889) 23 QBD 335 Â Re Combined Weighing and Advertising Machine Company (1889) 43 Ch D 99 1889 Litigation Practice A garnishee order absolute does not operate as a transfer of the garnishee's debt but attaches the debt and confers a right of execution only. Â Glasier v Rolb (1889) 42 Ch D 436 1889 Litigation Practice A finding by a judge that a party is innocent of fraud should only reluctantly be disturbed. 1 Citers Â Reichel v Magrath [1889] 14 App Cas 665 1889 PC Lord Halsbury Litigation Practice, Estoppel The new vicar of Sparsholt, Dr Magrath, was able to rely on the abuse of process even though he had not been party to earlier proceedings between Reichel and the Bishop of Oxford and the Queen's College and so was not bound by any issue estoppel arising out of those proceedings. Lord Halsbury said: "I think it will be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again". 1 Citers Â Macdougall v Knight (1889) 14 App Cas 194 1889 Litigation Practice Practice where an issue of law is raised for the first time on appeal. 1 Citers Â Â Rae v Meek; HL 1889 - (1889) 14 App Cas 558 Â In re Salmon: Priest v Uppleby (1889) LR 42 ChD 351 1889 Litigation Practice A third party allegedly providing the defendant with an indemnity in respect of the plaintiff's claim was only indirectly affected by the appeal of the plaintiff against the defendant. The third party would only be affected if the plaintiff succeeded against the defendant. 1 Citers Â Proctor v Bayley (1889) 42 Ch D 390; (1889) 6 RPC 538 1889 CA Fry LJ, Cotton LJ Litigation Practice, Intellectual Property A final injunction was refused in a patent case because, although the defendant had been found to infringe, the court did not accept there was any basis to infer that there would be a continuance of the wrongful activity to justify a quia timet order. Fry LJ said: "Now an injunction is granted for prevention, and where there is no ground for apprehending the repetition of a wrongful act there is no ground for an injunction. It was pressed on us that Mr Hares insisted on their having a right to do what they had done, but, looking at all the circumstances of the case, this foolish attempt to justify a past act does not raise any presumption that they intend to repeat it. The injunction therefore falls . ." Cotton LJ said: "That the patent is valid, and that the Defendants have infringed it, is not in dispute, the question is whether there is any ground for an injunction. It does not follow that because a man has done a wrongful act an injunction will be granted against him, though he is liable to damages for the wrong. The Court of Chancery said, "Where a man threatens and intends to do a wrongful act, we will, before it is done, grant an injunction to prevent his doing it, and we will grant it where the act has been done and is likely to be repeated" - the jurisdiction is simply preventive . . Where a patent is infringed the patentee has a prima facie case for an injunction, for it is to be presumed that an infringer intends to go on infringing, and that the patentee has a right to an injunction to prevent his doing so. . . In the present case the Defendants have infringed the patent, but we must look at all the circumstances to see whether there is any ground for inferring that they intend to continue to infringe it." 1 Citers Â Nouvion v Freeman (1889) 15 AC 1 1889 HL Lord Herschell Litigation Practice, International A judgment of a court of competent jurisdiction may be final and binding, even though a right of appeal to a superior court remains open. Lord Herschell stated on the question of finality or conclusiveness of a foreign judgment: "in order to establish that such a judgment has been pronounced it must be shown that in the court by which it was pronounced it conclusively, finally, and for ever established the existence of the debt of which it is sought to be made conclusive evidence in this country, so as to make it res judicata between the parties. If it is not conclusive in the same court which pronounced it, so that notwithstanding such a judgment the existence of the debt may between the same parties be afterwards contested in that Court, and upon proper proceedings being taken and such contest being adjudicated upon, it may be declared that there existed no obligation to pay the bet at all, then I do not think that a judgment which is of that character can be regarded as finally and conclusively evidencing the debt, as so entitling the person who has obtained the judgment to claim a decree from our Courts for the payment of that debt." 1 Citers Â Blakey v Latham (1889) 41 Ch D 518 1889 Kay J Litigation Practice, Costs The court considered its power to award of set-off as between the costs in an action and the award of damages to the other party. "How can any solicitor possibly have an equity against B to make B pay costs which B is ordered to pay to A when B cannot recover from A the costs which A is ordered to pay B? How can any solicitor have an equity to make B pay instead of setting them off? If this matter were free from authority I should say it is the most extraordinary equity I have ever heard of." 1 Citers Â Â The Tasmania; 1890 - (1890) 15 App Cas 223 Â Rendall v Blair (1890) 45 Ch D 139 1890 Bowen LJ Litigation Practice, Charity Where a statute requires leave to commence proceedings to be granted, a failure to obtain such consent does not automatically render the proceedings a nullity. Bowen LJ said: "this section is not framed in the way in which sections are framed when it is intended that some preliminary steps should be taken before the action is maintainable at all" and "It directs what ought to be done. Unless the duty is complied with by the litigant the court must hold its hand. But it does not oblige the court to close the gates of mercy upon the applicant, but enables it to stay proceedings until that consent, which as a matter of duty ought to be obtained in the first instance, is obtained at last." The legislature knows well enough how to provide that leave shall be a strict condition precedent to valid proceedings being issued and that clear words are to be used if that is intended, words perhaps even requiring a provision for the dismissal of the proceedings if the condition precedent is not satisfied. Without some such clear language being used the provision can be taken to be directory. Charitable Trusts Act 1853 17 1 Citers Â Tucker v New Brunswick Trading Company of London (1890) 44 Ch D 249 1890 CA Lindley LJ, Cotton LJ, Lopes LJ Litigation Practice An action was brought against three defendants, Matthews, Lamplough and the New Brunswick Trading Company of London, to restrain the company from confirming in general meeting certain agreements between the company and Matthews and Lamplough. An interim injunction was granted against Matthews and the company. Matthews asked for the usual undertaking in damages, to which the plaintiff's counsel replied that it would of course be given. Lamplough had not been served and did not appear. When the order was drawn up, the undertaking it contained was confined to damages sustained by the company, and it was passed and entered in this form. Matthews and Lamplough appealed, asking that the undertaking might be extended to damages sustained by them respectively. Held: Since Matthews had applied for an undertaking, which had in fact been given, the order was wrong in not extending the undertaking to damages sustained by him and could be corrected. Indeed that correction could have been made by the first instance judge under the slip rule; and did not require an appeal. However, the same did not go for Lamplough, who had not applied for an undertaking and not received one. Cotton LJ: "As regards Lamplough, I am of opinion that his appeal fails; for we cannot impose on the Plaintiff any undertaking which he has not given. If a defendant applies for an undertaking, the plaintiff may decline to take any order. The Court only makes the undertaking a condition of granting an injunction; if the plaintiff refuses to give it the Court can refuse the injunction, but it cannot compel the plaintiff to give an undertaking. As a general rule, I think that when an injunction is granted the undertaking as to damages ought not to be confined to the persons restrained. In Pemberton on Decrees, it is said: "The undertaking applies to all the Defendants, although one or more only may be restrained." Mr. Pemberton does not refer to any authority for this; but I consider it to be a correct statement of the practice." Lindley LJ said: "The cases of the two Appellants are distinguishable. Matthews asked for an undertaking and got it. An undertaking is the price of an injunction, and if a man gets an injunction he must pay the price. Lamplough did not ask for an undertaking, and for anything we can tell, if he had done so the Plaintiff would have declined to take the injunction. I think, therefore, that the undertaking can only be extended to Matthews." 1 Citers Â Â Cox v Hakes; HL 1890 - (1890) 15 AC 506; (1890) 60 LJQB 89 Â Â Lawrence v Lord Norreys; HL 1890 - (1890) 15 AC 210 Â Lister and Co v Stubbs (1890) 45 Ch D 1 1890 CA Cotton LJ, Lindley LJ Equity, Litigation Practice, Employment It was alleged by the plaintiffs that their foreman had received secret commissions which he had invested in land and other investments. They sought interlocutory relief to prevent him dealing with the land and requiring him to bring the other investments into court. Held: The injunction was refused because the money was not that of the plaintiffs so as to make the defendant a trustee, but was money to which the plaintiffs would be entitled to claim in the action, i.e. "a debt due from the Defendant to the Plaintiffs in consequence of the corrupt bargain which he entered into" but (a) the money which he had received under that bargain could not be treated as being money of the Plaintiffs "before any judgment or decree in the action had been made" The court will not grant an injunction to restrain a defendant from parting with his assets so that they may be preserved in case the plaintiff’s claim succeeds. A claim relating to the acceptance of bribes was not within a proprietary claim. Lindley LJ discussed the relation between the employer and employee who was accused of betraying his trust in taking a bribe, saying the relationship: "is that of debtor and creditor; it is not that of trustee and cestui que trust. We are asked to hold that it is - which would involve consequences which, I confess, startle me. One consequence, of course, would be that, if Stubbs were to become bankrupt, this property acquired by him with the money paid to him by Messrs Varley would be withdrawn from the mass of his creditors and be handed over bodily to Lister & Co. Can that be right? Another consequence would be that, if the Appellants are right, Lister & Co could compel Stubbs to account to them, not only for the money with interest, but for all the profits which he might have made by embarking in trade with it. Can that be right? " 1 Citers Â Bank of England v Vagliano Brothers [1891] AC 107; (1891) 60 LJQB 145; (1891) 7 TLR 333 1891 Lord Herschell, Lord Halsbury LCJ, Lord Watson, Lord Bramwell Litigation Practice, Banking, Constitutional The court considered the interpretation of the 1882 Act, which was said to be a codifying Act. Held: An Act is to be ascertained in the first instance from the natural meaning of its language and is not to be qualified by considerations deriving from the antecedent law. Lord Watson said: "The decision of the Queen's Bench in Robarts v. Tucker 16 QB 560 has, ever since its date, been accepted in mercantile practice as determining the obligations incumbent upon bankers who agree to retire acceptances on account of their customers. It casts upon them the whole duty of ascertaining the identity of the person to whom they make payment with the payee whose name is upon the bill. They may pay in good faith to the wrong person, in circumstances by which the acceptor himself or men of ordinary prudence might have been misled; but they cannot take credit for such a payment in any question with the acceptor. It has been said by one of the learned Judges that the rule is a harsh one, and it is possible that in some circumstances it may operate harshly; but it appears to me to be settled beyond dispute, and I see no reason for suggesting any doubt that it puts a reasonable construction upon the contract constituted by the agreement of the banker to pay his customers' acceptances when they fall due. In the absence of any special stipulations it construes the arrangement so constituted as importing that, on the one hand, the customer is to furnish or repay to the banker the funds necessary to meet his obligations as acceptor; and that, on the other hand, the banker undertakes to apply the money provided by the customer, or advanced on his account, so as to extinguish the liability created by his acceptance. Accordingly, no payment made by the banker which leaves the liability of the acceptor undischarged can be debited to the latter." Lord Herschell said: "I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view." and "If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions, dependent upon a knowledge of the exact effect even an obsolete proceeding such as a demurrer to evidence." Lord Halsbury LCJ said: "It seems to me that, construing the statute by adding to it words which are neither found therein nor for which authority could be found in the language of the statute itself, is to sin against one of the most familiar rules of construction, and I am wholly unable to adopt the view that, where a statute is expressly said to codify the law, you are at liberty to go outside the code so created, because before the existence of that code another law prevailed.” Bills of Exchange Act 1882 7(3) 1 Cites 1 Citers Â Regina v Assessment Committee of St Mary Abbotts, Kensington [1891] 1 QB 378 1891 CA Rating, Litigation Practice A householder, wishing to object to the valuation listed for his property before the Committee sought to appear by his agent. Held: He did not need to appear in person before the committee but could appoint another person to do so on his behalf. At common law a person who has a right to appear before a statutory Tribunal may appear by an agent, unless the statute says. Otherwise. the existence of a judicial function did not necessarily make the body to which it was entrusted “a court of law”; nor did it necessarily attract “the privileges” enjoyed by a court in law. Â Whitwood Chemical Co v Hardman [1891] 2 CH. 416 1891 Lindley LJ Litigation Practice The court looked to an appointment for a 10 year term as a manufacturing chemist as manager of the plaintiff company's works. Held: If negative injunctive relief was granted "the man must either be idle, or specifically perform the agreement into which he has entered". He categorised the contract as being for personal services. He also said that there was "no very definite line". 1 Citers Â Bonnard v Perryman [1891] 2 Ch 269 2 Jan 1891 CA Lord Coleridge CJ, Lord Esher MR, Lindley, Bowen and Lopes LJJ Defamation, Litigation Practice Although the courts possessed a jurisdiction, "in all but exceptional cases", they should not issue an interlocutory injunction to restrain the publication of a libel which the defence sought to justify except where it was clear that that defence would fail. Where the defendant contends that the words complained of are true and swears that he will plead and seek to prove the defence of justification, the court should not grant an interlocutory injunction unless, exceptionally, it is satisfied that the defence is one which cannot succeed. The plaintiff must demonstrate that "it is clear that (the) alleged libel is untrue." Lord Coleridge CJ said that there was a particular need not to restrict the right of free speech in libel cases by interfering before the final determination of the matter by a jury otherwise than in a clear case of an untrue libel, saying: "But it is obvious that the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions. In the particular case before us, indeed, the libellous character of the publication is beyond dispute, but the effect of it upon the Defendant can be finally disposed of only by a jury, and we cannot feel sure that the defence of justification is one which, on the facts which may be before them, the jury may find to be wholly unfounded; nor can we tell what may be the damages recoverable." 1 Cites 1 Citers Â Regina v City of London Court Judge and Payne [1892] CA 1892 CA Lord Esher MR Litigation Practice In a shipping collision case, the court gave guidance on how a statute should be interpreted inder the literal rule: "If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity. [However] If the words of an Act admit two interpretations, and if one interpretation leads to an absurdity, and the other does not, the Court will conclude the legislature did not intend the absurdity and adopt the other interpretation" Â Â Attorney General of the Duchy of Lancaster v London and North Western Railway Company; 1892 - [1892] 3 Ch 274 Â Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 1892 CA Lord Esher MR, Lopes LJ Defamation, Litigation Practice The court described the characteristics of a tribunal to which absolute privilege attaches. Having spoken of "an authorised inquiry which, though not before a court of justice, is before a tribunal which has similar attributes" and similar attributes the question was whether it was "acting . . in a manner as nearly as possible similar to to that in which a court of justice acts in respect of an inquiry before it." 1 Citers Â Â Rogers v Whiteley; HL 1892 - [1892] AC 118 Â Â In re Housing of the Working Classes Act 1890, Ex parte Stevenson; CA 1892 - [1892] 1 QB 609 Â Â Tabernacle Permanent Building Society v Knight; 1892 - [1892] AC 298 Â Connecticut Fire Insurance Co v Kavanagh [1892] AC 473; [1892] UKPC 45 1892 PC Litigation Practice, Commonwealth An appeal court must scrutinise most carefully an argument or point not taken at the trial and presented for the first time on appeal to ensure that injustice is not caused. “When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea. The expediency of adopting that course may be doubted, when the plea cannot be disposed of without deciding nice questions of fact, in considering which the Court of ultimate review is placed in a much less advantageous position than the Courts below. But their Lordships have no hesitation in holding that the course ought not, in any case, to be followed, unless the Court is satisfied that the evidence upon which they are asked to decide establishes beyond doubt that the facts if fully investigated, would have supported the new plea.” 1 Citers [ Bailii ] Â Barnardo v Ford [1892] AC 326 1892 HL Lord Herschell Litigation Practice, Torts - Other A boy who had been 'found destitute and homeless' by a 'clergyman residing in Folkestone' had been placed in an institution run by Dr Barnardo, who in turn said that he had handed over the boy to 'an American gentleman', who had taken him to Canada. A writ of habeas corpus against Dr Barnardo at the suit of the boy's mother was refused by Mathew J some three months after the boy had been handed over to the American. The Divisional Court did granted the writ some six months later on a renewed application, and this decision was affirmed by the Court of Appeal. Held: The defendant's appeal failed. Lord Herschell said that a writ of habeas corpus should not be 'used as a means of compelling one who has unlawfully parted with the custody of another person to regain that custody, or of punishing him for having parted with it . . If . . it had been an admitted fact that before notice of the application for the writ the appellant had ceased to have the custody of or any control over the boy alleged to be detained, that might have been ground for reversing the order of the Queen's Bench Division. But where the Court entertains a doubt whether this be the fact, it is unquestionably entitled to use the pressure of the writ to test the truth of the allegation, and to require a return to be made to it. Now, it is impossible to read the judgment of the Lord Chief Justice without seeing that he did entertain such a doubt, and that he was not prepared upon the affidavits to accept as conclusive the statements of the appellant... I must not be understood as indicating that I think the story told by the appellant is untrue. But, as the matter is to undergo further investigation, it would obviously be improper to enter upon any discussion of the statements contained in the affidavits, or to express any opinion upon them." 1 Citers Â Â Curtin v Barton; 1893 - (1893) 139 NY 505 Â In Re Daintrey, Ex Parte Holt [1893] 2 QB 116 1893 QBD Vaughan Williams J Litigation Practice, Insolvency The court was asked whether a letter could be admitted in evidence and relied upon as an act of bankruptcy. The letter was sent by the debtor to the creditor at a time when there was no dispute, headed "without prejudice". It contained an offer of composition but threatening that payment would be suspended unless the offer was accepted. Held: The court will not permit the phrase 'without prejudice' to be used to exclude an act of bankruptcy. The letter was admissible. There was no dispute and no offer of compromise, so the sender could not destroy the admissibility of the letter as evidence simply by heading the letter "without prejudice", the protection afforded by that phrase being limited to negotiations for compromise. Vaughan Williams J said: "Moreover, we think that the rule has no application to a document which, in its nature, may prejudice the person to whom it is addressed. It may be that the words 'without prejudice' are intended to mean without prejudice to the writer if the offer is rejected; but, in our opinion, the writer is not entitled to make this reservation in respect of a document which, from its character, may prejudice the person to whom it is addressed if he should reject the offer, and for this reason also we think the judge is entitled to look at the document to determine its character." He stated the conditions for the application of the "without prejudice" rule as follows: "In our opinion the rule which excludes documents marked 'without prejudice' has no application unless some person is in dispute or negotiation with another, and terms are offered for the settlement of the dispute or negotiation, and it seems to us that the judge must necessarily be entitled to look at the document in order to determine whether the conditions, under which alone the rule applies, exist. The rule is a rule adopted to enable disputants without prejudice to engage in discussion for the purpose of arriving at terms of peace, and unless there is a dispute or negotiations and an offer the rule has no application. It seems to us that the judge must be entitled to look at the document to determine whether the document does contain an offer of terms. Moreover we think that the rule has no application to a document which, in its nature, may prejudice the person to whom it is addressed. It may be that the words "without prejudice" are intended to mean without prejudice to the writer if the offer is rejected; but, in our opinion, the writer is not entitled to make this reservation in respect of a document which, from its character, may prejudice the person to whom it is addressed if he should reject the offer, and for this reason also we think the judge is entitled to look at the document to determine its character." 1 Citers Â Â Browne v Dunn; HL 1893 - [1893] 6 R 67 Â Â The Owners of the "P. Caland" and Freight v Glamorgan Steamship Co Ltd; HL 1893 - [1893] AC 207 Â Regina v Lord Mayor of London; Ex parte Boaler [1893] 2 QB 146 1893 QBD Wright J Litigation Practice, Company Boaler had brought unsuccessful proceedings in the Lord Mayor's Court against a company, and was ordered to pay its costs. When he failed to pay them, an order of commitment was made against him. He applied for certiorari, alleging, inter alia, that the proceedings had been brought against the company without leave, when it was in liquidation, and that therefore all the proceedings, including the order of commitment, were invalid. Held: The argument of want of jurisdiction was expressly negatived The absence of a required consent to an action did not where the defect could be cured. Wright J said: "Another point which the applicant made was this. The company in question was in liquidation, and he says that the proceedings could not be continued. That affords no ground for granting a certiorari. It was a bad plea at common law that a compulsory winding up was in progress. The provision applicable to such a case is s87 of the Companies Act 1862 (25 and 26 Vict. c. 89), by which, 'When an order has been made for winding up a company under this Act, no suit, action, or other proceeding shall be proceeded with or commenced against the company except with the leave of the Court, and subject to such terms as the Court may impose.' That section has always in practice been worked out by applying to stay the proceedings, and further it does not apply to the case of a voluntary liquidation, the provisions applicable to which are contained in s138, and under that section the stay is discretionary. A certiorari can only issue where there is a want of jurisdiction." 1 Citers Â Â In re Beddoe, Downes v Cottam; CA 1893 - [1893] 1 Ch 547 Â Â Huntington v Attrill; HL 1893 - [1893] AC 150 Â Allen v Allen [1894] P 248 1894 CA Lopes LJ Wills and Probate, Litigation Practice Lopes LJ said: "It appears to us contrary to all rules of evidence, and opposed to natural justice, that the evidence of one party should be received as evidence against another party, without the latter having an opportunity of testing its truthfulness by cross-examination." 1 Citers Â Holland v Leslie [1894] 2 QB 450 1894 CA Lord Esher MR, A L Smith LJ Litigation Practice, Jurisdiction Leave to serve out of the jurisdiction had been granted in relation to a bill of exchange which had been erroneously described in the statement of claim indorsed on the writ. Held: The Court upheld the order giving leave to amend the writ. Lord Esher MR said: "Leave was given for the issue of the writ so indorsed, and service of notice of it out of the jurisdiction; such notice was duly served upon the defendant abroad; and the defendant has in due course appeared in this country. It is argued that, under these circumstances, the writ cannot be amended. Why not? The rules with regard to amendments appear in terms to apply to such a case. It is contended, nevertheless that there cannot be an amendment, because the writ was for service, and has been served, out of the jurisdiction. But the defendant has now appeared in this country; and I can see no reason why an amendment such as this should not be made, just as in the case of a writ served within the jurisdiction. We were pressed with the possibility that, if such a writ could be amended, it might be amended so as to introduce a cause of action in respect of which leave could not have been originally given for service out of the jurisdiction. That is not the present case. When that case arises, there may be good reason for refusing to allow the amendment." 1 Citers Â Â British American Trustee and Finance Corporation v Couper; HL 1894 - [1894] AC 399 Â Institute of Patent Agents v Lockwood [1894] AC 347 1894 Lord Herschell LC Litigation Practice The court could apply a rectifying construction to conflicting provisions an Act where necessary. Lord Herschell LC said: "You have to try and reconcile [the provisions] as best you may. If you cannot, you have to determine which is the leading provision and which the subordinate provision, and which must give way to the other." 1 Citers Â Mercantile Investment and General Trust Company v River Plate Trust, Loan and Agency Company [1894] 1 Ch 578 1894 Romer J Litigation Practice Romer J said: "A prior purchaser of land cannot be estopped as being privy in estate by a judgment obtained in an action against the vendor commenced after purchase." 1 Citers Â Montgomery v Foy, Morgan and Co [1895] 2 QB 321 1895 Lord Esher MR Litigation Practice The case of Norrois v Beazley was criticised as too narrow an interpretation of the rules. The court decsribed 'one of the great objects of the Judicature Acts, namely that where there is one subject matter out of which several disputes arise, all parties may be brought before the Court, and all those disputes may be determined at the same time without the expense and delay of several actions and trials.' 1 Cites 1 Citers Â Â Huddersfield Banking Co Ltd v Henry Lister and Son Ltd; CA 1895 - [1895] 2 Ch 273 Â Â Mayor of Bradford v Pickles; HL 29-Jul-1895 - [1895] AC 587; [1895] UKHL 1 Â Shoe Machinery Company v Cutlan [1896] 1 Ch 10 1896 AL Smith LJ, Bowen LJ Intellectual Property, Litigation Practice The patentee had succeeded at trial in obtaining a declaration of validity and a determination of infringement, and, in subsequent proceedings, the infringer sought to challenge the validity of the patent by raising a fresh argument based on anticipation. Held: He was not entitled to do so because the question was res judicata as between the parties. Bowen LJ: 'it is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance of their rights.... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace.... It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.' 1 Cites 1 Citers Â Bray v Ford [1895-99] All ER Rep 1011; [1896] AC 44 1896 HL Lord Herschell, Lord Halsbury LC Trusts, Equity, Litigation Practice, Damages, Defamation An appellate court's power to order a new trial is conditional on "some substantial wrong or miscarriage" being established. Lord Hershell said: "It is an inflexible rule of the court of equity that a person in a fiduciary position, such as the plaintiff’s, is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict. It does not appear to me that this rule is, as has been said, founded upon principles of morality. I regard it rather as based on the consideration that, human nature being what it is, there is danger, in such circumstances, of the person holding a fiduciary position being swayed by interest rather than by duty, and thus prejudicing those whom he was bound to protect. It has, therefore, been deemed expedient to lay down this positive rule. But I am satisfied that it might be departed from in many cases, without any breach of morality, without any wrong being inflicted, and without any consciousness of wrong-doing. Indeed, it is obvious that it might sometimes be to the advantage of the beneficiaries that their trustee should act for them professionally rather than a stranger, even though the trustee were paid for his services." Lord Halsbury LC: What ws required was something sufficiently serious to render the decision of the jury unsafe amounting to "a substantial wrong" in which "the defendant was not permitted to present his case to the jury with the argument that his original complaint was true". Lord Herschell discussed the approach to damages in defamation cases: "The damages cannot be measured by any standard known to the law; they must be determined by a consideration of all the circumstances of the case, viewed in the light of the law applicable to them. The latitude is very wide. It would often be impossible to say that the verdict was a wrong one, whether the damages were assessed at £500 or £1,000." 1 Citers Â Crewe v Field (1896) 12 TLR 405 1896 Bruce J Litigation Practice Claim for damages against witness not attending court. Held: A plaintiff in such a case could recover as damages the loss which the missing witness could have established. 1 Citers Â Re de Burgho's Estate [1896] IR 274 1896 Madden J Litigation Practice, Estoppel The court considered the necessary elements of issue estoppel: "According to the clear principles of the law of estoppel, it is necessary, in order to estop the objector, to show that he derives title under Dwyer by act or operation of law subsequent to the recovery of the judgment. If this is shown it is reasonable that he should be estopped, because his estate was represented at the time of the recovery of the judgment though not in his person." 1 Citers Â Â George Bray v Ford; HL 1896 - [1896] AC 44 Â Shoe Machinery Company v Cutlan (No 2) (1896) 13 RPC 141 1896 Romer J Intellectual Property, Litigation Practice Prior litigation had been an infringement action in which the Defendants denied both validity and infringement, and succeeded on infringement but failed on validity and were ordered to pay costs of the validity issue. By the time of the second infringement action the Defendants said they had found new evidence of prior art. Held: They were not allowed to challenge validity, it having been decided against them in the first proceedings. It was a matter res judicata. 1 Citers Â Harbin v Masterman (1896) 1 Ch 351 1896 CA Lindley, A L Smith and Rigby LJJ Costs, Litigation Practice Senior counsel for the unsuccessful appellant asked the Court to note that the five residuary legatees, respondents in the appeal, appeared by four different sets of counsel. He did not, expressly, ask for any particular costs order. Lindley LJ asked counsel for one of the respondents, "the question is at whose expense [do the different counsel for the respondents] appear”. He submitted in reply to the effect that, the appeal having failed, each was entitled to costs according to the ordinary rule. Held: Lindley LJ said: “In these cases there is always a discretion in the Court of Appeal as to the orders it ought to make with reference to the question of costs; and the Court is bound to see that its orders are not necessarily oppressive. It appears to me that in this case there really was no sensible reason for all parties appearing by separate solicitors . . I think it would be oppressive to allow more than one set of costs." The court used its own inherent power to order enquiries to be made by the Official Solicitor to assist the court to ensure that justice is done between the parties. He is appointed to act where, if this were not done, there would be a denial or miscarriage of justice. AL Smith LJ stated "We have an officer of this Court who is called the Official Solicitor. In my judgment, that officer is appointed Official Solicitor to the Court in order that a Judge when he sees before him certain matters which he wants investigated, and as regards the absolute accuracy of which counsel is not instructed, and has no knowledge whatever, may communicate with that official in order that the Judge may be informed as to where the real truth of the case lies." Rigby LJ said that the Official Solicitor may: "be appointed to act where, if this were not done there would be either a denial or miscarriage of justice." 1 Citers Â Attorney-General v Albany Hotel Co [1896] 2 Ch 696 1896 North J Litigation Practice The court considered the undertakings to be inserted in ex parte interim injunction applications: "Upon drawing up an order for an interlocutory injunction the registrar invariably inserts such an undertaking on the part of the plaintiff, even though, as frequently happens, it has not been mentioned in court, but has been taken for granted. Of course such an undertaking must be voluntary: the Court cannot compel a person to give an undertaking; and, if the plaintiff declines to give it, either in court or before the registrar, the order will not be made, or, if pronounced, will not be drawn up. If in the exercise of his discretion a judge should think fit to dispense with such an undertaking he could of course do so, and there are cases in which judges have done so; but this would only be under special circumstances. In the absence of any express direction of the judge to the contrary, the undertaking will always be inserted in the order." 1 Citers Â Neville v Fine Art [1897] AC 68 1897 HL Lord Halsbury Litigation Practice Lord Halsbury said: “Where you are complaining of a non-direction of the Judge, or that he did not leave a question to the jury, if you had the opportunity of asking him to do it and you abstain from asking for it, no Court would ever have granted you a new trial.” 1 Citers Â Spokes v Grosvenor and West End Railway Terminus Hotel Co Ltd [1897] 2 QB 124 1897 CA A L Smith LJ, Chitty LJ Company, Litigation Practice The court discussed the joinder of the company in a derivative action. A L Smith LJ said: "That in the circumstances of this case the company are necessary parties to the suit I do not doubt, for without the company being made a party to the action it could not proceed" because "the company must be party to the suit in order to be bound by the result of the action and to receive the money received in the action." Also, "‘what is recovered cannot be paid to the plaintiff representing the minority, but must go into the coffers of the company." Chitty LJ said: "To such an action as this the company are necessary defendants. The reason is obvious: the wrong alleged is done to the company, and the company must be party to the suit in order to be bound by the result of the action and to receive the money recovered in the action. If the company were not bound they could bring a fresh action for the same cause if the action failed, and there were subsequently a change in the board of directors and in the voting power. Obviously in such action as this is, no specific relief is asked against the company; and obviously, too, what is recovered cannot be paid to the plaintiff representing the minority, but must go into the coffers of the company. It was argued for the appellants that the company were made a party for the purpose of discovery only, and authorities were cited to shew that when no relief is asked against a party he cannot or ought not to be compelled to make discovery. But this argument and these authorities have no bearing on the present case, where, as already shewn, the action cannot proceed in the absence of the defendant company, and the defendant company are interested in and will be bound by the results". Companies Act 2006 1 Citers Â Barraclough v Brown [1897] AC 615 1897 HL lord Watson, Lord Herschell Litigation Practice The 1889 Act gave statutory undertakers who had incurred expenditure in removing a sunken vessel a right "to recover such expenses from the owner of such vessel in a court of summary jurisdiction." the undertakers began their action in the High Court, and appealed dismissal of the claim. Held: The appeal failed. Such expenses were not recoverable in an action the High Court. "By these words the Legislature has, in my opinion, committed to the summary court exclusive jurisdiction, not merely to assess the amount of expenses to be repaid to the undertaker, but to determine by whom the amount is payable; and has therefore, by plain implication, enacted that no other court has any authority to entertain or decide these matters." and "It is possible that your Lordships might accede to such a suggestion, if it were necessary, in order to do justice. But apart from the circumstance that such a declaration would not be in accordance with law, the substance of it is one of those matters exclusively committed to the jurisdiction of the summary court." Lord Herschell: "I do not think the appellant can claim to recover by virtue of the statute, and at the same time insist upon doing so by means other than those prescribed by the statute which alone confers the right." Aire and Calder Navigation Act 1889 47 1 Citers Â Â Re Chaffers, ex parte Attorney General; 1897 - (1897) 45 WR 365; (1897) 76 LT 351 Â Seaward v Paterson [1897] 1 Ch 545 1897 CA Lindley LJ Landlord and Tenant, Litigation Practice, Contempt of Court The plaintiff had obtained a permanent injunction restraining the defendant, his tenant, from interfering with the quiet enjoyment of the plaintiff and other tenants living in the vicinity of the demised premises. The plaintiff successfully moved to commit for contempt one Murray who had assisted in the holding of a boxing match on the premises, and who now appealed. Held: The order was upheld. Murray's liability was the aiding and abetting of the breach of the injunction. Lindley LJ suggested that there might be a wider principle in play: "A motion to commit a man for breach of an injunction, which is technically wrong unless he is bound by the injunction, is one thing; and a motion to commit a man for contempt of Court, not because he is bound by the injunction by being a party to the cause, but because he is conducting himself so as to obstruct the course of justice, is another and a totally different thing. The difference is very marked. In the one case the party who is bound by the injunction is proceeded against for the purpose of enforcing the order of the Court for the benefit of the person who got it. In the other case the Court will not allow its process to be set at naught and treated with contempt." 1 Citers Â Regina v Cotham [1898] 1 QB 802 1898 Litigation Practice, Administrative To obtain an order of mandamus, the applicant must show that he has a sufficient interest. Â Savill Bros v Langman [1898] 79 LT 44 1898 Litigation Practice, Legal Professions The court considered whether an agreement was champertous in the context of an application to licensing justices who were not considered to be sitting as a court and before whom there is no contest. 1 Citers Â Calcraft v Guest [1898] 1 QB 759 1898 CA Litigation Practice, Legal Professions A trial had taken place in which the principal issue was the upper boundary of the plaintiff's fishery. On appeal the defendant proposed to rely on new evidence discovered among the papers in another action tried over a hundred years before. The papers included proofs of witnesses. The papers had been prepared on behalf of John Calcraft, a predecessor in title of the plaintiff. The defendant was allowed to inspect them and copies were handed to the defendant by the grandson of the late Mr Calcraft's solicitor, in each case without any authority. On the appeal, there were two questions: first, whether the documents were privileged, and, second, whether the appellant could give secondary evidence of their contents. Held: If a litigant wants to prove a particular document which by reason of privilege or some circumstance he cannot furnish by the production of the original, he may produce a copy as secondary evidence although that copy has been obtained by improper means, and even, it may be, by criminal means They remained privileged: "once privileged always privileged" However, notwithstanding the privilege, the appellant could give secondary evidence of their contents. 1 Citers Â Â Polock v Garle; 1898 - [1898] 1 Ch 1 Â Montgomery, Jones and Co v Liebenthal and Co [1898] 1 QB 487 1898 Litigation Practice The court rejected the argument that the rules of court prohibited an agreement between the parties to adopt an arrangement for service which did not comply with the rules. 1 Citers Â Pasmore v Oswaldtwistle Urban District Council [1898] AC 387 1898 HL Earl of Halsbury LC Nuisance, Litigation Practice, Health Where an Act creates an obligation, and enforces the performance in a specified manner, it is a general rule that performance cannot be enforced in any other manner. Earl of Halsbury LC said: "The principle that where a specific remedy is given by a Statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the Statute, is one which is very familiar and which runs through the law. I think Lord Tenterden accurately states that principle in the case of Doe v. Bridges . ." Public Health Act 1875 1 Cites 1 Citers Â Stevenson v Garnett [1898] 1 QB 677 1898 AL Smith LJ Litigation Practice AL Smith LJ: "The court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious yet it ought to do so when as here, it has been shown that the identical question sought to be raised has already been decided by a competent court". 1 Citers Â Pender v Taddei [1898] 1 QB 798 1898 CA Litigation Practice At first instance the defendant had been refused permission to join in another party (Bellani) who was a joint contractor, as a defendant to the counterclaim. Held: The appeal failed. 1 Citers Â Belmont Laundry v Aberdeen Steam Laundry [1898] ScotCS CSIH_2; (1898) 6 SLT 192; (1898) 1 F 45 4 Nov 1898 SCS Lord Adam Scotland, Litigation Practice (Inner House) The pursuer sought recovery of its losses from two defenders jointly and severally as a result of an employee leaving without giving sufficient notice. The pursuer claimed the employee left as the result of the second defender, Abderdeen Steam Laundry Company, having induced him to break his employment agreement. Held: Although the grounds pleaded against each of the two defenders were different, the action was competent in that both defenders were alleged to have contributed to the one wrong of which the pursuer had complained. Lord Adam stated: "No doubt the ground of action against each defender is different -- that against Innes being breach of contract, and that against the Aberdeen Steam Laundry Company the doing of a wrongous and illegal act -- but they both contributed to produce the one wrong of which the pursuers complain, and therefore I think that they are conjunctly and severally liable in the consequences". [ Bailii ] Â Â Haynes v Doman; CA 1899 - [1899] 2 Ch 13 Â Ex parte Mersey Docks and Harbour Board [1899] 1 QB 546 1899 AL Smith LJ Litigation Practice AL Smith LJ said: "The matter [ie, of interpleader] now depends upon the provisions of Order LVII, r.1" 1 Citers Â Union Colliery Co of British Columbia Ltd v Bryden [1899] AC 580 1899 Litigation Practice The court discussed how to discover the "pith and substance" of the measure that Parliament had enacted. 1 Citers Â Powell v Kempton Park Racecourse Co Ltd [1899] AC 143 1899 HL Earl of Halsbury LC. Litigation Practice A statute prohibited the keeping of "a house, office, room or other place" for betting. The defendant kept an uncovered enclosure for betting. Held: His activity did not fall within the list under the ejusdem generis rule, The three specific items were all enclosed spaces, and the defendant's was not. A preamble cannot, therefore, be used to qualify or cut down the enactment which follows Â Pritchett v English and Colonial Syndicate [1899] 2 QB 428 1899 CA Lindley MR Litigation Practice A garnishee order absolute is, in substance, not an order to pay a debt, but an order on the garnishees, the syndicate, to hand over something in their hands belonging to the judgment debtor to the judgment creditor. Â Teign Valley Mining Co. Ltd, v Woodcock Times, 22 July 1899 22 Jul 1899 Darling J Litigation Practice A company claimed for money owed upon calls upon its shares. The defendant, Woodcock, admitted liability to the company but claimed against a Captain Rising that he held the shares as his nominee. The judge admitted in evidence terms of the negotiation between the plaintiffs and Captain Rising in which Captain Rising admitted ownership of the shares standing in the name of the nominee. The judge expressed doubts whether he should have admitted the evidence and said he did so because he had been pressed to do so by counsel. The protection afforded by "without prejudice" does not extend to third parties. 1 Citers Â
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