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Claim for a limits] ... and of mooring any boat, lighter, keel, or other nuisance
vessel to the said quay for the purposes aforesaid. obstructing the plain- 5. By the said indenture the said company, for themselves tiff's right and their successors, covenanted with the said A. A. and the
owner or owners for the time being of the “R. Estate,” that the said company would from time to time and for ever thereafter sufficiently repair and maintain the way firstly thereby reserved. And by the said deed it was provided and declared that nothing hereinbefore contained should prejudice, diminish, alter, or affect all or any of the rights, liberties, privileges, and powers given or reserved by the said Acts, or either of them, to the said A. A. or the person or persons so for the time being entitled as aforesaid as the owner or owners of land adjoining or near the said railway.
6. The said deed was duly executed by the said company and by the said A. A.
7. The plaintiff H. W. A. is the present owner of the “R. Estate,” or of so much thereof as concerns the present action, and he derives his title under the deeds, wills, and settlements in the said 1st paragraph mentioned.
8. The plaintiff is entitled to the rights and benefits under the said indentures, and is the proper person to sue for any injury thereto, or for any breaches of covenant on the said deed committed by the said railway company or their successors.
9. Within the last few years the plaintiff has licensed certain persons to sink for coal and to get coal under the “ R. Estate,” and has arranged with them that the coal may be carried to and shipped from the said quay.
10. The said licensees have sunk shafts on the said estate, and have proceeded to get coal under the same ; and the said licensees and the plaintiff are desirous of conveying the said coal from the estate over the defendants' railway to the said quay for the purpose of shipment.
11. The N. E. Railway Company have raised the level of their railway between the quay and the “ R. Estate," and have laid down rails along the quay reserved by the said deed, and have built a wall between their railway and the rest of the “ R. Estate," and have continued these obstructions up to the present time.
12. The consequence of these acts on the part of the company Claim for a is to prevent the owners and occupiers of the “R. Estate” from nuisance
obstructing obtaining access to the said quay, and the plaintiff and his said the plainlicensees have been and are thereby prevented from making use tiff's right thereof according to the provisions of the said deed.
10. The plaintiff claims :-
tenants' access to the said quay, and for the breaches
of the covenants in the said deed. (2.) A declaration of the plaintiff's and defendants' respec
tive rights and liabilities under the said deed.
obstructing the plaintiff and his tenants in their
the said deed.
Statement of Defence. [After various paragraphs admitting and denying allegations in the claim.)
4. In reference to the statements in paragraphs 7 and 8 of Denial of the plaintiff's statement of claim, the defendants say that the plaintiff's
title to plaintiff is not the present owner of the said “R. Estate," nor sue. of so much thereof as concerns the present action, nor is the plaintiff entitled to the rights and benefits under the said indenture, or the proper person to sue for any injury to the said last-mentioned portion of the said estate, or for any breaches of covenant in the said deed in respect thereof. And the defendants further say that long before this action the plaintiff sold and parted with the title and possession of and to so much of the said estate as would, if at all, entitle him to the rights claimed by him in this action.
7. The owners of the “ R. Estate" and their tenants have claim for
never made use of the said quay from a long time prior to the obstruction of plain
date of the said indenture of the 27th October, 1840, to the tiff's right present time; and they for the first time claimed to be entitled
to do so on or about the 10th of July, 1874.
8. The N. and C. Railway Company (and not the defendants) built and erected the said wall in the 11th paragraph of the plaintiff's statement of claim mentioned, between the railway and the rest of the “ R. Estate,” as a fence wall to the railway, and so as permanently and effectually to separate and divide off
the railway and the carriage-way first described and mentioned Acquies- in the 4th paragraph of the plaintiff's statement of claim, and cence by the plain
without leaving any aperture for the passage or use of the said tiff. carriage-way secondly described in the said paragraph, and wholly
and permanently and effectually to block up the same. The said N. and C. Railway Company and the defendants respectively have since its erection maintained the said wall, and from time to time went to considerable expense in repairing and maintaining the same ; and the owners of the said “R. Estate” had notice that the said N. and C. Railway Company and the defendants were incurring the said expense, and they from the time of the erection of the said wall until the said 10th of July, 1874, acquiesced therein ; and the said N. and C. Railway Company and the defendants went to the said expense in erecting and maintaining the said walls with the knowledge, acquiescence, and consent of the then owners of the“ R. Estate," and on the faith that they acquiesced in and consented thereto. The said N. and C. Railway Company and the defendants respectively continued the said wall so erected as aforesaid without any objection or interference on the part of the plaintiff until
the said 10th of July, 1874. Further ac- 9. The defendants at different times raised the level of a quiescence by plain
portion of their railway between the quay and the said tiff. “R. Estate," and laid down a fresh line of rails thereon whereby
the shipment of coals and goods from the said estate was prevented. The defendants went to great expense in laying down the said rails and raising the level of the said portion of the said railway, with the knowledge, acquiescence, and consent of the plaintiff, and on the faith that he acquiesced in the defendants' said laying down the said rails and altering the said
portion of the said railway, and incurring the said expense ; Defence to and the level of the said portion of the said railway could not claim for
obstruction be restored to its former position without greatly increasing the of plaindanger to the public in using the said portion, nor without tiffs right altering the level of other parts of the said railway, and causing great inconvenience to the defendants as well as to the public.
10. The defendants contend that coals are not included in the expression in the said deed, “ manure, dung, or goods of any amount or kind,” not being ejusdem generis therewith, and that the plaintiff, his tenants and licensees, had under the reservation in the deed no right to bring along the said ways, or either of them, or to store and ship along the said quay coal coming from the “R. Estate.” And they contend further, that if such rights were given by the said reservation in the said deed, then the plaintiff has lost his said rights by extinguishment or disuser, or by acquiescence in the acts of the defendants and of their predecessors.
Action against Partner for Breach of Partnership Deed. Claim
against 1. The plaintiff is an accountant residing at
&c. The partner for defendant is also an accountant, and carries on business at
partnerin the city of London.
(a) Actions between partners.]-As a general rule one partner could Partners not before the Judicature Acts came into force sue another member of cannot his firm in a Court of law. There were a few exceptions to this rule, as generally for instance, where a partner sued another for breach of an agreement to sue each enter into a partnership (Gale v. Leckie, 2 Stark. 107); or if one partner other at is turned out by the other or others. (Greenham v. Gray, 4 Ir. Ch. 501.) law. Again if no matter of account was involved, and if the damages sought to be obtained would not belong to the firm, or would not have to be paid out of the funds of the firm, an action at law was maintainable, irrespective of the state of the accounts between the partners. Thus an When action for not rendering an account (Onston v. Ogle, 13 East, 538) ; an they can. action for a penalty stipulated to be paid for breach of agreement (Raden. hurst v. Bates, 3 Bing. 463); an action for not indemnifying the plaintiff against a debt (Want v. Reece, 1 Bing. 18); an action for not putting the plaintiff in funds to enable him to defray expenses as agreed (Brown v. Tapscot, 6 M. & W. 119) ; have all been held to be maintainable by one partner against his co-partner or co-partners.
Although many claims which before the Judicature Acts came into
Claim against partner for breach of partnership deed.
2. By articles of partnership dated the 12th of June, 1876, made between the plaintiff of the one part and the defendant of the other part, it was for the considerations therein mentioned agreed, among other things, that the defendant should enter into partnership with the plaintiff in the business or calling of accountants from the 20th of June aforesaid, and that the said partnership should continue for a period of seven years from the date of the said articles, unless it should be sooner terminated by six months' notice in writing given by the plaintiff to the defendant, or by the defendant to the plaintiff; and it was further by the said articles agreed that the business of the said partnership should be carried on at No.
Street aforesaid, the defendant's present place of business, and that the rent thereof should be paid by the plaintiff and defendant in equal shares. It was also further agreed by the said articles that the profits arising out of the said partnership business should be divided equally between the plaintiff and defendant.
3. The plaintiff went to the said place of business on the 20th of June aforesaid for the purpose of commencing the said partnership business, but the defendant then and there refused to admit him to the said place of business or to commence the said partnership business with him.
4. The defendant, on the occasion of the plaintiff going to the said place of business as in the preceding paragraph mentioned, orally and has since by letter intimated to the plaintiff that he would not enter into the said partnership business with him.
5. The plaintiff has, in consequence of the defendant's refusal to carry out the said articles of partnership, lost the profits and advantages which he would have derived from such
force were only enforceable in Courts of Equity were by those Acts made partners
enforceable either by way of action or counter-claim in the Common Law can sue
Divisions, yet by the 34th section of the Act the taking of accounts beeach other tween partners was specially reserved to the Courts of Equity. The cases at law, above cited, however, stand as authorities for any class of claims which
may still be enforced in the Common Law Divisions.
Suits by and against partners.)-Partners may join in suing for slander or libel upon them. (Maitland v. Goldney, 2 East, 426 ; and Foster v. Lanson, 3 452.)
Partners are liable for a tort committed by one of them in connection with the partnership business, as for an injury caused by negligence of one of them in driving a coach used in the business (Moreton v. Harden. 4 B. & C. 223); or in working a mine. (Ashworth v. Stanwix, 30 L. J, Q. B. 183.)