ACCORD AND SATIS- Contract by Creditor to take less than S due.]—An agreement between judgment deb Divorce-Death of Petitioner before Decree Absolute. A husband who had obtained a decree nisi for dissolution of his marriage died before the time for making it absolute had arrived:-Held, that the legal personal repreand creditor that, in consideration of the deb sentative of the husband could not revive the paying down part of the judgment debt a suit for the purpose of applying to make the costs, and on condition of his paying to decree absolute. Stanhope v. Stanhope, 11 P. D. creditor or his nominee the residue by inst 103; 55 L. J., P. 36; 54 L. T. 906; 34 W. R.ments, the creditor will not take any proce 446; 50 J. P. 276—C. A. ings on the judgment, is nudum pactum, bei without consideration, and does not prevent Death of Parties in Actions,]—See PRACTICE creditor, after payment of the whole debt a (PARTIES). ABDUCTION. See CRIMINAL LAW.. ABSTRACT OF TITLE. ACCIDENT. See NEGLIGENCE. costs, from proceeding to enforce payment the interest upon the judgment. Pinel's c (5 Rep. 117 a), and Cumber v. Wane (1 S 426) followed. Foakes v. Beer, 9 App. Cas. 60 54 L. J., Q. B. 130; 51 L. T. 833; 33 W. R. 2 -H. L. (E.). Cheque sent "to Balance Account "-Chec retained" on account" and cashed.]—A. sent a "cheque to balance account, as per inclos statement." The inclosed statement debited with a sum claimed on account of defects work done. B. replied acknowledging the ceipt of the cheque "on account," and shor afterwards sent A. a statement of accou omitting the sum claimed by A. for defect: work, and debiting A. with a small sum for d count not allowed in his account, and in 1 accompanying memorandum said: "We wo thank you for a remittance of the balance, or shall be obliged to take proceedings to recov same." A. replied, sending a cheque for t discount claimed. B. kept and cashed t cheques. In an action for the balance B. w nonsuited on the ground that, having taken a cashed the first cheque, he was bound to app it according to A.'s intention:-Held, that t nonsuit was wrong. Ackroyd v. Smithies, L. T. 130; 50 J. P. 358—D. B I. PARTIES. ACTIO II. CAUSES OF ACTION. V. WHEN ACTION ABAT Cheque by Third Party for a smaller SumPayment of Costs without Interest by Mistake.] -An action having been dismissed with costs, the defendant's solicitor got the costs taxed, and took the taxing-master's certificate to the plaintiff's solicitor, who gave him a cheque for the amount of the costs, and received the certificate with a receipt indorsed. After the cheque had III. NOTICE OF ACTION. been paid, the defendant's solicitor discovered that the defendant was entitled to interest on IV. CHOSES IN ACTION. the amount of taxed costs, and applied to the plaintiff to pay it. The plaintiff having refused to pay the interest, the defendant moved for an order directing the plaintiff to attend before the proper officer and produce the certificate in VI. WHETHER ARBITRATI order that a writ of execution might be issued for the interest :-Held, that the defendant acting by his solicitor must be taken to have accepted the cheque of the plaintiff's solicitor in full accord and satisfaction of the whole debt due from the plaintiff, and the motion was accordingly refused. Foakes v. Beer (9 App. Cas. 605) distinguished. Bidder v. Bridges,mittee, on behalf of themsel 37 Ch. D. 406; 57 L. J., Ch. 300; 58 L. T. 656 the subscribers" to the build -C. A. former member of the comm 28 Ch. D. 426; 54 L. J., Ch. cannot be maintained. 33 W. R. 545-Pearson, J. Forgiveness of Amount of Promissory Note.] Where a promissory note was payable a month after demand, forgiveness of the amount of the note is no defence unless the forgiveness be before the note has become payable. Smith v. Gordon, 1 C. & E. 105-Day, J. ACCOUNTS. See PRACTICE. Accounts stated.]-See MONEY COUNTS. ACKNOWLEDGMENT. 1. OF DEBTS AND DEMANDS TO BAR STA- II. TO BAR WIFE'S INTEREST IN PROPERTY. ACQUIESCENCE. See WAIVER. ACT OF PARLIAMENT. See STATUTE. PRECEDENT.-See AR I. PARTIE all) against former Memb By some Members of Com certain members of a chu Str third person, not named as On Contract-Third Par tract, to sue either of the that third person must posse cial right which places him cestui que trust under the c Gandy, 30 Ch. D. 57; 54 I L. T. 306; 33 W. R. 803-C. Felony-Effect of, on acqu A testatrix, by her will, da devised and bequeathed all h estate to T. K. in trust for h life, and after her decease up or permit H. C. D. to receive life, but if he should become licly insolvent, or should c creditors, or should assign interest under the trust, or a should otherwise by his own of law, be deprived of the enjoyment of the same int thereof, then, and in either trust in favour of H. C. D. s T. K. should thenceforth app the maintenance, education, children of H. C. D. The tes and M. C. died in 1881. In J was convicted of felony, and years' penal servitude. Befor his sentence he obtained a t commenced this action for the the estate of the testatrix, arrears of interest :-Held, th the Act 33 & 34 Vict. c. 23, h the action. Held, also, that deprived of the actual enjo interest by any operation of was entitled to all arrears of i re, Darley v. King, 57 L. T. 21 Statutory Rights-Provision of Individual.]-Where 'an a contains a provision for the sp benefit of an individual, he ACTION. ACTION. - ACTION. ACTION. TION ABATES BY DEATH OF ARBITRATION A CONDITION I. PARTIES. pers of Committee (on behalf of mer Member.]-An action by s of a church building com. of themselves "and all others to the building fund, against a f the committee for an account, ained. Strickland v. Weldon, 4 L. J., Ch. 452; 52 L. T. 247; arson, J. Third Party.]-To entitle a named as a party to the conher of the contracting parties, must possess an actual benefiplaces him in the position of nder the contract. Gandy v. D. 57; 54 L. J., Ch. 1154; 53 R. 803-C. A. of, on acquiring Property. er will, dated in July, 1869, athed all her real and personal trust for her sister M. C. for r decease upon trust to pay to to receive the interest for his uld become bankrupt or pub - should compound with his ld assign or incumber his trust, or any part thereof, or y his own act, or by operation ed of the absolute personal same interest, or any part in either of such cases, the H. C. D. should be void, and eforth apply the interest for education, and support of the D. The testatrix died in 1871, 881. In July, 1878, H. C. D. felony, and sentenced to ten de. Before the expiration of tained a ticket-of-leave, and ion for the administration of testatrix, and claimed the -Held, that, under s. 30 of et. c. 23, he could commence also, that he had not been tual enjoyment of the life ation of law; and that he rears of interest. Dash, In 57 L. T. 219-Chitty, J. Provision for special benefit ere 'an act of parliament for the special protection or dual, he may enforce his rights thereunder by an action without either | bank adopted by arrangement with the Post joining the attorney-general as a party or showing office the phrase "Street, London," as a cyphe that he has sustained any particular damage. address for telegrams from abroad to them Devonport (Mayor) v. Plymouth Tramways selves :-Held, that the court had no jurisdiction Company, 52 L. T. 161; 49 J. P. 405—C. A. II. CAUSES OF ACTION. "Cause of Action."]- A cause of action includes every fact which it would be necessary to prove, if traversed, in order to enable a plaintiff to sustain his action. Read v. Brown, 22 Q. B. D. 128; 58 L. J., Q. B. 120; 60 L. T. 250; 37 W. R. 131-C. A. to grant an injunction restraining the bank from using such address, as there was no attempt to interfere with trade, no legal injury done, bu simply a matter of inconvenience. Street v Union Bank of Spain and England, 30 Ch. D 156; 55 L. J., Ch. 31; 53 L. T. 262; 33 W. R 901-Pearson, J. Real Action-Action for Debt.]-The defen dant was the owner and occupier of certain lands in the parish of P., which by a private ac were charged with the payment to the vicar o 2701. in lieu of all tithes. The act provided tha Felony disclosed - - Action whether maintainable.]-In an action for the seduction of if the annual rents were in arrear, the vicar wa the plaintiff's daughter a paragraph of the state-to have such and the same powers and remedie ment of claim alleged that the defendant for recovering the same as by the laws and administered noxious drugs to the daughter for statutes of the realm are provided for the recover the purpose of procuring abortion :-Held, that of rent in arrear; and also that if no sufficien the paragraph could not be struck out as dis-distress was found on the premises, the vica closing a felony for which the defendant ought might enter and take possession of the sam until the arrears were satisfied. Four years to have been prosecuted, inasmuch as the plaintiff arrears of the annual rent accrued in respect o was not the person upon whom the felonious act the whole of the lands charged, during the whol was committed, and had no duty to prosecute. of which period the defendant was the owne Appleby v. Franklin, 17 Q. B. D. 93; 55 L. J., and occupier of a portion only of such lands:Q. B. 129; 54 L. T. 135; 34 W. R. 231; 50 J. P. Held, that the vicar might maintain an actio of debt against the defendant for the whol amount in arrear, the remedy by real action which was a higher remedy than the action o debt, having been abolished by 3 & 4 Will. 4, c 27, s. 36. Christie v. Barker, 53 L. J., Q. H 537-C. A. 359-D. Waiver of Tort-Action on Contract.]-After for money had and received and also for the Remedy for Breach of Statutory Duty.]— There are three classes of cases in which a liability may be established by statute :-(1) Where a liability existed at common law and was only re-enacted by the statute with a special form of remedy, in such cases the plaintiff had his election unless the statute contained words necessarily excluding the common law remedy; (2) where a statute has created a liability but given no remedy, then the party may adopt an action of debt or other remedy at common law to enforce it; (3) where the statute creates a liability not existing at common law and gives a particular remedy, here the party must adopt the form of remedy given by the statute. Vallance v. Falle, 13 Q. B. D. 109; 35 L. J., Q. B. 459; 51 L. T. 158; 32 W. R. 770; 48 J. P. 519; 5 Asp. M. C. 280-Per Mathew, J. Balance Order.]-By a balance order made i the winding-up of a company, the defendan who was a shareholder and director of the com pany, was ordered to pay a sum of 2521. due i respect of calls to the official liquidator of th company. The liquidator brought an actio against the defendant for the sum due under th balance order and the defendant claimed to s off a sum due to him from the company :-Hel that no action can be brought upon a balan order. Chalk & Co. v. Tennent, 57 L. T. 598 36 W. R. 263-North, J. See Mackay, Ex part Shirley, In re, 58 L. T. 237-D. Action for Costs-Appeal to Quarter Sessions -An action lies to recover costs which ha been taxed by the clerk of the peace, and whic arise out of an order made by justices in the ca of a pauper lunatic under 16 & 17 Vict. c. 97, 97, and subsequently abandoned after notice appeal to sessions has been given. Dewsbur Union v. West Ham Union, 56 L. J., M. C. 89 52 J. P. 151-D. High Court-Not below £10.]-An action the High Court claiming relief which, before th Judicature Act, could have been given only i the Court of Chancery, cannot now be mai tained if the subject-matter is below 107. value. The old rule of the Court of Chancery this respect still remains in force. Westbury-o Severn Rural Sanitary Authority v. Meredit Damnum absque Injuria-Assuming Business 30 Ch. D. 387; 55 L. J., Ch. 744; 52 L. T. 839 Name. The short address " 'Street, London," 34 W. R. 217-C. A. [By Rules of Supren was used for many years in sending telegrams Court, 1883, the Chancery Consolidated Gener from abroad to Street & Co., of Cornhill. A Orders of 1860 are repealed.] B 2 III. NOTICE OF ACTION. Constable Contagious Diseases (Animals).] Section 19 of 1 & 2 Will. 4, c. 41, by which, in all actions for anything done in pursuance of that act, the venue is to be local, and the defendant to receive notice of action, applies only to such acts as a constable might at the date of the statute have been called upon to perform; therefore the section does not apply in the case of a constable acting under the Contagious Diseases (Animals) Act, 1878. Bryson v. Russell, 14 Q. B. D. 720; 54 L. J., Q. B. 144; 52 L. T, 208; 33 W. R. 34; 49 J. P. 293-C. A. Highways Act-Injunction.]-The provision of section 109 of the Highways Act, 1835, as to notice of action, does not apply where the principal object of the action is an injunction. Phelips v. Hadham District Board, 1 C. & E. 67-Coleridge, C. J. Public Health Act-Act "done under the provisions of this Act."]-The effect of the Public Health Act, 1875, which makes improvement commissioners under local acts urban sanitary authorities, is to reconstitute them as new bodies under the act, vesting in them as such new bodies the powers given by the local acts as well as those given by the Public Health Act; and such commissioners in subsequently doing any act in the exercise of the powers originally conferred by their local acts are acting under the Public Health Act, 1875, and consequently are entitled in respect of such act to any protection or privilege given by that act to members of local authorities acting under its provisions. Lea v. Facey, 19 Q. B. D. 352; 56 L. J., Q. B. 536; 58 L. T. 32; 35 W. R. 721; 51 J. P. 756C. A. Metropolis Manageme Injunction.]-Section Local Management Acts which requires that be instituted against a dis notice shall be served on tending to take the proc to actions in equity-per does not apply to an acti restrain a nuisance-per Lindley, L.JJ., not diss Poplar Board of Works.: Ch. 149; 55 L, T. 374-C General Requirements the Melbourne Harbour T an action brought again the meaning of s. 46 of th Trust Act; and notice in plying in form or in substa ments of the section is nec ship Company of New Harbour Commissioners, 9 J., P. C. 59; 50 L. T. 337 P. C. IV.-CHOSES IN What are.]-Choses in a sonal chattels not in poss railway company are choses Bank v. Whinney, 11 App Ch. 43; 55 L. T. 362; 34 W 207-H. L. (E.). Voluntary Assignment Intention of Donor.]-A. shares in trust for his father acknowledgment of the tru the acknowledgment: "I tr A local board, assuming to act under the to my daughter C. for her sol authority of s. 39 of the Public Health Act, 1875-B. also held two I O U's (38 & 39 Vict. c. 55), erected a public urinal partly upon a highway and partly upon a strip of land belonging to the plaintiff, and so near to other adjoining land of the plaintiff as to be a nuisance to her and her tenants, and to depreciate the value of her property :-Held, that the plaintiff was entitled to a mandatory injunction to restrain the board from continuing the urinal upon her land or so near thereto as to cause injury or annoyance to her or her tenants, and that in such a case notice of action under s. 264 is not required. Sellors v. Matlock Bath Local Board, 14 Q. B. D. 928; 52 L. T. 762-Denman, J. second from another persor Upon each of these B. indors debt of £ to my daught use and benefit." B. signed 1 and handed the acknowledgm C. There was no consideratio B. did not give any notice debtor upon the second IO till his death, five years lat dividends on the shares and t IO U-Held, that, although accompanied by the delivery ment and I O U's were capal notice to the trustees and del as equitable assignments, ye having regard to the eviden to B.'s receipt of the subseque interest, that he did not inten the indorsement to divest him his property in the shares or de at most to effect a disposition tive only at his death, and in 1 be ambulatory and revocable, stitute a complete gift enfor Gason v. Rich, 19 L. R., Ir. 39 Marriage-Severance of Wif Marriage does not operate as wife's joint tenancy in a chose stock) which has not been r session by the husband. Bai signment - Incomplete Giftnor.]-A. held certain bank r his father B., under a written of the trust. B. indorsed on ent: "I transfer these shares . for her sole use and benefit." vo IO U's, one from A., the ther person indebted to him. se B. indorsed: "I transfer the my daughter C., for her sole B. signed these indorsements, cknowledgment and 10 U's to consideration for the transfer. ny notice of it to A. or the second IO U, and continued e years later, to receive the hares and the interest on A.'s at, although the indorsements, e delivery of the acknowledg were capable, if followed by tees and debtors, of operating nments, yet as it appeared, the evidence and especially The subsequent dividends and d not intend at the time of divest himself absolutely of shares or debts, but attempted disposition to become operah, and in the meanwhile to revocable, they did not congift enforceable in equity. .R., Ir. 391-C. A. ace of Wife's Joint Tenancy. (17 Ch. D. 388) disapproved. Butler's Trusts, ADEMPTION. Of Legacies.]-See WILL ADJUDICATION. Of Bankrupts.]-See BANKRUPTCY. ADMINISTRATION. Of Assets.]-See EXECUTOR AND ADMINIS- ADVANCEMENT. What is.]-Advancement is a payment persons who are presumably entitled to, or ha a vested or contingent interest in, an estate of legacy before the time fixed by the trust instr ment for their obtaining the absolute interest a portion or a whole of that to which they wou be entitled. (Per Cotton, L. J.) Aldridge, re, Abram v. Aldridge, 55 L. T. 554-C. Reversing 50 J. P. 723-Kay, J. Absence of express Words-Power wheth inferred.]-In the absence of express wo authorising the payment, by way of advan ment, of part of the corpus of an estate to person who, under the trust instrument, c never become absolutely entitled to a share of corpus, the court will not infer a power to t trustees to advance a sum out of the corpus fr the mere fact that the instrument contains power of advancement simpliciter. Ib. In favour of Children-Gift of Income Children and Corpus to Grandchildren.]testator directed his trustees to invest the p ceeds of sale of his residuary estate, and pay the income to his eight sons and daught in equal shares. The will then contained t following clause: "And I give a power of a Action.]-See EXECUTOR AND ADMINIS-vancement to my trustees." After the death TRATOR. Letters of.]-See WILL. ADMIRALTY. See SHIPPING. ADMISSIONS. In Pleadings.]-See PRACTICE. ADULTERATION. See HEALTH. the survivor of the children, the corpus of t estate was directed to be paid to the testato grandchildren. The will contained a spec power of advancement out of corpus in the ca of grandchildren and a clause of forfeiture case a child or other object of the trusts shou attempt to anticipate his share :-Held, that t trustees had no power to make advances out the corpus to the children. Ib. Power of, exercisable with Consent of L Tenant-Bankruptcy.]-A testatrix, who di in 1884, gave a moiety of a trust fund trustees upon trust to pay the income J. C., during his life, and after his death in tr for W. J. (an infant), empowering the trust to raise any part not exceeding one-half W. J.'s share for his advancement, subject the consent in writing of J. C. during his li The trustees were desirous of exercising t power, but J. C. had become a bankrupt, a was still undischarged :-Held, that J. C.'s pow of consenting to the advancement was not tinguished by his bankruptcy, but could not exercised without the sanction of his trustee bankruptcy acting under the direction of t Court of Bankruptcy. Cooper, In re, Cooper Slight, 27 Ch. D. 565; 51 L. T. 113; 32 W. 1015-Kay, J. Father and Child-"Advancement by p tion."]-A gift was made by a father to as to enable the son to pay a debt-Held, on t Mixing Beers of different Strengths.]-See death of the father intestate, to be an "advan REVENUE (EXCISE). ADULTERY. See HUSBAND AND WIFE ment by portion" of the son, within sect. 5 the Statute of Distributions. The opini expressed by Jessel, M.R., in Taylor v. Tayl (20 L. R., Eq., 155) dissented from. Blockl In re, Blockley v. Blockley, 29 Ch. D. 250; L. J., Ch. 722; 33 W. R. 777-Pearson, J. Set-off-Debt due to Father from Son.] |