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1862.

ARBON

FUSSELL,

fendant, that this comparison could not be instituted in respect of a document not produced in Court; and

Wilde, B., so held.

It was then proposed to prove a custom in the trade for a three months' notice in such cases, and also that the hirer should be liable for injuries to the horses; the injury in this case having arisen through a collision.

WILDE, B., admitted the evidence, and left it to the jury, telling them that, apart from such custom, the hirer was only bound to use reasonable care to employ a competent coachman (a).

The jury negatived the alleged custom, and found that the defendant had used reasonable care to employ a proper coachman, and that the collision had not occurred through the neglect of the defendant's coachman.

Verdict for the defendant. (a) Vide Holmes v. Onion, 2 C. B., N. S. 690.

Judges' Chambers, coram Keating J. MASON v. WYTHE, SUED AS CLERK TO The MidLevel COMMISSIONERS.

Trinity Term. SUMMONS on the part of the plaintiff for interrogatories Interrogatories

allowed against against the nominal defendant.

the defendant The action was for negligence of the commissioners in in an action

against the regard to the breaking down of a dam.

clerk to comAfter declaration and before plea the present summons negligence by

missioners, for was taken out.

the commis

sioners. The interrogatories, of course, were pointed to the question of negligence on the part of the commissioners.

Greening, for the defendant, showed cause.—The nominal defendant is not the proper party to interrogate, he can have no knowledge of the matter.

Keane, for the plaintiff, in support of the summons.- If
VOL. III.

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1862.

MASON

the defendant has no information, he can say so; if he has, he ought to give it.

KEATING, J., was of that opinion, and allowed the interrogatories.

Order made (a). (a) Vide MEwen v. Rolt, 28 L. J., Exch. 380, where interrogatories were allowed against a public officer.

WYTHE.

feiture.

Coram Blackburn, J.

BLYTH v. L'ESTRANGE. Trinity Term. Interrogatories SUMMONS on the part of the plaintiff for leave to denot allowed on the part of the liver interrogatories to the defendant. plaintiff in an action of eject.

The action was ejectment against a copyhold tenant

The action was eject ment on a for- upon a forfeiture; and

Keane, for the defendant, showed cause on that ground, contending that no discovery was allowed in equity for the purpose of aiding a forfeiture, and that in the Courts of Common Law it had never been decided that in such a case interrogatories were allowable under the Common Law Procedure Act, 1854, s. 50 (a).

Greening, contrà.—There is no such distinction or limitation in the Act; and though the word “discovery” is used, that must mean “ discovery” in respect to the procedure to which the section relates. Forfeiture, after all, is only a breach of contract, and interrogatories are allowable in cases of tort.

BLACKBURN, J.—There is a great deal in that, no doubt; but, as the word “ discovery” is used, I cannot disregard the decisions of Courts of Equity on the subject. But I will consult my brother Judges on the point.

Next day,

The learned Judge said he was still of the same opinon, and would not allow the interrogatories. Even if allowed,

(a) In Horton v. Bott, 26 L. J., gatories are not allowable against Ex. 267, it was held, that interro- the defendant in efectment.

1862.

the objection would clearly arise on the answers; and I do not think I should put the defendant to answer in such a case. Therefore

No order.

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Coram Byles, J.
HUNT AND OTHERS v. ALLGOOD (a).

After

Trinity Term. SUMMONS on the part of the defendant, calling on the On a special

case by way of plaintiff's to show cause why the plaintiffs should not de- appeal from a

ton dover why thada rule to enter liver their case on appeal within ten days, or why the de

the verdict for fendant should not be allowed to sign judgment.

the defendant,

the defendant The action was ejectment for charity lands, tried at the is not called

m upon to take Spring Assizes, 1861, verdict for the plaintiff's, subject to a leave to move to enter it for the defendant, on which, in wards settling

“ or advancing June, 1861, a rule so to enter it was made absolute. Notice the case ; but

if the plaintiff of appeal was given immediately, but nothing had been does not do so

had hoon with due done, and in June, 1862, the present summons had been

promptitude, taken out on the part of the defendant.

the Court will

compel him to Keane, on the part of the plaintiffs, showed cause.—The do so under

pain of final defendant has misconceived his course, which, according judgment for

the defendant. to the practice, would be to state the case himself, and if" the plaintiff refused to settle it, to get it settled by the Judge.

D. Brown, for the defendant, in support of the suninons.- That practice does not apply in such a case as the present, where there has been a judgment.

Byles, J.-I think that is so, and that the proper course has been taken by the defendant. The practice referred to applies where there has not been a judgment or decision of any Court. But here there has been a judgment primâ facie final, and which stands until reversed. The defendant is not to be called upon to do anything to disturb it, and is entitled to rest upon it, and the other party, who seeks to set it aside, must take the active steps for that

(a) Reported ex relatione D. D. Keane, Esq.

156

CASES AT THE JUDGES' CHAMBERS.

HUNT and Others

v. ALLGOOD,

1862. purpose, and must do it with all due promptitude. Here

there has been obvious delay, and therefore I shall make and Others the order; but as the Long Vacation is approaching, I will extend the time.

Order made, but allowing the plaintiffs until

the 1st of October to deliver the case.

tai

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Coram Crompton, J.

SMITH v. ALLEN. Trinity Term. In an action SUMMONS on the part of the defendant to refer the for wrongful

on a action to arbitration, under the Common Law Procedure contract to pay Act, 1854, s. 11. salary, and also to give a share The action was covenant, on articles of employment at of the profits

a cer- a certain salary, and with a certain share of the profits,

e during a term of seven years, the breach being a wrongful taining a dismissal before the end of the second year, whereby the clause for reference to arbi- plaintiff lost the salary and also his share of the profits. tration of disputes relating

Before pleading, this summons was taken out. to the con

The deed contained a clause that any dispute on the struction of the deed, or as construction of the stipulations, or respecting the accounts, the contest transactions and profits of the business, should be referred

the to arbitration. right to dismiss for alleged neg- The plaintiff had been paid his share of the profits for lect of duty :Held, that the the year in which he was dismissed. action was not referable to Gibbons, for the defendant, in support of the summons. arbitration under C. L. P. Gates, for the plaintiff, contrà. Act, 1854, s.11.

CROMPTON, J., said there did not appear to be any dispute respecting the construction of the deed, or as to the accounts, but the matter in controversy was, the right to dismiss the plaintiff, grounded on alleged misconduct; therefore the case did not come within the arbitration clause, and he could not make the order.

No order (a). (a) M. Chambers moved the full case went to trial. Vide post; et Court but took nothing, and the vide ante, p. 116.

to the

not

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Court of Queen's Bench, Guildhall, coram Cockburn, C. J. 1862. SMITH v. ALLEN.

London Sittings.

Trinity Term. DECLARATION, that on the 21st August, 1859, by deed in an action entered into by the defendant with the plaintiff, the defend- dismiss ant, in consideration of the covenants therein contained, co- an employ;

ment, the disvenanted to employ him as superintendent of his chemical missal being.

justified; it is manufactures for the term of seven years, and during the time for the jury pay him a certain salary, and also one-third of the profits.

3. ther matter of Breach, that the defendant, on the 24th August, 1861, fact existed

which would be wrongfully dismissed the plaintiff, whereby he lost his

of dismissal ; salary and his share of the profits during five years, the but whether residue of the said term.

the dismissal

were bonâ fide Plea: that by the deed the plaintiff was to devote his and really on (entire) time and attention to the superintendence of the business (a), but that he did not do so, and that he habitually neglected it and absented himself (b); and further, that he was guilty of moral misconduct (c) and wilful disobedience (d) of the lawful commands of the defendant, in this, that he dishonestly and unlawfully abstracted from the defendant's counting-house a book of the defendant's; and when required by the defendant to return it refused so to do, and denied that he had taken it (d). For which said several causes respectively (e) the defendant dismissed him, as he lawfully might, &c. Issue.

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