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CHAPTER
XXVI.

Defence in

tion.

Court of Chancery, including therefore the power to grant interim, interlocutory and perpetual injunctions (k).

Circuity and multiplicity are, in future, to be avoided, lieu of injunc- and the Court which has seisin of the action will, irrespective of the division in which it has been commenced, so far as practicable, give effect to all claims and defences, including, in the latter term, those equitable grounds of interference upon which formerly the action could have been restrained by injunction.

But it is still in the

power of the Court in which the action is pending, where necessary, upon motion in a summary way, to order a stay of proceedings (1).

be given if properly claimed on the pleadings, and as to third parties if proper notice be given. Jud. Act, 1873, s. 24, sub-s. 3; and all equities appearing incidentally in the course of the case shall be duly recognised as completely as in a Court of equity before the Act. Ibid. sub-s. 4. And the objectionable process of staying proceedings in one superior Court by prohibition or injunction issuing from another is abolished, and every matter of equity on which such an injunction might formerly have been obtained, either unconditionally or on any terms or conditions, may be relied on by way of defence. Ibid. sub-s. 5. And, so far as possible, all matters in controversy between the parties are to be completely and finally determined, and all multiplicity of legal proceedings concerning such matter avoided. Ibid. sub-s. 7. And, generally, wherever there is a conflict or variance between the rules of equity and those of common law as to the same matter, the rules of equity are to prevail. It must be remembered, however, that this relates only to matters of substantive law. In matters of procedure, convenience is the guide. Newbigginby-the-Sea Gas Co. v. Armstrong, 49 L. J., Ch. 231; 13 Ch. D. 310, C. A.

(k) But with respect to interlocutory injunctions, it is enacted

(36 & 37 Vict. c. 66, s. 25, sub-s. (8)), that an injunction may be granted by an interlocutory order in all cases in which, and upon such terms or conditions (if any), as the Court shall think just and fit. And the discretion given by this sub-section must of course be exercised with due regard to the principles already established in the Courts whose jurisdiction is vested in the High Court. See Gaskin v. Bell, 13 Ch. D. 324.

The application is not generally made ex parte (Ord. L. r. 6; LII. r. 6) under this sub-section, but it may be so made if injury is imminent. Meluish v. Melton, 24 W. R. 679; Henning v. Bohmann, W. N. 1877, p. 14. Where there is no immediate urgency the application should be made on notice, and the matter being then fairly argued, can by consent be treated as conclusive of the question in the action, and a final injunction taken in the first instance. Aslatt v. Corporation of Southampton, 16 Ch. D. 143; 50 L. J., Ch. 201.

(1) Jud. Act, 1873, s. 24, sub-s. 5. As to the power of the County Court in giving effect to equitable claims and defences, and granting summary relief, see Jud. Act, 1873, s. 89, which has been held to extend to the granting of an injunction (Martin v. Bannister, 4 Q. B. D. 491); and the language would seem wide enough to include the other forms of

CHAPTER

XXVI.

Other claims

We have already noticed the liability of a banker to his customer for improperly refusing to honour the latter's cheques (m), and to the rightful owner of a crossed cheque for paying it in disregard of the crossing (n), the equitable arising out of distribution of loss on an over-held cheque when the bank a bill. fails in the interim, the holder proving instead of the drawer (0), and the effect as an assignment in Scotland of presentment to the drawee having funds available of a bill or cheque, the holder then presumably being able to compel payment (p), and the power to require a duplicate of a lost bill.

By Code, s. 58, a transferor by delivery of a bill or note Transfer by warrants to his immediate transferee, being a holder for delivery. value, that the bill is what it purports to be, that he has a right to transfer it, and that at the time of the transfer he is not aware of any fact which renders it valueless (2).

So that an action for breach of the warranty in respect of all or any of these particulars will lie at the suit of the transferee.

And lastly, before passing to action on the bill we must Action on the remember that when a bill is dishonoured the holder has his consideration.

incidental relief obtainable in the
High Court; quære, if that be
all that is claimed. See also
C. C. R. 1889, Ord. XXII. r. 12.
Whatever order it has power to
make, whether interlocutory or
final, it can enforce by committal
by virtue of the above section 89
of the Jud. Act. 1873.
v. Cullerne, 7 Q. B. D. 623.
(m) Ante, p. 19.

Richards

(n) Ante, p.31; Code, s. 79 (2).
(0) Ante, p. 19; Code, s. 74.
(P) Code. s. 53 (2).

(g) See Gompertz v. Bartlett, 23 L. J., Ex. 68. Although the transfer by delivery of a bill for value resembles to some extent a sale, yet (ante, pp. 187 and 191), a greater liability attaches to a transferor under the section cited in the text than to the seller of a bill. As to the thing sold being what it purports to be, there is no such general liability as here declared to exist in the case of bills of exchange transferred by delivery and negotiated by the

transferor. On the contrary,
"careat emptor" is the rule,
though subject to exceptions
arising from the precise position
of the parties towards each other
and the subject-matter. Jones
v. Just, L. R., 3 Q. B. 197. Where
the fact that the article exchanged
for value is valueless is known to
the vendor or transferor at the
time of sale or transfer, the sup-
pression is sufficient to make all
that is disclosed a misrepresen-
tation and a fraud. And in
America the doctrine applicable
in such case to bills and notes,
whether sold or transferred (see
ante, pp. 188 and 191), has been
expressly applied to goods sold.
Paddock v. Strobridge, 29 Verm.
470. But, generally, in the case of
sale of goods, to hold the vendor
responsible for a defect which to
his knowledge rendered the goods
less valuable than he knew the
vendee thought them, it would
be necessary to show something
amounting to a positive misrepre-

XXVI.

CHAPTER option to sue on the bill or on the consideration, except as previously noticed in the case of transferor by delivery, who is not generally liable on either (ante, pp. 187 and 191). But it is advisable to sue on the bill; first, because it reduces the debt to a certainty; secondly, because less evidence is necessary; thirdly, because in an action on the bill proof of payment of the bill lies on the defendant; but in an action on the consideration only, if the defendant show that a bill was given, the plaintiff must prove that the bill was not paid (r).

II.

ACTION ON

THE BILL OR
NOTE.

In High
Court or
County
Court.

Division of the subject.

The safest course is to sue upon both (s); as might have been done formerly (†).

And this brings us to action on the bill, which may be either in the High Court or in the County Court. The principles which apply to the proceedings in the High Court are for the most part common to an action in the inferior Court, in respect, for instance, of the right to sue, the liability to be sued, the joinder of plaintiffs, defendants and third parties, and joinder of causes of action. By the County Court Rules, 1889, the County Court procedure has been closely assimilated to that under the Supreme Court Rules, 1883.

The jurisdiction of the County Court in actions on contract such as bills or notes is, by sect. 56 of the Act of 1888, limited to 50%. ; but the plaintiff may forego the excess should his claim exceed that amount and so come within the jurisdiction. By sect. 65, cases may be remitted from the High Court to the County Court on the application of either party (if for liquidated sums) when the claim does not exceed or has been reduced by payment or set-off or otherwise to 1007. Should both parties consent in writing, the limit may be waived altogether. By sect. 62, cases involving important points of law may be remitted to the High Court.

The subject of action will, therefore, in the text be considered primarily in reference to the High Court, and under the following heads :-Parties-Causes of Action-Venue -Procedure, Summary and Ordinary--Pleading-Consolidation of Actions-Trial-Evidence-Damages (including interest, re-exchange and costs recovered)-Costs-Judgment -Execution.

sentation. Smith v. Hughes,
L. R., 6 Q. B. 597; and see Sale
of Goods Act, 1893, c. 71, s. 14.
(r) Hebden v. Hartsink, 4 Esp.

46: Bishop v. Rowe, 3 M. & S. 362. (s) See post, joinder of causes. of action.

(t) Ryder v. Ellis, 8 C. & P.357.

XXVI.

And where any matters affecting peculiarly the County CHAPTER Court seem to require notice, as, for instance, the survival in that tribunal of the summary procedure under the Bills of Exchange Act, 1855, reference will be made thereto in the notes.

The subjects of limitations and lost bill it has been thought desirable to treat in separate chapters.

The holder of the bill at the time of action brought, i.e., WHO MAY the person who is then entitled to receive its contents, is SUE. the only person who can then sue on it (u).

It is a good defence, that at the time of action commenced the bill was outstanding in the hands of an indorsee. But if such indorsee held the bill as an agent or trustee for the plaintiff, the plaintiff may sue, though not in actual possession of the bill (a), even though the agent's authority depend on a ratification after action brought (y). An indorser who pays an indorsee has no right to sue a prior party in the name of the indorsee without his consent, and the Court has allowed the defendant, as well as the indorsee, whose name has been usurped, to raise the objection (z).

Prima facie any person may sue in his or her own right on a bill.

But an outlaw (a) or an alien, whose country is actually at war with the Queen (b), or a felon, is absolutely incapacitated from suing in this country. A representative is, however, now provided for felons (c).

An infant may sue in the High Court by his next friend; must in County Court (d).

A lunatic by his committee, or, if not so found on commission, by next friend (e).

(u) Emmett v. Tottenham,8 Ex.
884;
Gill v. Lord Chesterfield, ib.;
and see Jungbluth v. Way, 25
L. J., Exch. 257; 1 H. & N. 71;
Davis v. Reilly, [1898] 1 Q. B.
1; Nash v. De Freville, T.L.R.

[1900] 24.3.72 261 And though in Pownal v.

Ferrand, 6 B. & C. 439, under
special circumstances an indorser,
who had been compelled by action
to pay 401. on account, was held
entitled to recover it against the
acceptor; yet this was not in an
action on the bill, but as money
paid to defendant's use.

(x) Stones v. Butt, 2 C. & M.
416; 2 Dowl. P. C. 335; Dubbs
v. Humphries, 10 Bing. 446; 1

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CHAPTER
XXVI.

JOINDER OF
PLAINTIFFS.

Corporations aggregate.

Public officer.

Liquidators.

A married woman, having separate property and contracting with respect thereto, may now sue as completely as a feme sole (f).

And where the person who would otherwise be the holder has died (1) leaving a will, or (2) intestate, or (3) is bankrupt, or (4) convicted of felony, or (5) is an execution debtor, and the bill has been seized in execution; in such case (1) his executor, or (2) administrator, or (3) trustee in bankruptcy, or (4) curator ad interim or administrator, or (5) the sheriff or other proper officer, may sue upon the bill in his own name though in his representative capacity.

By R.S.C. 1883 and 1896, Ord. XVI. r. 1, subject to costs, "all persons may be joined in one action as plaintiffs, in whom any right to relief in respect of, or arising out of, the same transaction or series of transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate actions, any common question of law or fact would arise"; and (Id. r. 11) no cause or matter is to be defeated by reason of misjoinder or non-joinder of parties, the Court having full power to amend on terms (Id. r. 11), either on summons before trial or at trial, in a summary manner (Id. r. 12) (g).

Corporations aggregate must sue and be sued in their corporate name, since the corporation is in law a different entity from the individuals composing it ().

Companies are sometimes empowered to sue and be sued by their public officer (i).

Official liquidators may bring or defend any action in the name or on behalf of the company with the sanction of the Court or committee of inspection (k). Voluntary liquidators may do so without such sanction ().

(f) Ord. XVI. r. 16, and 45 & 46 Vict. c. 75, s. 1 (2).

(g) Universities of Oxford and
Cambridge v. Gill, [1899] 1 Ch.
55; citing Stroud v. Lawson,
[1898] 2 Q. B. 44. As to County
Courts, see C. C. Rules, 1889, Ord.
III. r. 1 (a) and Ord. XIV.

(h) In re Hodges, L. R., 8 Ch.
Ap. 204; Pilbrow v. Pilbrow's
Atmospheric Ry. Co., 3 C. B. 730;
R. S. C. 1883, Ord. IX. r. 8.

Comp. Act. 1862, s. 62.

(i) As to these companies, see Lindley, L.J., on Company Law, 5th ed., pp. 265, 561. McDowell v. Doyle, 7 Ir. Com. Law Rep. 598.

(k) Comp. Act, 1862, s. 95; Act, 1890, s. 12 (1), the Companies Winding-up Act.

(1) Act of 1862, s. 133 (7); Lindley, L.J., Company Law, 5th ed. 880, note (a).

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