Q. B. D. 511; 53 L. J., Q. B. 280; 32 W. R. 645 | to be given at the arcl -D.

Chose in Action.]-Sub-s. 6 of s. 25 of the Judicature Act, 1873, does not prevent the ultimate assignee of a debt from suing in respect of it in the name of the original creditor, free from any equities which would have been available against an intermediate assignee, but not against the original creditor. Milan Tramways Company, In re, Theys, Ex parte, 25 Ch. D. 587; 50 L. T. 545; 32 W. R. 601-C. A.

Action for Specific Performance.]-A local authority, having compulsory powers of purchase, gave notice to a landowner to treat, and the amount of compensation was assessed by a jury. Before completion the landowner conveyed the land to the plaintiffs, subject to the claim of the local authority :-Held, that the plaintiffs could maintain an action against the local authority for the specific performance of the contract arising out of the notice to treat and subsequent assessment of value, without joining as plaintiff the landowner to whom the notice was given. Burr v. Wimbledon Local Board, 56 L. T. 329; 35 W. R. 404-Kekewich, J.

rate of 80 per cent. 1 of the work done at t cates, and that the 1 should be retained till work. The contract e owners, in the event c mitting an act of bankr from the further exect employ some other pers deduct the amount paid completing the same fi The contractors assigned tion moneys, i.e., the pr the contract retained und provision, by way of mo and notice of the assig After 1 building owners.

Restraint of Trade-Action to enforce Coven- the retention moneys assi ant.]-See CONTRACT.

Solicitor's Bill of Costs.]-A solicitor assigned his bill of costs and the right to recover on it, and the assignee gave notice of the assignment, and delivered the bill to the party to be charged, inclosed in a letter signed by himself. After the expiration of a month he brought an action in his own name on the bill of costs :-Held, that the plaintiff was an assignee within s. 37 of the Solicitors' Act, 1843, and was entitled to maintain the action. Ingle v. M Cutchan, 12 Q. B. D. 518; 53 L. J., Q. B. 311-D.

3. OTHER POINTS.

Stamping Document.]-O'C. & Co. contracted with the defendants to supply them with timber, and the defendants thereupon became indebted to O'C. & Co. in the sum of 4607. O'C. & Co., when the defendants were so indebted to them, addressed a letter to the defendants as follows: -"We do hereby authorise and request you to pay to A. the sum of 3957. 10s., due from you to us for goods sold and delivered by us to you, and the receipt of A. will be a good discharge." This instrument was duly stamped as an assignment but was not stamped with an impressed stamp as a bill of exchange. In an action on the instrument, the defence denied its validity, on the ground that it was a bill of exchange within the Stamp Act, 1870 (33 & 34 Vict. c. 97), and had not been stamped as such before its execution. On demurrer by the plaintiff :Held, that the defence was bad. Adams v. Morgan, 14 L. R., Ir. 140-C. A.

Moneys due under Building Contract-Contractor bankrupt-Validity.]-A building contract provided that payments should be made, as the work proceeded, of such sums on account of the price of the work as should be stated in the certificates of an architect, such certificates

the contractors filed a p the works then remaining in liquidation and a co were appointed. The tru resolution of the committ himself advancing mone which an amount exceedin moneys assigned as afore there being no other asset be recouped in respect and the mortgagee both the building owners. On to try the title to such m the absence of anything t ing owners had exercised the work out of the co trustee must be taken to work under the original the contractors' estate, a employed to complete the for the contractors; that t retention moneys held g trustee; and that the mort entitled to succeed. Tooth Ch. 242) distinguished. 1 Q. B. D. 590; 56 L. J., Q. 35 W. R. 570-C. A.

Divisibility of Contract. embodied a contract by whi to construct and complete colony, on behalf of the C in a certain time, in consid subsidy, to be paid for a c annual subsidy to attach in and form part of the assets and when each section is co grant of land "upon completi The company, under the pow afterwards assigned a portion and "all their interest in the to secure the payment of c company failed to complete t first, that on completion of railway a proportionate pa became payable for the whole that the claim of the compar land became complete as ea railway was completed; thi Colonial Government had c company, such Government n pro tanto from payment of counter-claim; fourthly, that the trustees arose out of the sa claims were subject to a simi

riven at the architect's discretion at the f 80 per cent. upon the contract vale work done at the dates of such certif and that the remaining 20 per cent, be retained till the completion of the The contract empowered the building in the event of the contractors coman act of bankruptcy, to discharge them e further execution of the work, and some other person to complete it, and to he amount paid to such other person in ng the same from the contract pri ractors assigned a portion of the reten eys, i.e., the price of work done under act retained under the before-mentional by way of mortgage to secure a debt, e of the assignment was given to the wners. After making such assignment ctors filed a petition for liquidation, then remaining incomplete. A trustee tion and a committee of inspection inted. The trustee, in pursuance of a of the committee, completed the work vancing money for that purpose of nount exceeding that of the retention igned as aforesaid was still unpaid, no other assets from which he could 1 in respect thereof. The trustee tgagee both claimed the amount of 1 moneys assigned as aforesaid from owners. On an interpleader iss le to such moneys :-Held, that, in of anything to show that the buildad exercised the power of taking it of the contractors' hands, the be taken to have completed the the original contract as trustee of ors' estate, and not as a person complete the work in substitution ctors; that the assignment of the neys held good as against the hat the mortgagees were therefore cceed. Tooth v. Hallett (4 L. B nguished. Drew v. Joselyne, 18 56 L. J., Q. B. 490; 57 L. T. 5; C. A.

66

Newfoundland Government v. Newfoundland | writ of attachment. Salm Kyrburg v. Posnanski Railway, 13 App. Cas. 199; 57 L. J., P. C. 35; 12 Q. B. D. 218; 53 L. J., Q. B. 428; 32 W. R 58 L. T. 285-P. C.

Allowance out of Lunatic's Estate not Assign- Application in Chancery Division, how made.] able.]-On a decree for judicial separation an-An application in the Chancery Division for order was made for payment of 607. a year to the leave to issue a writ of attachment is not wife as permanent alimony. The husband was properly made by summons in Chambers, bu afterwards found lunatic by inquisition, and by should be made in open Court by motion. Davi an order in lunacy and chancery the dividends of v. Galmoye, 39 Ch. D. 322; 58 L. J., Ch. 120 a sum of stock to which he was entitled in a 60 L. T. 130; 37 W. R. 227-C. A. chancery suit were ordered to be carried to his account in the lunacy, and 60%, a year to be paid out of them to his wife in respect of her alimony till further order. The wife assigned the annuity to a purchaser, who presented a petition in lunacy, and in the suit to have the annuity paid to her :-Held, that the petition must be refused, on the ground that whether the annuity was considered as alimony or as an allowance made to the wife by the court in lunacy, it was not assignable. Robinson, In re, 27 Ch. D. 160; 53 L. J., Ch. 986; 33 W. R. 17-C. A.

Breach of Injunction Non-service of OrderNotice. ]-In order to justify the committal of a defendant for breach of an injunction it is no necessary that the order granting the injunction should have been served upon him, if it is proved that he had notice of the order aliunde, and knew that the plaintiff intended to enforce it. Thi rule is not limited to cases in which a breach i committed before there has been time for the plaintiff to get the order drawn up and entered James v. Downes (18 Ves. 522), and Vansanday v. Rose (2 Jac. & W. 264), discussed and ex plained. United Telephone Company v. Dale 25 Ch. D. 778; 53 L. J., Ch. 295; 50 L. T. 85 32 W. R. 428-Pearson, J.

Writ not Issued.]-An attachment may b issued for breach of an injunction, although no writ of injunction has been actually issued, wher the defendant, after being served with the decre or order for injunction, has disobeyed it. Mining Company of Ireland v. Delany, 21 L. R., Ir. 8V. C.

For Non-payment of Debt and of Costs.]-Se DEBTORS ACT.

For Non-compliance with Decree in Restitu tion Suit.]-See HUSBAND AND WIFE.

Contempt of Court.] See CONTEMPT O COURT.

Of Solicitors-Summary Jurisdiction.]-Se SOLICITOR.

Committal or Attachment - Amendment o Notice of Motion.]-A motion having been mad by the plaintiff to attach the defendant for dis When an Act of Bankruptcy.]-See BANK- obedience to an order, it was objected by th

of Contract.]-A colonial statute tract by which a company agreed nd complete a railway in the lf of the Colonial Government, e, in consideration of an annual paid for a certain period, "such to attach in proportionate parts of the assets of the company as section is completed," and of a pon completion of each section." der the powers of their charter, ed a portion of the undertaking erest in the subsidy" to trustees yment of certain bonds. The complete the railway :-Held, pletion of each section of the tionate part of the subsidy r the whole period; secondly, he company to the grant of lete as each section of the eted; thirdly, that if the nt had claims against the nment might relieve itself ment of the subsidy by ly, that as the claims of of the same contract, such a similar counter-claim.

defendant that the plaintiff's remedy, if any was by committal :-Held, that the distinction between committal and attachment still existed and that, although permission would be give to the plaintiff to amend his notice of motion yet the motion must stand over for service o the notice as amended. Callow v. Young, 5 L. J., Ch. 690; 56 L. T. 147-Chitty, J.

Personal Service-Waiver.]-A motion wa made for the attachment of a solicitor for non compliance with an order of the court upo him, to deliver a bill of costs within a fortnight It appeared that the order had not been per sonally served upon him, but had been left wit his clerk at his office. The solicitor had writte giving reasons for his delay, and promising th bill of costs during the then ensuing week:Held, that personal service of the order wa necessary, and that the necessity for suc personal service had not been waived by th letter, and that therefore the motion for attach

ment must be dismissed. 55 L. T. 766-North, J.

Cunningham, In re, | the indorsement given
XLI., r. 5, it was to the

Held, also, that havin Service on Solicitor-Indorsement on Order- the orders, a notice of Waiver.-Ord. XLI. r. 5, which requires any default in obeying" the order to bear an indorsement warning the party grounds of the applicat bound by it of the consequences of disobedience, of Ord. LII., r. 4. Ib. applies to an order for discovery of documents Held, also, that thoug of which service on the solicitor is permitted. of the application wou And a writ of attachment cannot be issued held insufficient to sup against a person who disobeys such an order the motion had been unless the copy served on his solicitor bore the service, the defect was required indorsement. A party whose solicitor dant's appearing and r was served with such an order without the on other grounds. Ib. required indorsement, took out a summons for further time-Held, that he did not thereby waive the irregularity of the service. Hampden v. Wallis, 26 Ch. D. 746; 54 L. J., Ch. 83; 50 L. T. 515; 32 W. R. 808-C. A.

Breach of Undertaking.]-There is no distinction in regard to the service of a notice of

motion for leave to issue a writ of attachment

between contempt in breach of an undertaking, and contempt in breach of an injunction. Where, therefore, the defendant, in an action, had committed a breach of his undertaking contained in an order of the court, made on motion for an injunction, and personal service of a motion for leave to issue an attachment against him could not be effected, the order was made upon affidavit of service upon the solicitor who had acted for the defendant in the action, notwithstanding that he had ceased so to act shortly after the date of the undertaking. Callow v. Young, 55 L. T. 543-Chitty, J.

Indorsement of Order-Tender of Expenses.] -An order for attachment of the defendant was made by a district registrar in respect of default in attendance on a future appointment; it also appeared that there was no tender of conduct money in respect of her expenses and that the order was not properly endorsed under Ord. XLI. r. 5-Held, that any one of these points was fatal to the validity of the order for attachment. Shurrock v. Lillie, 52 J. P. 263-D.

Form of Notice of Motion for Attachment -Sufficiency of Affidavit.]-By order of the 28th of February, 1884, the defendant was directed to pay a sum into court by the 13th of March. This order not having been served before the 13th of March, an order was made on the 3rd of April, enlarging the time until four days after service of the two orders. The plaintiff served the two orders, indorsing on the former the notice given in Ord. I. of the 7th of January, 1870, but putting no indorsement on the latter. The money not having been paid in, the plaintiff moved for an attachment " for your default in obeying the orders made herein on the 28th of February last and the 3rd of April last," supporting it by an affidavit that the defendant had not borrowed the order for the purpose of paying in the money, nor given notice of having paid in the money :-Held, that as the second order did not require the defendant to do any act, but only extended the time for doing the act mentioned in the first order, it was sufficient to endorse the first order only. Treherne v. Dale, 27 Ch. D. 66; 51 L. T. 553: 33 W. R. 96-C. A.

Held, also, that the indorsement was sufficient in form, for that although not in the words of

Service of Copy of Af On giving a notice of mo dant for contempt in d discovery, the plaintiffs the notice of motion a co] they stated in the notice in support of the motion only to a case in which r. 4, applied to such a not would have issued under practice, and that the 1 therefore irregular. Lite D. 64; 32 W. R. 288-No

But held, that the mot once dismissed, but should over until after the hear the defendant for furthe discovery. Ib.

Irregularity.]-Th

of a motion for attachment the notice of motion as it under Ord. LII., r. 4, but days before the day nam motion for moving the co was not such an irregu notice invalid. Hampden Chitty, J.

It is irregular under Rul 1883, Ord. LII., r. 4, not to of motion for attachment co intended to be used on th affidavits, and the notice together, and, if not serve address for service. (See r. 10; LXVII., r. 2.) Pett D. 172; 56 L. J., Ch. 192; R. 151-Kay, J.

An irregularity committ any proceedings under the does not necessarily rend void; under Ord. LXX., power to condone the irres where an order for attachm court had been made again motion the affidavits in su not been served with the r required by Ord. LII., r. satisfied that a contempt h refused, in the exercise of ferred on it by Ord. LXX., but under the circumstances was in prison under the atta to be released. Hampden v 746), and Wyggeston Arbit R. 551), considered. Ib.

A summons or notice of proceedings for irregularity

orsement given in the rules of 1883, Ord
5, it was to the same effect. Ib.
also, that having regard to the nature of
ers, a notice of motion to attach "for
in obeying" them sufficiently stated the
of the application within the meaning
LII, r. 4. Ib.

also, that though the affidavit in support
-pplication would probably have bea
ifficient to support an attachment, if
Eon had been heard on affidavit of
the defect was cured by the defe
opearing and resisting the application
grounds. Ib.

of Copy of Affidavit with Motiona notice of motion to commit a defencontempt in disobeying an order fr the plaintiffs omitted to serve with of motion a copy of an affidavit which

in the notice that they should read of the motion :-Held, that Ord, LIL, d to such a notice of motion, and not case in which a writ of attachment e issued under the old common law nd that the notice of motion was regular. Litchfield v. Jones, 25 Ch. V. R. 288-North, J.

that the motion should not be at sed, but should be ordered to stand after the hearing of a summons by ant for further time to make the Ib.

ularity.]-The affidavit in support
For attachment was not served with
- motion as it ought to have been
II., r. 4, but was served two clear
the day named in the notice of
noving the court :-Held, that this
ch an irregularity as made the
1. Hampden v. Wallis, supra, per
ar under Rules of Supreme Court.
I., r. 4, not to serve with a notio
attachment copies of the affidavits
e used on the motion; the copy
1 the notice should be served
if not served personally, at the
rvice. (See Ord. IV., r. 1; XII.
r. 2.) Petty v. Daniel, 34 Ch
J., Ch. 192; 55 L. T. 745; 35 W.

ity committed in the course of
s under the Rules of the court
ssarily render the proceedings
Ord. LXX., r. 1, the court has
one the irregularity. Therefore
for attachment for contempt of
made against a defendant on a
davits in support of which had
I with the notice of motion, as
d. LII., r. 4, the court, being
contempt had been committed.
exercise of the discretion con-
Ord. LXX., r. 1, to set it aside;
cumstances the defendant, who
ler the attachment, was ordered
Hampden v. Wallis (26 Ch. D.
ston Arbitration, In re (33 W.
ed. Ib.

notice of motion to set aside irregularity should state the

69

ATTACHMENT.

7

several objections on which the applicant in- ment of the leaseholds to C., and C. entere tends to insist. (See Ord. LXX., r. 3.) Ib.

Sheriff-Execution of Writ-Breaking open Outer Door.]-Where a writ of attachment has issued against a party to an action for contempt of court in non-compliance with an order for the delivery over of deeds and documents, the officer charged with the execution of the writ may break open the outer door of the house in order to execute it. Burdett v. Abbott (14 East, 1), and Freeston, In re (11 Q. B. D. 545), discussed. Harvey v. Harvey, 26 Ch. D. 644; 33 W. R. 76; 48 J. P. 468-Chitty, J.

II. OF DEBTS.

into possession thereof :-Held, that A. w entitled to the 707. balance of purchase-mone from C., although no surrender had been o tained of B.'s underlease, and that therefore th sum of 701. could be attached by the judgmen creditor of A. Owens v. Shield, 1 C. & E. 356Denman, J.

Debt due to Judgment Debtor an Another jointly.]-The debt, legal or equitabl owing by a garnishee to a judgment debto which can be attached to answer the judgmer debt, must be a debt due to such judgmer debtor alone, and where it is only due to hi jointly with another person it cannot be attached. Macdonald v. Tacquah Gold Min Company, 13 Q. B. D. 535; 53 L. J., Q. B. 376 51 L. T. 210; 32 W. R. 760-C. A.

Who entitled to-Assignee of Judgment.]The assignee of a judgment debt is a person who has "obtained" a judgment within the meaning Pension-Quarterly Instalment due an of Ord. XLV.. r. 1, and is entitled to a garnishee to become due.]-A quarterly instalment of order attaching debts due to the judgment police constable's pension which is actually du debtor. Goodman v. Robinson, 18 Q. B. D. 332; to him may be attached under Ord. XLV., bein 56 L. J., Q. B. 392; 55 L. T. 811; 35 W. R. 274 "a debt owing" to him. Otherwise as to furthe

-D.

Pay of Surgeon in Navy.]-The pay of surgeon in her Majesty's navy who is in activ service, cannot be assigned, and therefore canno be attached for costs. Apthorpe v. Apthorp 12 P. D. 192; 57 L. T. 518; 35 W. R. 728

C. A.

Money found on Prisoner and retaine by Police.]-Money in the possession of a prisone which is taken by the police upon his apprehen sion, and retained by them after his conviction does not render the police debtors to the prisoner and is not a debt due from them to the prisone which can be attached by a judgment credito of the prisoner by garnishee proceedings undeOrd. XLV. r. 1. Bice v. Jarvis, 49 J. P. 26 -D.

instalments to become due in the future. Boot What Attachable "Debt, Legal or Equit-Q. B. 24; 49 L. T. 471; 32 W. R. 122-D. v. Trail, Hayson, In re, 12 Q. B. D. 8; 53 L. J able."]-In July, 1882, the plaintiff obtained a judgment against W. for 5747. in an action for breach of promise of marriage commenced in August. 1881. In May. 1881, W. became entitled to a legacy of 5001. under a will of which the defendant was executor. This legacy was in hand and ready to be paid over in October, 1881. On the 31st of May, 1831, and before the legacy became actually payable to W., he married; and on the 17th October, 1881, he, by deed between himself of the one part and the defendant of the other part, assigned the 500l. to the defendant upon trust to invest the money and pay the annual income to his wife for her separate use for life, and afterwards upon other trusts. On the 4th of January, 1883, the plaintiff obtained an order under s. 61 of the Common Law Procedure Act, 1854, attaching any sum or sums of money then in or which might come to the hands of the defendant, to answer the judgment recovered by her against W. Upon an issue directed to try whether on the 4th of January, 1883, there was a sum of money which the plaintiff was entitled, under Ord. XLV. (1883), and under the Common Law Procedure Act, 1854, to attach in the hands of the defendant, to satisfy the plaintiff's judgment debt against W.-Held, that, even assuming the settlement of October, 1881, to be impeachable, there was nothing in the nature of a debt, either legal or equitable, due or accruing due from the defendant to W. (the judgment debtor) which could be attached to satisfy the judgment debt. Vyse v. Brown, 13 Q. B. D. 199; 33 W. R. 168; 48 J. P. 151; 1 C. & E. 223-Williams, J.

Priorities-Equitable Charge-Notice.]garnishee order under Rules of Supreme Court 1883, Ord. XLV., binds only so much of the debt owing to the debtor from a third party a the debtor can honestly deal with at the tim the garnishee order nisi was obtained and served consequently it is postponed to a prior equitable assignment of the debt, even in the absence o notice. General Horticultural Company, In re Whitehouse, Ex parte, 32 Ch. D. 512; 55 L. J. Ch. 608; 54 L. T. 898; 34 W. R. 681Chitty, J.

A creditor can only attach by a garnishee orde such property of his debtor as the debtor could deal with properly and without violation of the rights of other persons. Therefore an equitable Moneys accruing due-Sale of Lands.]-charge, obtained before a garnishee order, takes A. mortgaged leaseholds by underlease to B., to priority of the order, even where no notice o secure 8007. A. subsequently agreed to sell the the charge was given. Badeley v. Consolidated leaseholds to C. for 9001. C. paid a deposit of Bank, 38 Ch. D. 238; 57 L. J., Ch. 468; 59 L. T 301., and agreed to pay the balance of the 419; 36 W. R. 745-C. A. purchase-money payable on a given day. By the agreement 8007. of the purchase-money was Solicitor's Lien.]-Costs awarded upon ar to be left on mortgage of the property sold. interlocutory application are subject to the lien The same solicitors acted for A., B., and C. of the solicitor for the party to whom they are throughout the matter. A. executed an assign- given and cannot be attached by a judgment

D 2