e contract was broken by allowing the property to › bought in. 1 The plaintiff's counsel, in the argument before us, ainly relied on the authority of Warlow v. Harrison, nere, in the Exchequer Chamber, three learned judges ve their opinion, that where an auctioneer advertised sale without reserve, not disclosing in any way who 3 principal was, he personally contracted that there ould be a sale without reserve. Two other learned dges did not agree in this view; and it appears that timately the Court of Exchequer Chamber prounced no other judgment than that the pleadings ould be amended, to enable the parties to raise the estion, unless they consented to a stet processus, hich they did. We do not think, therefore, that we e precluded by this as a judgment of a Court of rror; and, if necessary, we should be at liberty to nsider the question whether, even in a case where e name of a principal is not disclosed by an auconeer, there is a contract by the latter, such as is w insisted upon. The Lord Chief Justice and my rother Shee are of opinion that there is not, inasuch as the character of an auctioneer, as agent, is like that of many other agents, as to whom, so long the fact of there being a principal is undisclosed, remains uncertain whether the contracting party is ting as principal or agent; while in the employment nd duty of an auctioneer the character of an agent i necessarily impled, and the party bidding at the uction knowingly deals with him as such, and with he knowledge that his authority may at any moment e put an end to by the principal. I myself should ause before deciding upon this ground. I do not, wever, wish to express dissent from the view thus pressed; and we are all of opinion that it is unnessary to decide this point. The three judges who rmed the majority of the Court in Warlow v. Harson base their opinion entirely upon the fact that e vendor was not disclosed that he was a concealed incipal; but in the present case the passages in the ndbill (which are not set out in the declaration) ewed that the defendant was acting for a principal e mortgagee, who was described, and whose agent, r. Hustwick, the solicitor, was named. Now, as a neral rule, where an agent acts for a named prinpal, the contract, if any, is primâ facie with the incipal, not with the agent; and accordingly, acting a this principle, the Court of King's Bench, in Evans Evans, decided that where premises were let by action by the plaintiffs as auctioneers, but at the ot of the written conditions was written, "approved 7 David Jones," the contract of letting was not with e plaintiffs, as auctioneers, but with David Jones; atteson, J., saying, "On the document I can see no ubt; if the plaintiffs let for themselves, why is avid Jones's name added?" We think this is an press authority, that if there was any contract in case, it was with Hustwick, not with the dendant. We are not to be understood as deciding that the laintiff could not have maintained this action against fustwick, but merely that he has failed to prove any ase against the defendant. , The rule, therefore, must be absolute to enter the erdict for the defendant.-Rule absolute. MICHAELMAS TERM. [Before COCKBURN, C. J., MELLOR and SHEE, JJ.] Quarterly hiring-Weekly hiring-6 Geo. 4, c. 57, 8. 2. W. agreed to let to H. a house quarterly, at a yearly rent of 251., to be paid quarterly; a quarter's notice to be given on either side. H. occupied for more than a year:-Held, that the agreement shewed, that though a notice might have been given to quit within the year, both parties intended the tenancy to endure for more than a year; and, therefore, such tenancy having in fact lasted a year, it was a yearly hiring conferring a settlement, within the 6 Geo. 4, c. 57, 8. 2. Semble, a weekly tenant at a weekly rent, who continues such tenant for more than a year, is not within the above rule, and does not gain a settlement by a hiring for a year. { Notice of appeal having been duly given against an order adjudicating the settlement of John Hazel, a lunatic, to be in the parish of St. Clement, in the borough of Hastings, in the county of Sussex, and ordering the guardians of the Hastings Poor-law Union to make certain payments for the removal and maintenance of the said lunatic, it was agreed that the opinion of this Court should be taken in accordance with the provisions of the 12 & 13 Vict. c. 45, s. 11, and by order of a judge of one of her Majesty's superior courts of common law upon the following case:By an order dated the 8th February, 1865, and made under the hands and seals of two of her Majesty's justices of the peace in and for the county of Middlesex, after reciting an order, whereby the said lunatic, John Hazel, had been removed to the Middlesex County Lunatic Asylum, and had been maintained there from the date of the said removal until the 31st January then last past, and that the said justices had inquired into the last legal settlement of the said John Hazel, it was adjudged that the last legal settlement of the said John Hazel was in the parish of St. Clement, in the borough of Hastings Poor-law Union, in the county of Sussex; and the said guardians of the poor of the Hastings Poor-law Union were by the said order, ordered to pay to the guardians of the poor of the said parish of St. James's, Clerkenwell, certain sums therein specified for the removal of the said lunatic to the said asylum, and for his maintenance there. The particulars of the settlement relied on were— that in or about the year 1856 the said John Hazel went to settle upon and inhabit a tenement, being a separate and distinct dwelling-house in George-street, in the parish of St. Clement, in the said borough of Hastings, which he hired of George Welherd at and for the rent of 251. a year, and that he held, occupied, and resided therein, under such yearly hiring, thenceforward for six whole years, and paid rent for the same to the amount of 101. in each year, and was assessed to, and charged with, his share towards some one or more of the public taxes or levies of the said parish of St. Clement in respect thereof, and resided therein forty days and upwards, after the payment of some one or more of such taxes or levies in each year. The grounds of appeal put in issue the sufficiency of the hiring or renting for the purpose of conferring a settlement. The facts were as follows: The said John Hazel in July, 1856, applied to George Welherd, as the agent of William Welherd, to become the tenant of the house, No. 62, George-street, in the said parish of St. Clement, Hastings; and an THE GUARDIANS OF HASTINGS UNION, Apps., THE agreement was then signed, which was in the words GUARDIANS OF ST. JAMES, CLERKENWELL, Resps. Nov. 20. {** } Settlement Renting a tenement Hiring for a year and figures following: "An agreement between William Welherd and John Hazel. "William Welherd agrees to let, and John Hazel agrees to hire, the house No. 62, George-street, quar- For WILLIAM Welherd, "GEORGE WELHERD. Hastings, July 25, 1856." It is admitted by the appellants that the said Hazel occupied the said house under the said agreement, for six years, and resided therein, and was assessed to and paid rates and taxes in respect thereof, so as to gain a settlement in the said parish of St. Clement, if the said agreement constituted a yearly hiring or renting of the said house for the term of one whole year, within the meaning of the stat. 6 Geo. 4, c. 57, s. 2. The rent of the house was always paid quarterly. The question for the opinion of this Court is, whether the said agreement constituted such yearly hiring or renting of the said house for the term of one whole year. If the Court is of opinion that it did so constitute a yearly hiring or renting of the said house, then the order of justices is to be confirmed. If the Court is of a contrary opinion, then the said order is to be quashed. And it is agreed between the parties that the costs shall abide the event, and that judgment shall be entered up in conformity with the decision of this Court, at the general quarter sessions, and for the county of Middlesex, next or next but one after such decision shall be given. The stat. 6 Geo. 4, c. 57, s. 2, enacts, "that no person shall acquire a settlement in any parish or township maintaining its own poor, by or by reason of settling upon, renting or paying, paying parochial rates, for any tenement, not being his or her own property, unless such tenement shall consist of a separate and distinct dwelling-house or building, or of land bonâ fide rented by such person in such parish or township, at and for the sum of 107. a-year at the least, for the term of one whole year; nor unless such house, or building, or land, shall be occupied under such yearly living, and the rent for the same, to the amount of 107., actually paid for the term of one whole year at the least." Poland, for the respondent.-This was the case of a yearly hiring. It is obvious that it is more than a quarterly hiring, for as a quarter's notice was required to be given, the tenancy could not be determined till the end of half-a-year. But if it is more than a quarterly hiring, then it must be the usual indefinite hiring, defeasible only on a quarter's notice. There is no separate meaning to be attached to the word "quarterly," for that word is used merely in reference to the quarter's notice. And the mention of the four quarter days shews that the meaning of the parties was to continue the hiring for a whole year. The same conclusion was come to in the cases of Reg. v. St. Giles, Cripplegate (4 B. & S. 509; S. C., 10 Jur., N. S., 205) and The Overseers of Willesden v. Paddington (3 B. & S. 593). at least three months; and if it was not monthly, of of The judgment of the Court was now delivered by SHEE, J.-In this case the question is, wher John Hazel, a pauper, had acquired a sette St. Clement's, Hastings, by renting a tenement fr the term of one whole year, within the the stat. 6 Geo. 4, c. 57. The pauper acta enged the premises for six years under an agre ita following terms:-"William Welherd agres A and John Hazel agrees to hire, the house Yo George-street, quarterly, at a yearly rent of paid on the 29th September, the 25th December, t 25th March, and the 24th June. Taxes to be pa tenant; to be left in tenantable repair. A ques notice to be given by either party." The language the agreement, speaking, as it does, of a yearly re and mentioning the four quarter days, shews that the parties contemplated that the tenancy should prot continue for a year; but it was in the power party to put an end to the tenancy by a quar notice; and we think that the use of the word "qur terly" shews that it was intended that the not might terminate at the end of any quarter; so thanks was at the option of either party, by giving a p notice, to terminate the tenancy before the e the year. If we were now, for the first time struing the stat. 6 Geo. 4, c. 57, we should not be posed to hold that this was a hiring for a whole as there is great force in the argument, that th construction of the statute is, that the tenang be such as must endure for a whole year; but v. Herstmonceaux (7 B. & Cr. 551), though this forcibly contended in the argument that such as true construction, the Court decided, after taking to consider, that "a taking at 20 guineas a year, rent to be paid weekly, and either party to be us liberty to give three months' notice from any quar day, and at the expiration thereof to determine th tenancy," was a taking for a year, unless within year notice should be given; and that notice not haring been given, the occupation was under a letting for a whole year, within the meaning of stat. 6 Gea c. 57. This case was followed by the Court in Overseers of Willesden v. The Overseers of Paddi (3 B. & S. 593). In that case there was an obser worded agreement. Wightman, J., in his judgme states its effect to be, a demise for three months certain from the 25th December, 1859; but that if t parties should go on as landlord and tenant after the time, it should be a yearly tenancy at the rate of 19 a year, payable monthly, and determinable by giv three months' notice; which," Wightman, J., thoug "might be given at any time, and need not be a no expiring at any particular time." "Then," said the pauper, having occupied for more than a has rented a tenement for the term of one whole pr within the meaning of stat. 6 Geo. 4, c. 57." Croa Hurst, for the appellant. This was in no sense of the word a yearly hiring. The use of the word "quarterly" shewed that it was only a hiring from quarter to quarter; and the power to give a quarter's notice at any time of the year made the case essentially different from a yearly hiring where the notice must always expire at the end of the first or other year. The decision of the case of Reg. v. St. Giles," Cripplegate, was not satisfactory, for there it was said the tenancy could not be monthly, because it must last the 16 feel justified in overruling the three cases already decided on this subject, although we may doubt the correctness of the original decision. The order should, therefore, be affirmed.-Order affirmed. COURT OF COMMON PLEAS. JJ.] HADLEY V. TAYLOR and Others.-Nov. 3. Nuisance-Warehouse - Temporary occupation-Liability of occupier. The defendants were the temporary occupiers of a warehouse, and within fourteen inches of a highway was an unfenced hoist hole, part of the premises, into which the plaintiff, in passing along the highway, accidentally fell, and was injured :—Held, that the defendants were liable for the nuisance. Declaration, for that the defendants were possessed of a certain warehouse or premises, and of a hoisthole, vault, or cellar, immediately adjoining a public highway, and that the defendants being so possessed, wrongfully suffered the hoist-hole to remain and be open to the said highway, without any light, railing, fence, or protection whatever, and that the same was dangerous to persons lawfully passing along the said highway during the hours of darkness; and that the plaintiff, while lawfully passing along the said highway during the hours of darkness, fell into the hoisthole, vault, or cellar, and thereby sustained damage. Plea, not guilty, and issue thereon. ton, J., seems to have inclined to think that the construction of the agreement was, that the notice to quit must expire at the end of the year (on which reading of the agreement the present question would not arise). But he expresses no dissent from the view of Wightman, J., and no disapprobation of Rex v. Herstmonceaux. In Reg. v. St. Giles, Cripplegate (4 B. & S. 509; S. C., 10 Jur., N. S., 205) the case of Rex v. Herstmonceaux was again followed. There the letting wasof a house " from the 25th March, 1858, at the monthly rent of 17. 118. 8d.... One month's notice, to expire on the 25th [Before ERLE, C. J., WILLES, BYLES, and KEATING, March, 25th June, 25th September, or the 25th December, shall be a good and sufficient notice on either side," for the tenant to deliver up possession. Though the rent was expressed to be monthly, it was clear, from the agreement as to the notice to quit, that the tenancy was intended to be more than a monthly one. The Court say, "To what other conclusion can we come than that it was a hiring of the tenement indefinite as to duration, but terminable at a month's notice on either side on any of the specified quarterly days; and the house having been actually occupied under that hiring for upwards of two years, it appears to us to have been an occupation under a hiring for a whole year." No case was cited, nor are we aware of ny, in which the authority of Rex v. Herstmonceaux has been questioned; and on this state of the authorities we feel ourselves bound to hold, that though a tenancy is terminable by a notice to quit within a year, yet if the terms of the hiring are such as to shew that the parties contemplated that the tenancy would, unless the notice was given, endure for a year or more, and it does endure for a year, it will be sufficient to confer a settlement. We do not intend to decide that a weekly tenant, at a weekly rent, who, by payment of rent, becomes a tenant from week to week, so long as both landlord and tenant please, gains a settlement At the trial, before Byles, J., on the Summer Circuit, at the end of fifty-two weeks, as having held under a at Worcester, it was proved that the defendants were letting for a whole year. We think that the decisions merchants, carrying on business in Manchester, and only apply to cases where it appears, from the terms that in the month of February, 1865, it became necesof the letting, that the parties contemplated originally sary to pull down and rebuild their warehouses, in that the holding would endure for a year, though it which they carried on business, and that during the night be put an end to before the expiration of the time that the same were pulled down, and until they year. In the present case, indeed, the parties say that were rebuilt, they occupied the warehouse and prehe house is to be let "quarterly;" and if the agree- mises in question, that they placed their wares in nent stopped there, the inference would be that they the said warehouse, and occupied the premises at lid not contemplate that the holding would continue the time the accident for which the action was for a year, but they proceeded to say that it shall be brought occurred. It was further proved, that behind it a yearly rent, payable on the four usual quarter the premises, and distant about fourteen inches only days. This seems to us to shew quite as strongly as from a public highway, running at the back of the anything in the agreements in Rex v. Herstmonceaux, said premises, was a hoist-hole belonging to the preWillesden v. Paddington, and Reg. v. St. Giles, Crip- mises, leading into a cellar or vault, which was ocplegate, that it was contemplated by the parties that cupied and used by the defendants within the warethe holding would continue for a year or more, though house for the purposes of their business; that the it might be put an end to before the expiration of a hole was not railed in or fenced from the highway, year; and the word "quarterly" will, we think, have and that there was no light near the hole during the sufficient effect given to it by using it to shew that it hours of the night to enable persons passing along was intended that the quarter's notice might terminate the highway at the back of the premises to avoid at the end of any quarter, without giving it the effect the hole. It was, however, proved, that a watchman of nullifying these expressions. Had the word "“quar- was employed to look after the premises at night. terly" been omitted, and the words "ending on any Soon after the defendants began to occupy their warequarter-day" been inserted at the end of the agree-house and premises, the plaintiff, whilst passing along ment, the effect of the agreement would have been precisely the same both as to the continuance of the holding and the mode in which it was to be determined. The case would have then been identical with Herstmonceaux, and we think that we ought not to make a nice distinction between the effect of agreements according to their words, when the intention of the parties, as expressed by the words used, and the legal effect of the agreements are identical. It is important that points arising upon settlement law, when once determined, should not be again disturbed except on most cogent grounds, and we should, therefore, not Rex v. the highway after dark, fell into this hole and sustained certain injuries. The judge left the question to the jury, whether this hole was dangerous to persons lawfully passing along the highway, and the jury found their verdict for the plaintiff. Powell, Q. C., moved for a rule to set aside the verdict, and to enter a nonsuit, on the ground that the defendants, having only the temporary possession of the warehouse, were not liable, and contended that there was no duty or power in the defendants to fence the hole. The proper person to sue was the owner of the premises, or perhaps the builder. The case dif fered from Barnes v. Ward (9 C. B. 392), because in that case the hole was close to the highway. ERLE, C. J.-I am of opinion that there ought to be no rule. The action was brought by the plaintiff to recover damages for injuries he sustained, by falling into a certain hole in the rear of premises occupied by the defendants, which hole was nearly close to a highway, along which the plaintiff was passing when he fell into the hole. I am of opinion that the occupier is liable for the damage arising from a nuisance at the suit of a person who has sustained injury thereby. I think the case of Barnes v. Ward in point. But it is objected, that the defendants had only a temporary occupation of the premises, and that the duty was, therefore, on the owner to keep the hole fenced. I do not think this is a defence to this action. The person responsible in the first instance for a nuisance is the occupier of the premises. The public, of course, look to the persons in actual possession. WILLES, BYLES, and KEATING, JJ., concurred.Rule refused. Attorney for defendants, Reed & Phelps. 1 COURT OF EXCHEQUER. MICHAELMAS TERM. ment, with a condition, that if the first instalment should not be paid, the whole sum should immediately become due. We granted a rule to consider whether the maker of such a note was entitled to three days of grace. Two cases were brought to our notice which bear upon the subject. There is a case in the lith volume of Meeson & Welsby's Reports, which des that a promissory note, which makes all the instans due on one default, does not lose the right to me days' grace if the note be negotiable. A previces had decided that a note payable by instalments, w out any condition, was entitled to the days of gras On this state of things, the majority of the Courtis of opinion that the rule should be discharged. I do not like to pronounce this judgment without giving expression to a doubt I entertain, althongt I should not be ready to give effect to my doubt, if my judgment were final. I am of opinion that the sta tute of Anne applies to negotiable instruments only, and not to transactions between A. and B. It is too late to correct the step which has been taken in regard to that question. But there is a great difference be tween instruments which are negotiable and le become due to the whole amount, if one instalate unpaid, and such an instrument as this is. In th of Carlon v. Kenealy the Court held that the caselem them was substantially decided by the case of v. Sherborne. I do not think that it was. But both [Coram POLLOCK, C. B., BRAMWELL, CHANNELL, and cases are binding on us; and if the question turmel PIGOTT, BB.] grace. This was an action commenced in the Lord Mayor's Court on the 23rd May, 1865, on a promissory note, made in the following terms: CL £200. "February 22, 1865. "We jointly and severally promise to pay Henry Miller, Esq., the sum of 2601., by the following instal upon them, I should be obliged to decide in confor mity. But I think it does not; and I incline to agree with what appears to have been Lord Kenyon's op nion (Smith v. Kendall, 6 T. R. 122), that the state of Anne deals with instruments only which are cast by the custom of merchants. I think the conf merchants knows no such thing as a bill of s to become due on default of payment of a prit stalment. Neither, then, does the custom of mer extend to promissory notes in such case; and if the be no custom of merchants, there is no law to give ef fect to it. The judgment of the Court is, that the rule be discharged.-Rule discharged. PIGOTT, BB.] ments, namely, 1301. on the 20th day of May, 1865, and [Coram POLLOCK, C. B., MARTIN, CHANNELL, 43) 1307. on the 22nd day of August, 1865. In default of payment of the first instalment, the whole amount payable under this note to become due and payable. "C. MADDER. W. BIDDLE." The defendant in his plea denied his liability to pay on the 22nd May. No facts were disputed at the trial, and the judge directed a nonsuit, reserving leave to the plaintiff to move to enter a verdict for himself, on the ground that the defendant was not entitled to the three days' grace on an instrument in this form. In this term, Philbrick obtained a rule accordingly, and Wharton shewed cause, citing Oridge v. Sherborne (11 M. & W. 374) and Carlon v. Kenealey (12 M. & W. 139). [He cited also Smith v. Kendall (6 T. R. 122) ; Rawlinson v. Stone (3 Wils. 4); Bentley v. Northhouse (Moo. & M. 66); Milne v. Graham (1 B. & Cr. 192); Hill v. Lewis (1 Salk. 1333); Brown v. Harraden (4 T. R. 148); and Byles on Bills, 191.] Keane, Q. C., and Philbrick, contra, relied on the definition of a promissory note given in Byles on Bills, 4, 6th ed. [They cited Carlos v. Fancourt (5 T. R. 482).] Cur, adv. vult. POLLOCK, C. B., now delivered judgment in the following terms:-This was an action on a promissory note payable by instalments, and not payable to order or to bearer, but to an individual named in the docu PARKER v. TOOTAL.-Nov. 22. Error-Costs below-Substitute plaintiff, The representative of a deceased plaintiff who takes p action in error, under sect. 163 of the Common-law Pr cedure Act, 1852, does not render himself liable is di costs of the action below. Gray, on the part of the plaintiff, had o rule calling upon the defendant to shew canse The Master should not review his taxation of cost taxation took place upon judgment being given the Exchequer Chamber in error from this Court. The plaintiff was not the person who originally brought the action. Barrow, the original plaintiff, sued Tootal in ejectment. In the Court of Exchequer, Tootal, the de fendant, at the suit of Barrow, had judgment in his favour (see Barrow v. Tootal, 7 H. & Norm. the grounds thereof (see Common-law Procedure Act. .whereupon Barrow alleged error, but before assigning 1852, s. 50) died. Thereupon the now plaintiff Parker. Barrow's devisee of the land claimed, entered a s gestion of his death, and the cause proceeded. (See Common-law Procedure Act, 1852, ss. 124, 148). The judgment of the Court of Exchequer error. The Master, in taxing the costs (see rules of Hilsy was affirmed i Dee. 16, 1865. Ferm, 1853, r. 69), allowed against the now plaintiff the costs of the proceedings in the Court of Exchequer. This was the taxation complained of. The learned counsel, in moving the rule, cited Fisher . Bridges (24 L. J., Q. B., 166). Cleasby shewed cause in the first instance. The proceedings in error, as they exist at present, are not like a writ of error which constituted a new action, but they are declared by the Common-law Procedure Act to be a "step in the cause." (Sect. 148 of the Commonlaw Procedure Act, 1852). The cause, then, is all one. Certainly, if the original plaintiff had died before the judgment in the court below, the present plaintiff would have been responsible for all the costs. As it is, the Court in Error pronounces the judgment which the Court below ought to have pronounced. The position of the suit embraces and looks back upon all that has gone before. The judgment is the judgment in the whole cause from the beginning. The now plaintiff stands in the shoes of the original plaintiff from the first. Technically speaking, the proceeding for costs is separate from the judgment, and, if the plaintiff's contention is right, he would be subject to two proceedings instead of one. [Pigott, B.-We cannot make a second statute of Gloucester.] [He also cited sects. 135, 137, and 190 of the Common-law Procedure Act, 1852, and the cases collected in Mr. Day's notes to the 151st section (Day's Common-law Procedure Acts), and Benge v. Swaine (23 L. J., C. P., 182).] Gray, contra. POLLOCK, C. B.-The act of Parliament does not expressly allow these costs, and, therefore, we ought to make the rule absolute. There would be a difficulty if another course was taken, for if the devisee were to pay these costs, I do not see how he would get them from the executor. He would have no legal claim. I think the defendant is entitled to have the rule made absolute. MARTIN, B.-I am of the same opinion. The devisee had nothing to do with the step which involved double proceedings. He took up the case in error. I think, then, he is only answerable for one set of costs. by the fact, that error being made a "step in the cause," they are superfluous, and that, the question being put in that light, the Act is more in his favour than if it had been otherwise. On the view I take, however, this construction is inadmissible. I think the taxation ought to be reviewed. PIGOTT, B.-I think the state of the question is not satisfactory, for I do not see what was the intention of the Act, which has to be extracted from the dif ferent sections. In the case of Fisher v. Bridges, the Court of Queen's Bench held that the Act had no operation to create a liability for costs; but in that case the decision was in affirmance, and the present is in reversal of the decision of the Master. I think the rule acted upon there must prevail. We cannot make a new liability. If the Legislature had meant to alter the rule of the Court, they would have said so. Therefore, I cannot say the taxation was right.Rule absolute. [Coram POLLOCK, C. B., BRAMWELL, CHANNELL, and BOOTH v. TAYLOR.-Nov. 25. The claim for an injunction in an action at law, cannot be The declaration was for injury to the plaintiff's reversion by obstructing the lights of a house demised by him; concluding with a claim for an injunction to restrain the continuance and repetition of the obstruction. The defendant, besides traversing several averments in the declaration, pleaded a plea on equitable grounds, to the said claim in the declaration made for a writ of injunction." [The effect of the plea was, that the defendant would be unable to obey the injunction without committing a trespass, having demised the obnoxious erections.] T. I. Barstow now moved for a rule nisi, calling upon the defendant to shew cause why the plea should not be struck out.-Rule nisi granted. Against this rule, open are not allowed to plead, the injunction must issue. ,!, Barstow was not called upon to support his rule. POLLOCK, C. B.-We should not entertain a discussion of the injunction until we know more of the facts than appears on the pleadings. CHANNELL, B.-It is important to observe that costs are recoverable by statute only, and it is well to consider Kemplay (Nov. 25) shewed cause.-He proceeded to how the case would have stood before the Commonlaw Procedure Act. Looking at the authorities, I find, said-Is this a case for a plea at all? Ought you not the substance of the plea, when-[Channell, B, from Williams Saunders, that the successful party to wait until the plaintiff asks for an injunction?] would not be deprived of his costs by the death of the See the remarks of Bramwell, B., in Belke v. The Lonother, but that he could recover them from the exe-don, Chatham, and Dover Railway Company (10 Jur., cutor by scire facias. The Common-law Procedure N. S., 777). His Lordship intimates that a claim for Act was meant to simplify proceedings in error, and injunction may be the subject of demurrer. If we so to diminish their cost. It is clear by the 132nd section, that if, before verdict, Parker had come in, the name of the case would have been Parker v. Tootal, as if he had been the original plaintiff; and, in reference to the question of costs, we should take no notice of the change of name. He would pay costs as Barrow would have done. The question turns upon the 163rd section, which is different in its terms from the 137th. It does not say, "as if originally the plain-course the defendant wishes to take. tiff," but " as the plaintiff in error;" the effect of which is to permit the continuance of the action, but not to cast the costs below on the plaintiff. Two cases have been cited bearing strongly on the subject, but I think the Common-law Procedure Act was merely intended to render proceedings unnecessary which were necessary before (as the writ of error), and that We must not take it as involving any further consequence unless expressed in words. This was the view taken in Fisher v. Bridges. Mr. Cleasby accounts for the omission in sect. 163 of the words in sect. 137, * See 2 Wms. Saund, 101, t. BRAMWELL, B.-What was said by me in the case cited, was unfavourable rather than otherwise to the CHANNELL, B.-We should not make this rule absolute, if, by disallowing the plea, we were to deprive the defendant of the power of pleading it at a subsequent stage. But I do not think it has that effect. The object of the claim of an injunction is, that if the plaintiff has a right to an injunction, he may entitle himself to obtain it after the trial of the issues, by placing a claim for it on the face of the declaration. But the two proceedings were intended to be kept entirely separate. The defence is to be set up when the injunction is to go forth. PIGOTT, B., concurred.-Rule absolute, without costs. |