The Gazette 1964/67

parties, contributory negligence was not pleaded and the manufacturers were not joined. At the trial the defendant sought to lead evidence of the defect. Held : (i) That it was sufficient for the defendant simply to deny that he was guilty of negligence even though he intended to show that the accident was due to the act or neglect of a third person ; and (2) that as the facts raised in prima facie case of negligence on the part of the defendant, the defence simply denied negligence, the plaintiff should have been able to anticipate the defendant might rely on the defect which had been mentioned in the cor– respondence and accordingly could not complain that he had been taken by surprise (McKnight v. McLoughlin (1963) N.I. 34, Black L. J.). Termination of H.P. Agreement—Detinue. No one is bound save by contract, to take a chattel to the owner of it. His only obligation is not to prevent the owner from getting it when he comes for it. A hire purchase finance company re-took from X the car he was hiring from the company. This was unlawful because X had paid one third of the hire purchase price. X wrote to the Company saying he would sue for the return of what he had paid, but before the letter reached the company, the car was returned and left outside his house, and X made some use of it for about five months. About eight months after the return the Company demanded that the rest of the instalments under the hire purchase agreement and later sued for these. X defending and counterclaiming the return of which he had paid, on the footing that the unlawful retaking had terminated the agreement. Later, the Company amended to add a claim in detinue and damages at a weekly rate up to the hearing. Held that X's defence and counterclaim succeeded, as though the return of the car was an offer to restore the agreement it was never accepted, and the claim in detinue failed because X was never under an obligation to return the car, and his use of it was as an implied bailee with the consent of the company Capital Finance Co. v. Bray (1964) i W.L.R. 323 ; (1964) i All. E.R. 603, C.A. Charitable Gift, A testator gave his studio and the contents, which included paintings by himself and others, furniture, china, glass and bric-a-brac, to trustees and directed that his residuary estate be used to endow the studio as a museum for the display of his collection. On a summons to determine whether a valid charitable trust had been created, art experts gave evidence that the studio was squalid and that the collection had no educational value whatever and Wilberforce J. held, first, that when determining 8

ship expressed to be for their joint lives under a written partnership deed. At the end of 1958 they agreed in principle with another doctor, B., that all three would go into partnership, share profits and losses equally between them, obtain a lease of the premises where A and F had their joint surgery, make a clinic there and equip it at their joint expense. On March 3rd, 1959, a Lease was granted in which A, F. and B. were described as the lessees who would carry on the business of medical practitioners in partnership. A. instructed his solicitors to draft a deed of partnership, which it was agreed would be signed. The draft of the partnership deed was never signed because F. objected to the seniority in holiday provisions in it. From May nth, 1959, all three had their surgeries at the clinic and also practised at their respective private addresses. On October icth, 1959, F. and B. wrote to A. that since agreement could not be reached on the above issues the partnership ought to be dissolved as from November 3oth, 1959. In proceedings for dissolution of the partnership, held, that the effect of the partnership between A., F. and B. was that it superseeded the partnership between A. and F. Further, where there was no express agreement about the duration of partnership, 26 of the Partnership Act, 1890 applied and the partnership was rendered a partnership at will which could be dissolved by notice of any partner. Ac– cordingly, the partnership between A., F. and B. was dissolved in November 3Oth, 1959; Firth v. Armslate ("1964) 108 S.J. 198 Plowman J. Current Law. (1964) 3. C.L. Projessional Negligence P., an electrician, retained D., a solicitor, to pro– secute his claim for damages against his employers, arising from a fall which he sustained at a house where his employers were carrying out subcontracting electrical work. D., negligently allowed P's claim to become time barred. On P's claim for damages, held that P would on the facts have had quite a formidable case against the employers under the Building Regulations, 1948 and that he should accordingly be awarded three-quarters of £2,848 i8s. 5d. to which would be added 12% for the resulting delay : (Gregory v. Tarlo (1964) 108 S.J. 219; The Times, March 6th, 1964, McNair J., (1964) 3 C.C.). Practice—Pleadings. In an action by the plaintiff for damages for personal injuries sustained in a collision between his motor cycle and the defendant's motor car, the defence contained a simple denial of negligence and, although defect in the braking system of the car had been mentioned in correspondence between the