Cornell University Law Library The Moak Collection PURCHASED FOR • The School of Law of Cornell University And Presented February 14, 1893 in riEnoRY OF JUDGE DOUGLASS BOARDMAN \ FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KH 179.5.W32 A digest of reported cases in the Suprem 3 1924 024 526 885 ,,„.,„„ The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024526885 A DIGEST REPORTED CASES SUPREME COURT, COURT OP INSOLVENCY, AND THE COURTS OP MINES AND VICE-ADMIRALTY OF THE COLONY OF VICTORIA. FROM 1861 TO 1885. G. W. WATERHOUSE, B.A., AND F. W. E D M N D S N, B. A.,. LL. M., BAREISTEES-AT-LAW. JIHilbnunie attU S>gttiu» : CHARLES F. MAXWELL, LAW BOOKSELLER AND PUBLISHER. Hontton : WM. MAXWELL AND SON, 8 BELL YARD. 1886. TO SIR WILLIAM FOSTER STAWELL, Knight, CHIEF JUSTICE OF THE SUPREME COURT OF THE COLONY OF VICTORIA, AND THE HON. ROBERT MOLESWORTH, Esquire, PUISNE JUDGE OF THE SAME COURT, Cfjis Mark is (by permission) EESPECTFULLY DEDICATED BY THE COMPILERS. TABLE OF REPORTS COMPRISED IN THIS VOLUME. Wtatt and Webb's Reports, 2 Vols., 1861-1863. Wtatt, Webb and a'Beckett's Reports, 6 Vols., 1864-1869. Victorian Reports, 3 Vols., 1870-1872 Australian Jurist Reports and Notes of Cases, 5 Vols., 1869-1874. Victorian Law Reports, 10 Vols., 1875-1884. Australian Law Times, 6 Vols., 1879-1884. Any case in the foregoing Reports, which went, on appeal, to the Privy Council, has been extracted from the English Report in which it appears. ABBEEVIATIONS USED IN THIS VOLUME. A.J.R. — Australian Jurist Reports, A.L.T. — Australian Law Times. App. Cas. or Ap. Ca. — Appeal Cases. L.J. — Law Journal Reports. L.R. — Law Reports. L.T.— Law Times. N.C.— Notes of Cases. P.C. — Privy Council. S.C. — Same Case. S.P. — Same Point or Principle. V.R. — Victorian Reports. V.L.R. — Victorian Law Reports. W.R.— Weekly Reports. W. & W — Wyatt and Webb's Reports. W.W. & a'B— Wyatt, Webb and a'Beckett's Reports. PREFACE In presenting this Digest to the Profession and to the Public, the Compilers venture to hope that they have, in some measure, supplied a long-felt want. It will be seen that the book follows very closely on the lines of " Fisher's Digest," although in some parts of the work, such as " Land Acts," " Lunatic," " Mining," " Transfer of Land," and " Justices of the Peace," the headings have been arranged according to the points decided, and to the arrangement and subdivision of the Statutes affecting such subjects. The heading, " Practice and Pleading," includes many cases which are not so useful under the Judicature Act of 1883, and Rules, as under the old system ; but the Compilers have felt it their duty to make the book what it professes to be, viz., a Digest of all the cases ; and they venture to hope that they have kept the cases decided under the different systems perfectly distinct, and to think that points of practice and pleading decided under the old system will still, in many instances, be found useful. As to cases decided under Statutes which have been repealed or re-enacted, small footnotes have, in most instances, been inserted, to draw attention to the present Legislation on the various subjects. The frequent use of cross references may be considered rather cumbrous and undesirable, but the Compilers have found by actual test that different persons will look under different headings for the same information ; and they must give as their reason for filling up so much of the work with cross references — a wish to accommodate, as far as possible, all who may refer to it. Great inconvenience has been occasioned by the inability of the printers to keep set up more than two or three sheets at one time. This has in nearly every instance prevented a reference to the column in the cross reference, when the abstract of the case itself has come in a later part of the work than the reference. In several instances, too, the case itself has after some consideration been put under a different sub-heading from that fixed at the time of the reference ; for this reason indulgence must be asked for the large number of corrigenda which relate, as will be seen, almost exclusively to cross references. Attention is directed to the Addenda, where a few cases and cross references, inadvertently omitted from the body of the work, will be found. The Compilers believe that the gentlemen connected with the various Reports digested will have no reason to complain of any unfair use of head-notes, for in every instance an endeavour has been made to obtain the abstract of the case without reference to the head-note. Grateful acknowledgment is made of the invaluable suggestions offered to the Compilers by several members of the Profession, and by Mr. Schutte, the respected Librarian of the Supreme Court. It cannot be hoped that the arrangement of the work will be found perfect ; but it is hoped that, as a reward for long and arduous labour, the work will be found generally , useful. STT.RI1BWP f!lTAMRTST?S JuiM 1 SSfi TABLE OF CASES. COL. Aarons, In re 671,678,679,680,683, 684, 685, 697, 699, 701, 713, 716, 717, 718 v. Board of Land and Works 624 v. Lewis 269, 270, 273, 280, 459, 460,567, 1275, 1426 — — Ex parte Eegina v. Tucker 1141, 1142 Abbott v. Commercial Bank ... 82,186 A'Beokett v. Matthewson 345, 354, 1371, 1383 Abel, In the Will of 41, 1498, 1516, 1557 Aberfeldie Gold Mining Co. v. Walters 142, 150, 1012, 1022 Acock, In re 649 Adair v. Cooper 1011, 1033 v. Simson 795 Adams v. Brown 1289 v. The Queen 1236, 1237 Adamson v. Morton 1241 v. Eeid 1461 Addinsdale, in the Will of 1513 Adelaide Steamship Co. v. Martin, 22, 563 Agnew v. McGregor 1127 AhFanu. Sturt 1300 Ah Kang v. Australian Steam Na- vigation Co 1321, 1322 Ah fihoon Soon, In the Estate of Ah Louey, In re 673 Ah Nang v. Ah Nang 517 Ah Poon, Ex parte .'. 1118, 1146 Ah Poy, Ex parte Eeg. v. Leech 254, 887 Ah Sen, Ex parte Eeg. v. Shilling- law 1118 Ah Soon, Ex parte Eeg. v. Bindon 254 Ah Tack, Ex parte Eeg. v. Sturt 777, 778, 1110, 1118 Ah Wye v. Locke.. .908, 1353, 1354, 1579 Ah Ting, Ex parte Eeg. v. Carr... 758 Aitken, In the Will of 1555 v. Bates 827, 828 — o. Godkin 62, 63, 322 ■ ■ v.Power 1240 Aladdin Gold "Mining Co. v. Alad- din and Try Again Co. 949, 952, 956, 1167 Aladdin and Try Again Co. v. Schaw 373, 1014 Albion, The, In re 1318, 1319 Albion Co. v. St. George United Co 962,1008, 1013 Alcock v. Fergie 198, 326, 327 Alexandria, Shire of, Ex parte in re McNee 783 Allan, Ex parte, in re Victorian Steam Navigation Board ..1326, 1327 Allan v. Gotch 164, 463 v.Lane 448, 1161 v. Mclntyre 1155 v. Wilkie 1198 Allardyce v. Cunningham ...1130, 1371 v. Mitchell 502 Allen, Ex parte Eeg. v. Harrigan 759 v. Lloyd ... 752 v. Templeton 108,381, 806 In re 586, 593, 601, 602, 683 v. Ower 737 Allison, In the Estate of 446 v. Byrne 274, 1242 v. M'Candlish 1209 Allnuttu. The Queen .....244, 1361 Alma Consols Co. v. Alma Extend- ed Co. 567, 957, 1298, 1399, 1401, 1402 Alroe v. Mayor of Sebastopol 231 Amess, Ex parte, in re Transfer of Land Stat. v. Hanlon 1424 Amiet, In re 1509 Amner, In re 618, 1340 Anderson, In re 870,871,873, 1124 — In the Will of 1552 i>. Anderson 521 v. Berridge 421, 422 v. Coyle 1001 v. Duke and Timor Gold Mining Company 151, 1014 d. Deasy 1156 v. Glass 199 v. Jacomb 630, 635 111. TABLE OP CASES. IV. COL. Anderson v. Luth 766 — — — — v. Maritime and General Credit Co 433 v. Robertson 1082 v. Stewart 50, 51, 1143 ■ v. United Insurance Co. 727, 728 v. Western Port Coal Co. 821, 824 D.Wilson 28 v. Ziegler 260, 268 Andrews. Figg 249, 263 Andrews v. Daish 812 v. Harley 259, 260, 634 v. Mayor of Emerald Hill 854 v. Taylor 355 \.ngove v. Tregonning 476 Anonymous, In re 189 Al Gold Mining Co. v. Staokpoole 1018, 1025, 1026 Aplin, Ex parte 346 Appleton v. Williams 187, 188, 1207 Ararat, Mayor of v. Grano 1491 Archibald v. Archibald... 12, 1202, 1394, 1395 d. Pruden 338 Ardagh, In re 543 Ardill, Ex parte Eeg v. Cowie 217 Arlett v. Ensella 1359 Armitage «. Smith 1044 Armstrong, In the Will of ...1506, 1519, 1520 and Stewart, In re 1301 and Culley, In re 34, 52 Ex parte Eeg. v. Web- ster 830 v. Batty 503 v. Bobinson 1056 Armytage, In re 39 v. Wilkinson 389, 390, 393, 1367, 1570 Arnold, In re 675, 680, 692, 695, 700 Arnott, In re 869 Arthurs. Moore 404, 405, 1444, 1456 Ashley v. Cooke 732, 1040, 1041 Aspinall v. Marks 409 Astley United Gold Mining Co. v. Cosmopolitan Gold Mining Co. 70, 232, 572, 907, 910 Atkinson v. Dehnert 1218 v. Lansell 157, 422, 423, 1170 v. Slack 1057, 1068, 1486 Attenborough, Ex parte, In re Bent 222 Att.-Gen., In re 35 Ex parte Eeg. v. Hamil- ton 772, 831 v. Belson 70, 71, 324, 329, 357, 1040 v. Bentley 182 v. Boyd, 43, 70, 907, 913, 969, 971 «. Cant 972, 1168 .. . v. Epping Eoad Board... 852 v. Ettersbank 325, 786, 792, 794 v. Gee.. .69, 907, 912, 972, 1177 v. Hoggan 323, 1394 v. Huon 14, 15, 16, 19, 44, 240 244, 421, 442, 446, 1174, 1186, 1187, 1204, 1247, 1343 coi.. Att-Gen. v. Hustler's Consols Co. 913 972 v. Lansell 45, 70, 907, 913,' 914, 970, 971, 972, 973, 974, 1175, 1192, 1193 ■ v. Lorimer 132 v. Mayor of Emerald Hill 211, 235, 1146, 1177, 1188 v. Mayor of Sandhurst 562, 563 „. St. Kilda 218 v.M'Pherson...ll, 12,40,1456, 1578 v. Prince of Wales Co. 31, 37, 1010, 1011, 1160 v. Eogers...69, 232, 572, 912, 913, 1192 v. Sanderson ...488, 956, 1041 v. Scholes 322, 560, 573, 907, 909, 912, 1183 v. Shire of Darebin 218 v. Echuca ...212, 219 v. Hampden 219, 220, 232, 233, 1261, 1262 v. Shire of Kyneton 219, 1365 v. Wimmera 210,232, 404, 574, 1202 v. Southern Freehold Co. 330, 431, 432, 918, 968 v. United Hand-in-Hand and Band of Hope Co. 330, 431, 432, 968 ■ D.Wilson 131, 1458 Atwellti. Eyan 928,929 Austin, In re 1533 In the Estate of 1547, 1554 v. M'Kinnon 246, 422 v. Shire of Dunmunkle 824, 825 1369 Australasian Boot Co. ii. Thomson 145 Gold Mining Co. v. Wilson.. .949, 950, 961,990, 1002, 1003 Australian Gold Mining Company v. M'Culloch 565 Australian Trust Co. v. Colonial Bank 1065 v.. Webster 12, 42, 642, 653, 654, 659 Australian Mutual Provident So- ciety n. Broadbent 734 Australian Deposit and Mortgage Bank v. Lord 1414 Avery v. M'Arthur 1471 Aylwin, Ex parte, in re Transfer of Land Stat 1397 v. Callaghan 1086 Ayre's Trusts, In re 1446 Azzopard, Tn the Will of 1513 B. Babtie, In re 688 Backhaus and Steele, In re 50, 54 Badenhop v. Mayor of Sandhurst, 858,859,1076 Bagot, In the Will of 392,393 TABLE OF CASES. VI. COL. Bagshaw, ex parte Eeg. v. Pohl- man 886, 1301 v. Wills 28, 1149 Bahlman, Ex parte Eeg. v. Gaunt 978 Bailey v. Bailey 506 v. Barclay 61 u.Hart 339,1423, 1424, 1582 v. Wright 437,1183, 1192 1 and Hart, In re 52, 53, 54, 55 Baillie, Ex parte Eeg. v. Dunne 882 v. M'Dougall 1026 Bailliere, In re 704, 705, 706 v. Poster 196 Bain v. M'Coll 955,956, 1009 Baird v. Eorrest 110 Baker, Ex parte 1301 Ex parte, In re Brewer 780 v. Efford 93 u.Wong Pang 920 Balcombe, In re 775 Baldwin, In the Eeal Estate of ... 1534 Ball v. Ball 1378 Ballan, Shireof v. Partridge 1265 — — v. The Queen 324, 325, 326, 966 Ballarat Banking Co. v. Wall 1234 Patent Fuel Co., In re ... 170 Mayor of v. Bungaree Eoad Board 37, 331, 853, 854, 1188 Council of v. O'Connor ... 1495 • Shire of v. Beaton 858 Ballarat East, Mayor oft). Davis... 1258 v. Gaskell 1264 v. Smith 213 v. Victoria United Gold Mining Co. 70, 232, 567, 568, 971, 972 Ballarat and Chiltern G.M. Co. v. Cleeland 160 Balloch, Ex parte Eeg. v. Mac- kenzie 781 Balls-Headley v. Ambler 814 Bambletw. Bamblet 1571, 1572 Bamhlett v. M'Culla 1206 Band and Albion Co. v. St. George United Co 425, 973 Band and Barton U. Co. v. Young Band Extended Co 426, 969 Band of Hope and Albion Consols v. All Saints' Co 573, 967 Band of Hope and Albion Consols Co. v. Mackay 895, 896, 1098 Band of Hope and Albion Consols Co. v. St. George and Band of Hope Co 425, 572, 573, 968, 969 Band of Hope and Albion Consols Co. v. Young Band Extended Co. 426, 924,950,969,970 Band of Hope Co. v. Critchley ... 985, 994 v. Williams' Freehold Co 967, 973 BanMer, In re 586, 587 Banks v. Granville 44, 981, 1009 D.Orell 1211 Bank of Australasia, Ex parte, In re Eutledge...579, 643, 644, 647, 648, 649, 663 COL, Bank of Australasia, Ex parte, In re Flower 635, 643,644 v. Blyth 1322 v. Cotchett ... 83, 103, 1091, 1143 v. Erwin 1240 v. Gibb...ll96, 1449 v. Keave 266 v. Keirce ...269, 272, 275 v. Piatt 1061 v. Pollard 375, 1211 v. Portch 579, 582, 583 v. Vans.. .538, 1195, 1449 v. Walters ... 86 Bank of N.S.W. v. Jones 110,111 u.King 95 v. Milvain 83 — — v. Moyston Grand Junction Co. 147, 164 v. Strettle 17,18, 1170, 1171 v. Undaunted G.M. Co 375, 1013 Bank of Van Diemen's Land v. Bank of Victoria 94, 95,97 Bank of Victoria v. Brown 96 v. Cozens... 1053, 1064 v. Henderson ... 539 • v. M'Coll 900,901 v. M'Hutchison 770, 809 v. M'Lay 1227 ■». M'Michael ... 1416 ». Bawling 1165, 1202, 1405 Bannister, In the Will of 1509 Bannon v. Barker 218,765 Barber, Ex parte Eeg. v. Call 1117 v. Barter 243, 1170, 1373 v. Cobb 1221 Barbour, In re 1333 v. Pinn 1462 Barclay, In re 580 IntheWillof 1509 Ex parte, in re Pascoe 917, 918, 1370 v. Evans 1568 __ v . Mollison 491,492 Bardwell v. Herbert 1239 Barfold Estate Gold Mining Co., In re 981 Barfold Estate Gold Mining Co., v. Davies 157, 1039 Barfold Estate Gold Mining Co., v. Klingender 148 Barker v. Municipal Council of Clunes 229, 230 Barker's Gold Mining Co. v. Keat- ing ...924, 933, 935, 936, 937, 942, 943, 953, 1008 Barlow v. Hayes 916, 936 Barnard v. Mann 105, 264 v. Wright 1313 Barnes, Inre 1449 Barnicoatt v. Williams 452 Barr, In the Estate of ,....,..,. 1544 VII. TABLE OP CASES. vm. Barrabool, Shire of v. Torr 855, 856, 859 Barrett, Ex parte 1832 Ex parte Beg. v. Mussen 851 In re 1331 In the Will of 1517 I/. Scott 848 v. Snowball 1132 Barrington v. Willox 922 Barry, In re 604, 618 v. Dolan 763 v. Kennedy 1171 Barter v. Mayor of Melbourne 1580, 1581 Bartlett v. Hoskin 1226 v. Looney 1238 v. Pyers 186, 193 Bartleyu. Worthington 419 Barton v. Band of Hope and Albion Consols 921, 939, 940, 948, 983 Barwick, In re 703, 704 v. Duchess of Edinburgh Co. . . 484, 8 14, 952, 957, 958 Batch v. Batch 521 Batchelder v. Carden 762, 1301 Batcheloru. Smith 1077 Bate v. Gee 889 Bates, In re 92, 691 v. Loewe 236,599 Bateman, In re ...181, 577, 652, 710, 713 v. Bateman 51 v. Moffatt...37, 38, 1080, 1081 r-v. Connell 98, 1224 Bathgate v. Bathgate 505, 518, 523, 527, 528 Bauld v. Williams 272 Baw-Baw Sluicing Co. v. Nicholls 966, 1015 Bayldon, In re ...580, 606, 662, 664, 667, 870 Baylee v. Morley 826,1196 Beaney v. Fitzgerald 366 Bear, In the Estate of 117 v. Race 434 Beath v. Anderson 1312 Beaty, In the Estate of 541, 1518 Beauchamp v. Nathan 63 Beaumont ». Love 809 Beavan, In the Estate of 1533 v. Chadwick 1311 v. Eigby 916, 925, 939, 941 Bearer v. Pox 46 Bebro v. Bloomfleld 963 Beck*. Beck 508, 510, 525 Beckx v. Jones 412 Beechworth, Mayor of v. Baker ... 866 Beechworth, Shire of v. Spencer ... 766 Beedle v. Thomas 1098 Beilby, Ex parte 311, 775, 1156 Beissell, Ex parte, in re Transfer of Land Stat 1394,1397, 1412 Beithi*. Beith 558, 1567 Belcher v. Belcher 514, 517, 519, 522, 523 Belfast Eoad Board v. Knox 1272 Bell, In re 390, 391, 393, 674, 700, 1370 In the Will of 441 v. Bell 277 v. Clarke 7, 420, 428, 1064 v. Master in Equity 390, 391 v. Shire of Portland 859 v. Stewart , 1211 COL. BeU v. Wade 331, 803 Bellamy, In re 1519 Bellisz/.Maxfield 895 Belmore Silver and Lead Mining Co., In re 170i 1176 Benalla, Shire of v. Turner 637 Bendigo Waterworks Co. v. Fletcher 1490, 1491 Bendigo Waterworks Co. v. Thunder 33, 1490 Bengson v. Bank of Victoria 338 Benjamin v. Wymond 136, 137, 141, 163, 235, 1189 Bennett and Taylor, In re 375, 376 v. Bennett 1156, 1432, 1443 v. Mayor of East Colling- wood 1262 Bennett v. Solomon 162 v. Tucker 417, 1192,1281, 1439, 1444 Benson, In re 1205 Bent, Exparte 228 Ex parte Beg. v. Mayor of Hotham 1268,1269 Bentley». Jamieson 93 Bergin, In the goods of 1521 in the Will of 1553 Bergin's Estate, In re 1308, 1309 Bergin v. Cohen 1109, 1367 Bermingham, In the Will of 1510 Bernstein ». Blashki ^ 275 Berry, Ex parte Keg. ■«. Bradshaw 761, 773 Bibby v. Prendergast 471 Bicknell i>. Heymanson 400, 844, 845 Biggs, Ex parte Beg. v. Garside ... 1107 Billson v. Hood 98 Binge, Ex parte, in re Prince 748 Birmingham v. Shire of Berwick... 861 Birtwhistle v. Hann 203 Bishop, In re 763 v. Bishop 502 v. Martin 1098, 1215 ■u.Smith 504 . v. Stone 1086, 1091, 1217 v. Woinarski 260, 740, 1305 Bisp ». Mayor of Collingwood ...324, 862 Black, In the goods of 1517 Ex parte 833 Ex parte Beg. v. Stephen- son 915 v. Black 551 v. Board of Land and Works 338, 1078 ». Permewan, Wright, and Co 266 v. Zevenboom 110, 115 Blackburn, Ex parte Beg, v. Taylor 772, 773, 813 v. Mayor of Melbourne 1234 Blackwell, Ex parte Beg. v. Bur- roughs 781 v. Smyly 815 Blackwood v. Mayor of Essendon and Flemington 38,331, 1260, 1261, 1301 Blackwood v. The Queen 391, 392 v. Bourke 84,85 Blain, Ex parte Eeg. v. Taylor. . .782, 1 107 Blair v. Grant 484,485 IX. TABLE OF CASES. Blair v. Municipal Council of Bal- larat 752, 763 v. Palmer 1171 v. Shire of Leigh 1146 Blake©. Lane 809, 814, 816 v. Watson 65 Blamires v. Dunning 22,110 Blannin, In the Estate of 1542 Bliss o.Rowan 192,193 v. Withers 72 Blood, In re 707 Bloomfleldw. Macan 332, 483, 792 Blyth v. Parlon 352, 395, 567, 1470 Board of Land and Works v. Ecroyd 58,87, 638, 1186 Board of Land and Works v. Glass. ..372, 373, 1304 Boardman, In the Will of 1527 Bogg v. London and Australian Agency Company 1092 Boland, In the Will of 1543 Bon, In the Will of ; 1543 Bond, Ex parte, in re Transfer of Land Stat.. ..791, 1398, 1408, 1409, 1410 w.Kelly 1418 v. Vaughan 806 *. Watson 916,932 Bonham v. Brophy 185 Bonshaw Freehold Gr. M. Co. v. Prince of Wales Co 562, 572, 816, 907, 908, 1011, 1100, 1102, 1103, 1174 Bossence v. Shire of Kimiore .,. 862 Bostock, In the Will of 1505, 1541, 1542 Bottrell v. Waverley G. M. Co. ... 938 Bouchier v. Dawson 1182 Boundy, In the Will of 152L Bourke v. Board of Education ... 396 Bourke's Trusts, In re ■. 1205 Bourne v. Jones -. 1153 Bowie, In re 691 v. Wilson 241 Bowman, Ex parte, in re Transfer of Land Stat 1395 Bowman, In the Estate of ...1545, 1559 In re 639,702, 1274 v. Bowman 1160 v. Carnaby 398 i/.Homan 137,1091 v, Webster » 1392 v. Whelan 1212 Bowman's Trusts, In re. ..555, 1432, 1459 Boyce v. Lapish 1478 Boyd v. Goulstone 1293, 1294 w.Holmes 183,184 Boyle v. Carolin 247, 248 v. Hepburn 1098 v. Shire of Mornington 1084 v. Willis 568, 1133, 1134, 1275 Brabenderu. Gibbs 932, 933 Bradley, In re 579, 580 v. Creeth 761, 1037 Bradshaw v. Goer 1357 . v. Victorian Railway Com- missioners 375 Brady v. Toulden 364 Braine v. Summers 815, 816, 1101 Braithwaite, In the Will of 1516, 1557, 1558 Bramley v. Parrott 235, 1356, 1357, 1360 Brandrick v. Johnson 361, 365 Brann, In re ... 610, 615, 619, 624, 625, 627, 639 Braun, Ex parte, R. v. Call 780 Brasher, In the goods of 1521 Bray v. Mullen 993 Brazenall, In re 560, 561 Breading v. Doria 101 Brebner, In re 687 v. Birkett 1235 Breen, Ex parte R. v. Johnstone... 217 Breese v. Fleming 1185, 1186, 1344, 1345 v. Lindsay 1237, 1477, 1478 Brennan, Ex parte R. v. M'Cor- mick 91, 781 Brennan, Ex parte R. v. Reid 745 v. Watson 991, 995, 1006 Brent v. Jones 425, 838, 839, 1577 Brew v. Jones ...1337, 1338, 1339, 1340 1407 Briant v. Edrick 1561 Briggs, Ex parte 803,804 Brilly, Ex parte R. v. Wharton 757 Brinkman v. Holstein 991 Britt v. Merizzi 255 Broadbent v. Hombrook ...332, 752, 792 v. Marshall 563, 570, 907, 909 v. Small 363 v. Vanrennen 259,261 Broadfoot *>. O'FarreU 1030, 1031 . v. Wilson 270,271 Broadmeadows Road Board •». Mit- chell 1587 Brock v. Kelson 1569 v. M'Phail 1277, 1278 Brodribb, Crisp and Lewis, In re 1342 Brookfield, In re 1274 Brooks, Ex parte R. v. Sutcliffe ... 812 v. M'Pherson...48, 49, 52, 55, 56, 426 i. The Queen.. .395, 563, 564, 789 790, 1119, 1367 v. Smith 243 Broomfield v. Summerfleld 15, 1563, 1564, 1565 Brophy v. Bonham 1091 Brough». Wallace 1149 Brougham v. Melbourne Banking Corporation ... 32, 130, 229, 408, 1055, 1056, 1068, 1169, 1195, 1250, 1251 Brown, Ex parte, in re Sandilands ... 64 ■ Ex parte, in re Transfer of Land Stat 1394 Ex parte Reg. v. Perry ... 835 In re 615, 640, 664, 689, 690, 704 In the Estate of 1550, 1551 In the Will of 442, 443, 1510, 1 543 v. Abbott 12, 13, 545, 1578 v. Aitken 339 v. Brown 1174 v. Board of Land and Works 894, 895 v. Cooper 434, 1140 v. Figg 184 v. Hardy 808, 1157 v. Healey.. 1157, 1187, 1383 ■ v. Lyon 271 v. Mayor of Footscray 1270 v. Meldrum 1182, 1204, 1205 XI. Table of cases. Xll. Brown v. O'Malley 853 v. White 188, 197, 250 Stansfield and Co., In re... 665 Bruce, v, Atkins 806, 1490, 1579 v. Garnett, In re Beidle 111, 771 v. Hart 252 v. Kerr 351, 352 v. Ligar 415, 419, 430, 1454 v. The Queen.. .321, 322, 425, 1588 Brundell v. Wane ... 266, 276, 277,. 1082 Brunswick, Mayor of v. Dawson ... 1478 Bryan, In re 621, 701 Bryant, In re 677, 680 v. Patten ...356, 357, 547, 1206 v. Saunders 1066, 1067, 1451 Bryce, In re 874 Brydon v. Innes 1278 Bryens v. M'Lennan 742, 1094 Bryer, Ex parte Beg. v. Heron 959, 986, 1364 Bryson v. M'Carthy 919 Buchner v. Davis 454 Buckland v. M'Andrew 453, 454 Buckley Coady, In re 333, 429, 462, 1523 IntheWUlof 1500 Bucknall, Ex parte Eeg. v. Bodd 803 Buggy, In the Will of 542 ■ v. Buggy 16 Buisson v. Warburton 386, 453, 657, 1324 Bull, In re 867,869,870 Bulla, Shire of v. Allison 1260, 1267 Bullen, In re 1434, 1435 v. Hooper 249,264,1337 v. Phelan 1191 Bulling v. Bryant 6, 1066 Bullock v. Wimmera Pellniongery Co 890, 891 Bungaree, Shire of v. Ballarat Water Commission.. .1262, 1263, 1264, 1270 Buninyong, Shire of v. Berry 853 Burch v. Brown 996 Burgess, In the Estate of 1518 Burgrneier v. Shire of Darebin 861 Burke, In the Will of 1528 v. Board of Land and Works 1079 Burnip, Ex parte Beg. v. Heron ... 751, 752 Burns, In re 867,1499 v. Slater 876 Burt, Ex parte 551 Burton, In re 405,658,1364 Bury v. Bury 517, 523, 525, 526, 527, 528 Bushby, In re 1332 Butchart, In re 585, 620, 621, 1127, 1128 Butchart, In the Will of 1454 Butcher v. Martin 20 v. Smith 1149, 1151, 1419 Butler, Ex parte 833, 834 In the Will of 1504 v. O'Keefe 932 Buttner v. Hallenstein 1197, 1198 Buxton v. Bellin 1467, 1477, 1479 Buzolich v. Fletcher.. .47, 264, 1089, 1090 Buzolich Paint Co., In re. ..165, 166, 170 Byrne, v. Bateman 1420 v. Lewis 238 Byrnes, In re 702 COL. Byrnes v. Clough 38 Bythell v. Bythell 509 Cadden v. Osborne 771, 888 Cahill, In re 602 1 . Keilor Eoad Board 745 v. White 1108 Cain v. Allen 649 v. Cain 52 Cairns, Ex parte B . v. Bindon 127 v. Peterson 829 Cakebreadw. Huddard 184, 341 Calhoun, In re 579 Callaghan, Ex parte Beg. v. Call... 1284 Callinan, Ex parte Beg. v. Lintott 883 Calvert v. Turner 810 Cameron, In re 443, 1549 Ex parte, in re Bennett and Attenborough 1342, 1343 In the Will of 1460, 1532, 1558 v. Avery 1466 v. Cameron 514, 519, 526 . v. Hughes 1138 v. M'Namara ...68, 1202, 1203, 1204 — ^— v. Shire of Mount Bouse 215, 858, 1090 v. Thompson 771,1108 Campbell, Ex parte, in re Strong 897 Ex parte Beg. v. Guth- ridge 419,746, 777, 780 In re 612, 1458, 1459, 1531, 1532, 1563 In the goods of 1514 v. Ah Chong 573, 965, 966 v. Bent 1224, 1465, 1468, 1480 z/.Blair 1136 v. Campbell 65, 508 v. Carver 1033 v. Connor 76 v. Hassan 1024 v. Jarrett ...395, 396, 424, 454, 1398 v. M'Intyre 944 v. Parker's Extended Co. 906, 984 Cane v. Levey 202,1427 v. Sinclair 201,1217, 1241, 1465 Canty v. Shire of Stawell 343 Carey, Ex parte 773, 813 w.Stewart 483 Carlisle Co. u. Mayor of Sandhurst 1259, 1260 Carlyon v. Carlyon 1370 Carnaby v. Carnaby...514, 515, 518, 528, 529 Caro v. Devine 625 Carroll, In the goods of 1549 v. Carroll... 1547 ' v. Falkiner 337 v. M'Gregor 268,269 — — v. Melbourne Omnibus Co. 1092 xm. TABLE OF CASES. XIV. Carson v. Wood 818 Carter v. Murphy , 438 v. Sternberg 733,734 v. Watson 1009, 1010 Carvalho v. Black Hill S. Extended Co 487, 1365 Casey v. Candler 209, 1423 v. Casey ...507, 510, 511, 523, 524, 525 526 Cathery, In the Will of ' 540 Caton v. Oriental Bank 239 Cattanaoh v. M'Kowne 552 Caulfield, In re 697, 698, 699, 703 Cavanagh v. Sach 250 v. Weigall 333,334 Cave, Ex parte Beg. v. Carr 836 v. Beveridge 843,1425 Cawkwellz/. Cawkwell 522,531 Cawley v. Cawley 65, 1519 v. Ling 920 Central Quartz Mining Co. v. Morgan 1007 Chadwick's Estate, In re 438 Chadwick and Robinson, In re...... 1200 v. Bennett 438, 439, 1190, 1200, 1377 Challacombe v. Wiggins 1095 Chamberlain v. E. S. & A. C. Bank 85, 8G Chambers, In re 600, 869, 873 In the Estate of 1530 Ex parte Beg. z/.Birkett 1232 v. Trench 407 v. Chambers 799 v. Green 1341 v. Willey 896 Chandler v. M. and H. B. U. Rail- way Co 895 Chaplin, In re 23 ■ v. Chalk 185, 186 Chapman v. Ireland 1093 v. Scheidmayer 249 Chappelw. Moffatt 1383 Charlton v. Barkly Beef Gold Mining Co 1022 Chatty, Ex parte E. v. Strutt 780 Chellew, In the Will of 1510 Cherry, In re 1550 v. Colonial Bank 84 -, v. Perkins 1486, 1487 Chine, Ex parte Beg. v. Shillinglaw 1118 Chinn&. Thomas.^ 563, 1391 Chirnsidez/. Sanderson 1096 Chisholm, v. Band of Hope Co. 961, 963 v. Capper 846 Chomley'z/. Firebrace 417, 1405, 1406 Christian v. Kenworthy 931, 932 Christie, In re 703 In the Will of 1503 v. Thomson 657, 668 Christophers, In re 684 Chrysolite Hill Gold Mining Co. v. Sandhurst and St. Arnaud Chry- solite Tribute Co 51 Chuck, Ex parte, in re Gippsland S. N. Co 156, 1040 Chun Goon v. Bef orm Gold Mining Co 190, 191, 245, 405, 1014, 1015, 1017, 1020, 1021, 1023, 1024, 1026, 1359, 1370 Churchward v. Lyons 269 Churchyard, In re 1517, 1518 City of Melbourne Gold Mining Co. •«. The Queen 325, 809, 951 Clancy v. Harrison 896, 1319 Clapham, In re 690, 699 Clarence v. London and Australian Agency Co 564 United Company v. Gold- smith ...484, 935, 948, 949, 1012, 1027 Clark, In re 591 Ex parte, in re Dowman ... 494 v. Andrews 387 v. Clark 450, 451, 784, 848, 1137, 1164, 1432, 1486 Clarke, Ex parte 999 — — Ex parte Beg. v. Cowie ... 863 . In're 334 v. Byrne 1242, 1474, 1477 v. Cameron 267,268 -a. Docherty 1464, 1465 v. Gouge 1137, 1138 v. M'Lean 77 : o. Mellor 1241 v. Pitcher 908, 1220 v. Tresider 459 v. Were 1198 Clarke's Trusts, In re 1453 Clarson, Ex parte Beg. v. Call 756 v. Blair 1109 Clarton, In re 578, 581, 583, 611, 614, 713 Clauscen, Ex parte Beg. v. Alley 496 Claxton v. Everingham 1425, 1426 Cleary v. Macnamara 17, 1347 Cleggt'. Bryant 367,368 Cleland, In re 873 Clemes and Leach, In re 594 Clendinning v. Broadbent 121 v. Garrick 121 Clerk, In re 982, 987, 989, 1363 v. Wrigley ...916, 927, 929, 930, 964, 1001, 1002 Cline, Ex parte Beg. v. Hackett... 261 Clohesy v. Maher 1466, 1467 Clough v. Gray. ..103, 542, 543, 637, 1185 v. Hopkins 731, 732 v, Laing 840 v. London and Australian Agency Corporation... 147 148, 1092 v. Salier 730 Clow, In re 135,801 Clunes and Blackwood Co. v. Coulter 158 United Co. v. Clunes Borough Council ...1259, 1300 1 Water Commissioners v. Winchester 1266 Cluxton, In the Will of 1512, 1513 Coady, In the Estate of 1539, 1540 v. Buckley 825,826 Coates, In re 473 Cobain, In re 686, 687 Cobb v. Munce 1044 v. Munro, In re Beg. v. Pohl- man 887 Ex parte Beg. v. Pohlman 887, 1300 Cochrane, In the Will of 1511 Cock v. Lady Barkly Gold Mining Co 140, 141 v. Sayers 1006 XV. TABLE OP CASES. XVI. Coe, Ex parte Eeg. v. Carroll 777 v. Jamieson 1095 Coffee Tavern Co. v. De Young ... 1338 Cognac Co., In re 170 In re Dwyer and Kelly's case .. 32, 36, 170, 173 Cohen z/.Cleve 188, 1292 ' v. Ekman 340 v. Lintz 405, 637, 1171, 1176 v. M'Gee 105, 632, 633 v. Oriental Bank ...108, 112, 638, 1213 Cohn v. Sherwood 834 Cohu v. Strachan 60 Colrerp. Spence 432, 1047 Colac, Shire of v. Butler 230, 1336 Colclough, Ex parte Eeg. v. Mol- lison 1106 Coldham v. The Queen 1286 Cole v. Chirnside 1256 Colechin v. Wade 472, 1400, 1405 Coleman, In the Will of 1511, 1514 v. Dean 380, 816, 817 Coles v. Sparta 931 Colley w.Colley .'18, 1196 Collin v. Stewart 482, 483 CoUings, In the Will of 1551 Collingwood Quartz Mining Co., In re 165, 1028 Collins,Ex parte Beg.z<. Collins. ..532, 533 v. Cookson 347 v. Webster 772 o.Hayes 129,130,1007 v. Locke 203,204,1122 v. O' Dwyer 936 - v. Bobbins 1123, 1124, 1133, 1355 Collyerw. Corcoran 13 Colonial Bank v. Beaconsfield Gold Mining Co 1314 v . Buckland...78, 79, 807, 1362 v. Cherry 143, 144 p.Cooper 434 v. Curtain 481 v. Draper 481 v. Ettershank 83, 103, 376, 1246 v. European Insur- ance and Guaran- tee Society 489 . v. Hunter 77 v. Loch Pyne Co. ... 147 o. M'Conkey 77, 78 v. M'Donald 86, 87 v. Mitchell 75 . v. M'Leod 1209 z/.Moodie 491 . v. Pie...42,477, 481, 1176, 1186, 1196, 1204, 1406 — v. Eabbage 1403 v, Boaehe 397, 1401 — v. Willan.,.125, 126, 1005, 1028, 1029 Colonial Mutual Life Assurance Co., Ex parte, In re Bishop 138, 145, 146 COL. Commercial Bank v. Ashton 97 v. Carson 801 v. Cowland 1144 v. Grassy .Gully Quartz Min- ing Co. 1024, 1226 —— ^— v , Hope Tribute Co... 1029 v. Hulls 77 v. Keith 94 — — — v. Lawrence ... 79 v. M'Donald 65,151, 412, 1024 v. Moylan 1245 Comrie, Ex parte Eeg. v. Kavanagh 760, 773 Condor, The, In re 1328 Connell, In re 694 v. Carroll 707 v. Scottish Insurance Co. 720 Connolly v. Shire of Beechworth 229, 423, 1348, 1349, 1352, 1353, 1361 Connor, Ex parte Eeg. v. Barry. ..3, 834 v. Panton 769, 770 Connor v. Spence ...8, 1208, 1219, 1317, 1325, 1489 Conole v. Horigan 473 Conroy v. Mason 1071 Constable, Ex parte Eeg. v. Strutt 883, 978 v. Constable 516 v. Pigtail Co 941, 948, 954 v. Smith 978,994 Conway v. Bouchard 997, 1002 Cooey Hing v. Kabat 1117, 1118 v. Sadlier 1109 Cook, In the Will of 1516 v. M'Cullagh 767, 1540, 1553 Cooke, Ex parte 888 v. Coward 271 Coombs v. M'Dougall 92 Cooper, In re 603, 606, 619, 1510, 1511 v. Bath 1035 v. Dangerfield ...569, 1102, 1103, 1104 v. Dodgson 1426 v. Higgins 267 v. White 938, 954 Co-operative Meat Supply Associa- tion, In re 165, 169 Cootew. Gillespie 257, 258, 1242 Coppin, In the Will of , 1560 Corbett, Ex parte Eeg. v. Marsden 498, 499, 775 v. Batchelor 274 v. Taylor 337, 1291, 1292 Corcoran, in the goods of 16 Corio Eoad Board v. Galletty 1271 Shire of v. Smith 856, 859 Cornillac, In re 492, 1118, 1119 Cornish v. Elliott 832 Cornwall v. Hicks 1135 v. Martin 875 Corr v. Standard Eire and Marine Insurance Co 727, 730, 731 Costelloe, Ex parte Eeg. v. Cantwell 759, 782 XV11. TABLE OF CASES. xvm. COL. Costin, Ex parte Eeg. v. Thomson 1000, 1001 Cotchett v. Hardy 161 Cottenham, In re 716 Cotter v. Hann 1368, 1387 Cotton, In re 578, 640, 712, 715 Couch, Ex parte Eeg. v. Smith 536, 540 Coulson v. Campbell 240, 1231 Coulter w. Wardill 161 Counihan, In re. ..582, 614, 615, 619, 620 Counsels. Love 546, 547 Courtney v. King 660,1221 1304 w.Wilson 631 Courtney's Trusts, In re 1458 Cousens v. M'Gee 733 Coutts v. Jay 789, 1420 Cowper, In re 1332 u. Ninham 3b3 v. Plaisted 58 Cox, In the Will of 1552 Crab, In the Estate of 1554 Crabbe, In re 1331 Craig, In re 1396 v. Adams 955 Cranbourne Road Board v. Wedge 771 Crate, In re 596, 623 Crawford, In the goods of 1519 ■ Exparte 1336 Creek v. Newlands 258,363 Crespinz*. Puncheon 1288, 1289 Creswick v. Creswick 1130 Grand Trunk Gold Mi- ning Company v. Hassall 41, 42, 148, 162, 1017, 1027, 1028, 1163 v. Eowell 155, 156, 1026, 1027 Shire of v. Ryan ...1384, 1385 Crisp, In re 581, 583 Critchley v. Graham... 926, 935, 936, 963, 985, 999 Crichton, In re 693 Ex parte Eeg. v. Mollison 764, 892 v. Morris 1465, 1473 Croaker v. Baines 60 . Crocker v. Wigg 919, 920, 929, 964, 997, 998, 1006 "Croft v. Grimbly 93, 1286 Crofts, In re 613 Croll v. Linton 1385, 1386 Cronan v. Edwards 6 Crooked. Smith 249,264 v. Swords 48,1372 Crooks v. Ormerod 30, 31 Cropley, In the Real Estate of 1530, 1560 Crosby, Inre 446 In the Will of 450, 1452 Crossley v. Hoffman 187 Crow v. Campbell... 198, 1404, 1407, 1432 Crowe, In the Estate of 1531 Crowl v. Flynn - 501 Crowther, In the goods of 1157 ' w.May 367,742 Crozier, In re 1554 Cruikshank v. Kitchen 498, 1104 Cruise v. Crowley 923, 924, 942, 964, 989 Cruthersw. White' 1490 Cudmore v. M'Pherson ...48, 49, 52, 55, 56. 426 COL. Cullen, In the Will of 1528, 1545 Cullen, Exparte Reg. v. Drury ... 128 v. Thompson 1401, 1406 Cumber v. Morley 1297,1298 Cummins v. Dickson 1420 Cunningham, In re ...617, 667, 681, 692, 699 Ex parte, in re Transfer of Land Stat 1411, 1412 v. Gundry...241, 248, 260, 275, 1401, 1405, 1474, 1475 v. Piatt 353,354,1161 Curie, Inre 623, 625, 626 Curley, Inre 683,706 Curran v. Cavanagh 387 Curries-. M'Neave 271 Curtain and Healey, In re 641, 642 Curtayne v. Mitchell 533 Curthoys v. Kilbride 904 Curwenz/. Mullery 1203,1452 Cushing v. Lady Bavkly Gold Min- ing Co. ...150, 155, 158, 163, 164, 417, 1022, 1193, 4487 Cust, In the Will of 1503 Cuthbertz\ Daley 1386 Cutler v. Barber 452, 453 Cutter and Lever, Inre 608 Cuvetu. Davis 395, 1379, 1459 D. Daft, Ex parte Eeg. v. Munday ...221, 222, 228 Daggett v. Hepburn 1472, 1482 Daily Telegraph Newspaper' Co., Exparte, inre Syme 178, 179 Daily Telegraph Newspaper Co. v. Berry 232, 377, 378, 1217 Dakin v. Heller 242, 243, 1372 Dale v. Bank of New South Wales 86 v. M'Culloch and Co 891 Daley v. Land and Mortgage Bank 564, 565 Dalgety v. Husband 890 Dallimore, In re 644, 666, 706, 715 ■ — v. Oriental Bank ...469, 474, 475, 577, 1053, 1062, 1065, 1067, 1068, 1069, 1070, 1188, 1370 v. The Queen.. .326, 405, 1351 Dalmatia Gold Mining Co., Ex parte Eeg. v. O'Brien 1383 Dalton, Ex parte, in re Bowley and Pyne 1391 Dalton, Exparte 64 v. Plevins 356, 1166, 1446, 1447 Dalyw. Hughes 876 v. Mayor of Ballarat 216 Danby v. Adet 1241 v. O'Keefe 1198,1199 Dancker v. Porter. ..169, 1136, 1163, 1166, 1167, 1193 Dane, Inre 710,711 v. Levinger 1311 Daniel, Ex parte Eeg. v. Shire of Bulla 885 v. Daniel 512 XIX. TABLE OF CASES. xx. Daniell v. Bowbotham 745, 747 Darcy, Ex parte Eeg. v. Jones 222, 227, 228 v. Ryan 248, 249, 800, 1349 Dart v. Maekin 51 Darton v. Knight 479 Davidson, Ex parte Eeg. v. O'Brien 1107, 1108 v. Brown 265, 1470 v. M'Carthy 1249 v. Stawell EoadBoard... 1259 Davey, Ex parte Eeg. v. Alley 1108, 1367 In re 557 In the Will of 1527 Bank of New South v. Wales 384, 636, 637, 665 v. Bailey 112, 422 v. Pern.... 477, 637, 726, 1308 v. Schurmann 628 Davies, Inre 677 In the Will of 1528 v. Breading 270 v. Cooper 1011,1033 v. Davies 530 ■w.Herbert 1229 v. Pwan Hill Waterworks Trust 1143 Davis, In re 658, 759, 760 v. Bull 930 v. Davis 509, 510 v. Kelleher 1441 v The Queen ... 31, 34, 115, 486, 487, 571,915, 1369, 1470, 1494 v. Sprent 1283, 1284 v. Wekey 22, 570, 571, 1404, 1405 Dawson v. Dawson 450 Day v. Union Gold Mining Co. ..9, 118, 1248 Daylesford, Mayor of v. Senior Constable of Daylesford 864,865 Dean, In the Estate of 442 v. Dean 509, 531 Deane, Ex parte Eeg. v. Kirby ... 347 De Beer v. Desmazures 582 De Castella v. De Castella 1213 Degraves, In the Will of 1541 v. Bennett 1152 v. M'Mullen 202, 341 — v. Whiteman 568 Dehnert, Ex parte Eeg. v. Morgan 750 De La Chappelle &. Downie 808 .Delaney v. Sandhurst Building Society 119, 255, 256, 399 Delap v. Mawley 845 De Little, in the Will of 1533 Delves, In re 1505 De Mestre v. Syme 364 Dennis v. Vivian 780, 979, 991 Denny v. Vickers , 1183 De Portue, Ex parte Eeg. Works 1491 Penner, In re 593, 613 Fennessy, In re 1435 Fenton v. Blackwood ...1050, 1063, 1064 COL. Fenton v. Board of Land and Works 55 v. Dry 1147,1363,1364 v. Earls 275 v. Skinner 788 Fergie v. Byrne 1478, 1479 Ferguson, Ex parte 90 v. Sparling 258 O.Thomson 1227 Fergusson v. Union Steamship Co. 1075, 1101, 1287, 1366 Fermanerw. Emmerson 361 Ferret, The, in re 1319, 1320, 1327 Ferriez/. Whitehead 1122,1123 Fickel, Ex parte Reg. v. Pickles 773, 779 783 Fields. Howlett 547, 548, 1282 Filgate v. Thomson 1098, 1144 Filler v. Stephens 68 Findlay v. Cameron 1580 Finlay, Ex parte 1285 Finlayson, In re '702 z<. Adelaide Fire and Marine Insurance Co. 242 Finns. Ray 200 Finnegan v. Wissing 950, 951 Finney, In re 611,627, 628 Fischer, Ex parte Reg. v. Hartney 899 Fishenden, In re .-. 455, 671 Fisher, Ex parte Reg. v. Call ...834, 835 In re 580, 581, 583, 601, 717, 1445 v. Adelaide Marine Insur- ance Co 730 v. Fisher 512, 514, 516, 517, 527, 528, 530 v. Jaeomb 566, 1176 v. Wheatland 1106, 1424 Fitches v. Burnell 1105 Fitzgerald v. Archer 277, 1397 w.EIliott 974 v. Jaeomb 1246 Ex parte Reg. v. Mol- lison 829 Fitzgibbon, Ex parte Reg. v. Sturt 220 Fitzpatriok, Ex parte Reg. v. Bin- don 91 In the Will of 1509, 1529, 1557 In re 599, 615 v. Hackett 1300- Fitzroy Local Board of Health v. Howell 497 Mayor of v. Collingwood Gas Go 764,1262, 1270 v. Mahoney 1144, 1145~ Flannagan v. Flannagan 553,554, 1169 v. Mate ^. 56 Flanner v. Williams 1160 Fletcher v. Buzolich 46, 47, 270 v. Youl 1237, 1238 Flower, Salting and Co., Ex parte 598, 599, 600, 648, 665, 666 Flower v. Jackson 249 v. Stephen 26 v. Webster 1061, 1062 v. Wilson 206, 1453 Flynnz>. The Queen 57 Fogarty v. Dennis 60, 61 Foley, In the Will of 1516 v. Norton 944, 945, 959 XXV. TABLE OF CASES. XXVI. Foley v. Samuels 565,574 Folk, In re 40 Ex parte, In re Transfer of Land Stat 1397, 1565 Folk's Will, In re 555, 1433 Fong Gaep v. Reynolds 123 Fortes, Ex parte Keg. v. Eddy ... 227 v. Clarton 64, 1349, 1355 v. M'Donald 24, 1090, 1097 Ford v. London Chartered Bank 87, 839, 1247 v. Young .413, 425" 1466, 1473 Foreman v. Sinclair 1475 Forrest u. Eisert 420 Forsman, Ex parte 749, 757 Foster v. Green 10, 1098 Fotheringham v. Archer 1417 Fourth South Melbourne Building Society, In re 120, 1366 Fowler v. Fowler 528, 529, 53 1 ■ — v. Mackenzie 573 w.Walker 66 and Synnot, In re 54 Fox, In re 589, 602, 609, 610 v. M'Mahon 890 Francis v. Dunn 1098 ». M'Donald 481,482 Frankel, In re 691, 693, 694 Franklin v. Drew 1334 Lady, The, In re 1324 Fraser, In re 598, 599, 602, 609, 669 Ex parte Beg. v. Sherrard 986 v. Cope ... 253 v. Australian Trust Co. 355, 356, 636 ■ v. Cameron 20 v- Dalgety 1295 Frawley v. Ewing 1224 Frayne v. Carr 995 Frazer, In re 615 Freames.Ex parte Reg. v. Skinner 1252 Freehold Investment Co. W.Thomp- son 240, 1231, 1233, 1234 Freeman, Ex parte 779 Friedlander, In the Estate of 1540, 1541 Frith v. Maritime Credit and Dis- count Co. 106, 107, 113 Froggatt, Ex parte Reg. v. Richard 224 Froomes, in the Will of 444 Frost, Ex parte Reg. v. Druce 779 Fulker.Inre ..;:: 867 Fullarton v. The Queen 133, 134 Fullerton v. Bergin 498 v. Fullerton 908 v. Weedow 498 Fyson, In re 589 G. Gaffney v. Werner 893 Gair, In re 278,1333 Gale, In re 695,696 Gattogly, In re 1531, 1535 — v. M. and H. B. IT. Rail- way Co 1078 Gane v. M'Grane 114 Garbutt?. Naughton 809 Gardiner, In re 555, 584, 597, 600 Gardiner v. M'Culloch 34 Gardner, In re 681, 687 Garibaldi Co. v. Craven's New Chum Co 487, 908,915, 952, 968, 1494 Garlick, In re 1331,1332 Garrard, In re 1331 Garrett, Ex parte Reg. v. Bowman 129 v. Creeth 1029 Garson v. Jacobsen 1320 Garton v. Coy ......849, 1226, 1372, 1375 Gaunt, Inre 1512 Gavel, Ex parte Reg. v. Akehurst 26, 27, 762 Gavin, Ex parte Reg. v. Crotty ... 1116 Gawne, Ex parte Reg. v. Snowball 773, 813 Inre 349,493 Geach v. Board of Land and Works 1082, 1093 Geary, In re 658,667 v. The Queen 134 Geoghegan v. Talbot 1149 Georgeson, Inre 660 a. Geach 193 Geraghty v. Russell 281, 282, 1393, 1394 Gerard v. Kreitmayer 241, 264 Gessner, Ex parte 642, 666, 718 Gherson, In re 609 Gibb, Inre 600 Gibbesz/. Rolls 107, 108 Gibbsz/. Shephard 1224, 1225 v. Gibbs 1460 Giblin v. M'Mullen 83, 84, 1097 Gibson v. Chalk 904 v. Gibson 525 Giffard v. Unity Gold Mining Co. 254 Gilbee, Ex parte Reg. v. Belcher... 987 Gilchrist v. Meagher 1384 Giles, In re 1574 v. Lesser 1407 Gill, Ex parte Reg. z/.Lloyd 349 — —v. Ellermann 1420, 1421 v. Nicholas 915 Gillard D.Watson 399 Gilles v. Bank of Victoria 890 Gillibrand, In the Will of 1527 Gillow, Inre 1335 ■ Ex parte Reg. v. Call 231 Gilmer v. Burmister 127 Gisborne, Shire of v. Murphy 229 Githens, In the Will of 1552 Givan, In re 68 Gladstones. Ball 194, 424, 470, 1275, 1578 Glass, In re.. 177, 277 „. Fowler 786 D.Higgins 352, 1126 ■ i).Keogh 461, 708 „. Martin 202, 742 v. M' Leery 95 v. The Queen ...792, 793, 794^.796, 1372 v. Simson 424,1360, 1361 Glassford v. Kennedy Z50 v. .Murphy 559, 560 Gleeson, Ex parte Reg. ». Turnley 758 In the Will of v. Kingston 1146 Glenr. Abbott 106,1426 Goddard/w. Tasmanian Steam Navi- gation Co 1317- XXV11. TABLE OP CASES. XXVlll. Godfrey, Ex parte Keg. v. Lloyd... -v. Smyth COL. 497, 744 758 Golden Fleece Old Chum Co., Ex parte Eeg. v. Dunne 126, 127 Golden Gate Co., Ex parte Eeg. . Hackett 1034 Golden Lake Gold Mining Co. v. "Wood 76, 77 Goldie v. Allen 26 Goldsbrough v. Fletcher 1154 v. M'Culloch...S7, 123, 628, 841, 1087, 1223 v. Melbourne Bank- ing Corporation... 1320 Mining Co. . M 'Bride 1 58 Goldsmith, In re 670, 680, 697, 699, 700, 715 Goodman, In the goods of 1539 IntheEstateof ....1561,1562, 1577 v. Boulton...35, 429, 468, 469, 569, 651 v. Hughes 415,466 D.Kelly 964,1019 v. Mayor of Melbourne 1257, 1363 D.M-Callum ...627, 630, 1455 » Power 1060 v Strachan 656 Goodson, Ex parte Eeg. v. Hackett 272, 273 Goodwin v. Heanchain 99, 1228 Goodyear v. Klemm 574 Gooley v. Curtain 881 Gonersonu. Muir 238 Gordon, In re 868 In the Will of 1514, 1524, 1557 v. Allan 16, 17, 448 v. Campbell 1176 v. Golden Fleece Co 1018, 1019 v. Murphy 410,503,504 Goslett, Inre 88 Goss v. Eichardson 203 Gotz, Ex parte 831, 836 Gough v. Parrington 1124 Gould v. Wilson 340 Gourlay u. Kyte 234 Govett v. Crooke 1168, 1169 Gowan v. Board of Land and Works 1584, 1585 Gow, In the Eeal Estate of 1536 Graham, In re 581 In the Goods and Eeal Estate of. 1547, 1548, 1549, 1550, 1558, 1559 v. Gibson 20, 243, 389 436, 437, 438,1163, 1187, 1192,1340, 1341 v. Graham 14,43,393,421, 423, 1184,1276, 1277 v. Haig 755, 1231 v. Moylan 1210 v. Wright 725, 726 Grant, In re 867, 1509, 1510 In the Goods of 1552 v. Chalk ..; 1426 v. Gilligan 271 v. Grant 555, 1196, 1440 v. Lawlor 943; 961, 978, 987 Granya Co., Ex parte Keg v. Philps 975 Grave v. Wharton 400, 846 Gray, Inre 652, 653 Gray v. Faram 477,478 Great Gulf Co. o. Sutherland". '.'.200, 275 Great Northern Co. v. Brown 948 v. Maughan... 1038 1). Menhennet 961 v. Sayers 927 Green, In re 686, 7i0, 716 v. Embling 1231 v. Godfrey 276 v. Lewis 250 v. Messiter 463 v. Nicholson 559, 1448 v. Sutherland.. .1160, 1174, 1200, 1201, 1204, 1439 Greenhill v. Braidley 954 Greenlaw, In re 714 Gregory, Ex parte 660 v. King 8 v . Welch 1128, 1129, 1130, 1136,1137, 1275 Grcig v. Watson 1054, 1064, 1416 Gresson, Inre 1334, 1335 v. Foster 1042 Greville v. Smith 252, 739 Grice, Ex parte Eeg. v. Eegistrar of Titles 11 v. Johnson 1085 v. Eichardson 1290, 1295 Grieve, Inre 1334, 1372 v. Mayor of Melbourne 856 v. Northern Assurance Co. 720 Griffin v. Dunn 1056 Griffiths. Block 849, 1372 *. Chomley 1569, 1571 v. Clancey... 269 Griffiths v. Griffiths 543, 1370 v. Holmes 1214 v. Victorian Permanent Building Society 121, 376, 377, 541, 542 Grigg. Ex parte Eeg. v. Drum- mond 834 Grimmet u.Grimmet 1499 Grimwood v. Smith 1046 Groom v. Parkinson 1240, 1241 Grove, In the Will of 1540 Groves, In re 660, 1304 Guess, Ex parte 838 Eeg. D. Alley 755, 836, 883 Guiding Star Co. v. Luth 160, 1021 Guinness v Box......... 490, 491 Gulliferz/. Gullifer 501, 502, 512, 515 Gummow v. Swan Hill District Hospital 499 Gunn, Ex parte, in re Transfer of Land Stat 1394 v. Harvey..... 403, 980, 1399 Gunning, In the Will of 1525 Gunst, Ex parte Eeg. v. Clarke ... 496 Gurner v. Council of St. Kilda 495, 770, 1264 Gutheil v. Delaney 722 Guthridge v. Gippslander Gold Mining Co 758, 1020, 10*6, 1027 XXIX. TABLE OF CASES. XXX. COL. Guthrie, lure 697,702 Guy v. Peirce 270 Gwyatt v. Hayes 124 Gwyther, Ex parte Reg. v. Lovell 851 H. Hadden, In the Will of 1531 Haggeton v. Southern 397 Haighu. Hart 1033 Hailes, Ex parte Keg. v. Taylor... 779, 1152 Haines, In the Will of 444 v. Johnston 817, 818 Halfeyz/. Cole 1085, 1086 v. Egan .■. 1050 v. M'Ewan 638 v. Tait 474, 1442, 1443, 1456 Hall, Ex parte Keg. v. M'Queen ... 537, 832, 833 v Pearson ... 893 In re 622, 1306, 1433 In the Will of 1548 v. Blackett 1217 v. Hall 1210 v. Nelson 416 v. Warburton 400,401,846 HaUett,IntheWillof 1507 Ham v. Benjamin 406 Hamilton, Ex parte Reg. u. Heron 1111 In re 389,554 M'Carthy 1314 v, Sefton 266 v. Walker 1094 Hammon, Re 1515 Hammond, Ex parte Beaver v. Justices of Wifliamstown 494 Hanbury v. Dumsday 209 Hancock v. Emmett 259 and Woolcott, In re 51, 52 v. Woolcott 50 Hand and Band Co., Ex parte, in re Hardy and Madden 1339 Handasyde, In re 679, 681, 682, 686, 694, 1368 Hang Hi, In re 611 Hann v. The Queen 192 Hanna, In the Estate of 334 v. Seymour Road Board... 1260 Hansford, Ex parte Reg. v. Daly 755 Hanson, In the Estate of 1544 «. Tweedale 495 Harbison v. Dobson 90, 402, 1119 Harcourt and Bailey, In re U 28 Harding v. Local Board of Gee- long West 496 ' v. Board of Land and Works 820, 821, 822 v. National Insurance Co. 723 v. Smith 1159 Hardy v. Anderson ...1086,1216, 1223, 1238 v. Cotter 1243 v. Johnston. 1248 v. Phoenix Foundry Co. ... 143 v. Wilson 146, 149, 163, 241, 246, 427, 1348 Hargreaves, Ex parte 533, 534, 875 Harker v. Barwick 379 ■v. M'George 1225 COL. Harkness v. Mayor of Maryborough 60 Harper, In re 645, 646 v. Jones 1488, 1489 v. Mackenzie 359 Harriman v. Purches 93, 146, 147 Harrington, In the Will of 1515 Harris, In re 658, 668 v. National Bank 1042 Harrison, In re 1019, 1032 v. Moore ill : v. Murphy 1049 v. Smith 39, 42, 79, 80, 139, 140, 422 Harrup v. Templeton 1301, 1302 Harry, In re 611, 616 Hartw. Belinfante 1135 v. Garden 1035 v. Munroe 1322 Hartigan v. O'Shanassy 535, 1442 Hartmann, Ex parte Reg. v. Cog- don 977 Hartney v. Higgins 454 Harvey, In the Will of 1506 v. Rodda 980 v. Shire of St. Arnaud 265, 337 Harward, In re 179, 598, 605 Harwood v. Beavan 940 v. Coster 951 Hasker, Ex parte Reg. v. Cogdon 1030, 1037, 1038 In re Summers 650, 714 v. Blackwood ...588,595, 596, 633, 1095, 1215 v. Bride 1039 v. M'Millan 643,657 v. M'Mullen 595, 596, 633 1095, 1215 v. Moorhead 595,596, 633, 1095, 1215 v. Schlesinger 1032, 1037 v. Summers 417, 475,478, 1147 Haslam, In re 587, 618 Hassall, Ex parte Reg. v. Miller... 778 Hassell, in the Will of 1541 Hassett v. Colonial Bank 1400, 1409, 1417, 1418 Hastie v. Curdie ,...1572, 1576 Hattw. Hatt 420,421, 427 Hawnrth v. Hebbard 1382 Hawkes v. Mayor of South Mel- bourne 118 Hawkins, Inre 438 Haydon, In re 609 Hayes, In re 56, 57, 556, 611 In the Will of 1552 v. Wilson 1229, 1563, 1565, 1566, 1567 Hayle v. Hayle ...510, 511, 512, 522, 523 Haylock, Ex parte Reg. v. Clark- son , 749, 750 v. Shannon 536, 537, 1211 Haynes, Ex parte, in re Hutton ... 224 v. Royal Insurance Society 1092, 1093, 1226 v. Ware 881 Hayward's Settlement, In re 1452 Hayward v. Martin 1275 Hazard, Ex parte Reg. v. Call 1387 Hazlehurst v. Kerr 753 Headen, Inre , 1566 XXXI. table of cases. XXXll. Headland w. Charlesworth 1111 Healey, In re 577,717, 735, 1455 IntheEstateof 1454 In the "Will of 1508 Healey's Estate, In re 1453, 1454 Healey w. Mason , 1169 Heape v. Hawthorn ...30, 135, 344, 409, 410, 627, 665, 1455 Heard v. Flannagan 896 Hearn w. Council of Essendon 220 Heaney v. Harper 382 Hearty, In re 669, 672, 689, 691, 695 Heath, In re 693, 700 v. Allen 1473, 1474, 1477 Hedrich v. Commercial Bank ..108, 109 1364 Heenan r.Langley 767 Heffernan, In the goods of 1522 Hefterw. Martin 808 Hegarty, Ex parte Reg. w. Mayor of Richmond 1267 Heidelberg Road Board w. Young 852, , 853 ' Hellas v. Cooke 374 Heller, Inre 872, 873 w. Mayor of Essendon 1270 Henderson, In the goods of 1538 In the Will of 1525 v. Daily Telegraph Co. 242 v . Ellis 1203 v. Mayor of Melbourne 213, 214 w. Woodburn 281 Hendy, Ex parte Reg. v. Panton... 812, 813 Henley v. Dumphy 844 Henley w.Hart 766, 771 Hennessey, In the Estate of 1537, 1542 w. Hogan 1390 v. White 1389, 1390 Henry.In re 443 v. Greening 261 v. Kidd 268, 270 D.Miller 113, 114 w. Newstead 237 v. Smith 1211, 1212 Henty, In the Estate of 390, 1368, 1504 w. Hodgson 1054, 1309 w. The Queen 900 Hepburn v. Dawbin 1217 : w. Mayor of Hawthorn ... 857 Herbert w.Millan 995 Herman, Ex parte, in re Eiegl 179 v. French 237, 411 Heron, Inre 66, 1210 Herring, In re 680 Hervey w. Inglis 1415 Hettenbach w. Isley 833 Hewitt, Inre 690 Ex parte, in re Clow 906 w. Akehurst 1137 v. Smith 29 Hick w. Havilah Gold Mining Co. 149, 150, 1022 Hickey w. O'Keefe 881 Hickinbotham, Inre 660, 668, 717 Hickling v. Hickling 504, 505 Hickman. In the goods of ... 1525, 1526 Hicks «. Commercial Bank... 1059, 1203 Hickson, In the goods of 1547 Higginbotham, In Te 1574 COL. Higgins, Ex parte 769 u.Egleson 216, 1100 Highett v. Sun Quartz Mining Co. 1022, 1023 Hill, Inre 680,681, 691 In the goods of 334, 1505 In the Will of 1526,1527 v. Power 10, 1338 v. Willis 273, 1291 Hillerman v. National Assurance Co 721, 722 Hilliard, Ex parte 753 Hinchcliffe v. Ballarat Banking Co. 76 Hine, In the Estate of 443 Hinneberg, In re 696, 697 Hitchins v. Mumby 1111 v. The Queen ...325, 948, 1352 : — u.Trimble 658 Ho-ah-mie v. Ho-ah-mie 5.12, 513 Hoban v. Hoban 744, 745 Hobart v. Victorian Woollen Ma- nufacturing Co 186,187, 1219 Hodder, In the Will of 1504 Hodges, In the Will of 443 Hodgson, In re 428, 592, 598 ■ w. Bulpit 361 v. Fermoy Gold Mining Co 158, 1025 v. Hodgson 524 v. Hunter ... 1161, 1164, 1165, 1393, 1431 w. Mayor of Fitzroy.,.216, 886 w. M'Caughan 708 w. Wellwood 401 — — v. Whitmore 746 v. Young 1061 Hoferw. Silberberg 1164, 1244 Hoff v. HofE 1169 Hogan v. Moore 739 Hogg v. Irvine: 250 Hok John v. Yung Hinsr 999, 1000 Holdsworth, In the goods of 451 Holl, In the Will of 1503 Hollaghan v. Jones 204 Holley, In the Will of 1514 v. Holley 1560 Hollings, In the Will of 1512 Hollowood, In re 593 v. Fourth Union Build- ing Society 121 Holmes v. Bear H27 w.Lloyd 1323,1324 v. Mayor of Ballarat 854 v. North 401 w.Norton 190, 1317 Holt v. Henry 378 Holton, In the goods of '. 1529 Homer v. Homer 515 Hone, In the Goods of 1555 Honey v. Bucknall 1201 Hood, Ex parte Reg. v. Call 830 In the Real Estate of 1534 In the Will of 1508 Hooke v. Burke 983 Hookway v. Muirhead 922, 923 Hop Bitters Co. v. Luke 1389, 1391 w.Wharton 1389 Hopkins, In re 1541 Ex parte 1342 w. Brophy 875 Hornby v. Livingstone 238 xxxm. tfABLE OP CASES. XXXIV Home v. Milne 363, 369,429, 1089 Horsey, Ex parte Eeg. v. Mollison 838 Hort v. Nicholson 1236 Horwood v. Murdoch 435, 1313 v. Stackpoole 340 Hosie v. Hosie 530 v. Bobison 1581 Hoskin, In the Will of 1542 Hostetter v. Anderson 1390 Hourigan, In the Estate of... 1549, 1550 v. Bourke 265 House v. Ah Sue 919, 959, 1493 v. O'Parrell 1312 Howard v. Currie 261, 388 Howatt v. Herrick 801 Howe». Crisp 548, 1171 Howey, In the Will of 392 Howie, In re 392 Howittw. Smith 29 Howse v. Campbell 1199, 1339 i). dowry 106,111,256 Hoyle v. Edwards 539, 1470 Hudson, In the Estate of 1520 Hughes, In re 872 IntheWillof 1515 v. Warren 343 Hume v. Dodgshun 402, 818 Humffray v. Humffray 373 Humphry v. Kelly 338 Hunniford v. Horwood ...404, 423, 1175, 1429 Hunt, In re 554, 555 w.Barbour 268, 1322 v. Ford 1213 W.Johnson 897 - alias Bennie v. Kennie 503 v. Syme 368 Hunter v. Aratraveld 930,931, 937 v. Barnes 479 v. Hodgson 1420 v. Hunter 65, 117, 530, 560, 1276, 1277 v. Butledge 848, 1068, 1069, 1178, 1179, 1235, 1428, 1429 v. Sherwin 128, 1422 v. Smith 819 — ■ Ex parte, in re Smith 812 Hurd, In the Will of 1515 Hurst v. Bank of Australasia 9 Husband, Ex parte Keg. v. Horsfall 744 Husbands and Husbands, In re ...53, 56 Hussey, In the Estate of 1525 Hutcheson v. Erk 953, 954 Hutchings v Cunningham... 547, 1370 Hutchison w'.Hutchison 535 Huthnance, Ex parte Beg. v. Cope 256 Hutton v. Glass 76 Hyams, In re .... 666 Hyland, In re 556 v. Smith 842 Hyndman v. Micke 966 Hynes v. Shire of Broadford 1084 Icb Company's Patent, In re 1141 Ifflaz/. Beaney 1447, 1477, 1579 Inglis, Inre 585, 594 Ingram, Ex parte Keg. v. Alley ... 836, 837 COL. Innis v. Innis 1206 Inre (a solicitor) 1334 Inskip v. Inskip 1005 Iredale v. Guiding Star Gold Min- ingCo 162 Ireland, Inre 644,709 v. Chapman ...418,1088, 1216 z/.King 360 Irons, Ex parte Eeg. v. Power , 225 Irving v. Minerva Gold Mining Co. 1012 Isaacs, Inre '... 592 . u.Skellorn 1296 Ivey v. Kavanagh 122 J. Jackson, In the Eeal Estate of ... 335 v. Bignell 819 Jacobs v. Jennings 1110, 1364 Jacomb v. Donovan 630, 631 v. Eoss 588, 633, 634 D.Stephens 478 v. Wrigley 1224 James, In re » 6U9 Ex parte Eeg. v. Turner ... 753 v. Davies 377 v. Evans 1436 v. Greenwood... 7, 237, 456, 1125, 1126 v. Higgans 979, 991 v. James ,.. 1183 D.Thomson 1023 Jamiesonz/. Allen. ..278, 376, 1162, 1163, 1337, 1346 v. Johnson 22, 424, 1069 1072 v. Eobb 739, 740 v. Scott 361 Jamison v. Quinlan 1394 Jansen, Inre 662 v. Beaney 22, 23 Jardine v. Hoyt 22,1320, 1321 Jeffray v. Buckland 815 Jeffrey v. Jeffrey 525 Jellt*. Bradshaw 819 Jellettz/. Phillips 465 Jenkins v. Speed 1017, 1018 Jenkinson v. Cumming ...915, 916, 10U3 Jenkyns v. Elsdon 1421, 1422, 1493 J enner v. Harbison 877 Jennings v. Kinsella 920 z-.Tivey 1161,1164, 1358 Jensen v. Hagan 251, 266 Jessell, Ex parte Eeg. v. Hutchin- son 458 Jewells. Jewell 515 — — — v. Young 744 Jobson, Inre 643, 667 Johanson, In re 1555 Johnson, Inre 556,557,607, 700 i Ex parte, In re Transfer of Land Stat 1411 Ex parte Eeg. v. Sturt, 57, 127 . v. Colclough 35,36, 1134 Dickson 738 Donaldson 358 v. Nicholas 1436 v. Eushford 1087 t,. Thomson 957, 958 XXXV. TABLE OF CASES, XXXVI. Johnson v. Union Fire Insurance Co. of New Zealand 719, 720, 723, 724, 1051 Johnston, In re 588, 661 v. Brophy 29, 473, 1306, 1568, 1569, 1575, 1576 v. Cox 251 v. Jackson.. .368, 369, 370, 430 — w.Johnston 530 v. Kelly 323, 457, 708, 709, 1372 Johnstone, In re 88 Joliffe, In the Will of 1521 Jolly*. Jolly 532 v. Stephens 953, 984, 985 Jones, In re 701,1331,1551 .— In the Estate of 1529 In the Freehold Lands of... 1547 In the goods of 1549 Ex parte Beer. v. Heron ... 1154 -w.Shelley... 347 ■ v. Templeton 22 829 v. Abraham 960 v. Campion 1150, 1155 v. Christenson 946,952, 953 ii. Palvey 423, 424 v. Hodgson 1095 v. Jones 529, 531 D.Joyce 946 w.Milne 481 v.Park 1412 v. Queen Insurance Co 719 v. Rede 104 v. Simpson 1036 v. Star Freehold Co 160, 230, 1336 v. Stephen 27 v. Taylor 449, 1126, 1127, 1190, 1191, 1442 Jonnes v. National Bank 338 Jopling v. Lawlor 1386 Josephs v. Josephs 524 Joske, Ex parte Keg. v. Leech 257 Julius v. Julius 518 K. Kane, Ex parte 1210 Ex parte Reg. v. O'Regan... 778 v, M'Cullagh 493 Kavanagh v. Haynes 266 Kay, In the Will of ...440, 441, 446, 447 Kaye v. Ironstone Hill Lead Gold Mining Co 905, 1079, 1080 Keane, In the Will of 1511, 1512 Kearney v. Lowry...826, 827, 1175, 1560 Keast v. D'Angri 331, 918, 919, 920, 938, 987, 1002 Keighran, In re " 613 Keith, Ex parte 347 v. Polynesia Co 200 Kellacky. In re 585 Kelletfc, Ex parte Reg. o. Smart ... 778 Kelly, In re 7ul In the goods of 1515 In the Will of 1551 Kelsall and Forlonge, In re 804 Kemball, Ex parte Reg. v. Chair- man of Melbourne General Ses- sions 1302 COL. Kemp v. Douglas .........234, 847, 1166 Kendello. Thomson 4, 1184,1450 Kennedy, In re 534, 1553 In the Will of 1524 . Ex parte Reg. v. Walker 746 Ex parte, In re Eno's Trade Mark 1391 . v. Kennedy 508, 509 D.Miller 811 v. Phillips 1464, 1472 v. The Queen ...330, 331, 485, 787, 1350, 1351 v. Shire of Portland 353 Kenny v. Chapman 178 Kensington Starch and Maizena Co. v. Mayor of Essendon ...855, 861, 862, 1101, 1369 Kenworthy, In the goods of 1554 Ker v. Hamilton 1183, 1565, 1566, 1570, 1571 v. M'WiUiam 27 Kernan, in the Estate of 1529 v. London Discount and Mortgage Bank 102 Kerr, In re 1411, 1498 and Gray, In re 595 Kerr 517, 518 Kershaw, In re 674,675,692, 698 IntheEstateof 390 Kesterson v. Smith 865 Kettu. The Queen 766,771 Kettle, Ex parte, In re M'Intyre... 231 v. The Queen ...33, 35, 324, 786, 789, 1351 Khoon Soon, In the Estate of 1519 Khullti. Haddon 51,53,54 Kickham v. The Queen 323, 794, 795, 1409 Kiddu. Chibnall 571 v. Hibberson 1312 Kilby, In re 673 Kilgour v. Flinn 928, 936, 938, 939, 995, 996 Kilpatrick v. Board of Land and Works 428,825 .194, 1125 Kinane, Ex parte 837 Kinderlin, In re 1371, 1542, 1543 King, In re 703 Ex parte Reg. v. King 534 Mary, In the Estate of 1517 IntheEstateof 1518 In the Freehold Lands of 1535 In the Will of 1501 v. Fulton 480,481 v. Levinger 1043, 1044 v. Mayor of Kew...855, 1101, 1366 v.- The Queen 371 v. Robinson 768, 770, 771 Kin Sing r. Won Paw ...975, 976. 978, 1134 Kingsland, In re. ..40, 617, 618, 644, 646, 648, 663, 664 Kingston, Ex parte, In re Day ... 497 Kirby, Inre 1333 v. Bank of Australasia 1212, 1213 Kirk, Ex parte Reg. v. Littleton... 777, 780, 1152, 1153 v. Barr 999, 1003 Kirley, In the Estate of 1546 Klein, Inre 701, 714 XXXV11. TABLE OF CASES. XXXVU1. Klemm, In re 615 In the Will of 443, 444, Knarston, In re 653 Knipe v. Belson 257 Knight, Ex parte Beg. v. Hen- nessey 221 Ex parte Eeg. v. Howes 214 v. Knight... 437, 449, 452, 1311, 1461, 1566 Knoebel, In re 705 Knowles.In re 591, 603, 627, 1369 Ex parte Keg. v. Ake- hurst.. 829, 831 Knox, Ex parte, in re Kutledge ... 660 v. Postlethwaite 1453 -v. Stephens 893 Koh-i-noor Gold Mining Co. v. Drought 747 KongMengu. Peters 101,1091 Kozminsky v. Sohurmann 428 Kreitmayer v. Kennedy 815, 1219 Kretzsohmar v. Kretzschmar 513 Kronheimer v. Berghoff 237 Krosehel v. Colonial Bank 734, 735 Kyneton Municipal Council, In re 216, 217 Kyte v. Mahoney 651, 655 v. Williams 634, 635 L. Labilliebe, In the Will of 1525 Laby, Ex parte Eeg. v. Dowling 1367, 1382 Laeey, In the goods of 1516 Lagogiannis v. Craikshank 831, 832 Laidlaw v. Laing 1418, 1419 Laing v. Campbell 65 P.Herbert 1257, 1258 — — v. Laidlaw 663 Lalor, Ex .parte Eeg. v. Sturt...754, 837 Lamborn, Ex parte Eeg. v. St. Kilda Eoad Board 497 Lambrick v. Bentwitch 123, 124 Lamont, In the Will of 1500, 1548 Lande v. Lawrence 1140 Landor, In the Will of 1509 Lane v. Goold 246, 1338, 1339 v. Hannah 561, 562, 571, 907, 969, 1173, 1174 v. Loughnan 68,235, 1379 v. Phelan 1276 v. Victoria Quartz Mining Co. 1214 Langan v. Clarke 880 Lange and Eichardson v. Grice ... 1290, 1295 Langhorn v. Bennett 892 Langley v. Hepburn 1347 v. M'Carthy 1423 Lansell, In the Will of 1550 Langton v. Board of Land and Works 1078, 1079 v. Gillespie 1232 v. Syme 363, 370 Larkin v. Drysdale 397 Larnach v. Alleyne 34, 35, 43, 430, 460, 738, 1184, 1437, 1438 Laughton w. Munro 1237 Lauratet v. M'Cracken 63, 658, 659 Laurenson v. Count Bismarck Co. 905 Laven v. Flower 750 Lavezzolo v. Mayor of Daylesford 570, 854 Lawes v. Price... 255, 258, 1145 Lawler, In re 583,586,598, 1341 Lawlor, Ex parte Eeg. v. Strutt 977, 978 In re Strutt 989 v. Grant 997 v. Stiggants 916, 976 Lawrance, In re 622 Lawrence v. Lawrence 518, 521, 522 Lazarus, Ex parte Eeg. v. Marsden 1494 v. Lowe 1469 Leach, Ex parte, in re Transfer of Land Stat ...353, 1410 Leahy, In the Estate of 1534 v. Lightfoot 20, 41, 43 v. Stuart 1083 Leake v. Holdsworth 892 Leaker, Ex parte, in re Lloyd 224 Lear v. Connell 1053 Learmonth v. Bai'ey 39, 43, 44, 405, 406, 569, 1161, 1162, 1179, 1198, 1203, 1244 v. Morris 960, 1356 Leary v. Patterson 1385 Lecerf, In the Will of 1498, 1548 Lecky, In re 584 Lee, In re 593 . w.Andrew 248, 266 v. Conway 991, 992, 1004, 1005 v. Melbourne and Suburban Eailway Co 423, 822, 823, 1143, 1339 v. Eoberts 1131 v. Eobertson ... 139, 151, 161, 162, 570, 961, 962, 1160 Leete, In re 707 Lefebvre, In re 645, 691 Legal and General Life Assurance Co. v. GUI 149, 152 Leigh, Shire of v. Shire of Hamp- den 211, 212 Leister v. Short 1112 Lempriere, In re 645 . v. Miller 727 w.Ware 1244, 1430 Lennon v. Evans 220 Ex parte 833 Lennox v. Golden Eleece and Heales United Gold Mining Co. 963, 964, 1004, 1016 v. Langdon 880 Leonard, Ex parte Eeg. v. Lloyd 1105, 1106 Leon's Trusts, In re 1458, 1459 Le Eoy v. Herrenschmidt 1124, 1135 Leslie v. Board of Land and Works 821 Leury v. Want 1087 Levey, In re 868, 874 In the Will of 1528 Levey v. Myers 849 Levi v. Learmonth 1235, 1321, 1372 Levinger, In re 306 v. Fitzgerald 102, 103 Levy, Ex parte 581, 582, 714 In re 97,348, 667 v. Fan-ell 54 v. Katzeustein 628 XXXIX. TABLE OF OASES. xl. COL. Levy v. Mayor of Portland 862 v, St. Kilda 1081, 1083 Lewis, Ex parte Reg. v. Rogers... 261, 1119, 1255 :— s. Taylor 764, 770 In the Estate of 1544 In re 778, 1448 v. Green 1155 v. Levy 1057, 1073 D.Lewis 521 v. M'Mullen 83,84 v. Pearson 1006 Leyden v. Coram 24 Liddle v. Cunningham 816, 817 Lightbourne v. Stitt 922 Lilley, In re 88 In the "Will of 1501, 1518 Lillies v. Harty 96 Lindgren v. Halpin 984, 985 Lindsay v. Hopkins 1220 — — v. Rowan 162 v. Tullaroop Road Board 244, 1265 Lisoombe v. Echuca Meat Preserv- ing Co 891 Lithgow t>. Summers 1382 Little «. Little 525 - v. Williams 1138, 1139 Litton v. Thornton 418, 894 Livock, Ex parte, in re Grave 1344 Lloyd, Ex parte Reg. v. Sturt 1 28 v. Gibb 758, 765 Locke v. Collins 49, 50, 203, 204 Lookhart v. Gray 1045 Lockhead v. .Noble 5fi9, 1103 Lodge v. Rowe 1155, 1156 Logan v. Hooking 499, 500 v. Spence 1094 v. Stephens 767 London and Australian Agency Co. v. Duff 41, 841, 1049, 1161 London Chartered Bank v. Hayes 78, 229, 1053, 1414 v. Hickey 96 v. Kerr 1126 v. Kirk ...109, 110 v. Lempriere 84, 236, 545, 546, 1163, 1201, 1250 v. Sutherland 490 v. Webb 63 v. White 87, 88 London Discount and Mortgage Bank, Ex parte 1313 London Discount and Mortgage Bank v. Prendergast 99 London and Lancashire Insurance Co. v. Honey 267, 719, 721, 722 Lone Hand Gold Mining Co., Ex parte Reg. v. Lawlor 759, 1027 Lonergan v. M'Arthur 806, 807 Loney v. Excell 1093 Lonie, Ex parte 1176, 1286 Longbottom v. White 916, 931, 933, 976, 1003 Longden v. Weigall 876, 877 Longford v. Meldrum 1111, 1116 Longley, Ex parte, in re Australian Submarine Co 172, 173, 548, 549 Longstaff, In re 709 v. Keogh 32, 404, 1131, 1177 COL. Long Tunnel Gold Mining Co. v. Zimmer 1229 Lonsdale v. Batman 1196, 1197 Lord, In the Will of 447 v. Hewitt 567, 1180, 1181 v. Spence 234 Lordanii. Hufton 1592 Lorenss v. Heffernan 193, 799, 800 Lorimer v. Cleve 1296, 1297 v. Henderson 1088 v. The Queen 1283 Loring v. Brown 1197 Louch v. Ball 1414 Love, Inre 597, 598 Low v. Moule 15, 1571 Lowe v. Tweedale 1, 2 Lucas v. Kearney 538 v. Murray 268, 273 Ludgrave ■v. Belcher 91, 1302 Ludlow, Ex parte Reg. v. M'Phail 782 Lumsden, Ex parte Reg. v. Leigh 494 w.Dullard 569 Lntgens v. Lutgens 516, 517 Luth, Ex parte Reg. v. Lang- ford 775 v. Stewart 101, 102 Lynch, In the Will of 1506, 1520 v. Bond 536 v. Johnson 1560, 1561 v. Massey 476 Lyon, Inre 581, 582, 583, 676 v. Browne 879 v. Jones 745, 746 Lyons, Ex parte 1410 In re 1207 D.Hughes 193 Lythgoe, In the Estate of 1521 M. Macaetnht, In re 89 v. KesterBon 1577, 1578 v. Macartney 509 Macdermott v. Bank of Aus- tralasia 81 Macdonald, Ex parte Reg. v. Tay- lor 1152 In the Will of Macdougall, In the Will of 1525 ; v. Bank of Victoria 82, 83 Macgregoru. Templeton 1467, 1481 Mack v. Murray 432, 1151 Mackay, In re ...557, 640, 641, 645, 709, 713, 715, 716, 1364 v. Caughey ...1191, 1443, 1456 Mackenzie, In re 774, 1010, 1038 v. Mackenzie 532, 767 v. Shire of Swan Hill Mackeprang v. Watson 960 Mackersey v. Whitcher 1325 Mackinnon, In re 602, 603, 605 Mackintosh v. Clarke 504, 543, 544 — v. Mackintosh 507, 508, „ T , . 520 Maclaine v. Clarke 1091 Macoboy v. Madden 429, 1508, 1556 — v. Phelan 4,5, 1190 Maconochie v. Woods 1021 Macpherson, In re ,,593, 594 xli. TABLE OP OASES. xlii. COL. Macpherson v. The Queen 199 Madden v. Hetherington ...651, 652, 657 Maddison v. M'Carthy 1354 Maguire v. Dixon 382 Mabe.Inre 1457 Maher v. O'Shea 18 v. Muleny 1385 Mahoney, Ex parte, in re Transfer of Land Stat 1397 Mahony, Inre 474, 682 — — — — Ex parte Beg. v. Smith... 977 Mahood v. Carnaby 1310 v. Odell 1168,1187 Mahood's Estate, In re 735 Main, Ex parte Keg. v. Synnot 781, 1115 v. Donald 243 ■ v. Kirk 60 v. Eobertson ...1149,1209, 1222 Major, In re 1333 Malcolm, In the Will of 1507, 1539 v. Milner 658, 1422 Maley, In re 617,632, 649 Mallett v. Tuff 766 Malmesbury Confluence Gold Min- ing Co. v. Tucker 194,280, 1219 Malmesbury United Brewery Co., Inr£ 167 Malpas v. Malpas 527 Mann, In re 619 Mansergh^ M'Kersie 878, 879 Manson v. Shire of Maffra 90, 1100 v. Yeo 236, 1039, 1480, H81 Maplestone, In re 702 Marie, In re 597, 618, 643, 661, 707 v. Hogan 1282 Maritime Credit and Discount Co. v. Bands 253 General Credit Co. v. Christie 98, 99 Marks, In re 709 In the "Will of 1501,1502 v. Aapinall 409 v. Pett 273, 277 Marr v. Mayger 106 M arris, In re 869 Mars v. Bohan 797, 798 Marshall, In re 696, 1303 v. Creswick Grand Trunk Gold Mining Co 154 Martin, Ex parte Eeg. v. Willis... 1121 In re ...588, 589, 594, 600, 605, 678, 685, 689, 693 In the Estate of 1546,1547 v. Blamires 110 v. Board of Land & Works 49, 205 ■ v. Coombes 187 v. Dalton 385 v. Elsaaser ...271, 380, 460, 810 v. Hunter 1321 v. Keane 16, 252, 275 v. M'Donough 243 ■ v. Sims 1476 v. Stephenson 1428 Martley, In the goods of 1549 Mason, In re 654, 680, 690 In the Will of 1500 v. Eyan 254, 272 Sawyers 415, 652, 654, 1430 • Masterton v. Blair 144, 256, Mate v. Herbert 1239 Mater, In the Estate of 391 Mather, In the Estate of 1501, 1535, 1537 Mathieson, In re 634, 676, 677, 679, 686, 698 Matson v. The Queen 133, 410 Matt, Ex parte 763 ». Peel 958,1400, 1413 Matthews v. Benjamin 1288 v. Elligett 28 v. James 1467,1468 ■ v. Morrah 37X v. Muttlebury 1341 Mau, Ex parte Eeg. v. Bayne 781 v. Mack 819 v. Weightman 265 Maudoit v. Eoss 556, 1273, 1274 Maver, In re 761 Maxwell v. Maxwell 506, 507, 518 519, 528, 529 Maxwell's Eeef Co. v. Irving 1238 Mays v. Watmough 259, 267 M'Arthur v. The Queen 1283 M'Bean.In the Will of 1446 M'Bride v. M'Crone 401 M'Cafferty v. Cummins ...927, 928, 982 M'Cahill v. Henty.,,202, 800, 1184, 1400 M'Callum, Ex parte Eeg. v. Puckle 811 v. M'Vean 766, 768, 811 v. Swan 1548 M'Can v. Quinlan 788, 802, 803 M'Carthy, In re 869 In the Estate of 1545 v. Cunningham 394, 846 v. Monaghan 1476, 1477 v. Eyan 655, 1248, 1249 M'Closkey, In re 868 M'Clure v. Marshall... 45, 358, 359, 1172 M'Combie, In the Will of 1524, 1525 M'Conochie, In re 1524 M'Conville, In re 593, 603 In the Will of 1515 M'Cooey v. Bank of N.S.W 81, 82 M'Cormack v. Murray 430,431, 766 M'Cracken v. Woods 399, 416,485, 1379 M'Crae v. Isaacs 1121 v. Eutherford 1182,1564 v. Woodward 25 M'Cullagh, Ex parte, in re Klin- gender 1347, 1348 M'Oulloch v. Harfoot Ill, 112 ■ v. Mackie 189 v. Wren 832 M'Dermott, Ex parte, in re Cogdon 883 M'Devitt v. Kattengall 1293 M'Donald, Ex parte Eeg. v. Call 901, 902 v. Eichards 775, 776 „. In re 33, 472, 577, 578, 583, 591, 615, 623, 626, 675, 678, 681 • In the Will of 1527 ■ In the Estate of 1545 v. Board of Land and Works ...330, 362, 368, 1166 v. Hughes 345, 1092 v. Lloyd 535, 536, 581 v. Moffatt 93 v. Eowe 1062,1194, 1415, 1416 M'Dougall, Ex parte Eeg. v. Trench 1037 — v. Bank of Victoria ...82, 83 xliii. TABLE OF CASES. xliv. M'Dougall v. Webster 959 M'Dowall v. Myles 483, 791, 1368, 1369 M'Eachern v. Shaw 761, 764 M'Evoy, Ex parte, in re Duffett...32, 38, 1341 - Beg. v. Justices of Central B ailiwick 534, 1300 —. 533, 759 M'Ewan, Ex parte 882 . ■ In re: 439 „. Blair 479, 480 v . Clarke 819 v. Dynon ... 257, 488, 489, 1221 v . Mills 1101 : v. Moncur , 8, 345 v. Newman 489 M'Ewingfr. Auld 1133 M'Farland v. M'Farland 561 M'Parlane, In the goods'of 1530 M'Gee, Ex parte Eeg. v. May... 779, 782 ■ v. Anderson 1313 M'Gill v. Tatham 926, 927 M'Gillivray, In re L...607, 608 M'Grane, In re 698 M'Grath, Inre 677 v. Smith 332, 803 M'Gregor, In the Will of 1514 v. M'Coy 385, 1567, 1568, 1570 v. Melbourne Omnibus Co 188, 189 M'Gregor"s Estates, In re 864, 868, 1310 M'llree v. Norwich Union Insur- ance Co 1090, 1091, 1094 M'Inerney, In re 640 M'Intosh, Ex parte Eeg. v. Puckle... 27, 762 In the Estate of 1551, 1552, 1553 v. Tonkin 547 M'Intyre, Ex parte Eeg. v. Perrin 225, 226 Inre 715 M'lver, Ex parte, in re Hardy and Madden 1344, 1346 . v . Duke Gold Mining Co. 1017, 1J90 M'lvor, In the Estate of 1534 Co. v. Hughes 158, 159 . Shire of v. Nolan 1265 M'Kay, In re 695, 1457, 1573, 1574 Ex parte Eeg. v. Lear- montJh 396 and Bell, Inre 645, 709, 710, 1317 M'Kay v. Bell 1278 v. Edwards 1523 M'Kean v. Cleft in the Eock Gold Mining Co 1024 v. Francis 1175, 1353 v. Kavanagh 348, 349 v. Mayor of Melbourne .. . 1494 M'Kenzie v. Coutts 26 . v. Hanham ..; 1234 . v. Jones 771 v. Shire of SwanHill ... 417, 1268 M'Kinley, Exparte, in re Syme ... 179 M'Kinley and Williams, In re ... ...1332 M'Kinnon v. Board of Land and Works 33, 116 v. M'Innes 29, 1447 M'Lachlan v. M'Callum 16 v. Service' 893, 894 M'Laren, In re '. 1501 In the Estate of 334 M'Lean, In the Estate of 444 In the Will of.. .555, 557, 1440 Ex parte Eeg. v. Dowling 332, 484, 945 v. Board of Land and Works 340 „. Kettle 1140, 1141 v. LiverpoolAssociation... 1322 v. Nichlen 93 -v. Weam 802, 965 M'Lennan, Inre 641 v. Myrtle Creek Gold Mining Co 1008, 1020, 1026 M'Leod, Inre 1450 v. M'Pherson 535, 543 v. Eoberts 203 v. Whitfield 1000, 1002 M'Levy v. Matthews 194 M'Loskey, In the Will of 1499 M'Lister v. Garden Gully Co. ...36, 142, 150, 154, 1022 MMahon, In the Will of 444, 445 v.M'Mahon 521 v. O'Keefe 1107 — v. Young 1246, 1247 M'Manus, Ex parte Eeg. v. Hinton 574 M'Manomonie, Inre 577, 608, 613 M'Meckan v. White 48, 1372 M'Millan, In the Eeal Estate of|... 1519 In the Will of 1520 Ex parte Eeg. v. Bro- derick 781,1210, 1211 — : v. Dillon 958, 959, 974 v. Gove 1154 : — v. Houston 72 v. The Queen 38, 1251 v. Eead 72 v. Eoss 1562, 1563, 1576 v. Sampson... 463, 1488, 1489 M'Monigle, Ex parte Eeg. v. M'Cormick 761, 762, 1365 M'Mullen, Inre 874 ^Ex parte, in re Bennett and Attenborough ... 1342 v. Praser 270 v. O'Connor 144, 1023 v. Phillips 1216 M'Murrey, In re 614 M'Namara, In re 584,593, 605 M'Nicoll v. Ferguson 798, 1163 M'Niece, In the Will of 1546 M'Nulty v. M'Nulty 516 M'Phee v. Croaker 1198 M'Pherson, Inre 613 In the Estate of 1520 In the Eeal Estate of. ..1537 Ex parte Eeg. v. Arm- strong 781, 1112 Exparte Beg.©. Temple- ton 46 ". Freeman 888 . — — v.Hunter 7 xlv. TABLE OP CASES. xlvi. M'Swain v. M'Millan 34 M'Tavish, In re 705 M'Vea, In the goods of j Murray v. Aitken 1582, 1533 — — — v. Aitken 404 i>. Pasquan ...411, 416, 845, 846 M'Vean v. M'Vean , 1182 M'Whae, Inre 555 M'Williams. M'Coll 27 Meadway v. Garlick 418 Meagher v. London and Lancashire Insurance Co 720,721, 1092 Meehan, In the Willof 1502 Mein v. Dallas 351 Melbourne and Newcastle Minmi Colliery Co., In re 138, 139, 168 Melbourne and Newcastle Minmi Colliery Co. v. Hodgson 157 Melbourne Banking Corporation v. Brougham 230, 642 and Champion Bay Lead Mining Co., In re 173 Melbourne and H. B. Eailway Co. v. Mayor of Prahran ...31, 151, 1264, 1265 Melbourne and H. B. Eailway Co. v. Town of Eichmond...42, 1271, 1272 Melbourne, Mayor of v. Brennan • v. The Queen 1084 184, 185, 199, 327, 804, 1352, 1493 Omnibus Co. v. Thomas 1075 Meldrum v. Atkinson 1123 Melhuish v. Miller 406, 1324 Melville v. Higgins 1021, 1038, 1039 v. Pendreigh 482 Mendelssohn, Ex parte 883, 1142 Menzies v. Shire of Newstead 1262, 1265, 1269 Merriman, In re 6]2 Merry v. Hawthorn... 37, 565, 566, 1177, 1179 . -v. Nicholson 67, 1042, 1043 v. The Queen 39, 40, 41, 42, 115, 116, 326, 419, 738, 1179 Metcalfe, Shire of v. Degraves ... 1262 Metropolitan Permanent Building Society, Inre 119,120, 1366 Metropolitan Permanent Building Society, Ex parte, in re Transfer of Land Stat 1412, 1413 Meudell v. M'Lay 378 Meury v. Mayor of Daylesford ... 272, 862, 863 Meyers v. Easton 1076, 1095 Michael, Inre 674, 693, 713 D.Wakefield 544 Michaelis v. Cooney ......14, 15 Middleton v. Eowe 765, 766, 1152 Miles «.Weber 362 Millar, In re 318, 492, 493 v. Annand 512, 520 v. Wildish 822, 907, 908, 909 Miller, Ex parte Eeg. v. Call 755 Inre 648, 691 W.Crawford 1358, 1359 v . Farr 1499, 1500 . v. Eraser 920 v . Harris 482, 1045, 1220 v. Miller 521 Miller v. Moresey 398, 399, 790, 1399 v. Eigby 889 ■ o.Tripp 191 v. Wood 573 Millidge, Ex parte Eeg. v. Gas- coigne 756 Millikin, In re 690, 692, 696 Millin, In the Will of 440 Mills, Ex parte, in re Alley 72 v. Mills 453 v. Smith 1060 Milne v. Morell 920, 921 Milner, Inre 650, 651 Minogue, Ex parte 755, 770 Eeg. v. Nicholson 548, 828, 829 Minter, In re 1534 Mitchell, Ex parte, in re Moule ... 1339 In re 1057, 1157, 1378, 1379 In the Will of 1445, 1446 Mitchell's Trust Estate, In re 1445, 1451 Mitchells. Bamford 879 v. Brown 568J 1350 v. Burns 356, 394 v. M'Dougall ...456, 457, 1193, 1201, 1338 v. Mitchell 531 — v. Tuckett 1440 v. Watson 1237, 1290 v. Welsh 1136 D.Wentworth 531, 532 v. Wright 1419 Mitchison, In re the caveat of ... 112, 113 Mitten v. Spargo 130,990, 1006 Mixner v. Blair 50 Moffatt, In the Will of 386, 827 v. Hearn 37, 38 v. Moffatt 386, 528 Mogg, Ex parte Eeg. v. Eothery ... 483, 776, 795 v. Lord Eaglan and St. Amaud Gold Mining Co. 44, 1358, 1359, 1360 Mole v. Williams 997, 100O Molesworth, Inre 89 v. Molesworth 515, 529 Molloy, In the Freehold Lands of 1585 .v. Dolphin 380 v. Gunn 128, 737 v. Molloy 1203, 1204 Moloney v. Drought 1491, 1492 Molony v. Spenee 1170 Moltine, Ex parte Eeg. v. Justices of Central Bailiwick 1299 Molyneux, Ex parte Eeg. v. Poster 22, 1. T W ' 748 Monaghan, In re 676,678, 693 Monichon, In the Estate of 1534 Moncrieff v. Monerieff ...533, 1301, 1302 Monks, In re 1544 Montefiore, In re 461, 1451 Montgomery, In the Will of 1500 Moody v. Penny 768 Mooney v. Plummer 453 Moore, Ex parte, in re Bryan 638, 701 Eeg v. Temple- ton ...754, 1371 xlvii. TABLE OF CASES. slviii. Moore, In re Reg. v. Cope 979, 1003, 1251, 1252, 1253 In the Eeal Estate of 1536, 1536 v. Graham 731 v. Halfey 719, 720 w.Hart 410, 411 v. .Lee 380, 1061, 1440 v. Nolan 238 v. Prest 254, 273, 274 v. Slater 1120, 1121 v. White 921,924,931, 934, 935, 939, 940, 941, 994 v. Widdicombe 501 Moorheadw. Brown 9 v. Eeidle 238 Moorhouse v. Rolfe 337, 358, 470, 1307, 1308, 1575 Moran, In the Estate of 1536 v. Connors 91 o. Lyons 362, 881 Moreton v. Harley 1276, 1277 Morgan, Ex parte, in re Transfer of Land Stat 1396 In re 590,868, 1333 v. Clements 536 — — — v. Savage 807 v. Smallman 1109 Morganti v. Bull 1042 Morley v. Nesbitt 1559, 1560 v. Rice 274 v. Smith 1087 Mornane v. O'Brien 1462 Moroney v. Purkis 766 Morris, Ex parte, in re Phelps 1211 1343, 1344, 1345 Re 1335, 1336 In re 616, 1332 and McMurray, In re 669 Morrissey v. Clements 1413 Morrison, In the Estate of 1538 v. Clarke 753 D.Hartley 941 v. Neill 184, 1484 v. Sellar 416 v. Woodgate 1105 v.Young 130, 131 Mortimer v. Braithwaite 1447 Morton, In the Estate of 1532 — — v. Jacks 255 Mossv. Cohen 71, 1489 v. Fowler 1290 v. Grice 1297 v. Legal and General Life As- surance Co 725 i). Levy 625, 626 v. Williamson 471, 472, 708, 1404 Motherwell, In re 705, Mouatt, Ex parte 241 — v. Kaye 1170 v. Mackenzie 1050, 1051, 1063 1071 v, Saunders 651, 656 Moubray v. Hodgson 637 Mould, In the Will of 1550 Moulder v. Nicholson 365 Moule, In re 1333 Mount, In the Will of 1504 Mount Brown Gold Mining Co. v. Hughes 158 Mountford v , Paton 748 Mourant v. Quenalt 180 Mowling and Dunkley, In re ...615, 661 Mowsang, Ex parte Reg. u. Tem- pleton 498, 1367 Moylan, In re 554 In the goods and Real Estate of 1530 Moyle v. Gibbs 538, 539 Mudie v. Kesterson 1470 Mueller v. White 107 Muirw. M'Gregor 1130, 1131, 1134 Mulcahy, In re 645,650 — v. Walhalla Gold Mining Co. 562, 569, 570, 740, 934, 936,943, 971, 978, 979, 982, 988, 989, 994, 1194, 1368 Mulder, Ex parte Reg. v. Heron ... 458, 1212 Mulharez/. Lindsay ...253, 1153 Mulligan v. Boyce 502, 503 Mullins v. Ditchburne 433 Mulloyy. MuUoy 14, 18, 446 Munce, Ex parte Heg. v. Lloyd ... 456 Mundayw. Prowse 817 Mundhang, Inre 653 Munro, Ex parte Reg. v. Scott 347 w.Perry 388, 389 v . Shire of St. Arnaud 861, 1084, 1213 v. Sutherland 35,400, 951, 971, 1402 Munroe v. Munn... 1160 Munyard, In the Will of 1505 Murdoch v. Bell 197 Murdock, Ex parte 824 Inre 444 v. Aherne 134, 202 Murphy, Ex parteReg. v. Call 754, 755 In re ...695, 696, 713, 714, 86S, 867 Murphy's Trusts, In re 1448 Murphy v. Clarke 251, 1019 v. Cotter 990, 991, 1019 v Glass 100 D.Kelly 1199, 1372 v. Martin 113, 344, 386, 57l w.Michel.. .399, 844, 1371, 1399, 1403 v. Mitchell 23, 408, 1048, 1049, 1072 ■ ti. Neil 997, 1002 v. Wadick 566 Murray, Ex parte Reg. v. Pohl- man 887 In re.. .601, 603, 604, 605, 606, 609, 668, 697 v. Dabb 267 Musson v. Bourne 1073, 1074, 1187 Myers, Ex parte Reg. v. Moore ... 1142, 1329 Mylesz/. Myles 505 N. Naldbb, Ex parte, in re Taylor ... 25 Nangle v. Graham 435 Nantes, Inre [ 684 Nash, Ex parte Reg. w. Miller 223, 224 xlix. TABLE OF CASES. 1. COL. Nash v. Miller 368, 370 w.TheQueen 795,796, 1367 Nathan, Ex parte 626, 627 v. Naylor 112 v. Tozer 192, 266 v. Turnbull 1228 National Bank of Australasia v. Brock ...489, 490 v. Clarke 1052 v. Plumnier 1245 v. Swan 1305 v. United Hand in Hand and Band of Hope Co 1061, 1062, 1063, 1069, 1070, 1073, 1416 Insurance Co. of South Australia v. Halfey 426, 427 Insurance Co. of South Australia v. Australian Alliance Insurance Co. 726 Marine Insurance Co. v. Halfey 726 Land Co. v. Comptroller of Stamps 1286 Naylor, In the Will of 1534 Neaves v. Barrett 1418 Neeson, In re 554 Neil«. Whelan 1208 Nelson,Inre 617 Nesbit,Inthe Will of... 1517, 1559, 1560 Neva Stearine Co. v. Mowling ... 1388, 1389, 1390 Neville, In the Will of 1528, 1545 Newbigging, In re 610, 611, 616 Newcomenu. O' Grady 415,416, 896 Newey v. Garden Gully Co 36,975 v. Rutherford 230, 1025 Newington Freehold Co. v. Harris 562, 907, 911 Newman v. Mayor of Maryborough 1266 Newstead. Shire of v. Menzies ... 1265, 1269 Newton, In the Estate of 442 Newtown, Mayor of v. Batten 1258, 1268 NiaU D.Page 770, 1386 Nichol v. London Chartered Bank 83, 413, 742 and Payroux, In re 381, 382, 665, 715 Nicholas!'. James 406, 407, 1349 Nicholson v. Allen 361 v. Merry 10, 281 „. Plumpton 251, 252 v. Robertson 346 v. Roff 574 v. West 203 Nickless, Ex parte Beg. v. Pohl- man 754, 915 Nicol v. Brasher 384 Niemann v. Weller...l53, 959,960, 1031, 1471 Nightingale w. Daly 966 Nimmo, In re 554 v. Nimmo 510 Nisbetu.Cox 99 Niven v. The Queen 874 Nixon v. Goldspink 439, 557 o.iMilton 962,378,379 COL. Nolan v. Annabella Gold Mining Co 153,412, 1017, 1019 v. Chirnside 341 v. Connell 362 Noone v. Lyons 827, 1561, 1562, 1572, 1578 Norbo, Exparte 783 Norris v. Smallman 898, 899 North Shenandoah Co. v. Fallover 894 North, In the Will of 1503 Norton, In- the Estate of 1537 ■B.Williamson 183,205, 427 Nott v. Gunn 847 v. Robertson 1223 Noyes v. Ellis 1047 v. Glassford 543 w.Robertson 242 Nyberg, Exparte 277, 883 In re Nicholson 1142, 1211, 1365 O. Oakden v. Gibbs 1417 O'Brien, In re 1542 In the Will of 334 Ex parte Reg. v. Ellis ... 820 v. Board of Land and Works 1077 v. Keenan 1441, 1471 O'Callaghan v. Waugh 889 O'Connell In re, In re Transfer of Land Stat 1399 O'Connor, In re 444, 612 v. Mayorof Hotbam 860, 861 v. Paul ill O'Day, Ex parte Reg. v. Marks ... 1116, 1117 O'Deau. Clayton 767 O'Donnell v. Goldstein 109 v. Patchell 109, 112 O'Donoghue v. Hamilton 348 O'Donovan v. O'Parrell 1036 O'Dowd v. Dogherty 396 O'Dwyer v. Casey 228, 229 Odgers «. Waldron 1007 O'Eerrall v. Bank of Australasia... 83 O'Flaherty, In the Estate of ... 1533 Officer v. Haynes... 381, 664, 1159, 1453 O' Grady, In the Estate of 1537 1 — Ex parte Reg. v. Mayor ofWalhalla 747 v. Boulter 1419 Ogburn v. Shire of St. Arnaud ... 1081 Ogden v. Board of Land and Works 1091 Ogier v. Ballarat Pyrites Co. 161, 758, 771, 1027 v. Booth 237, 426, 1124, 1125, 1137 v. Smith 160, 1138 Ogilvie, In the Will of 1527 O'Keefe, In the goods of 1548 v. Behan 746,1151 v. Board of Land and Works 413j 1581, 1582 O'Learyw. Mahoney 558 Old Welshman's Reef Co. v. Bucirde 142,143, 164 li. TABLE OF CASES. lii. COL. Oliver, In re 604 . In the Will of 447 Ex parte Eeg. v. Clow 933, 934, 976, 986 v. Joseph ... 227 O'Malley v. Elder 365, 432, 742 ». Ward 916 O'Mell, In re 1457 Oppenheimer, In re... 600, 605, 642, 669, 670, 677, 700, 701 Adolphe, In re 585, 612, 614 : and Co., In re 585, 589 v. Oppenheimer 1130 O'Eeillyi). Egan 14 O'Eourke v. Huon 195 Oriental Bank, In re 165, 167, 168, 171 1376 o. Beilby 101 D.Carter 917 v. Casey 1009, 1010 v. Grant ,59,60 i). Goujon 279 v. Halstead 1230 D.Smith 76 v. Wattle Gully Co. 659 Oriental Hotel Co. v. Thomson 105. 106 Oriental Eioe Co., In re 166 Orr, In re 1450 In the Estate of 447 Orton «. Prentice 16 O'Shanassey v. Littlewood 804, 805, 1468 O'Shea, In the goods of 1523 v. D'Arcy 457, 1155, 1220 O' Sullivan v. Huon 1199 . v. Mysterious Quartz MiningCo 929 Osbaldistone v. Licensing Justices at Wangaratta 831 Osborne v. Elliott 990 v. Gaunt 756,1029 v. Osborne 506, 1444, 1458, 1569 1570, 1574 v. Southern Insurance Co. 732 v. Synnot 1243, 1243 Oudot v. Soulie 339 Owston v. Mullen 1090 Oxley v. Little ...924, 933, 940, 985, 986 P. Pachten v. Politz 200 Pacific Marine Insurance Co. v. Anderson 727 Packham u. Board of Land and Works 1581, 1583, i584 Paholke v. Paholke 1429 Pain, In the Will of 440 D. Plynn 1243, 1478 v. Kneen 1319 PaUett, In the Will of 1511,1512 Palmer, Ex parte Eeg. v. Kerr ... 773 -• In re 606, 869, 871, 873 v. Board of Land and Works 70,329,330, 1100, 1166 1). Bronckhurst 1201, 1202 v. Chisholm 939, 1001 ■ v. Palmer 1172 Palmer v. Wilson 1214 Parade Gold Mining Co. v. Black Hill S. Extended Co. 1298 v. Boyal Harry Co... 919 •. v. Victorian United Gold Mining Co. 563, 922, 923, 924 Pardey v. Pardey 530 Park Co. u. S. Hustler's Eeserve Co 408,981, 1011 Parke v. Parke 516 Parker v. Cunningham 336, 337 v. Eve 813, 814 D.Kelly 1152 v. Wood 252 Parker's Freehold Quartz Mining Co. v. Parker's United Co 969 Parkinson v. Groom 1240, 1241 Parle v. Harp of Erin Co. ...1131, 1132 Parnell, In the Will of 1528, 1557 Parsons, Ex parte Eeg. v. Grover 774, 779 In re 613,614 v. M'Ewan 238 Partridge v. National Insurance Co. 1045, 104, Pascoe, In re 666, 667, 713 Passmore, In re 611 Pasmore v. Pasmore 515, 522, 534 Patchell, In the Will of 1502 v. Maunsell... 1408, 1409, 1414 Patent Composition Pavement Co. v. Mayor of Eichmond v 42, 1140 Paternoster v. Hackett '..146, 463 Paterson, Ex parte, in re Transfer of Land Stat 1398 Ex parte 1407, 1408 In re 701, 716 v. Hughes 101, 103, 1135 v. Luke 418, 1214 Patten, In re 1529,1547 v. Eudall 1143, 1144 Patterson, Ex parte, in re Transfer of Land Stat. 1398, 1399 In re 713 Ex parte, Eeg. v. Panton 537 v. Pohlman 1252 v. Evans 657 Pattinson v. O'Mara 1059 Patton, Ex parte Eeg. v. Cahill ... 751 Payne, In the Estate of 1526 In the Will of 1526, 1531 v. Fishley, 1326 v. Keogh 1065 u. The Queen 133 Paynter, In the goods of 1544 Peachment a. ( Conlon 764 Pearce i>. Thomas 242 Pearson, Ex parte, in re Dyer 1335 i>. Slingo 362 Peck, Ex parte Eeg. v. Templeton 496, 497, 778 v in re Transfer of LandStat 1227,1411 v. Smith 383 w./Willison 101 Peebles, In the goods of Hail ",]. °~— „ kelson 416, 431, 1529,"l530 Pender, In the Will of 440 Pendreigh, Ex parte Eeg. u.Walsh 834 Penistan v. Great Britain Co. ...956, 957 mi. TABLE OF CASES. liv. Pennington, In re 553,557, 1184 Perkins v. Cherry 1047, 1304 v. Hercules Gold Mining Co 953 v. O'Toole 767 v. Willcoek 403,433 Perry, In re 684, 685, 698, 704, 716, 717, 1333 Perseverance Co. v. Bank of New South Wales 1005 Persse v. Smith 1113, 1154 Peters, In the Will of 394 Pettett v. Mellies 1150, 1151 Pettitu. Walker 110, 191,192, 196 Pfielw. Thorogood 20 Phairw. Powell 552, 1173, 1457 Phelan, In re 239,604,608, 618 v. Eaton 1435 v. Macoboy 4, 5, 1190 v. O'Shanassy 1161, 1355 Phelps, Re 67, 68, 278, 1343, 1345 In the Will of 392 v. Pusey 1181, 1202 Phillips, In the Will of 1445, 1512 v. Byrne 268, 1076 v. Johnston 260, 433 v. Mayor of Melbourne ... 857 v. Melbourne Tramway & Omnibus Co 1081,1082 v. Tomlinson 91 Philpott, In re 1452 Phoenix Foundry Co. v. Hunt 1400,1483 Pickett v. De La Hunty 1181 Pickles ii. Perry 1071,1072, 1186 Pickup, Ex parte Eeg. v. Bailes... 887, 1233 Pike v. The Queen 323, 1102 Ping Kong v. Robertson 1218 Pink v, Melbourne Tramway and Omnibus Co 1081 Pinn v. Barbour 808, 816, 1222 Pinnock v. Hull 442, 451, 452, 1173 Piper, In the Estate of 1540 v. Walsh 1075 Pirie, In the Estate of 1528 In the Will of 1528 Pittman v. Townshend 1276 Pizzey v. Southern Insurance Company 728,729 Plant v. Johnson 801 v. Syme 364, 365 Platts v. Wright 435, 1213, 1592 Playford v. Brown 269, 878 v. O'Sullivan 99 Plevins, Ex parte, in re St. Kilda and Brighton Railway Co 164,165 v. St. Kilda and Brighton Railway Co 1212, 1225 Plieru. Trumble 482, 1107 Plummer, In the Will of 1531 v. Fletcher 1215 v. Hood 1567 Pogonowski, In re 678, 679 Pokorney v. Ditchburne 65, 1178 Pollard v. Gregory 1495 Polleykett v. Georgeson ...282,807,808, 136J Polynesia Co., In re 166, 167, 170 v. Bank of N.S.W. 430, 1092 Pooler. Halfey 32, 33, 541 Pope, Ex parte Reg. v. Pope 532 Pople, In the Will of 1514 Port v. Bain 1066 v. London Chartered Bank 105, 354, 586, 587, 624 Portch, In re 580, 657, 716, 717 Porteous v. Oddie 798,799, 1175 Porter z/. Board of Land and Works 1590 v. Leviathan Co 1027 Portland, Shire of v. Kennedy ... 1086 Portue, In re 597, 607 Postlethwaite, In re 1453, 1454 Potter, In re 639 v. Wilkins 331,803 Powell, In re 391 v. Dawson 843 v. Gidney 250,269 v. Savage 1256 ■u.Taylor 766 Power, In re 1396 v. M'Dermott 992, 993 v. The Queen 57, 1148 Powers v. Pairbairn 259 Prahran, Mayor of v. Wild 216 ■ Council of v. Clough ... 737 Pralle v. Slater : 1231 Pratt v. Rush 71, 1291 v. Williams 1156 Pratz v. Weigall 132, 333 Prendergast v. Lee 204 Prentice, Ex parte Reg. v. Webster 748 Press v. Hardy 1561, 1577 Pride & Stringer's Co. v. Conisbee 767 Pride of the East Gold Mining Co. v. Wimmer 975, 994 Priestlyu. Davis 1228 Prigg v. Johnstone 655 Prince, In re Proctor v. The Queen 802 Proudfoot v. Mackenzie 122,656 Provident Institute of Victoria, In re '..' 171, 172,642 Provincial and Suburban Bank, In re ... 137, 138, 146, 152, 166, 168, 169, 170, 171 In re Hall's case; Gregory's case 174 Pufflett, Ex parte Reg. v. Nicholson 779, 1255 Punch v. Lane 557, 558 «. Punch 66, 1206 Purcell, In re 1336 v. Nimmo 753, 1117 Purvis, In the Will of 1505, 1506 Pyke, In re 1551, 1557, 1558, 1560 Pyleu. Pyle 523, 526 v. Taylor 800, 810 Pyman, In re 1333 Pyrke v. Nettleton 207, 756 Q. QtrAEEELL v. Brown 1096 Queen Insurance Co. v. King 274 Queen, The, Ex parte Parrell v. King 283 Quinlan, In re ...391, 1370, 1537, 1547, 1534 lv. TABLE OF CASES. lvi. Quinlivan v. Darcey 261, 262, 384 Quinn, In the Settled Estate of ... 1310 Quirk v. Watson 1336, 1372 Quish, In the Estate of 1522 E. Rae, In the Will of 1515 Raeburn v. Murphy ... 1208, 1482, 1483 Raleigh v. Glover 786 — v. M'Culloch 835 z/.M'Grath 787 v. TheQueen 189,190 Ramsay v. Board of Land & Works 234, 1194, 1195 Ramsden v. Payne 1326 Randall v. Mau... 1161, 1188, 1189, 1455 v.Smith 276 Rangan, In re 586 Rankin v. Danby 282 Rawlings, In re 1150 v. Hislop .. 1349, 13P1, 1362 Rawson, Ex parte Reg. v. Cope ... 252 Ray, In re 619,652 v. M'Mackin 178,1423 v. Synnot 239 D.Wakefield 360 Rea, Ex parte Reg. v. Bayne 893 . v. Templeton 1115 Read, In re 1343 v. Read ... 206, 1561, 1563, 1564, 1576 Reade, Inre 606,615 Reardon v. Norton 917, 946, 1001 v. Sayers 917,934 Red Anchor Preserving Co., In re 171 Reddin, In re 1519 Reed, Ex parte Reg. v. Mollison... 803 v. Buck 357 v. Mayor of Fitzroy 856,857 Reefs Gold Mining Co. v. Bennett 155 Reesw. Martin 97,98 Reeve v. Tuthill 243 Reeves v. Bonneau 1036 v. Bowden 167,168,1033 u.Brown 159, 1039 v. Croyle 69,144,145, 163, 1015, 1016, 1031, 1039, 1172, 1181, 1189 v. Forbes 756 ■ v. Greene 138 v. Highett 1036 v. Luplau 344 v. M'Cafferty 153, 154 v. M'Guiness 382 v. Millsom 1035 u. Ninham 1035, 1036 Regina v. Ah Pook 311 v. Ah Poo 298 v. Ah Toon 742 v. Ainsworth 319 v. Akehurst 987 v. Apfel 292, 293 v. Ashford 290, 291 v. Bailey 295 v. Baloombe 755 v. Barnard 1116 v. Bartrop 883 t/.Bates 306 Regina v. Bathurst 293 u. Beaney 454 v. Benjamin 319, 321 v. Benson 502 u. Board of Education 125 v. Board of Land & Works 58, 59, 790, 791 p.Bond 299 v. Bonfield 852 v. Bourke 294 v. Bowman 900 — v. Boyd 298 v. Bramwell 297 v. Branch 305 v. Brewer and Walhalla Co. 988, 993, 994 v. Bright 1325 v. Brockman 269 v. Brown 306,313 v. Bull and Wall 297 v, Burns 309, 311 D.Caddy 736,1425 ,„. Cairns 1279 v. Call 479 v. Cameron 305 v. Cantlon 289 v. Capes 288 v. Carr...l29, 772, 813, 987, 1267 v. Caulfield Road Board ... 884 v. Charles 303, 750 v. Church 290 v. Clarke alias Bonnefin... 1142 v. Cleary 318, 492 v. Cogdon 239 v. Coldwell 312 D.Cooper 30S,306 v. Costello 277, 307, 741 D.Cunningham. 1284 d. Dallimore ... 39, 327, 328, 329 801, 1251 d. Daly 751, 763 d. Davies 296, 297, 298, 299, 300 v. Davis 302 v. Desmond 315 v. De Theuars 285, 286 d. Dickson 298, 299 d Donaldson 227, 851, 1255 d. Dowling 314 d. Downey and Warburton 309 v. Draper ...290, 291, 1364, 1371 d. Duffus 222 v. Duffy 302, 321 v. E. Collingwood 214 v. Eccles and Merritt 288 d. Fennell 315,316 d. Fischel 298 v. Flynn 294 v. Ford 744 v. Foster 581 d. Fraser 772 -J. Gallagher 303, 310 v. Garland 310 v. Gaunt 1036, 1037 v, Godenzi 296 - v. Govan 288 v. Grandison 302, 320 v. Greaney 304 w.Green 1011 v. Grimn 287,501 D.Griffiths 324 • v. Gurnett 93 295 Ivii. TABLE OF CASES. Iviii. Eegina v. Hall 278 v. Halliday 293, 303, 306 — u.Harker 346 v. Harry 297 v. Haverfield 226 v Hay 311,312 v. Herbert... 278, 289,311, 1302 v. Hiokey 304 v. Hill 1316 v. Hootor 308 v. iodges 762 v. Hooper 294 v. Hull and Trevarrow ... 1278, 1279 v. Huxley and Walsh 1113 „. Hynes 1302 v. Ireland 1147 v. Jackson 308 d. James 295, 314, 315 v. Johnston and Smith 312 v. Johnson 299 v. Jones 307,316 v. Keating 305 v. Keilor Eoad Board 884 v. Kitts 294,295 v. Knipe : 226 v. Laurens 1255 v. Lee 321, 743 v. Levinger 301,308,309 w.Levy 304 v. Lloyd 749 v. Longmuir 285 v. Lynch ....296,297 v. Macey 291 v. Macohoy 998 D.Martin 307 w.Maund 300 v. Mayor of Colling wood ... 73 v. Footscray...884, 885 v. Melbourne 830, 831, 1287 v. Sandhurst 1261 v. M'Call 287, 288 v. M'Carthy 318,1371 v. M'Cooey 312 v. M'Gowan 297 v. M'llree 418 v. M'Intyre 129, 394, 1492 v. M'Lachlan ...1261, 1271, 1272 v. M'Meikan 1100, 1104 v. M'Namara 307 v. Medcalf 287 v. Medical Board 898 it. Messenger 285 v. Middleton 1316 v. Miller 304 v. Mollison 31 v. Monckton 291 v. Moore 73, 74,286, 287 u. Morris 670 v. Mount and Morris ...316, 317, 318, 321 i>. Mungovan 303 v. Murphy 299, 300, 301 v. Napier 774, 775 . v. Nathan 74, 313, 314, 318, 319, 320 v, Neddy Monkey 311 w.Nixon 306, 319 . ■ v. O'Brien 311, 315,- 782 ^.O'Connor 302 COL, Eegina v. Oddie 221 v. O'Farrell 282, 283 v. O'Ferrall 289 v. O'Leary 285 v. Panton 865 v. Parker 1364 v. Patterson 307, 308 v. Pearce 302, 314 v. Peck 228,244 v. Percy 223 v. Pethybridge 1254 o. Pohlman...251, 261, 497, 834, 1302 v. Poole 579, 672 «. Prendergast..., 309, 639 v. Robertson 310 v. Eobinson 122, 293, 294 v. Eogers 882,1008, 1009 d. Eooney 313 v. Eosenwax 671 v, Eowden 285 v. Eowe 757, 865 v. Eyan 319, 422 v. Sanders 1225, 1226, 1250 v. Savage 292, 293 v. Sayers 1111, 1112 v. Sohriebrogel ...125, 310, 313, 319 v. Shire of Pyalong 73, 887 v. Shovelbottom 1225, 1226, 1250 ■ v. Skinner 407, 773, 783 v . Smith 286,392, 976 v. Smith Brown 1112,1113 v. Spencer 291, 309 u.Stephen 262 v. Stewart 289 v. Strutt 127, 986 u. Sturt...91, 830, 868, 1367, 1370 v. Sullivan 292 v. Supple '. 301 u. Sydenham 290 ■ v. Syme 307 ti. Taylor 284, 303, 312, 320, 775, 802, 1455 z/.Tempest 670 D.Thompson.. .226, 285, 293, 310, 1268 o.Thornton .-. 305 v. Trenwith 371 v. Tucker 321, 382 v. Turner 292 v. Wallis 672 u.Walter 139, 292 v. Warden at Donnelly's Creek..'. 977 o.Watson 291 u.Webster 745, 917 v. Weickhart 226 v. Wells 748 z/.West 284 v. Westlake 300 v. Whelan 310,312, 313, 319, 320, 1371 v. Williams 310, 750 v. Williamson 391 v. Wilson 223, 228, 287, 295, 296 v. Wood 290 v. Wright ... 294, 295, 306, 427, 428 — u. Young 287 lix. TABLE OP CASES. Reggiani, Ex parte Eeg. w. Glee- son Registrar of Titles v. Patterson . . . COD. 777 1407, 1408 Reid, In re 867, 868 Renison w. Keighran 539, 1366 Rendall. v. Hadley 955 Renniok v. Riches 195 Renwick v. Barkas 1017 w.Hyde , 882 v. M'Culloch 124 Rettigan, Ex parte Reg. d. Ross ...224. 225 Reuter, In re 712 Reynolds, In re 445 In the Will of 445, 1526, 1558 Ex parte Reg. w. Little. ..560, 1108 . w. Reynolds 767 Rhind w. Clark 1197 Rice, Ex parte 752 Richardson, In re ... 1551 In the Estate of 442 Ex parte Reg. v. Dixon 769, 770 D.Arthur 1306, 1307 v. Kearton 807 w.Richardson 519 v. Shirra 1459, 1571 Rickards, In re 589, 605,612, 735 Richey w. Birkin 1293 Richmond, In re 609 In the Will of 441 — w. Dick 466,467 Mayor of v. Edwards... 212 Rider v. Phillips 217, 218,752 Riddell, -In the Will of 1506 Riedle, In re Bruce v. Garnett...lll, 771 Rigby, Ex parte, in re Transfer of Land Stat 1398 v. Hasker 1030 Rigg, In re 598 Riley, In the Estate of 441 v. Gray 25 v. M'Cawley: 771 Riordan, In re 612 Rippon w Dennis 213, 877, 878 Risk, In re 597,707 Ritchie, In re 584, 587,604 v. Eckroyd 1041 w. Gillespie 1150 Roach w. Martin 383 Robbins v. Davis 877 v. M'CuUoch 71,72 v. Robbins 353 Roberts, In re 866' w.Edwards 1105 v. Hadden 899,1489 — — — v. Lamborn 1587 Robertson, In the Estate of 1525 In the Will of 1513 v. Bank of Victoria 1055 w.Brown 263 v. Carmody 124,1075 D.English 203, 1221 v. Keith 1401, 1404 u.Main 1151 '. u.Mohabeer 64 ti. Morris 70, 948, 956 v. The Queen 797 D.Weddel... 1027 coi.. Robin Hood Co. v. Stavely ...300, 1022, 1025 Robinson, Ex parte 267 ti. Bonfield 1386 w. Carey 744 v. Highett ..... 258 w. M'Ewan 198 v. MelbourneNewspaper Co '. 565 w. Oriental Bank 80 Rochford v. Jackson 342 Rocke, In re , 589 Roden, Inre 647 Roebuck v. Mayor of Geelong W. 9, 10, 213 Rogers, In re ...476, 478, 641, 683, 1116 Rolfe, Inre 439,440 In the Will of 1437 and Bailey, Ex parte, in re Rut- ledge 579, 649, 1127 -Ex parte, in re Rutledge and Co. 30 v. Flower, Salting and Co. 666 Ronald v. Lalor 1235, 1236, 1375, 1466 w.M'Pherson 1065, 1202 Ronalds v. Duncan... 235, 424, 432,471, 1307, 1471 Ronayne, In re 549, 557 Rook, In re 611 Roper w. Williams 378, 418 Rosalesw. Rice 946,974 Roscrow w. Webster 922, 983 Rose, In re 870 w. Monahan 1182 Roselw. Adam 201 W.Stephens 105 Rosenthal v. Union Steam Naviga- tion Co. of N.Z 1215 Ross, Ex parte, in re Transfer of Land Stat 434 v. Adelaide Marine Insurance Co 239, 240, 726,727, 729, 730 w. Blackham..,58, 130, 1053, 1179, 1180 w. O'Callaghan 1196, 1197 v. Pyke 765 v. Victorian Permanent Building Society 120, 414, 1047, 1060, 1063, 1069, 1072, 1237, 1238, 1416 Rossiter v. O'Shanassy 423 Rostron v. Hasker 1212 Rotherlyw. Patterson 215,331,803 Roulston v. Roulston 505 Round v. Victorian Stevedoring Co 1227, 1228 Rowan, Ex parte, in re Transfer of Land Stat 1395 Ex parte Reg. v. Lloyd ... 1107 w.Mitchell 96,97 Rowbottom v. Hennelly ...253, 254, 265 Rowe v. Mayor of BaUarat 747 w. Middleton 1152 D.Thompson 260 Rowland, In re 705 Rowley, In re 492, 605, 621, 622, 653 . 673, 715 Inthegoodsof 334,335 In the Will of 1510 Roy v. Board of Land and Works 1583 lxi. TABLE OF CASES. lxii. Royal Standard Gold Mining Co. ■v. Wood 1016, 1017, 1119 Royce v. Parker 236, 1176, 1278 Roycroft v. Iago 1096 Royle v. Shire of Avon 858 Ruby Extended Tin Mining Co. v. Woolcott 735,738, 739 Rucker, Inre ; 639 v . Lyall 271 v. Moorabbin Road Board 72, 73 Ruddock, Inre 716, 1121, 1122 In the Will of 448, 449, 1457 Rudduck v. Clarke 240,1232, 1233 Ruffhead, In re 1501 Rule v. Lobbe 240, 258 Russell, In the Will of 1432, 1459 v. Parkinson 787,790,795 v. Russell 526 v. Shire of Leigh ...1272, 1301 Rutherford, Ex parte Reg. v. Wyatt 767, 769 In the Estate of 393 „. Hayward 1419, 1420 w.Powell 1346, 1347 Rutherglen, Shire of v. Kelly 1046 Rutledge and Co., In re 687, 688 Ryall v. Kenealy 178, 322, 323, 1369 Ryan, Ex parte 457,458 . _ Inre 455,603,616 In the Will of 1372, 1529 v. Broughton 48 v. Callaghan 995, 996 v. Gray 276 v. Macintosh 74,75 v. Mayor of Malmsbury ... 856 w.Moody 1283 v. Eagle 1111 v. Polwarth 1385 v. The Queen 787, 788 -v. Roach 1386, 1387 Sandhurst, Mayor of v. Graham ■». Road Board of Broadford...201, 202 W.Stephens 550 v. Topham 256 S. Sabelberg v. Scott 814 Sacre v. Board of Land and Works 891 Sadler v. Van Hemert 1425 Salmons. Mulcahy 960 Salter, Inre 1404 Sampson, Ex parte Keg. v. Qum- la £ 125, 1007 Samuel v. The Queen 797 Sandars, Inre 6 °4 , Bryant v. Sanders 1451 Sanders, In the goods of 445, 616 -In re 552 Sanderson, Ex parte Reg. v. Carr...ll09, 1155 z,. Potheringham 802, 1150, 1151, 1155 Sandhurst and Inglewood Co. v. Morrow 160, 161 Building Society v. De- laney 120, 484 Mayor of u. Broderick... 1267 . v. Chomley ... 1261 COL. 484, 945 v. Gruner 276 v. Sherbon ... 1098, 1099 Sandilands, Ex parte Reg. v. Browne 128,760,777, 779 Sandridge, Borough of Ex parte Reg. v. Mollison 757, 758 Sansom v. Sansoin 529 Sargood, In re 550 In the Estate of 441, 443, 444, 445, 446 D.Henry 1361,1473 v. TheQueen 325, 1283 v. Rutherford 1198 Sargeant, Ex parte Reg. v. Mouatt 1256 Sartori v. Laby 652 Saunders v. Matthews 101 Savage, In the goods of 1555 Sawyers v. Kyte 444, 449, 1185, 1346, 1440, 1441 Sayers, Ex parte 129 v. Jaconib 916,917,939, 977 v. Sayers 510 Scallan, Inre 704, 707, 708 Scantlebury v. Mayor of Tarna- gulla 1265, 1266 Scarlett, Ex parte Reg. v. Pooley 225 Scates v. King 388, 1167, 1478 Schafer v. Mayor of Sandridge ... 1269 Schaef er w. Schaef er 510 Schawi;. Wekey 141, 142, 1012 Schemmel v. Call 1392 Schlieff, Inre 633, 675, 686, 710 Schmidt v. Garden Gully Co.. ..138, 142, 150, 153, 154, 155, 1018, 1025 Schneider, In the Will of 1502, 1552 v. Wright 1154 Schonfeldt v. Beel 919, 930 Schroeder, In the Estate of 1559 Schuh, Ex parte Reg. v. Mount- ford 776 Schuhkraft, In re 673, 674 Schultz v. Dryburgh 965, 1007 Scotchmer v. Michael 225 Scott, Ex parte 127, 128, 1445 InreStrutt 747 Inre 207,685, 1335 — : v. Mayor of Collingwood ... 860 — ■ v. Riddock 780 v. Shires of Eltham and Heidelberg 486 Scottish and Cornish Co. v. Great Gulf Co , 925 Sealw. Bebro 932 v. Webster-street Freehold Gold Mining Co 65, 66 Seamark, Ex parte Reg. v. Call . . . 901 Sea Queen Quartz Mining Co., Ex parte 1003, 1004 v. Sea Quartz Mining Co. 962, 963, 976, 1004 Sea Quartz Mining Co. v. Sea Queen Co 1000 Searle v. Hackett 242, 1215, 1216 Seehusan v. Seehusan 520 Selfew. Simpson 1032 Selim, Ex parte Reg. v. Shaw.. .899, 900 lxiii. TABLE OP CASES. lxiv. Sell, in the Will of 1513 Selwood v. Burstall 424 Service v. Mercantile Insurance Co. of South Australia 732 v. Walker 1289, 1290, 1294 Severne, In the Estate of 1638 Shakespeare, Ex parte 349 Shallue v. Long Tunnel Quartz Mining Co 1079 Shamrock Co, v. Farnsworth 952, 1403 Shannahan v. Shire of Creswick ... 1260 Sharp v. TurnbuU 431 Shaw, In re 88, 104 Ex parte 772, 813 v. Costerfield Gold Mining , Co 1006, 1008, 1018, 1020 v. Gorman 1444 v. Hamilton 255, 257 v. Howden 1284 v. Patterson 564 v. Phillips 25, 770 v. Salter 467, 538, 641 v. Scott 430, 467, 468, 636, 1401 v. Solomon 429,633 v. Sterling 1189, 1190 v. Wright 1021, 1275, 1357, 1380 Shea, Ex parte Keg. v. Panton ... 774 Shean, Ex parte, in re Rogers. ..996, 997 Sheehanu. Park 265, 1077 Sheldrick v. Aitken 632 Shelswell, Ex parte Eeg. v. Wyatt 836 Shepherd v. Patent Composition Pavement Co 248, 265, 266, 1140, 1141 Sheridan v. Board of Land and Works 1079 Sherwood v. Courtney 382, 383 Shevill v. Affleck 439, 1564 Shield Colonial Bank 196, 231, 1339 Shiels, Ex parte Eeg. i>. Banner- man 349, 783 v. Drysdale... 198, 475, 545, 608, 639, 640, 1191 Shilton v Nutt 1481 Shoebridge v. Shoebridge 529, 530 Short, In the Will of 443 Sichel v. O'Shanassy 19, 556, 1186, 1433, 1434, 1440, 1461 v. Wittowski 1313, 1314 Sidebottom, In the Will of 1505 Sides, In the Will of 1553 Sievewright v. M'Evoy 537 Sim v. Eddy 978, 979, 988 Simmons v. Hall 1231 Simpson v. Burrowes 629, 664 v. Goold 1074 v. Hunt 1037 v. Luth 114 v. Mullaly 1019 Simson, In the Will of 1435 v. Guthrie.. .634, 643. 668, 669, 1214 — «. v. Mitchell 631, 1215 v. The Queen ...324, 785, 1367 • v. Scallan 1180, 1189 Simson 1172, 1173 Sinclair, In re 639, 702, 703 v Dobson 1301 ■u.Harding 742, 1094 v. Shire of jjMount Alex- ander 854,855 Singer Manufacturing Co. v. Harold 1390 Sinnott v. Hoekin 469, 470, 1307, 1308 Sistron, In re Beg. v. Cogdon 757 Skeeles u. Hughes 385, 1372 Skene v. Allen 28, 768 Skinner, Ex parte 89 Beg. v. Edney 780 - In re 1333, 1535 Gilmour 564 Slack, Ex parte 243, 837, 887, 888, 1148 In re Panton 735, 828, 837 In re Transfer of Land Stat 1399 Keg. v. Alley 832, 838 In re 127, 180, 181,578 Slack v. Atkinson 181 Transfer of Land Stat. 1396, 1397 In the Will of ...1 26, 1528, 1538, 1551 v. Atkinson 1057, 1059, 1062, 1068, 1072, 1206 v. Downton 1402 v. Terry 275, 276, 429 v. Winder 11, 578, 1208, 1209, 1216, 1313, 1396 Sleep v. Virtue 155, 1019 Slocombe, In re 348, 492 Sloman, In re 236, 626 Small*/. Dyer 935,944, 1001 v. Glen 846, 1097, 1384, 1400 Smart, Ex parte Keg. v. Pritchard 346, 782, 1367 v. O'Callaghan 732 Smillie, Ex parte Eeg. v. Cope 255, 260 Smith, Ex parte, in re Moule 1340 Kingwood Co. 126 Wharton 7 E. H., Ex parte 1332 Ex parte Keg, v. Hardware 350 v. M'llwraith 494, 1364, 1365 v. Pearson 779, 1325, 1326 v. Skinner 981 v. Smith 532, 534 v. Tope ... 773 In re 589, 610, 673, 674, 690 H. S., In re 584, 589 John, In re 586, 595 alias Peate, In the Estate of 1520, 1554 In the Will of 1503, 1511 v. Australian and European Bank 1029, 1035 &. Beaver , 1317 v. Blacker 573, 574, 1163 v. Blair 1317 v. Board of Land and Works 821 v. Cogdon 783, 784, 1037 v. Colles 1315 v. Colonial Mutual Fire In- surance Co 722 v. Golden Gate Gold Mining Co 953, 1016 v. Harrison 79, 80, 143 v. Hayles i 48 o v. Hetherton 359 v - Hope 470, 541 lxv. TABLE OF OASES. lxvi. Smiths. Iffla 338, 899 «.Jones 1121 v. Knarston 5, 1074, 1170 v. Leroy 108 v. Manby 346 v. Martin 22, 112 v. Mayor of Climes 214,253 v. Emerald Hill ...338, 1083 v. M'Cormick 830 v. M'Gann 2 v. O'Brien 1421 v. Parnell 122 v. Perkins 1107 v. Powell 377, 378 v. Robertson 1082 v. Sadler 10 v. Scott 1212 v. Scottish, and Cornish Co. ...927, 962 v. Seal 403, 1031, 1032, 1145, 1177 v. Shire of Lexton 215 v. Smith.. .244, 245, 475, 513, 514, 517, 520, 521, 527, 528, 530, 540, 541, 560 v. Starling 1292 Smyth, In re 455, 872 In the Will of 1559 v. Shire of Kyneton ...862, 1083, 1084, 1100 Smythersu. Stewart 733 Smythesdale Council, In re 1255 Snaith v. Dove 6, 7, 1434, 1456, 1457 Snell, In re 662 Snewinw. Doherty 361 Sohier, In the Will of 1546 Solly z/. Atkinson 654, 1197 Soloman v. Soloman 357 Solomon v. Collingwood Quartz Min- ing Co 157, 159, 1017 In re 475, 682, 683 v. Fitzsimmons 1462 v. Miller 44,729 Solomons v. Mackenzie 735 v. Mulcahy 262,274 Somerville v. M'Donald 548 Sonnenschein, In the Will of 1445 Soper, In the Will of 1525 Soulie, In re 688 Southall v. Jones 24 Southee v. Kirk 899 Southey, In re 594, 595 Spangenberg, Ex parte 837 Sparkesz/. Macfarlane 1316, 1317 Speaker, The v. Glass 177 Speed, Ex parte, in re Chambers... 1342 Spence v. Coker 570 v. Duffield 1294, 1295 Spencer, In re 694, 695 v . Board of Land and Works , 548 Spensley, In re 90 Spiers v. Whiteside 987, 988 Spinks,Inre 1522,1523 Splatt v. Quarterman 174 Spotswoodz/. Hand 1489, 1490 Sprent v. Bowes 1240 Springfield Road Boards. Clarke... 1264 Spurling, In re 447 Spurling v. Macartney... 26 Stacpoole v. Betridge 896, 1319 v. Glass 718, 1157 Stampe, In re 578 Stanton and The Stat, of Trusts, In re 1205 In the Estate of 1524,1533 Stanway, In the Will of 441 Star Freehold Co. v. Evans Free- hold Co. ... 907, 911, 912 ■ v. Inkerman & Durham Gold Mining Co 909 Staughton, Ex parte... 589, 590, 599, 620, 1309, 1310 ' v. Brown 845, 1403 Steads. Gould 46 Steed, In re 610 Stephen, Ex parte Reg. ■v. Munro.. 1106 In the Willof 1505, 1506 v. Board of Land and Works 246 v. Gill „1151, 1152 v. Shire of Belfast ...369, 488, 1090 .^Stephen 1172 Stephens, In the Will of 1512 In the Estate of ...1544, 1545 v. Jolly 941, 983 Stephenson, In re 608, 619,1508, 1509 Stevens v. Craven 280 v. Mayor of Flemington ... 262, 263 v.Sloan 537 ■ v. Webster 965, 1000, 1007 Stevenson, Ex parte, in re Board of Education 396, 885, 886 v. Bear 145, 1239 v. Landale 341, 841 v. M'Intyre 555,1568 z>. The Queen 177, 325 v. Tyler 10 Stewart, In re 612 v. Austin 190 ■ v. Bank of Australasia... 80, 81 v. Berryman 904, 905, 906 v. Bolton : 401, 402 v. Ferrari 245, 1350 v. Finnegan 1106,1115 v. Fishley 383, 384 v. Hogg 376 St. George and Band of Hope Co. v. Band of Hope and Albion Consols 424, 925, 946, 967 St. George and Band of Hope Co., Ex parte Reg. v. Mayor of Sebastopol United Co. v. Albion Co. 944 Stick w.Hudson 25 Stillman's Will, In re ...1457, 1570, 1573 Stirling v. Collins 27 v. Hamilton 765 v. Little 27 St. Kilda and Brighton Railway Co., In re 165,169, 170 Mayor of v. Stephens ... 215 Stocks, In re 670,-671, 691, 692, 717 Stodart v. Stodart 13 Stoddart v. Pinnock 900 lxvii. TABLE OP CASES, Ixviii. Stone v. Stone 512 Story v. Madders 810, 811 Stratford v. Glass 1202 Strettle, Ex parte Reg. w. Wyatt 1116 Strong v. Land Credit Bank 149 Inre 179 w.Smith 1493 Sturgeon v. Murray 39,405 Sugden v. Eeilly 416,471 Sullivan, In the Will of 1512 Summers w. Cooper.. .946, 947, 959, 977, 979, 1002 Sumner w. Sumner 131 Sutherland, In the Estate of 1099, 1541, 1555, 1556 In the Beal Estate of 1538 u.Peel 355, 1040 v. Sutherland 511, 525 IntheWillof 1158 SutlifE v. Jones 566, 567 Sutterby, Ex parte Reg.w. Panton748,749 Sutton>. .Gemmel 237 v. Parker 1005 Swalling, In the "Will of 1520 Swan, In the Estate of 442 IntheWillof 1517 Inre 461 w. M'Lellan 1108, 1109 w. National Bank 1245, 1246, 1247 . v. Seal 437, 1203, 1403, 1563 Sweeney v. iBoard of Land and Works 116, 117, 1078 v. Shepherd 115 Symons, In|re 602 v. Williams 352, 431, 462, 463, 1461 Synnot, In re 601, 607 In the Estate of 1544 v. Douglas 1242 v. Ettershank 843 w. Parkinson 901, 1578 v. Bay 59, 63 T. Tait w. Snewin 877,881 Talbot, Inre 557 Talent w. Dibdin 922, 1004 Talents, In the Estate of 1157, 1541 Tarraway, In the Estate of 1526 Tate, In re 871, 872 ;;_'. v. Leech 1252, 1302, 1303 Tully, In the goods of 386, 1529 Turnbull, In re 599 In the Estate of 1544 v. AhMouy 1122 v. Kelly 33i, 803 Turner, Ex parte Eeg. v. Gaunt... 1038 In re 1368 In the Will of 1500 v. VanHemert 1090 _ ^.Wright 878 Turpin, In re 704 Twigg, Ex parte Eeg. o. Alley ... 1304, 1341, 1342 In the Estate of 1507 Twist, In re 1521,1522, 1545, 1546 Twomey, In the Eeal Estate of ... 1537 Ex parte Eeg. v. Black 1272, 1273 Tyers v. Tyers 518 Tyrer, In re 679,689,694 Tyrrell w. Stewart 181,237 Tyson's Eeef Co., In re 147, 1028 U. Udall v. Stevens 61 Umphelby v. Wilkie 143, 159, 162 Union Bank v. Einderman 122, 123 Union Steam Navigation Co. of New Zealand v. Melbourne Har- bour Trust Commissioners ...493, 494, 1365 United Claims Tribute Co. v. Tay- lor 944, 1000, 1002 United Extended Band of Hope Co. v. Doyle ...940, 964 v. Tennant ... 926, 927, 930 United Hand and Band Co., Ex narte.inre Hardy and Madden 1345, 1345, 1346 COL. United Hand and Band Co. v. M'lver 1046 United Hand in Hand and Band of Hope Co. v. National Bank 32, 36, 37, 41, 44, 113, 157, 179, 180, 233, 237, 464, 1024, 1034, 1056, 1057, 1058, 1059, 1062, 1069, 1070, 1072, 1164, 1178, 1179, 1186, 1206, 1348, 1407 United Hand in Hand and Band of Hope Co. v. Winter's Freehold Co 235,973 United Sir William Don Co. v. Koh-i-noor Quartz Mining Co. ... 213, 329, 918 United Working Miners' Co. v. Albion Co 925, 926 United Working Miners' Co. v. Prince of Wales Co 925, 928, 1008, 1167, 1168, 1178 Universal Marine Insurance Co v. Miller 726 Universal Permanent Building Co. v. Kilpatrick 1482 Upton and Bowes, In re 625, 626 Urquhart v. Brooksbank 280 v. M'Pherson ...38, 421, 464, 848, 1177, 1223, 1254 ^.Wilson 366,367 Usher, Inre 702 Exparte 413, 661 Vail, Exparte 777 Inre 596 v. Gilmour 1233 Vale, Inre 88 Vallancourt v. O'Eorke ...937,942, 944, 962, 992, 1004 Vallence v. Condon 399 Vallins, Ex parte Eeg. v. Gaunt ... 758 Vance v. Doyle 28 Vansuylen, Ex parte Eeg. v. Mairs 769, 780, 1210 Vardy v. Cuthbert 891, 892 Vaughan, In the Will of 1553 Verdon, Inre 89, 962 Vernon v. Mollison 428, 1112 Vicary v. Eowe 996 Victor, Exparte 751 Victoria Sugar Co. v. Borough of Sandridge 42 United Miners' Co. u. Prince of Wales Co 569, 914, 972 Victorian Beetroot Sugar Co. v. Sherrard 108 . street Eailway Co., In re 167 Woollen and Cloth Co. v. Board of Land and Works 116, 1077 Virtue v. Cameron 1169 Vivian v. Dennis 915, 920, 937, 947, 1008, 1370 Vockenzohn v. Zeven 1356,1472 Volunteer Extended Co. u. Grand Junction Extended Co 960, 961 Von Der Heyde, In re 624 Von Steiglitz, In the Estate of... 1539 lxxi. TABLE OF CASES. lxxii. W. Waddell v. Patterson 39, 535, 654, 1376, 1377, 1445, 1454, 1460 Wade v. Baker 502 "Wainman v. Hansen 377, 379, 1228, 1229 Wakefield, In the Estate of 1544 z<. Parker 33 Wakeham v. Cobham 329, 918, 975 Walduck v. Colgin 1070 v. Corbett...235, 236, 450, 1058 . v. Dane ....:. 1070,1071, 1181, 1188 Walhalla Gold Mining Co. v. Jen- nings ... 952 v. Mulcahy ... 934 Walker, In re 667 In the Will of 1523, 1524, 1531 -Ex parte, in re Ah Kee ... 552 ~ y. v. Howitt 759 • v. Shuter 777 1106 -v. Black 1586 -11. Born 281 -v Cowen 1110 -D.George 369,370, 1095 -v. Gippsland Steam Navi- gation Co 1317 -v. Graham 267 -v. Hogan 1481 -o.Jenkins 1033, 1031 -v. Pettit 110 Wall, In re 66, 67, 1519 v. Hooper .■ 1314 v. Meyrick 1314, 1315 v. Shire of Ararat 861 Wallace, In the Estate of 1507 WalKs, In the Real Estate of 1538 Walpolen. Colonial Bank 411,412, 429, 724, 725, 1058 Walsh, Ex parte, in re Cordell 221, 227 v. Hosking 99, 1375 v. Johnston 1 585 Walters, In re 671,672, 680, 699 Wangaratta, Mayor of v. Meighan 1258 Brewery Co. v. Betts 104 Warburton, In the Will of 1546 Ward, Ex parte Reg. v. Gaunt ...91, 92 v. Hearne 1087 Wardlen. Evans 993 Wardrop, Ex parte Reg. v. Hackett 782 Ware, Ex parte Reg. v. Puokle ... 1154 v. Aitken 1120, 1199, 1200 v. London Chartered Bank 1043 v. Ware. ..182, 551,552, 553, 556, 558, 559, 1185, 1199, 1200 Warne, Ex parte Reg. ■v. Mollison 427, 751 Warmoll, Inre 597 Warrnamhool, Shire of v. Rawe ... 1269 Warnock v. Blyth 1291 Warrz/. Templeton 760, 761 Warren ». Lange 236 v. Perry 1481, 1482 v . Price 255, 258, 1145 v. Swiss Lloyd's Insurance Co 729 Warrior Gold Mining Co. «. Cotter 926, 934, 938, 945, 1012 Warton v. Gearing 365 Watson, Ex parte Reg. v. Sturt ... — — v. Drever- man . . . v. Tacke. .. -■v. Percy... COL. 832 227 349 223 ». Bendigo Permanent Building Society 119 v. Clinch 1285, 1286 v. Commercial Bank 982, 1029, 1034, 1035 ii. Kyte 40, 544, 545, 1172 u.Mitchell 1237, 1290 v. Morrow 61 v. Morwood 1005 u. Ross 892 Waugh v. Montgomery 24, 25 o. Palmer 876 u. Waugh 1498 Waxman v. Barnard 99, 100 v. MAuliffe 251, 266, 267 Wayth.Inre 1334 Wearne v. Proggatt 943, 99L Webb ii. Andrews 752, 768 v . Were 353, 395. 1164, 1165, 1493, 1494 Webster. Inre 595, 607 In the goods of 1539 v. Bank of Victoria 643 v. Johnson 789 v. Power 35, 842 o. Shire of Maldon 861 u.Tulloch 95,100, 101 v. Torke 245. 544, 545 Weddell v. House 923, 933, 954, 955, 958,984, 992 Weigall v. Barber 1452 u. Blyth 844 u.Daubin 1431 v. Gaston 256, 847, 848 Weir v. Mayor of East Colling- wood 230, 231 Weir, Inre 1460 Weist v. Whittan 1106 Wellington Gold and Tin Min- ing Co. v. Lambrick 139 Welsh, Inre 532 In the Real Estate of 1535 Ex parte 655 ii. Hackett 401, 1088 ■v. Smith 1094 Welshman v. Robertson 46, 194 Were, In re 694, 713 v. Muston 1092, 1093 v. South Melbourne Gas Co. 1243 Western Freehold Gold Mining Co, v. Great Western Gold Mining Co 907, 910 Weston, In re 1449 v. Collingwood Gas Co.... 1422 11. Hemmons 1140 Westwoodn. Kidney 442, 446, 1437, 1438, 1439, 1572, 1573 Wharton v. Tuohy 1089, 1097 Wheal Terrill Quartz Mining Co. v. Irwin 906 Whelan v. Hannigan 185, 269, 276, 1483 Wherrett, In the Will of ... .1527, 1528 White, Inre 602,618,686, 711 In re Reg. v. Pohlman and Sturt 1299 Ex parte 590, 620, 621 lxxiii. TABLE OF CASES. Ixxiv. COL. White, Ex parte Reg. v. Puckle ... 1113 v. Bank of Victoria ...147, 148, 1013, 1014 In the goods of 1525 v. Colonial Bank. ..840, 842, 1126 v. Glass 344 v. Glover 60 v. Hoddle...43. 44, 278, 374, 375, 417, 420, 1191 v. Hunter. ..355, 1053, 1054, 1064 v. Jordan 370 v. London Chartered Bank 36, 87, 235, 1054, 1061 v. Mavor 569 v Perriam 942 v. Boss 273 v Tippett 1359 v. Young 628 Whitehead, In re 1513 v. Griffith 341,434 v. Whitehead 236, 1575 Whitelock v. Hancock 1214 Whitely v. Schlemm 938, 943, 944 Whiteman v. M'Gallan 997, 998 Whitesides, In re 592, 619 v. Hayes 1239 Whittaker, In the goods of ...1502, 1539 Whitty v. Dunning 93 Wiedeman, In re 587,596,634 Wiggins v. Hammill 1418 Wilkie, In re : 870,871 — v. Brew 1110 w.Hunt 426,1289 v. Wright 480 Wilkinson, In the Estate of 1536 Ex parte Reg. v. Cog- don... 754, 757, 764 v. Maegregor • 758, .1026, 1027 v. Brawn 399, 1403 v. Watson 874 Wilks v. Australian Trust Co 1225 Ex parte Reg. v. Koch... 755, 756 Willan, Ex parte Reg. v. Bowman 981 Willcox, In re 550 Willder, Ex parte Reg. v. Cope .. 1147 Willett v. Turner 646 Williams.Jn re 349,493 Ex parte, in re Barrett 1211 v. Beckett 889,890 v. Board of Land and Works 339, 1088 v. Clauscen 745, 746, 747 v. Melbourne &Hobson's United Railway Co. 1082, 1083 v. Row 765 v. Ross 1290 v. Sharp 107 v. Spowers 363, 364, 428, 1089 Williamson, In re 1395, 1396,1458 v. Courtney ...179, 820,823 1448, 1449 v. Cuningham 1051, 1052, 1125 v. Langley 416, 417 v. Mitchell 191 v. M'Rarey 734, 879 Williamstown, Mayor of, Ex parte Reg. v. Freyer 1336 Willison, In re 592, 617 Willison v. Warburton 654 Wills, In re 1435, 1437 v. Ogier 1066, 1168 Wills' Settlement, In re 1457 Wilmot, Ex parte 823, 824 Wilsmore, In the Will of 389, 443 Wilson, In re 585, -Ex parte j. v. Deely ... - v. O Dwyer ■ u. Panton... 714 866 781 221 750, 751 v. Shire of Oakleigh 1266 v. Boyd 1164, 1431, 1432, J472 ■"• Broadfoot 740, 979, 980, 1030, 1032 u.Crawley 749, 768 v. Holmes 9, 1217 v. Luke 208, 209 v. Luth 198, 449 v. Powell ., 1154 •". Rising Star Quartz Min- ing Co 191 v. Rowcroft 208 v. Shepherd 741 v. Shire of Oakleigh 1266 v. Smith 352 v. Syme .-359, 360, 367, 1214 v. Threlkeld 62 ^.Thomson 373 v. Trail 62 Winder, Ex parte, in re Slack 1396 Wine v. Bank of New South Wales 85 Wingfield v. Glass 1150 Winstone, Ex parte Reg. v. Panton 760, 774 Winter, Ex parte Reg. v. O'Flaherty 736, 1106, 1114, 1115 v. Attorney-General 797 v The Queen 38, 796, 797 Wiper v. O'Shanassy ...1479, 1480, 1483 Wisbey v. Churchman 800, 1125 Wise, In re 1410 In the Will of 1503, 1504 Wiseman v. Kildahl ...1434, 1565, 1578 Wisewould, In re 1332 v. Kerr 536 v. Lee 1337 Wissing v. Coombs 366 v. Einnegan..., 950 Wite v: Brodie 257, 263 Withell v. Lowe 1080 Withers v. Greenwood 200, 201, 351 Wolfe v. Alsop 1388 v. Hart ...45, 421, 573,, 1388, 1390 Wolff, In the Estate of 447 In the Will of 39 In re 1550 Wolter, In re 601, 603, 611, 613, 616, 620 Wood v, Cutts 186, 196, 197 v. Freehold United Quartz Mining Co 130, 154, 1025 v. Gordon 655 v. Hutchings...410, 805, 813, 817 v. MMahon 98 Woods, In re 1156, 1157 Woodhead, Ex parte Reg. v. Bond 751, 1305 In the Will of 1520 lxxv. TABLE OF CASES. Ixxvi. "Woodward v. Davey 770 v. Jennings 244, 545 Wooloott v. Farrell 582 t/. Kelly 768,842 v. Mayor of St. Kilda ... 1259 v. Richmond Board of Health 495, 1259 v. Wisewould 55 Wooller v. Carver 767,768, 1010 Woolley v. Attorney-General ...322, 907 v . Ironstone Hill Lead Gold Mining Co. ...32,322, 329, 9C'7, 910, 911,914 In re 351,622 Wren, Ex parte Reg. v. Shuter ... 217 Wright, In the Will of 445 Ex parte, in re Mahoney 430, 476 v. Town Council of Geelong 1495 v. Imperial Marine Insu- rance Co 728 v. Kabat 835 v. Langland'sFoundryCo 336 v. Motherwell 818 v.Wright 515 and Higgins, In re ...676, 678, 682, 692, 693 Wrixon v. Deeban 252 ■v. Macoboy 96, z73 Wyld, In the Estate of 1543, 1544 Wylie, Ex parte 833, 834 Wynne v. Barnard 751, 1038, 1304 • v. Moore 121 Tandkll v. Hector.. .433, 476, 477, 1231 Yates, Ex parte Reg. v. Wilson ... 57 Tea, Shire of v. Roberts 1350, 1360 Yee Quock Ping and Bottrell, Ex parte, in re Medical Board 898 Yon u. Tresnan 191 York v. Lord 1099 Yorston and Webster, In re ...599, 621 647 Youl v. Lang 1015 Young, Ex parte Reg. v. Hare 332, 1462 In re 709 E. M., The, in re ...1318, 1327, 1328 v. Ballarat Water Com- missioners... 245, 742, 1218, 1586, 1587, 1588, 1589, 1590,1591 Board of Land and Works 115, 1560, 1584, 1585, 1586, 1590 p. Dellar 99, 1145 v. Dickepn 1163 v. Hall 1571 v. M'Connell 1477 v. Ohlfsen Bagge 1589 v. Woolley 1323 v. Young 512 Youngsdale v. Keogh 880 Ybunghusband v. Courtney 639 v De Lacey 1340 Youngman, In re 1457 Yung Hing, In re 976, 977 Z. Zeis, In the Will of 1510 Zeplin v. Andeison 721, 723 Zucker v. Jennings 1110 Zumstein v. Prey 1111 INDEX OF REFERENCES TO THE STATUTES. The numbers after the cases refer to the columns; where no section of a Statute is put before a case the case refers to that Statute generally. ABATTOIRS STATUTE 1869 (No. 356)— Sees. 7, 41. Lowe v. Tweedale 1,2 Sec. 28. Regina v. Caulfield Road Board 884 Sec. 36. Smithv. M'Gann 2 ABSENT DEBTORS ACT (4 Vict. No. 6) — (Repealed and re-enacted by Common Law Procedure Statute 1865, Part II.) Nicholson v. Robertson ... 346 Sec. 5. Udall v. Stevens 61 ADMINISTRATION ACTS— Act 24 Vict. No. 99 (repealed and re-enacted by 27 Vict. No. 230.) In the Goods of Bergin ... 1521 Sec. 3. In the Goods of Rowley 334, 335 Sec. 4. Lire Clarke 334 Administration Act 1872 (No. 427)— InreQuinlan 391,1370 Secs.5,6,7,9. In re Quinlan 1547 Sec. 6. M'Gregor v. M'Coy 385 Larkin v. Drysdale 397 In the Estate of E wing ... 1536 Samuel v. The Queen ... 797 In the Estate of Norton ...1537 In the Will of Howey ... 392 Droop v. Colonial Bank ... 436 Barnicoatt v. Williams ... 452 In the Will of Lynch ... 1506 Dodgson v. Clare 12 In the Will of Ruddock 448, 449 Dawson v. Dawson 450 Regina v. Registrar of Titles, Ex parte Grice 11 In the Estate of Wolff ... 447 In the Estate of Orr 447 In re O'Brien 1542 In the Will of Coppin ...1560 Sec. 20. In the Estate of Hanna ... 334 Sec. 25. InreM'Ewan 439 In re Rolf e 439,440 In the Will of Millin ... 440 In the Estate of Dean ... 442 In the Estate of Swan ... 442 Westwood v. Kidney ... 442 Attorney-General v. Huon... 442 In the Estate of Hine ... 443 In the Will of Proomes ... 444 Sees. 6,7,9. Sec. 7. . 7, 10. Sec. 8. Sec. 9. Sec. 14. Sec. 17. Sec. 18. Administkation Act 1872 continued — col. Secs.26,28. M'Carthy v. Ryan ... 1248,1249 Regina v. Shovelbottom ...1225, 1226, 1250 See. 27. In the Estate of M'Donald... 1545 Sec. 28. In the Estate of M'Carthy... 1545 Sees. 30,32. In re Evans 1549 Sec. 36. In the Estate of Jones ...1529 See also INTESTATES REAL ESTATE ACT (No. 230), post p. xcviii. AUCTION SALES STATUTE 1864 (No. 203)— Sec. 18. Ex parte Mills, In re [Alley 72 AUDIT ACT 1859 (22 Vict. No. 86)— Alcoek v. Fef gie 327 BAKERS AND MILLERS STATUTE 1865 (No. 243)— Sees. 3, 4. Fullertonv. Weedow ... 498 Sec. 11. Regina v. Panton, Ex parte Edmonds 75 BANKING STATUTE 1864 (No. 194)—. Sec. 5. In re Provincial and Subur- ban Bank ... 137, 138, 152 BANKEES' BOOKS EVIDENCE STATUTE 1878 (No. 620)— Sees. 4, 8. Oriental Bank v. Smith ... 76 Bank of Australasia v. Pol- lard 375 BOROUGHS STATUTE (No. 359,) see post under Local Government Acts. BUILDING SOCIETIES ACT 1874 (No. 493)— Colonial Bank v. Curtain ... 481 Bank of Australasia v. Pie... 481 Sees. 2, 4. In re Fourth S. M. Building Society 120 Sees. 2,12,22,27. In re Metropolitan Per- manent Building So- ciety 119, 120 Sees, 7,8,9. Sandhurst Building Society v. Delaney ... 120, 484 lxxix INDEX OF REFERENCES TO THE STATUTES. lxxx CARRIERS AND INNKEEPERS STATUTE 1859 (22 Vict. No. 78)— Renwiok v. M'Culloch ... 124 Licensed Carriers Statute 1864 (No. 217)— Regina v. Johnstone, Ex parte Breen 217 Sec. 20. Robertson v. Carmody 124, 1075 CIVIL SERVICE ACT— See post under Public Works. common law practice and procedure- common Law Practice Act (19 Vict. No. 19) — All except Sees. 176, 292-294, 348, 349, for which see post under Supreme Court, repealed by Act No. 274— Appleton v. Williams ... 1207 Secs.67,235. Pairbairn v. Monaghan ... 397 Sec. 179. Oriental Bank v. Grant ...59,60 Common Law Procedure Statute 1865 (No. 274) — Partly repealed by Act No. 761— Sec. 6. Warton v. Gearing 365 Dwyer v. Macartney ... 366 Sec. 73. Phillips v. Byrne 268 Sec. 74. Bateman v. Connell 1224 Sec. 80. Merry v. Nicholson 67 Sec. 88. Hepburn v. Dawbin 1217 Sec. 90. Banks v.Orell 1211 Sec. 91. Porter v. Leviathan Coy. ... 1027 Sec. 120. Stewart v. Bolton 401 Sec. 138. Griffiths v. Holmes 1214 Sec. 141. Searle v. Hackett 242 Sec. 160. Welsh v. Hackett 401 Sec. 181. Hume v. Dodgshun 402 Sec. 189. Ham v. Benjamin 406 Smythers v. Stewart ... 733 Sec. 191. Caton v. Oriental Bank ... 239 Sec. 193. Hamilton v. M'Carthy ...1314 Sec. 201. London Chartered Bank v. Webb 63 Sec. 204. Watson v. Morrow 61 Bishop v. Woinarski ....1305 Sec. 208. Hutchings v. Cunningham . . . 547 Sec. 211. Bailey v. Barclay 61 Sees. 211, 214, 215, 217 Wilson v. Threlkeld 62 Sec. 221. Fogarty v. Denis ... 60,61 Sec. 224. Lauratetv. M'Craeken63,658, 659 Sec. 225. Synnot v.Ray ... 59,63 Sees. 240, 242. Fowler v. Mackenzie ... 573 Sec. 242. Kidd v. Chibnall 571 Sec. 243. Parade G.M. Coy. v. Black Hill G.M. Coy 1298 Sees. 244, 252. Regina v. Pohlman, Ex parte Murray 887 Secs.261,269. In re Bailey and Hart 54, 55 Sec. 266. Evans v. Board of Land and Works 49 Martin v. Board of Land and Works 49 Farrell v. Imperial Fire In- surance Coy. ... ... 49 Sec. 277. Stewart v. Hogg 376 Sec. 278. Daily Telegraph Coy. v. Berry 378 Sec. 285. Anderson v. Maritime and General Credit Coy. ... 433 Whitehead v. Griffiths ... 434 Common Law Procedure Statute eont. — col. Sec. 307. Ruby Extended T.M. Coy. v. Woolcott 735 Secs.307,308.Mullinsv. Ditchburne ... 433 Ruby Extended T.M. Coy. v. Woolcott ... 738, 739 Johnson v. Dixon 738 Fattorini v. Fattorini ... 739 Rudduck v. Clarke... Sec. 308. Hogan v.Moore 739 Sec. 332. Ivey v. Cavanagh 122 Lordan v. Hufton 1592 Sec. 339. Union Bank v. Rinderman 123 Sec. 372, Sched. 34. Colonial Bank v. Beaconsfield G.M. Coy. 1314 Sec. 377. Hasker v. M 'George ...1225 Wilks v. Australian Trust Coy 1225 Haynes v. Royal Insurance Coy. 1226 Sec. 379. Smith v. Martin 22 In re Hay don 609 Part 27. Attorney-General v. Huon... 1343 Sec. 387. InreLawler 586,1341 Ex parte Hopkins 1342 Chambers v. Green 1341 Sees. 387, 388. In re Brodribb, Crisp and Lewis 1342 Secs.388,392. In re Chambers, Ex parte Speed 1342 Sees. 388, 396. In re Hardy and Madden, Ex parte Hand-in-Hand Coy 1343 Sec. 389. In re Hardy and Madden, Ex parte "United Hand- in-Hand Coy. ... 1345,1346 In re Phelps, Ex parte Morris 1345 See. 393. In re Bennett and Atten- borough, Ex parte McMullen 1342 Sec. 395. In re Phelps 1343 Sec. 396. In re Bennett and Atten- borough, Ex parte Cameron ... 1342, 1343 Sec. 398. In re Hardy and Madden, Ex parte M'lver 1346 Sec. 404. Henley v. Dumphy 844 Levey v. Myers 849 Sec. 405. Griffith v. Block 849 Sec. 407. Weigall v. Gaston 848 Sec. 411. Buchner v. Davis 454 Sec. 420. In re Goldsmith 715 Rudduck v. Clarke 1232 Sec. 421. Platts v. Wright 1213 Sec. 429. Pearce v. Thomas 242 Walker v. George 370 Sees. 429, 440, Sched. 39. Dunn v. Wal- duck ... 239 Sec. 433. Elms v. M. & H.B. U. Rail- way Coy. 1216 England v. M. & H.B. U. Railway Coy 1216 Sec. 439, Sched. 38. Cudmore v. M 'Pherson 426 Sec. 440, Sehed. 39. Everingham v. Wad- del 1245, 246 In re Hardy and Madden, Ex parte MTver 1344 Sec. 440. Henry v. Newstead 237 Moorhead v. Reidle 238 Parsons v. M'E wan 238 Gonerson v. Muir 238 Tattersall v. Slater 238 Reeve v. Tuthill 243 Ixxxi INDEX OF REFERENCES TO THE STATUTE 11 COL. Common Law Procedure Statute Amend- ment Act (No. 290)— Sec. 2. Levey v.Myers 849 COMMON SCHOOLS ACT, See Educa- tion Acts. COMPANIES ACTS (Trading)— Companies Act (Winding-up), 11 Vic, (No. 19) (repealed by Act No. 190)— Sec. 3. Dodds v. Foxton 169 Sec. 17. In re Provident Institute, 171, 172 Ex parte Dodds 172 Companies Statute 1864 (No. 190) — In re Collingwood Q.M. Coy. 1028 Sec. 4. Masterton v. Blair ... ... 144 Sees. 12, 13, Sehed. 2, Table A., r. 4. Mount Brown G.M. Coy. v. Hughes 158 Sched. 2, Table A., r. 10— In re Com- panies Statute, Ex parte Trevaseus 156 Sec. 33, Sched. 2, Table A., r. 10. In re Gippsland S.N. Coy., Ex parte Chuck .. ... 156 Sees. 24, 25. Ex parte Colonial Mutual Life Association Coy., In re Bishop ... 138,145,146 Sees. 25, 63. In re Bishop 763 Sec. 51. M'lvor Coy. v. Hughes ... 158, 159 Sec. 64. Legal and General Life Assur- ance Coy. v. Gill ... 149 Part IV. In re Polynesia Coy. ... 170 Sec. 73 (v.). In re Buzolich Paint Coy. 166, 170 Sees. 75, 77. In re Malmsbury United Brewery Coy. ... ... 167 Sees. 81, 83, 176. In re Oriental Bank 167, 168 Sees. 85, 124. In re Provincial and Sub- urban Bank ... .. 171 Sec. 121. In re Ballarat Patent Fuel Coy 170 In re Belmore Silver and Lead M. Coy 170 In re Melbourne and Cham- pion Bay Lead M. Coy. 173 Sees. 135, 149. In re Provincial and Sub- urban Bank ... ... 146 Sec. 154. In re Oriental Bice Coy. ... 166 Sched. 7, r. 4. In re Victorian Street Railway Coy 167 Sched. 7, rr. 6, 7. In re Cognac Coy. 170 Sees. 168, 169. In re Melbourne and New- castle Minmi Colliery Coy 138, 139 Part VI. In re St. Kilda and Brighton BailwayCoy. ... 165,169,170 In re Collingwood Q.M. Coy. 165 In re Oriental Bank 165 Sec. 180. In re Oriental Bank 171 COMPANIES (MINING)— Act 18 ^Vict. No. 42 (repealed by Com - panies Statute 1864) — Broadfoot v. O'Farrell 1030, 1031 See. 2, (vi.). Carter v. Watson 1009 Sees. 2, 3. In re Harrison 1032 Sees. 2 (vi.), 3. In re Harrison 1009 Sees. 2, 6. Oriental Bank v. Casey 1009, 1010 Sec. 7. Carter v. Watson 1010 See. 14. Melville v. Higgins 1021 Wilson v. Broadfoot ... 1 030, 1032 Rostron v. Hasker 1212 Act 21 Vict. No. 56 (repealed \y Com- panies Statute 1864) — Sec. 3. Farran v. Bowman 1021 Sec. 8. Oriental Bank v. Casey 1009, 1010 Sec. 63. Wilson v. Broadfoot ...1030 See. 65. Carter v. Watson 1010 Mining Partnership Act (No. 109,) re- pealed by Companies Statute 1864 — Irving v. Minerva G.M. Coy. 1012 In re Mackenzie 101.0 Maconochie v. Woods ... 1021 Sec. 28. Oriental Bank v. Carter ... 917 Mining Companies Limited Liability Act 1864 (No. 228,) (repealed by Act No. 40,9)— Albion Coy. v. St. George United Coy 962 Attorney-General v. Prince of Wales G.M. Coy. 1010, 1011 Adair v. Cooper 1033 Bonshaw Freehold G.M. Coy. v. Prince of Wales G.M. Coy 1011 Chun Goon v. Reform G.M. Coy. ... 1014, 1017, 1020, 1021 In re Collingwood Q.M. Co. 1028 Creswick Grand Trunk Coy. v. Hassall 1017 Davies v. Cooper 1033 Irving v. Minerva G.M. Coy. 1012 Jenkins v. Speed ... 1017, 1018 Jones v. Simpson 1036 Hasker v. Schlesinger ... 1037 Hasker v. Bride 1039 Hart v.Garden 1035 O'Donovanv. O'Farrell ... 1036 Shaw v. Costerfield G.M. Co 1018, 1020 Schmidt v. Garden Gully Co. 1018 Solomon v. Collingwood Q.M. Coy 1017 Tommy Dodd Coy. v. M'Clure 1017, 1028 Tommy Dodd Coy. v. Patrick 1020 Wynne v. Barnard 1038 Youl v.Lang.. 1015 Sees. 2, 25. A dair v. Cooper 1011 Davies v. Cooper 1011 Sec. 3. Guiding Star Coy. v. Luth 1021 Sec. 9. Royal Standard G.M. Coy. v. Wood... 1016, 1017, 1119 Wooller v. Carver 1010 Sec. 23. M 'Lister v. Garden Gully Coy 1022 Robin Hood Coy. v. Stavely 1022 Colonial Bank v. Willan ...1028 Secs.21,25. Commercial Bank v. Grassy Gully Coy 1024 Commercial Bank v. M'Donald 1024 M'Kean v. Cleft in the Rock Coy 1024 Sec. 24. Robin Hood Coy. v. Stavely 1022, 1025 Sec. 25. United Hand-in-Hand and Band of Hope Coy. v. National Bank 1024 Sec. 28. Colonial Bank v. Willan ... 1005 Sees. 30,31. Haigv. Hart 1033 Campbell v. Carver 1033 See. 31. Walker v. Jenkins ... 1033, 1034 Sec. 33. Smith v. Seal ... 1031, 1032 !NT)EX OF REFERENCES TO THE STATUTES. Ixxxiv M ih •■<' ■■■■-. \ies L. L. Act 1864 cont. — col. ;.»i beeves v. Millsom 1035 Reeves v. Ninham ... 1035, 1036 Simpson v. Hunt 1037 frv.j. 37. Cooper v.Bath 1035 Sec. 38. Regina v. Gaunt ... 1036,1037 Smith v. Cogdon 1037 Sec. 39. A 1 G.M. Coy. v. Staokpoole 1025, 1026 Highett v. Sun Q.M. Coy. 1022, 1023 Nolan v. Annabella Coy. 1017 Seos.41,43,58. Robertson v. Weddell ... 1023 Amending Act 1867 (No. 324)— Colonial Bank v. Willan ...1005 Sees. 3, 10. Regina v. Bowman, Ex parte Willan 981 Sec. 6. Hasker v. Sehlesinger 1032, 1037 Reeves v. Croyle ... ... 1031 Sec. 8. Selfe v. Simpson 1032 Sec. 9. Renwick v. Barkas 1017 Allardyce v. Cunningham ... 1130 Mining Companies Act 1871 (No. 409) — Regina v. M'Dougal, Ex- parte Baillie 1026 Tommy Dodd Coy. v. Patrick 1020 Watson v. Commercial Bank 1035 Secs.6,7,8,10,116,118. Park Coy. v. South Hustler's Reserve Coy. 1011 Secs.9,118. Clarence United G.M. Coy. v. Goldsmith 1012 Sec. 10. Regina v. Walter 139 Sec. 14. Regina v. Lawlor, Ex parte Lone Hand G.M. Co. ... 1027 Sec. 15. Regina v. Leech, Ex parte Tolstrup 1029 Secs.21,40. M'lver v. Duke Coy. ...1017 Sec. 35. Murphy v. Cotter 1019 Sec. 38. James v. Thompson 1023 Sec. 40. Mogg v. Lord Raglan and St. Arnaud Coy. Sccs.41,43,58. Robertson v. Weddell ... Sec. 48. Secs.52,54. Secs.52-56. Secs.52,90. Sec. 61. 1358 1023 1024 1025 Campbell v. Hassan Newey v. Rutherford 230, Regina v. M'Gregor, Ex parte Wilkinson 1026 Guthridge v. Gippslander Co. 1026 Hasker v. Bride 1039 Garrett v. Creeth 1029 Sec. 66, Sched. 5. United Hand-in-Hand and Band of Hope Coy, v. National Bank Sec. 71. Commercial Bank v. Hope Tribute Coy. Sec. 74. Begina v. Cogdon, Ex parte Hasker Sees. 74-78. Rigby v. Hasker Sees. 89, 197. Macdougall v. Bank of Vic- toria 82,83 Secs.96-99. Regina v. Cogdon, Ex parte Hasker 1037, Sec. 97. Regina v. Trench, Ex parte M'Dougal Sec. 105. Great Northern Coy. v, Maugfean Sec. 112. Tommy Dodd Coy. v. M'Clure Sec. 124. Chun Goon v. Eeform G.M Coy. ... 1014,1020.1021,1026 Sec. 131. Chun Goon v. Reform G.M. Coy 1015, 1024 .. 1034 1029 1030 1030 1038 1037 1038 1028 constitution- Constitution Act, 19 Vict. — Ryall v. Kenealy ... 322,323 Sec. 35. In re Dill 176 Dill v. Murphy 176 Sec. 40. Ryall v. Kenealy .„ ... 178 Sec. 51. Regina v. Ireland 1147 Sec. 54. Attorney-General v. Belson 329 Sees. 60, 61. Kenny v. Chapman 178- Amendment Act, 20 Vict. No. 1 — Sec. 2. Dill v. Murphy ... 176,177 In re Glass 177 Stevenson v. The Queen ... 177 Continuation of Expiring Laws Act, 22 Vict. No. 68— Ryall v. Kenealy ... 322,323 COPYRIGHT ACT 1869 (No. 350)— Sec. 3. Regina v. Radke, Ex parte Dyke ... 208, 1139. 1140- See. 24. Wilson v. Luke ..." 208,209 Sees. 36, 38. Pyrke v. Nettleton 207 Sees. 36, 50. In re Martin, Ex parte Equit- able Life Assurance Coy. 207, 208 Sec. 55. Shepherd v. Patent Composi- tion Pavement Coy. 248, 1140, 1141 CORONER'S STATUTE 1865 (No. 253)— Sec. 4. Casey v. Candler ... 209,1423 county court- act 21 Vict. No. 29 (repealed and re- enacted by Act No. 345) — Ex parte Robinson 267 Sec. 3. Flower v. Jackson 249 Sec. 68. Broadfoot v. Wilson... 270,271 Cooke v. Coward 271 County Court Act No. 261, (repealed by Act No, 345)— Sees. 2, 4. Greville v. Smith 252 Sec. 62. Wrixonv. Deehan 252 Sec. 262. Hancock v. Emmett ... 259 County Couet Act No. 282 (repealed by Act No. 345)— Sec. 2. Regina v. Pohlman 251 County Court Statute 1869 (No. 345)— Sec. 5. Chapman v. Scheidmayer ... 249 Green v. Lewis 250- Sees. 18, 120. Aarons v. Lewis ... 269, 270 Sec. 22. Bishop v. Woinarski ... 260 Sec. 32. Solomons v. Mulcahy ... 262 . Sees. 35, 56. Regina v. Cope, ex parte Huthnance ... 256 Sees. 35, 68. Giffard v. Unity G.M. Coy. 254 Sec. 38. Rowe v. Thompson 260" Sees. 38, 120. Thompson v. Rowe ... 276 Sec. 39. Nicholson v. Plumpton 251, 252. Sees. 39, 47. Cavanagh v. Sach 250. Sec. 41. Pearce v. Thomas ... ... 242 Crooke v. Smith 264 Randall v. Smith ... ." 276- Sec. 42. Nixon v. Milton ... 262 Sec. 43. Reeve v. Tu thill ... ..'. 243 Stevens v. Mayor of Essen- _ , don 262, 263 Robertson v. Brown 263 Wite v. Brodie ... "' 263 Taylor v. Port ... 263, 264 Ixxxv INDEX OF REFERENCES TO THE STATUTES. ' Ixxxvi ■County Court Statute 1869 continued— col. Sec. 44. Gerard v. Kreitmayer . . . 241 Buzolieh v. Fletcher 264 Sec. 45. Gerard v. Kreitmayer ... 264 Sec. 47. Jensen v. Hagan 251 Waxman v. M'Auliffe ... 251 Sec. 54. M'Ewan v. Dynon 257 Coote v. Gillespie 257 Sees. 56, 93. Allison v. M'Oandlish ... 1209 Sec. 58. Weigall v. Gaston 256 .Sees. 58, 78. Powers v. Pairbairn 259 Sec. 70. Creek v. Newlands 258 Sec. 71. Bruce v.Hart 252 Sees. 72, 73, 74. Mason v. Ryan 254 Sec. 77. itegina v. Cope, Ex parte Rawson ... ... ... 252 Regina v. Cope, Ex parte Smillie 260 Sec. 78. Dobson v. Sinclair 258 Ferguson v. Sparling . . . 258 Sec. 83. Henry v. Greening 261 Sees. 83, 84. Regina v. Cope, Ex parte Fraser 253 Secs.83,90,120. Regina v. Pohlman, Ex parte Thomson 882 Sec. 89. Rowbottoin v. Hennelly 253, 254 Sees. 89, 120. Rowbottom v. Hennelly ... 265 See. 93. Barfold Estate G.M. Coy. v. Davies ... ... ... 157 In re Kellacky 585 Commercial Bank v. Hope Tribute Coy 1029 Sec. 97. Marie v.Hogan 1282 Sec. 100. Boyle v. Carolin ... 247,248 Cunningham v. Gundry ... 248 Lee v. Andrews 248 Darcy v.Ryan ... 248,249 Andrew v. Figg 249 Sees. 100, 101. 108, 110- Shepherd v. Patent Pavement Composition Coy. ... 247 Sec. 103. Andrew v. Figg 263 Sec. 119. Knipe v. Belson 257 Sec. 120. Barnard v. Mann 264 Bullen v. Hooper 264 Sheehan v. Park 265 Thompson v. Andrew . . . 265 Shepherd v. Patent Composi- tion Coy. ... 265,266 Jensen v. Hagan 266 Kavanagh v. Haynes ... 266 Black v. Permewan 266 Murray v. Dabb 267 Lucas v. Murray 268 Thompson v. Rowe 268 Carroll v. M'Gregor... 268, 269 Playford v. Brown 269 Fletcher v. Buzolieh 270 Martin v. Elsasser 271 Mason v. Ryan 272 Regina v. Hackett, Ex parte Goodson 272, 273 Corbett v. Bachelor 274 Dobson v. Sinclair 274 Sec. 121. Regina v. Bindon, Ex parte Cairns 127 See. 122. Porter v. Leviathan Coy. ...1027 CRIMINAL LAW AND PRACTICE STATUTE 1864 (No. 233)— Reg. v. Mount and Morris 317,318 Sec. 34. Regina v. Hustleyand Walsh 1113 Criminal Law, &c, Statute 1864 cont. — col. Sec. 38. Morrison v. Clarke 753 Sec. 50. Regina v. Taylor 284 Sec. 52. Regina v. West 284 Sec. 58. Regina v. O'Connor 302 See. 104. Regina v. Davies ... ... 296 Sec. 107. Itegina v. Davies ... 297,298 Sec. 111. Regina v. De Theuars 285,286 Sec. 139. Regina v. Cantlon 289 Regina v. Turner 292 See. 141. Regina v. O'Ferrall 289 Sec. 143. Regina v. Spencer 291 Regina v. Watson ... ..; 291 Sec. 178. Regina v.Guthridge and Bren- nan, Ex parte Campbell 746 Williams v. Olauscen 746, 747 Daniel v. Rowbotham 746, 747 Sec. 178. Trotman v. Shankland ... 1113 Sec. 194. Regina v. Puckle, Ex parte White 1113 Sec. 204. Regina v. Maund 300 Sec. 227. Pvegina v. Kitts ... 294, 295 Regina v. Wright 295 Sec. 271. Regina v. Mungovan ... 303 Sec. 298. Regina v. Desmond ... ... 315 Sec. 369. Regina v. Longmuir . . . 285 Sec. 389. Regina v. Prendergast ... 309 Regina v. Brown 313 Regina v. Whelan 320 Kegina v. Mount and Morris 321 See. 390. Regina v. Duffy 321 Regina v. Herbert 278 Regina v. Murphy 299 Sec. 399. Regina v. Clarke, alias Bon- neira 1142 Criminal Law Amendment Act 1869 (No. 343)— Regina v. Gallagher 303 Seel. Regina v. Thornton 305 Sec. 3. Regina v. Hickey 304 Amendment Act 1871 (No. 399) — Sec. 23. Regina v. Guthridge and Brennan, Ex parte Camp- bell 746 Williams v. Clauscen 746, 747 Daniel v. Rowbotham 746, 747 Sec. 33. Purcell v. Nimmo ... 753, 1117 Criminals Influx Statute (18 Vict. No. 3)— Ryall v. Kenealy ... 322,323 CROWN REMEDIES AND LIABILITIES— Act 21 Vict. No. 49— Mayor of Melbourne v. The Queen ... 184, 185, 327 Lorimer v. The Queen ... 1283 Crown Remedies and Liabilities Statute 1865 (No. 241)— Davies v. The Queen ... .34 Mayor of Melbourne v. The Queen ... 184, 185, 327 Regina v. Griffiths 324 Shire of Ballan v. The Queen 325, 326 Coldham v. The Queen ... 1286 Sec. 2. Regina v. Dallimore ... 327 Sec. 18. Regina v. Hull & Trevarrow 1279 Sec. 20. Sargood v. The Queen 325, 1283 lxxxvii INDEX OF REFERENCES TO THE STATUTES. Ixxxviii Crown - Remedies, &c, Statute cont. — col. Sees. 20, 27. Stevenson v. The Queen ... 325 Sec. 25. Alcock v. Fergie 327 Sec. 27/ Simson v. The Queen ... 324 Kettle v. The Queen ... 324 Ettershank v. The QueeE. 328, 792, 793, 794 Hitehins v. The Queen 375, 948 City of Melbourne G.M. Coy. v. The Queen ... 325, 951 Merry v. The Queen . . . 326 CUSTOMS AND EXCISE— Customs Act 1857 (No. 13)— Sec. 21. Sargood v. The Queen 325, 1283 Sees. 34, 165. Davis v. Sprent ... 1283, 1284 Sec. 223. Regina v. Call, Ex parte Cal- laghan 1284 Sec. 237. Stevenson v. Ty lor 10 Act 18 Vict., No. 9— Sec. 4. Regina v. Bright ... 1325 Customs Amendment Act, 25 Vict. No. 144 — Sec. 3. Lorimer v. The Queen ...1283 Customs Amendment Act, No. 306 — Sec. 13. Eegina v. Call, Ex parteCal- laghan 1284 Customs (Distillation) Act 1862 (No. 147)— Sec. 113. Ryan v.Moody 1283 Sec. 143. Reg. v. Walsh, Ex parte Pendreigh 834 43 Vict. No. 646— Shawv. Howden 1284 DEBTORS' acts- Imprisonment foe Debt Act 1865 (No. 284) — Ex parte Keith 347 Regina v. Cookson, Ex parte Collins 347 Regina v. Jones, Ex parte De Portue 347 M'Kean v. Kavanagh 348, 349 Sec. 2. Ex parte Aplin 346 In re Devaney 348 Sees. 2,3. Regina v. Pritchard, Ex parte Smart 346 O'Donohue v. Hamilton . . . 348 Sec. 3. In re Levy 348 In re Williams 349 In re Geary 658 Regina v. Bannerman, Ex parte Shiels 349 Regina v. Tacke, Ex parte Watson 349 Regina v. Hardware, Ex parte Smith 350 Sec. 5, Subsec. 3. In re Gawne 349 Sec. 9. Regina v. Harker 346 Regina v. Shelley, Ex parte Jones 347 Smith v. Manby 346 Amendment Act 1865 (No. 292) — In re Devaney 348 Sec. 2. In re Sandilands, Ex parte Browne 64 DISCIPLINE ACT 1870 (No. 389)— Sees. 2, 4. In re Hayes 56, 57, 556 Sees, 3, 5. Regina v. Sturt, Ex parte Johnson 57 COL. DISEASES OP ANIMALS— Pleuro-Pneumonia Act, No. 136 — Stick v. Hudson 25 Scab Act 1862 (No. 143)— Sec. 5. M'Crae v. Woodward ... 25 Scab Act 1864 (No. 231)— Sees. 3, 15. Riley v.Gray 25 Sec. 22. Spurring v. Macartney ... 26 Scab Act 1870 (No. 370)— Sec. 15. Flower v. Stephen 26 Sees. 25, 26. Stirling v. Collins 27 Sec. 29. M 'William v. M 'Coll ... 27 Sec. 30. Jones v. Stephen 27 Sec. 33. Kerr v. M'William 27 Sec. 47. M'Kenzie v. Coutts 26 Sec. 49. Regina v. Puckle, Ex parte M'Intosh 27 Sec. 67. Stirling v. Little 27 Matthews v. Ellegett ... 28 379 28 753 753 DISTRESS ACT, 15 Vict. No. 4— Sec. 1. Harker v. Bar wick ... DOG ACT 1864 (No. 229)— Sees. 3, 9. Skene v. Allen Sec. 15. Hazelhurst v. Kerr . . . Sec. 16. Ex parte Hilliard ... DOWER ACT, see post under Transfer of Land. DUTIES ON ESTATES OF DECEASED PERSONS ACT 1870 (No. 388)— In the Will qf Moffatt ... 390 InreQuinlan 391 In re Williamson 1458 Sees. 2, 7, 12, 13, 24. Regina v. Smith ... 392 Sec. 3. In re Powell 391 Sees. 3, 24. In the Estate of Kershaw ... 390 Sees. 5, 9. In re Bell • 393. Sec. 7. In the Estates of Rutherford and Aird 393 Sec. 7, Subsec. ii. In the Estate of Mater 391 Blackwood v. The Queen 391, 392 Sec. 7, Subsecs. ii., v., viii. Regina v. Wil- liamson ... 391 Sees. 8, 24. In the Estate of Henty ... 390 Sec. 10. In the Will of Howie ... 392 In re Bell 390,391 Sees. 10, 13, 23, 24. Graham v. Graham 393 Sec. 24. In re Hamilton 389 Sec. 8. In the Will of Willsmore ... 389 Armytage v. Wilkinson 389, 390 Amending Act 1871 (No. 403)— In re Hamilton Amending Act 1876 (No. 523)— In re Bell 389 ... 390, 391 education- Common Schools Act, No. 149— Sec. 2. Geary v. The Queen 134 Sec. 6,(iv.) In re Board of Education, Ex parte Stevenson 885 86 . Sec. 10. Burke v. Board of Education 96 Sec. 14. O'Dowd v. Doherty 96 lxxxix INDEX OF REFERENCES TO THE STATUTES. _ UOlu JiDCCATioN Act 1872 Amendment Act 1876 (No. 541)— Sec. 8. Regina v. Learmonth, Ex parte M 'Kay 396 equity practice- act 13 Vict. No. 31— Colley v. Colley Sec. 1. Duhig v. Shannon ... 1196 ... 1197 Equity Pbactice Statute 1865 (No. 242)— Sec. 3. Rhind v. Clarke ... ... 1197 Allan v. Wilkie 1198 Sec. 4. House v. Campbell 1199 Sec. 7. Slack v. Winder 578 evidence- act 24 Vict. No. 100— Regina v. Neddy Monkey .. Sec. 37. Eastwood v. Bullock 311 423 Statute of Evidence 1864 (No. 197) — Sees. 7, 8, 10. In re Wharton, Ex parte Smith 7 Sec. 8. Wolfe v.Hart 421 Sec. 4. Merry v. The Queen ... 419 Hattv. Hatt 420 Sec. 12. National Assurance Coy, of S.A. v. Halfey 427 Sec. 18. Regina v. Nathan ... 313,314 Sec. 19. White v. Hoddle ... 374,375 Learmonth v. Bailey 1161, 1162 Sees. 20, 25. In re Portch 716,717 Sec. 25. Jones v. Falvey ... 423,424 Sec. 26. M'Dowellv. Myles ... 483, 791 Tomkins v. Fleming 791 Sec. 29. Harrison v. Smith 422 Regina v. Ryan 422 Sec. 34. Regina v. Mollison, Ex parte Warne 427 Sec. 37. Regina v. Mungovan ... 303 Sec. 44. Mack v. Murray 432 Sec. 45. In re Aarons 716 Sec. 54. Teague v. Farrell 428 Walker v. Jenkins 1034 FELONY (Abolition of Forfeiture) No. 627— Sees. 6, 8, 9, 11, 17. Mitchell v. M'Dou- gall ... 456, 457 FENCES STATUTE 1874 (No. 479)— O'Shea v. Darcy 457 Sec. 4. Regina v. Hutchinson, Ex parte Jessell 458 Sec. 7. Regina v. Heron, Ex parte Mulder 458 Sec. 8. Ex parte Ryan ... 457,458 v. Kerr, Ex parte Palmer 773 FISHERIES ACT 1873 (No. 473)- Sec. 34. Ex parte Tobias 458, 459 FRIENDLY SOCIETIES STATUTE 1865 (No. 254)— Sees. 4(vii.), 16. Colonial Bank v. Draper 481 Sec. 16. Wilkie v. Wright 480 King v. Fulton 481 Secs.24,27,36. Eastwood v. Scott 480 Sec. 31. Hunter v. Barnes 479 M'Ewan v. Blair .',. 479,480 Friendly Societies Statute 1865 emit. — col. Sec. 36. Regina v. Call 479 Darton v. Knight 479 FRIENDLY SOCIETIES ACT 1877 (No. 590)— Sec.l8,Subsec.viii. Jones v. Milne ... 481 Francis v. M'Donald 481, 482 GAOLS STATUTE 1864 (No. 219)— Regina v. Mount and Morris 316 GUNPOWDER STATUTE 1864 (No. 196)— Sec. 18. Barclay v. Mollison ... 491, 492 Dobson v. Lyons 492 HAWKERS AND PEDLERS STATUTE 1865 (No. 281)— Hanson v. Tweedale... .. 495 HEALTH (PUBLIC)— Health Statute 1865 (No. 264) — Secs.38,39,40. Fullerton v. Weedow ... 498 Sec. 39. Fullerton v. Bergin 498 Health Statute 1865 Amendment Act 1867 (No. 310)— Sees. 15, 47. Gurner v. Municipal Council of St. Kilda 495 Sec. 32. Cruikshank v. Kitchen 498, 1104 Regina v. Marsden, Ex parte Corbett 498,499,775 Regina v. M'Meikan ... 1104 See. 38. Regina v. Lloyd, Ex parte Godfrey 497 Sec. 47. Woolcott v. Richmond Local Board of Health 495 Harding v. Local Board of Health of Geelong West 496 Secs.47,52. Regina v. Woods, Ex parte Emmott 496 Secs.47,57,59. Regina v. Clark, Ex parte Gunst 496 Secs.47,62. In re Day, Ex parte Kingston 497 Fitzroy Local Board v. Howell 498 Regina v. St. Kilda Local Board, Exp. Lamborn... 498 Sees. 47,62,63. Regina v. Templeton, Ex parte Peck ... 496. 497 Sec. 48. Regina v. Pohlman ... 497,1302 Amendment Act 1883 (No. 782) — Sec. 131. Regina v. Alley, Ex parte Clauscen 496 HOSPITALS AND CHARITABLE IN- STITUTIONS STATUTE 1864 (No. 220)— Secs.5,6,10. Gummow v. Swan Hill Dis- trict Hospital 499 Sec. 11. Logan v. Hocking ... 499, 500 INEBRIATES ACT 1872 (No. 449)— Sec. 4. Ex parte Burt 551 Sec. 7. Langley v. M'Carthy ... 1423 INSOLVENCY— 5 Vict. No. 9— Goodman v. M'Callum ... 630 In re Lawrance ... ... 622 INDEX OP REFERENCES TO THE STATUTES. Insolvent Act 5 Vict. No. 9 cont. — col. Sec. 29. Aarons v. Board of Land and Works 624 Sec. 33. In re Wooley 622 Sec. 37. Tuokett v. Alexander ... 623 Secs.33,34,36. Hermann v. French .., 411 Insolvent Act, 5 Vict. No. 17— In re Mahbny 474 Australian Trust Coy. v. Webster 12,653,654 Ex parte Bank of Australasia In re Rutledge 579 Secs.2,11,33,53,54. Solly v. Atkinson ... 654 Sec. 3. Laing v. Campbell ... ... 65 Sec. 5. In re Fox 589 In re Smith 589 Ex parte Staughton... 589,590 Ex parte White 590 In re Morgan 590 Sees. 5,6,8. Goodman v. M'Callum ... 630 Sec. 6. Downie v. Graham 474 Sec. 7. In re Coates 473 In re Rogers 476,478 Ex parte Wright, In re Mahoney 476 In re Mahoney 682 Sec. 8. Younghusband v. Courtney 629 Anderson v. Jaconib 630, 635 Courtney v. Wilson 631 Sec. 15. In re Oliver 604 Sec. 25. In re Fox 609,610 In re Trevarrow 619 Inre Smith 610 In re Newbigging ... ... 610 Sec. 26. InreKeighran 613 In re M 'Murray 614 Sec. 28. InreButchart 620 Ex parte White ... 620, 621 Ex parte Staughton ... 620 Sec. 31. Fairbairn v. Clarke 653 Secs.36,38. In re Burton 658 Sec. 37. In re Pasco 666,667 Sec. 39. Ex parte Flower, Salting and Coy '.. 598,665,666 Ex parte Knox, In re Rut- ledge 660 Laing v. Laidlaw 663 Rolfe and Bank of Austra- lasia v. Flower, Salting and Coy. 666 Sec. 41. In re Brown 664 Sec. 51. In re Von der Heyde ... 624 Ex parte Bank of Australasia InreRutledge ... ' 643, 644 Ex parte Bank of Australasia, In re Flower 644 Sec. 53. Ex parte Bank of Australasia, In re Flower 635 Shawv. Salter 641 Secs.56,59. In re Harper 645,646 In re Yorston and Webster. . . 647 Sec. 57. In re Rucker 639 Sec. 58. In re Bryan, Ex parte Moore 638 Sec. 61. Ex parte Bank of Australasia, In re Rutledge 647, 648 Secs.65,66. InreBabtie 688 Sec. 73. Regina v. Wallis 672 In re Thomas ... 671,672 Sec. 84. Ex parte Gessner 666 Sec. 86. In re Brown 640 In re Turpin 704 In re Perry 704 Insolvent Act 5 Vict. No. 17 cont. — col. In re Rowland 705 In re Motherwell 705 InreSchlieff 710 Secs.87,90. In re Miller 648 E x parte Bank of Australasia, In re Kutledge ... 649 Sec. 100. In re Bateman 652 Act 6 Vict., No. 67— Sec. 67. Goodman v. Mayor of Mel- bourne ... 1257 Act 7 Vict., No. 12 — Sec. 8. In re Hall 622 Act 7 Vict., No. 19— In re Mahony 474 Arthur v. Moore 1444 Sec. 8. In re Lawrance ... ... 622 Sec. 9. Arthur v. Moore ... 404, 405 Sec. 12. In re Bryan, Ex parte Moore 638 In re Bowman 639 Sec. 15. In re Stephenson ... ... 608 In re Gherson 609 Sec. 17. InreBabtie 688 In re Tyrer ... ... ... 689 In re Klein 701 Sees. 17, 18. In re Christie 703 In re Rutledge & Coy. ... 688 Sec. 18. In re Perry 684,685 In re Brebner... 687 In re Hewitt 690 In re Davies ... 677 In re Handasyde 681, 682, 686 In re Tyrer 679 In re Christophers . . ... 684 Sees. 18, 19. In re Handasyde 679 In re Pogonowski . . . 678, 679 Sec. 20. In re Greenlaw 714 In re Klein 714 In re Wilson 714 Act 18 Vict., No. 11— Ex parte Eolfe and Bailey, In re Rutledge 579 In re Barclay 580 In re Calhoun 579 Insolvency Statute 1865 (No. 273) — In re Upton and Bowes 625, 626 Toohey v. Steains 477 In re Barclay 580 In re Barfold Estate G.M. Coy 981 Regina v. Skinner, Ex parte Smith 981 Sec. 13. In re Johnston 588 InreDrysdale ... 590,591 In re M 'Donald 591 In re Kerr and Gray ... 595 In re Murray 601 InreM'Kinnon 605 Sees. 14, 15, 16. In re Lecky 584 See. 16. InrePhelan 604,608 In re Sandars 604 Sec. 17. In re Kingsland 617 See. 20. In re Mackinnon ... 602,603 Sec. 25. Regina v. Board of Land and Works 790 Sees. 27, 71. Melbourne Banking Corpora- tion v. Brougham ... 642 Sec. 31. Douglas v. Simson ... 631,632 Sheldrick v. Aitken 632 Sec. 37. Proudfoot v. Mackenzie ... 656 1.40,41,42. InreFalla 706 INDEX OF REFERENCES TO THE STATUTES. XC1V Sees. 42, 43. Secs.42,130. Sec. 43. See. 87. Sec. 101. Sec. 102. Sec. 103. Insolvency Statute 1865 continued— col. Sec. 42. InreBarwick ... 703,704 In re Scallan 704 In re Leete 707 In re Scallan 707, 708 In re Kncebel 705 Johnson v. Kelly ... 708,709 Sees. 62, 118. InreVonder Heyde ... 624 Sec. 81. In re Kingsland ... 663,664 In re Ireland 644, 709 In re Cunningham 667 In re Marshall 696 In re Bell 700 In re Bryant 680 In re White 686 InreCobain 686,687 In re Smith 673 In re Usher 702 In re Bowman ... ... 702 Part 13, Sec. 115. In r.e M'Donald 577, 578, 591, 623 In re Upton and Bowes ... 625 Caro v. Devine ... ... 625 Moss v. Levy 626 InreBrann 624,625 In re Knowles ... ... 627 In re Upton and Bowes 625, 626 In re M'Donald 626 In re Dallimore ... ... 706 In re Rogers ... 683 In re Green ... ... ... 710 379)- Sec. Sec. Sec. Sec. 104. 105. 116. 118. Sec. 121. Sec. 129. Sec. 143. Sched. 2. 578, 696, Insolvency Statute 1871 (No, Regina v. Griffiths Douglas v. MTntyre... Sec. 2. In re M'Donald In re Knowles Sees. 3, 132, 134. Regina v. M'Cooey ... Regina v. Johnson and Smith Sees. 5, 37 (vi.). In re Crisp Sees. 6, 7. In re Healey Dallimore v. Oriental Bank... Sees. 7, 126. In re Rowley Sees'. 9, 38. Bank of Australasia v. Porteh Sec. 10. In re Cotton In re Clarton In re Hinneberg Sec. 12. InreDyte In re Goldsmith In re Were In re Murphy In re Dallimore In re Nicol and Payroux In re Mackay In re Ruddock 12,13. In re Porteh 12, 55. In re Mackay In re Cotton ... 154. In re Ah Louey In re Summers, Ex parte Hasker ... Cain v. Allen ... In re Thompson Sees. 17, 147. In re Mulcahy Sees Sees, Sees. 13, 53. Sees. 15, 73, See. 17. Sec. 18. Sec. 19. Sec. 29. Sec. 31. Sees. 31, 43. In re Acock In re Maley . . . In re Summers, Hasker . . . Slack v. Winder In re Maley . . . In re Cooper ... In re Johnson In re Synnot ... In re Wolter . . . Ex parte 324 477 591 627 312 312 583 577 577 653 579 578 713 697 ... 697 697, 715 ... 713 713, 714 ... 715 ... 715 715, 716 ... 716 716, 717 ... 713 ... 640 ... 673 650 649 650 650 649 649 650 578 617 619 607 607 601 Insolvency Statute 1871 continued — col. Part 3. In re Webster 607 Sees. 35, 69, 75, 98, 100. Hasker v. M 'Mil- Ian. See. See. 36. 37. See. 37 (i.) Sees. 643, 657 ... 579 ... 584 ... 585 ... 585 ... 585 ... 605 ... 605 ... 605 ... 598 ... 587 586, 587 ... 587 Regina v. Poole In re H. S. Smith In re Wilson . . . In re Kellacky In re Inglis ... In re Rowley... In re Harward In re M'Namara In re Hodgson In re Ritchie . . . In re Bankier In re Derham In re Vail In re Wiedemann 37 (i.,) 41. In re Thomas and Cowie 37 (i., ii., x.,) 71. In re Wiedemann Sec. 37 (i., x.) In re Haslam Sec. 37 (ii.) Jacomb v. Ross Sec. 37 (ii. and iii.) In re Rickards Sees. 37 (ii., iii., viii.,) 41. In re Martin Sec. 37 (iii.) InreFyson... In re R,ocke Sec. 37 (iv.) In re H. S. Smith See. 37 (vi.) In re Rangan Sees. 37 (vi,.) 47. In re Graham Sec. 37 (viii.) In re Whitesides , In re Hodgson In re Willison In re Fenner In re Hollowood In re Drouhet In re M'Namara In re M 'Conville . . . In re M'Pherson ... In re White In re Cahill In re Clemes and Leach In re Inglis In re Southey In re Webster In re John Smith . . . Hasker v. Moorhead Sees. 37, 39, 47. In re Eastwood Sees. 37, 75, 112. In re Allen ... Sees. 37, 106, 120. In re Farrell... See. 38. In re Porteh In re Fisher In re Counihan M'Donald v. Lloyd ... De Beer v. Desmazures Ex parte M. S. Levy See. 39. In re Ray Sees. 39, 94, 129. Iu re Marie See. 43. In re Synnot . . . See. 44. In re Hang-hi In re Campbell In re Thomson In re O'Connor Sees. 44, 45. In re Hayes In re Adolphe Oppenheimer In re Parsons In re Rickards In re Counihan ... 614,615 In re Mowling and Dunckley 615 In re M'Donald 615 In re Reade 615 In re Ryan 616 In re Morris 616 In re Wolter .. . ... ... 616 Sec. 37 (ix.) Sec. 373 (x.) Sees. 44-46. Sec. 45. 596 596 5S8 587 587 588 589 594 589 589 589 586 581 592 592 592 593 593 593 593 593 594 602 602 594 594 595 595 595 596 596 586 662 ... 580 580, 581 ... 582 ... 581 ... 582 ... 714 619, 652 ... 707 ... 601 ... 611 ... 612 ... 612 ... 612 ... 611 614 613 605 593, 594, 595, 661, INDEX OF REFERENCES TO THE STATUTES. XCVl Insolvency Statute 1871 continued— col. Sees. 45, 110. In re Brown, Stansfield and Coy 665 Sec. 53. InreSnell 662 ■ Sees. 53, 56, 59. In re Mackay ... 640, 641 Sees. 53, 56, 67, 78, 132. In re Mackay 645, 709 Sees. 53, 58, 60. In re Curtayne and Healey ... 641, 642 Sec. 55. In re Mackay 640 Sees. 55, 60. Shiels v. Drysdale ... 639,640 Sec. 57. InreM'Lennan 641 Sec. 60. Regina v. Prendergast ... 639 Sees. 62, 65. England v. Moore 655 Sec. 63. Willet v. Turner 646 Sec. 67. In re Lefebvre 645 In re Lempriere ... ... 645 In re Thomson 645 Sees. 68 (ii,.) 154 (xvi.) In re Aarons ... 671 Sec. 68 (v. ) Board of Land and Works v. Eeroyd 638 Cohen v. Oriental Bank ... 638 Sec. 69. In re Finney 627 Sees- 69, 136. In re Michael 693 Sec. 70. Cohen v. Lintz 637 Smith v. Smith 475, 540, 541 Dallimore v. Oriental Bank 469, 474, 475, 577 Halfeyv. Tait 474 Shiels v. Drysdale 475 Grayv. Faram ... 477,478 In re Healey 577 Sees, 71, 72 (iii. ). In re Maley 632 See. 73. Sartori v. Laby 652 Sec. 74. Oriental Bank v. "Wattle Gully Coy. .. 168, 659 Sec. 74, 75. Lauratet v. M'Cracken 658, 659 Sec. 75. M'Carthy v. Ryan 655 Ex parte Welsh 655 Christie v. Thompson . . . 657 InrePortch 657 Hitchins v. Trimble ... 658 Sees. 95, 112. Christie v. Thomson ... 668 Sec. 76. In re Geary 658 In re Harris 658 In re Davis 658 Sec. 77. Willisonv. Warburton ... 654 Prigg v. Johnstone 655 Sees. 77, 78. Wood v. Gordon 655 Sec. 81. In re Lempriere 645 Sec. 89. In re Sweeney, Ex parte Diggins ... 381, 646, 647 Sec. 90. In re Clarke's Trusts ...1453 In re Trust Estate of Healey 1454 In re Healey 's Estate . . . 1453 Sec. 94. Jn re Jobson 643 In re Marie 643 Sec. 104. In re Jansen 662 Sec. 106. InreBayldon 662 See. 108. In re Sweeney, Ex parte Diggins ... ... 381,664 Officer v. Haynes 381, 664 In re Nicdl and Payroux 381, 382, 665 Davey v. Bank of N.S.W. ... 665 Sec. 112. In re Hyams 665 InreBayldon 667 In re Walker 667 In re Jobson 667 See. 113. In re Murray 668 Sec. 119. In re Morris and M'Murray 669 In re Eraser 669 Sec. 121. In re Bailliere ... .... 706 Sec. 122. In re Dallimore 644 Insolvency Statute 1871 continued — col. Sec. 126. -In re Gray 652,653 In re Rowley ... 653 In re Mundhang 653 Sec. 127. In re Knarston 653 See. 129. Connell v. Carroll 707 In re Blood 707 Sees. 129, 131. Moss v. Williamson 471, 472, 708 Sees. 129, 136. In re Dixon 692 Sees. 129, 140. In re Risk 707 Sees. 129, 151. In re Marie ... ... 597 Hodgson v. M'Caughan ... 708 Sec. 132. In re Longstaff 709 Sees. 132, 133. In re Goldsmith 700 Sees. 132, 133, 135. In re Paterson ... 701 Sec. 133. In re M'Kay and Bell 645, 709, 710, 1347 In re Were 694 Sec. 135. In re Kershaw 698 In re G. J. Johnson 700 Sees. 135, 136. In re Spencer ... 694,695 In re Dixon ... ... 695 In re Murphy 695 See. 136. In re Lefebvre 691 InrePrankel 691 In re Kershaw 692 InreMillikin 692 In re Wright and Higgins 692, 693 In re Crichton 693 In re Monaghan ... ... 693 In re M'Kay 695 In re Wood 695 In re Hearty 695 In re Gale 695,696 In re D wyer ... 696 InreDyte 697 Sec.l38(i.) InreDunphy 674 In re Michael 674 In re Arnold .. . 675 In re D wyer 675 InreM'Donald 675 InreSehlieff 675 In re Monaghan ... ... 676 Sec.l38(i.,iii.,ix.) In re Kershaw ... 674, 675 Sec.l38(iii.) In re Lyon ... ... ... 676 InreM'Grath 677 In re Wright and Higgins . . . 676 Sec.l38(iv.) In re Mathieson ... ... 677 Seo.l38(vii.) In re Oppenheiiner 677 In re Wright and Higgins .. 678 In re Aarons 678 In re Monaghan 678 Sees. 138(viii.,)154(ii.) In re Aarons ... 679 Secs.l38(viii.,)154(iv.) In re Dumphy ... 679 See.l38(x.) In re Mathieson 679 In re Aarons ... ... ... 680 In re Cunningham 681 InreM'Donald ' 681 Sec. 138 (xi.) In re Aarons 683,684 In re Wright and Higgins ... 682 Sec.l38(xi.,xiii.) In re Mathieson ... 686 Sec.l38(xii.) In re Scott 688 In re Martin 685 In re Aarons ... 685 InreCaulfield 699 Sec.l38(xiii.) InreSehlieff 686 See. 139. In re Hearty 689 InreMartiu 689 See. 144. Patterson v. Evans 657 Sec. 146. ReFrankel 693,694 In re Goldsmith . . . 699, 700 InreCaulfield 703 Sec. 147. InreMulcahy 645 XCV11 INDEX OP REFERENCES TO THE STATUTES. Insolvency Statute 1871 continued— col. Sec. 149. In re Maplestone 702 In re Bowman ... ... 702 In re Finlayson 702 In re Guthrie 702 In re Byrnes 702 Sees. 150 (iv., vi.,) 152. In re Bateman 710 Sees. 150, 156. Regina v. Rosenwax ... 671 Sec. 151. England v. Moore 711 In re White 618,711 Sees. 151, 152. In re Dane 710 Sees. 151, 157. In re Marie 618 Sec. 152 (ii.) In re Dane 711 Sec. 154 (ii.) In re Oppenheimer 669,670 See. 154 (iii.) In re Hearty 669 See. 154 (iv.) Regina v. Tempest ... 670 InreDumphy" 670 Sec. 154 (x.) In re Clapham 690 See. 154 (xiii.) In re Clapham 699 Sec. 154 (xiv.) In re Goldsmith 670 Sec. 154 (xv.) Regina v. Morris 670 Sec. 154 (xvi.) In re Stocks ... 670,671 Sec. 156. In re Fishenden 671 Sec. 157. Regina v. Poole 672 Sec. 157 (i.) In re Hearty 672 INSTRUMENTS AND SECURITIES— Liens Act, 17 Vict. No. 16— Sec. 5. Clough v. Laing 840 Act No. 141 — Sec. 2. M'Culloch v. Harfoot 111, 112 Nathan v. Naylor 112 Instruments and Securities Statute 1864 (No. 204)— Parti. Oriental Bank v. Halstead ... 1230 Sec. 19. Goodwin v. Heanchain ... 1228 Sec. 20. Playford v. O'Sullivan ... 99 Sec. 24. Maritime General Credit Coy. v. Christie ... 98, 99 Sees. 33, 34, 35. Golden Lake Coy. v. "Wood ._ 76, 77 Sec. 46. Johnson v. Union Eire Insur- ance Coy. of N.Z. ... 720 Sec. 55. Hardy v. Johnston 1248 Everingham v. Waddell ... 1248 Embling v. M'Ewan ... 1249 Sec. 56. Smith v. Martin ... 22, 112 In re Shaw 104 O'Donnell v. Patchell 109, 112 Hedrich v. Commercial Bank 108, 109 Douglass v. Simpson ... 109 Baird v. Forrest 110 Port v. London Chartered Bank 354 Sees. 56, 57, 63. Simpson v. Luth ... 114 Sees. 56, 63. Wangaratta Brewery Co. v. Betts : 104 Oriental Hotel Coy. v. Thom- son 105, 106 Sec. 57. Gane v. M'Grane 114 Sec. 63. league v. Farrell 105 Part 8. Woolcott v. Kelly 842 Sec. 64, Sched. v. London and Australian Agency Coy . v. Duff 841 Sees. 89, 90. Regina v. Dickson ... 298,299 Secs..95, 99. In re Woods 1156,1157 Sec. 98. Stacpoole v. Glass 718 Pratt v. Williams 1156 In re Mitchell 1157 Instruments,&c, Statute 1864 cont. — col. See. 107. Clarke v. Docheity ... 1464, 1465 Ford v. Young 1466 Buxton v. Bellin 1467 Malmsbury Confluence G.M. Coy. v. Tucker ... ... ] 94 Sees. 107, 108. Renwick v. Riches ... 195- Sec. 108. Malmsbury Confluence Coy. v. Tucker 194 Service v. Walker ... 1289,1290 Amendment Act 1869 (Stock Mortgages) No. 313— Sec. 5. Cave v. Beveridge 843- Secs. 8, 10. Synnot v. Ettershank ... 843 Amending Act 1876 (Bills of Sale) No. Sec. 1. Cohen v.M'Gee 105 Glen v.Abbott ]06 In re Shaw ... 104 Sec. 7. In re Caveat of Mitchison 112, 113 Sec. 13. Bank of N.S.W. v. Jones 110, 111 Black v. Zevenboom 110 Martin v. Blamires 110 Pettit v. Walker 110- Sec. 15. Bruce v. Garnett, In re Riedle 111 Oriental Hotel Coy. v Thom- son . ... 105, 106 Rosel v. Stephens 105 Sees. 15, 16. Howse v. Glowry 106' Amending Act 1878 (Liens on Crops) No. 618— Sec. 4. Powell v. Dawson ... ... 843 INTERPRETATION ACT (21 Viet. No. 22)— Sec. 6. In re Healey ... 735- In re Mahood's Estate ... 735 In re Rickards ... ... 735 Ruby Extended T.M. Coy. v. Woolcott 735- Ex parte Slack, In re Panton 735 In re Thomas and Co wie ... 736 Sec. 8. Regina v. Caddy 736 Regina v. O'Flaherty, Ex parte Winter ... 1114,1115 INTESTATES REAL ESTATE ACT 1864 (No. 230)— Regina v. Shovebottom 1225, 1226, 1250- Regina v. Sandars 1225, 1226, 1250 English v. English 538 In the Real Estate of Moore 1536 Samuel v. The Queen ... 797 In the Real Estate of Wallis 1538- Sec. 3. In Eeal Estate of M'Pherson 1537 Sec. 4. Archibald v. Archibald ... 12 Attorney-General v. M 'Pher- son 11, 12 InreGallogly 1535 In Real Estate of Hood ...1534 In the Freehold Land of King ... 1535- Martin v. Dalton 385 Sees. 4,6. Slack v. Winder 11 Sees. 4, 12. InreGallogly 1531 Sec. 6. Edmondson v. Macan ... 12 In the Goods of Henderson... 1538- Sec. 12. In re P. C. Buckley 1523 In Real Estate of Jackson ... 335 Sec. 21. Cavanagh v. Weigall ... 33a Sees. 21, 22. In re Dixie's Estate 333 INDEX OF REFERENCES TO THE STATUTES. Intestates Real Estate Act continued — col. Sec. 33. Regina v. Halliday 303 Sec. 39. Pratz v. Weigall 333 JUDICATURE ACT 1874 (No. 502)— Sees. 13, 32. In re Marshall 1303 Sec. 15 (vii. ) Regina v. Hynes 1302 (xiii.) Reginav. Herbert 1302 See. 20. Regina v. Martin 307 Sec. 22. Regina v. Trenwith 371 Sec. 23. Reginav. Hall 278 Judicature Act 1883 (Supreme Court,) (No. 761)— .Sees. 8 (iv.,) 64. Long Tunnel G.M. Coy. v. Zimmier 1229 Sec. 8 (v.) Ettershank v. Russell ...1231 ■ Sec. 9(viii.) Ettershank v. Russell 1230, 1275, 1276 Sees. 10, 19. In re Transfer of Land Statute, Ex parte Peck 1227 Sec. 13. In re Husbands and Husbands 53 Regina v. Bailes, Ex parte Pickup 1233 Sec. 22. Coulson v. Campbell ... 240 Fahey v. Ivey ... ... 240 .Sees. 36, 41. Budduck v. Clarke 1232 Sec. 41. Hayes v. Wilson 1229 Sec. 59. Priestly v. Davis 1228 JURIES STATUTE, 21 Vict. No. 19— Sec. 17. Regina v. Costello 741 Juries Statute 1865 (No. 272) — Sec. 17. Regina v. Downey and War- burton 309 Sees. 37, 38. Regina v. Levinger 308 Sec. 38. Regina v. Ah Toon 742 See. 41. Glass v. Martin 742 Amending Act 1872 (No. 445) — Sec. 4. Plummer v. Fletcher ... 1215 JUSTICES OF THE PEACE— Act 5 Will. IV. No. 22— Fenton v. Dry 1147 Act 21 Vict. No. 29— Sec. 28. In re Prince, Ex parte Binge 748 Act 14 Vict. No. 43 — Sees. 12,13. In re Mackenzie 774 Act No. 159— Fenton v. Dry 1147 Sec. 11. Blair v. Municipal Council of Ballarat 763 Regina v. Taylor, Ex parte Lewis 764 M'Cormaokv. Murray ... 766 Peaehment v. Conlon ... 764 Sec. 11. Stirling v. Hamilton ... 765 See. 12. O'Dea v. Clayton 767 Sec. 14. Ex parte Matt 763 Justices of the Peace Statute 1865 (No. 267)— See. 11. Regina v. Lloyd, Ex parte Allen 752 See. 12. Regina v. Brown, Ex parte Sandilands ... ... 760 Regina v. Marsden, Ex parte Corbett 499, 775 See. 13. Jewell v. Young 744 Reginav. Ford 744 Eegina v. Lloj'd, Ex parte Godfrey 744 Justices of the Peace Statute cont. — col. Secs.26,69. Regina v. Call, Ex parte Clarson 756 See. 27. Begina v. Desmond 315 Sec. 37. Regina v. Lloyd, Ex parte Munce 456 Sec. 39. Casey v. Candler ... ,209,1423 Regina v. Mollison, Ex parte Faussett 1336 Sec. 41. Begina v. Lloyd 749 Begina v. Clarkson, Ex parte Hay lock ... 749,750 Laven v. Flower 750 Begina v. Charles 750 Sees. 41, 44. Begina v. Mollison, Ex parte Warne 751 Sees. 41, 47, 48. Wynne v. Barnard ... 751 See. 44. Begina v. Morgan, Ex parte Dehnert 751 Begina v. Cahill, Ex parte Patten 751 Reginav. Daly 751 Ex parte Victor 751 Sec. 50. Regina v. Barry, Ex parte O'Connor ' 834 Sec. 51. Begina v. Wells 748 Mountford v. Patton ... 748 Regina v . Webster, Ex parte Prentice 748 Regina v. Panton, Ex parte Sutterby 748,749 Ex parte Forsman 749 Mayor of Sandhurst v. Broderiek 1267 Sec. 57. Graham v. Haig 755 Sec. 63. Begina v. Call, Ex parte Murphy 754, 755 Sees. 64, 65. Begina v. Carr, Ex parte AhYing 758 Sec. 67. Regina v. Koch, Ex parte Wilks 755, 756 Sec. 69. Pyrke v. Nettleton 756 Regina v. Cogdon, Ex parte Wilkinson 757 Ex parte Forsman ... ... 757 Regina v. Wharton, Ex parte Brilly 757 Sees. 69, 70. Reeves v. Forbes 756 Begina v. Cogdon, In re Sistron 757 See. 73. Ogier v. Ballarat Pyrites Coy. 161, 758, 1027 Regina v. Mollison, Ex parte Borough of Sandridge . . . 757 Sec. 73. Regina v. Turnley, Ex parte Gleeson 758 Guthridge v. Gippslander Coy 758 Reginav. Carr 1267 Begina v. M 'Gregor, Ex parte Wilkinson 758 Regina v. Moore, Ex parte Duncan ... 1110 Sec. 80. Reginav. Hay ... 311,312 See. 88. Regina v. Smythe, Ex parte Godfrey 758 Sec. 101. In re Davis 759,760 Sec. 106. Regina v. Templeton, Ex parte Peck 778 Sees. 106, 136. In re Lewis 778 Sec. 107. Regina v. Skinner ... 407,783 Regina v. Trench, Ex parte Chambers 407 INDEX OF REFERENCES TO THE STATUTES. Justices of the Peace Statute 186S cont. — col. Sees. Ill, 125. Regina v. M'Cormick, Ex parte M'Monigle ... 761 Sec. 114. In re Bishop 763 Sec. 115. Regina v. Daly 763 Sec. 117. Barry v. Dolan 763 Warr v. Templeton ... 760, 761 Regina v. Bradshaw, Ex parte Berry 761 Sec. 118. Reeves v. M 'Guinness ... 382 Sec. 121. Cousens v. M'Gee 733 Sec. 122. InreMaver 761 Sec. 123. Regina v. M'Cormick, Ex parte M'Monigle ... 762 Sec. 127. Regina v. Hodges 762 Sec. 135. Regina v. Pohlman, Ex parte Bagshaw 1301 Sees. 135, 159. Climes United Coy. v. Clunes Boro' Council 1300 Sec. 138. Regina v. Pohlman, Ex parte Nickless 754 Sec. 137. Regina v. Templeton, Ex parte Taylor 836 Sec. 136. Regina v. Carr 772 Regina v. O'Brien 782 Sec. 138. Regina v. Sturt, Ex parte Lalor 754,837 Regina v. Call, Ex parte Miller ... 755 Regina v. Balcombe 755 Regina v. Cogdon, Ex parte Wilkinson 764 Sec. 140. Regina v. Pohlman and Sturt, In re White ... 1299 Sees. 140, 147. Regina v. Justices of Cen- tral Bailiwick, Ex parte Moltine ... 1299 Sec. 143. Regina v. Pohlman 497 Sec. 148. Regina v. Sturt, Ex parte Lloyd 128 Sec. 150. Mayor of Pitzroy v. Colling- wood Gas Coy 764 Lloyd v.Gibb 765 Ross v. Pyke 765 M'Callum v. M'Vean ... 766 Henley v.Hart 766 Kett v. The Queen 766 Moroney v. Purkis 766 Mallett v. Tuff 766 Shaw v. Phillips 770 Bruce v. Garnett, In re Riedle 771 Sec. 151. Anderson v. Luth 766 Powell v. Taylor 766 Perkins v. O'Toole 767 Reynolds v. Reynolds ... 767 Mackenzie v. Mackenzie ... 767 Logan v. Stevens ... ... 767 Wooller v. Carver ... 767,768 Sec. 152. Regina v. Panton, Ex parte O'Connor 769 Regina v. Dixon, Ex parte Richardson 770 Sec. 159. Hunter v. Sherwin 128 Sec. 164. Hunter v. Sherwin 1422 Sees. 164, 170. Smith v. Cogdon 783, 784 Amendment Act 1867 (No. 319) — Sec. 1. Regina v. Call, Ex parte Thomson 749 Wilson v. Crawley 749 Sec. 2. Regina v. Gaunt, Ex parte Vallins 758 Ex parte M'Evoy 759 Regina v. Howitt, Ex parte Walker 759 Amendment Act 1867 continued — col. Sec. 3. Regina v. Puekle, Ex parte M'Intosh 762 Regina v. Templeton, Ex parte Peck 778 Amendment Act 1876 (No. 565) — See. 10. Regina v. Mairs, Ex parte Vansuylen ... ... 769 Regina v. Strutt, Ex parte Constable 978 Sec. ^1. Regina v. Dixon, Ex parte Richardson 770 Regina v. Taylor, Ex parte Lewis 770 Sec. 12. Ex parte Rice 752 Sec. 13. Regina v. Kavanagh, Ex parte Comrie 760 Regina v. Panton, Ex parte Winstone ... 760, 774 Sec. 31. Russell v. Shire of Leigh ...1301 Sec. 36. Batchelder v. Carden ... 130r Amendment Act 1877 (No. 571) (Prohibi- tion) — See. 1. Regina v. Webster, Ex parte Collins 772 Regina v. Panton, Ex parte Winstone 774 Eegina v. Edney, Ex parte Skinner 780 Regina v. Taylor, Ex parte Blain 782 Sees. 1, 2. Regina v. Taylor, Ex parte Hailes , 779 Regina v. Shuter, Ex parte Walker 777 Sees. 1, 4. Regina v. O'Regan, Ex parte Kane ... ... ... 778 Regina v. Gutheridge and Brennan, Ex parteCamp- bell 780 See. 2. Regina v. Panton, Ex parte Winstone ... ... 774 Regina v. Panton, Ex parte Shea 774 Regina v. Grover, Ex parte Parsons 774 Regina v. Burroughs, Ex parte Blackwell ... 781 Sees. 2, 4. Regina v. Gleeson, Ex parte Reggiani 777 Sec. 4. Regina v. Snowball, Ex parte Gawne ... 773 Regina v. Tope, Ex parte Smith 773 Regina v. Kerr, Ex parte Palmer 773 Regina v. Bradshaw, Ex parte Berry 773 Regina v. Pickles, Ex parte Fickel 773, 779 Regina v. Cavanagh, Ex parte Comrie 773 Regina v. Justices at Rich- mond, Ex parte Edlin ... 776 Regina v. Rothery, Ex parte Mogg 776 Regina v. Carroll, Ex parte Coe 777 Regina v. Browne, Ex parte Sandilands ... 777,779 Regina v. Littleton, Ex parte Kirk 777, 780 INDEX OF REFERENCES TO THE STATUTES. civ Amendment Act 1877 continued — col. Bx parte Freeman 779 Regina v. Benson, Ex parte Tubby 779 Regina v. Grover, Ex parte Parsons 779 llegina v. May, Ex parte M'Gee 779 Regina v. Bayne, Ex parte Mau 781 Regina v. Broderiok, Ex parte M'Millan 781 Regina v. Deely, Ex parte Wilson ... 781 Regina v. Armstrong, Ex parte M'Pherson ... 781 Regina v. M'Kenzie, Ex parte Balloch 781 Regina v. Pritchard, Ex parte Smart 782 LAND ACTS- SALE of Crown Land Act (No. 117)— In re Clow ' ... 135 Sees. 44, 45. Adair v. Simson 795 Sec. 68. Fen ton v. Skinner 788 Sees. 71, 80, 98, 107, 121. Regina v. Dallimore . . . 328, 801 Land Act 1862 (No. 145)— Regina v. Dallimore ... 328, 329 Simson v. The Queen ... 324 Adair v. Simson 795 See. 6. Mayor of Melbourne v. The Queen 184, 185 Sec, 11. M'Cahill v. Henty 800 Sees. 21, 32, 36, 126. Ettershank v. The Queen 792, 793, 794 Glass v. The Queen 792, 793, 794 Sec. 22. Samuel v. The Queen ... 797 •Sees. 22, 23, 24. Robertson v. The Queen 797 Sec. 23. Simson v. The Queen ... 785 Raleigh v. Glover 786 Secs.23,24. Glass v. Fowler 786 Raleigh v. M'Grath 787 Sees. 23, 36, 126. Glass v. The Queen ... 796 Sees. 26, 31, 125, Sehed. II. Regina v. Taylor 802 Sees. 29-32. Ex parte Briggs ... 803,804 Ex parte Taylor ... 803,804 Sees. 36,126. Winter v. The Queen 796,797 Winter v. The Attorney- General 797 See. 46. Kennedy v. The Queen 485, 787 1350, 1351 Sees. 68, 122, 129. Douglass v. Reynolds 1153 See. 78. Toe v.Day 804 Mayor of Melbourne v. The Queen 804 Sees. 83, 86, 91. In re Land Act 1862 and Kelsall & Forlonge 804 Sec. 123. Taylor v. The Queen ... 802 Proctor v. The Queen ... 802 Sec. 126. Kettle v. The Queen ... 786 Nash v. The Queen... 795, 796 Land Act 1865 (No. 237)— Regina v. Mungovan Kettle v. The Queen Glass v. Fowler Sec. 7. Raleigh v. M'Grath... .. 303 .. 786 .. 786 .. 787 Winter v. The Queen 796, 797 Winter v. Attorney-General 797 Land Act 1865 continued— col. Sees. 7, 13, 14. Ettershankv. The Queen; Glass v. The Queen ... 792 793, 794 Sees. 10, 14, 21. Russell v. Parkinson 787, 795 Sees. 12-15, 22. Cahill v. Henty ... 800 Sees. 13, 14, 15. Tozer v. Somerville ... 799 Sees. 14, 15, 22. Mars v. Bohan ... 797, 798 Sec. 15. M'Dowall v. Myles ... 483,791 Tomkins v. Fleming 791 Porteous v. Oddie ... 798,799 Sees. 15,22. M'Nieholl v. Ferguson ... 798 Sec. 22. Regina v. Board of Land and Works ... 58, 59, 790,. 791 M'Kinnon v. Board of Land and Works 116 Miller v. Moresey 790 Sec. 41. O'Shanassy v. Littlewood 804, 805 Sec. 42. Darcy v. Ryan 800 In the Will of M'Losky ... 1499 Alma Consols v. Alma Con- sols Extended Coy. ... 957 See. 47. Simson v. The Queen ... 785 Sec. 48. Geoghegan v. Talbot ... 1149 Goldsbrough v. Fletcher ... 1154 Land Act 1869 (No. 360)— M'Leod v. M'Pherson 535, 542 i. 2, 98. Nash v. The Queen ... 795, 796 4, 17, 19, 100, 110. Ryan v. The Queen 787, 788 Sees. 4, 93. Regina v. Hare, Ex parte Young 332, 1462 Sees. 19,20. Allan v. M'Intyre 1155 Sees. 19, 20, 21. Pyle v. Taylor 800 Sees. 19, 21, 22. Evans v. The Queen ... 787 Sec. 20. Chambers v. Chambers ... 799 See. 20 (v.). Evans v. The Queen ... 789 Russell v. Parkinson ... 795 In re Transfer of Land Sta- tute, Ex parte Ellison ... 791 Sees. 20,21. Wisbey v. Churchman 800,1125 Sees. 20, 110. In re Transfer of Land Sta- tute, Ex parte Bond ... 791 See. 21. Commercial Bank v. Carson 801 Chambers v. Chambers ... 799 Lorenz v . Heffernan. . . 799, 800 Howatt v. Herriek 801 Plant v. Johnson 801 See. 22. Evans v. The Queen ... 789 Sec. 23. Broadbent v. Hornbrook 332, 752 Bloomfield v. Macan ... 792 See. 30. Rutherford v. Haywood 1419,1420 Sec. 31. Alma Consols Coy. v. Alma Extended Coy 957 See. 38. Mayor of Melbourne v. The Queen 804, 1493 Sec. 45. Brooks v. The Queen 395,789,790 Sec. 47. Regina v. O'Ferrall 289 Coutts v. Jay 789 Part IV. Regina v. Carr, Ex parte Sanderson 1155 Sec. 93. M'Lean v. Wearn 802 M'Can v. Quinlan 788, 802, 803 Sec. 94. Potter v. Wilkins ... 331, 803 Bell v. Wade 331, 803 Turnbull v. Kelly ... 331,803 Regina v. Mollison, Ex parte _ R eed 803 Regina v. Rodd, Ex parte Bueknall 803 Rotherly v. Patterson ... 803 Sec. 93. Glass v. The Queen 796 Winter v. The Queen 796, 797 INDEX OF REFERENCES TO THE STATUTES. cvi Land Act 1869 continued — col. Winter v. Attorney-General 797 Sec. 100. Regina v. Kothery, Ex parte Mogg 795 Sec. 101. Thorburn v. Buchanan 791, 792 Eegina v. Rothery, Ex parte Mogg 483 Att. -General v. Ettershank 792 Ettershank v. The Queen ... 792 LANDLORD AND TENANT STATUTE 1864 (No. 192)— Sec. 15. Gutheil v. Delaney 722 Sec. 55. Heaney v. Harper 382 Sec. 66. Regina v. Ellis, Ex parte O'Brien 820 Sec. 72. Nichol v. Brasher : 384 Sec. 73. Field v. Howlett 547, 548, 1282 Sec. 81. Molloy v. Dolphin 380 Sec. 84. Stewart v. Pishley ... 383,384 Sec. 90. Reginav. Snowball, Ex parte Gawne 773 Kennedy v. Miller 811 Eegina v. Sutcliffe, Ex parte Brooks 812 Secs.90,91. Eegina v. Puckle, Ex parte M'Callum 811 M'Callum v. M'Vean ... 811 Holmes v. North ... ... 401 Secs.90,91,96. Hunter v. Smith 819 Secs.90,91, 97. In re Smith, Ex parte Hunter 812 Sees. 90, 93. Andrews v. Daish 812 Sees. 90, 97. Eegina v. Cleveland, Ex parte Edwards 811, 812 Sec, 91. Eegina v. Panton, Ex parte Hendy 812, 813 Sec. 91. Eegina v. Snowball, Ex parte Gawne 813 Secs.91,100. Mau v. Mack 819 Sees.96,97. Ex parte Carey 813 Regina v. Taylor, Ex parte Blackburn 813 Ex parte Shaw 813 Regina v. Carr 813 LANDS CLAUSES CONSOLIDATION STATUTE 1845— See. 69. Williamson v. Courtney ... 820 Sees. 76, 77, 78. Ex parte Murdoch ... 824 LANDS COMPENSATION STATUTE 1869 (No. 344)— Sec. 6. Smith v. Smith 560 Hunter v. Hunter ... 560,1277 Sec. 30. Eenton v. Board of Land and Works ... 55 Sec. 31. Anderson v. Western Port Coal Company 824 Kilpatrick v. Board of Land and Works 825 Sec. 35. Hardingv. Board of Land and Works ... 820,821,822 Smith v. Board of Land and Works 821 Leslie v. Board of Land and Works 821 Anderson v. Western Port Coal Company 821 Sec. 36. Austin v. Shire of Dunmunkle 825 Sees. 49,50. Hunter v. Hunter 117 Sec. 71. Topham v. Christie ... 1076 Sec. 85. Williamson v. Courtney ... 823 Amendment Act 1871 (No. 392) — Sec. 4. Smith v. Smith 560 LAND TAX ACT 1877 (No. 575)— Sec. 3. Docker v. The Queen 1284, 1285 Sec. 4. Ex parte Finlay 1285 Ex parte Lonie 1286 Sees. 5, 45, 46, 55. Trenery v. Stewart ... 1284 Sec. 7. Regina v. Cunningham . . . 1284 Sec. 24. Watson v. Clinch ... 1285,1286 Sec. 25. Coldham v. The Queen ... 1286 LIBEL ACT (19 Vict. No. 48)— Repealed and re-enacted by the Statute of Wrongs 1864— Sec. 10. Eegina v. O'Farrell ... 282,383 LIFE ASSUEANCE COMPANIES ACT 1873 (No. 474)— See. 37. Davey v. Pein 637,726 Sec. 39. Walpole v. Colonial Bank 724, 725 Sees. 39,40. Evans v. Stevenson 724 LICENSING ACTS- CUSTOMS (Excise) Act 1862 (No. 147)— Sec. 136. Moody v.Penny 768 Wines, Beer and Spirits Sales Statute 1864" (No. 227)— Sec. 45. In re Lewis 778 Cornish v. Elliott 832 Eegina v. M'Queen, Ex parte Hall 832,833 Sec. 46. Eegina v. Call, Ex parte Fisher 834,835 Sec. 47. Cohn v. Sherwood 834 Regina v. Barry, Ex parte O'Connor " 834 Sec. 60. Raleigh v. M'Culloch ... 835 Sec. 67. Henderson v. Mayor of Mel- bourne 213, 214 Reginav. Pohlman and Sturt, InreWhite 1299 Amendment Act 1870 (No. 390) — Sees. 9,10. Regina v. Webster, Ex parte Armstrong 830 Sec. 12. Regina v. Mollison, Ex parte Horsey ... ... ..." 838 Sees. 13,20. Regina v. Mollison, Ex parte Fitzgerald 829 Sec. 18. Regina v. Sturt, Ex parte Lalor 837 Sec. 20. Regina v. Templeton, Ex parte Taylor 836 Sec. 22. Wright v. Kabat 835 See. 24. Regina v. Call, Ex parte Fisher 834, 835 Sec. 28. Smith v. McCormick ... 830 Reginav. Sturt 830 Sec. 29. Cohn v.Sherwood 834 Regina v. Barry, Ex parte O'Connor ' 831 Licensing Act 1876 (No. 566)— Sees. 3, 18. Regina v. Hamilton, Ex parte Attorney-General ... 831 Sec. 18. Reginav. Akehurst, Ex parte Knowles 831 Ex parte Gotz 831 Balderson v. Justices at Wangaratta 831 CV11 INDEX OF REFERENCES TO THE STATUTES. cvin Licensing Act 1876 continued — col. Sees. 18,48. Regina v. Akehurst, Ex parte Knowles 829 Sec. 30. Regina v. Alley, Ex parte Slack 838 Sees. 35, 36, 38. Regina v. Taylor, Ex parte Tognini 836 Sec. 38. Ex parte Black, In re Panton ... 735, 828, 837 Ex parte Kinane 837 Ex parte Slack , 1148 Sees. 38,47. Regina v. Alley, Ex parte Slack 832 See. 39. Ex parte Guess 838 Sec. 44. Regina v. Carr, Exparte Cove 836 Regina v. Wyatt, Ex parte Shelswell 836 Sec. 48. In re Licensing Act, Ex parte Downton 829 Ex parte Spangenberg 829, 830, 837 Regina v. Alley, Ex parte Ingram ... 836, 837 Ex parte Slack, In re Panton 837 Sec. 50. Regina v. Nicholson, Ex parte Minogue 828 Sec. 54. Regina v. Lintott, Ex parte Callinan ... ... ... 833 Ex parte Black 833 Ex parte Lennon ... ... 833 Ex parte Tribble 833 Ex parte Butler ... 833,834 Ex parte Wylie ... 833,834 Secs.54,84. Regina v. M'CormickExparte M'Monigle ... 761, 762 Sees. 54, 88, 93. Hettenbach v. Isley ... 833 Sec. 55. Doyle v. Sparling 835 Sec. 61. Regina v. Walsh, Ex parte Pendreigh 834 Sees. 77, 104. Regina v. Perry, Ex parte Brown ... ... 835 Sec. 90. Regina v. Drummond, Ex parte Grigg ... ... 834 Sec. 103. Regina v. Webster, Ex parte Collins 772 Sec. 111. Regina v. Mayor of Mel- bourne ... 830, 831, 1287 local government- roads Act, 16 Vict. No. 40— Partly re- pealed by Act No. 176, partly re- pealed and re-enacted by Public Works Statute 1865, Part II.— Laing v. Herbert ... 1257,1258 Sec. 20. Byan v. Polwarth 1385 Sec. 22. Robinson v. Bonfield ... 1386 Sec. 48. Hepburn v. Mayor of Haw- thorn 857 Melbourne Corporation Act, 6 Vict. No. 7 — Partly amended by 8 Vict. No. 12, 16 Vict. No. 18, Justices of the Peace Statute 1865, and by 27 Vict. No. 178 and other Statutes; remain- der unrepealed — Sees. 1, 80. Grieve v. Mayor of Mel- bourne 856 Sec. 67. Goodman v. Mayor of Mel- bourne 1257 Sec. 82. Phillips v. Mayor of Mel- bourne 857 8 Vict. No. 12 (see history of preceding Act)— See. 19. Goodman v. Mayor of Mel- bourne 1257 COL. 14 Vict. No. 20 (explained by Act No. 178) (unrepealed) — Sees. 65,66. Strong v. Smith 1493 16 Vict. No. 18 (unrepealed) — Sec. 31. Blair v. Municipal Council of Ballarat 752 18 Vict. No. 15 (repealed)— Sec. 30. Gurner v. Municipal Council of St. Kilda 1264 21 Vict. No. 11 (unrepealed) — Sec. 6. Bate v. Gee 889 Melbourne and Geelong Corporations Amending Act, 27 Vict. No. 178 — Partly repealed by Justices of Peace Statute 1865, Public Health Statute 1865, and Licensed Carriage Statute (No. 217); remainder unrepealed — Sec. 59. M'Kean v. Mayor of Mel- bourne 1494 Secs.59,60. Wright v. Town Council of Geelong 1495 Sec. 60. Strong v. Smith 1493 Improvement op Fitzroy Ward, 17 Vict. No. 31— Amended by 24 Vict, No. HO- See. 22. Hodgson v. Mayor of Fitzroy 886 Municipal Institutions Act, IS Vict. No. 15— Repealed by Act No. 104— Sec. 26. Regina v. Cowie, Ex parte Ardill 217 Sec. 27. In re Municipal Council of Kyneton 216,217 Sec. 30. Gurner v. Municipal Council of St. Kilda 1264 Amendment Act, 24 Vict. No. 114: — Re- pealed by Act No. 184 — O'Dwyer v. Casey ... 228,229 Sees. 6, 7. Hodgson v. Mayor of Fitzroy 216 Shires Statute 1863 (No. 176)— Sec. 33. In re Cope, Ex parte Egan 850 Sec. 84. Regina v. Oddie 221 Regina v. Munday, Ex parte Daft 222 Sees. 126, 132, 134, 135, 151. Regina v. Bon- field 852 Sees. 149, 160. Heidelberg Road Board v. Young 853,854 Sec. 164. Rucker v. Moorabbin Road Board 72,73 Sec. 181. Davidson v. Stawell Road Board 1259 Secs.183,208. Springfield Road Board v. Clarke 1264 Sec. 186. Shire of M'lvorv. Nolan ... 1265 See. 187. Shire of Ballan v. Partridge 1265 Sec. 199: Corio Road Board v. Galletly 1271 Regina v. M'Laohlin 1271, 1272 Sec. 206. Lindsay v. Tullaroop Road Board 1265 Sees. 233, 235. Mayor of Ballarat and Ballarat East v. Bungaree Road Board ... 853,854 Sec. 235. Mayor of Ballarat & Ballarat East v. Bungaree Road Board 331 Sec. 237. Cameron v. Shire of Mount Rouse 215, 858 INDEX OF REFERENCES TO THE STATUTES. ex Shires Statute 1863 continued — col. Sec. 249. Ryan v. Polwarth 1385 Sec. 252. Cuthbert v. Daley 1386 Jopling v. Lawlor 1386 Sec. 254. Gilchrist v. Meagher ...1384 Sees. 268, 269. Attorney-General v. Ep- ping Road Board ... 852 Sec. 284. Shire of Buninyong v. Berry 853 Brown v. O'Malley 853 Municipal Institutions Act 1863 (No. 184)— Sec 32. Regina v. Thompson ... 226 Sec. 33. Regina v. Knipe 226 Sec. 34. Regina v. Haverfield ... 226 Sec. 128. Regina v. Richards, Ex parte Proggatt 224 Sec. 138. Gurner v. Municipal Coun- cil of St. Kilda 495 Sec. 182. Clunes United Coy. v. Clunes Borough Council ... 1259 Regina v. M'Lachlan ... 1261 Sec. 183. Scantlebury v. Mayor of Tar- nagulla « 1265, 1266 Sees. 186, 200. Newman v. Mayor of Maryborough ... 1266 Sec. 191. Mayor of Fitzroy v. Colling- GasCoy. 1262 Sec. 199. Brown v. Mayor of Footscray 1270 Sec. 205. Mayor of Sandhurst v. Brod- erick 1267 Regina v. Thompson ... 1268 Sec. 208. Mayor of Ballarat East v. Davis 1258 Sees. 218, 239. Alroe v. Mayor of Sebas- topol 231 Sees. 250, 261, 263. Holmes v. Mayor of Ballarat 854 Sec. 281. Lavezzolo v. Mayor of Day- lesford 854 Sec. 263. Ryan v. Mayor of Malms- bury 856 Shires Statute 1869 (No. 358)— Sec. 17. Sinclair v. United Shire of Mount Alexander 854, 855 Sees. 43, 57, 157. Regina v. Perrin, Ex parte M'Intyre 225, 226 Sec. 45. Regina v. Lovell, Ex parte Gwyther 851 Sees. 57, 68, 220. Regina v. Black, Ex parte Twomey 1272,1278 Sec. 63. Regina v. Bourke 294 Sec. 97. Regina v. Miller, Ex parte Nash 223, 224 Sees. 97,98. Regina v. O'Dwyer, Ex parte Wilson 221 Sees. 97,373. Regina v. Hennessy, Ex parte Knight 221 Sec. 104. Regina v. Ross, Ex parte Rettigan 224, 225 Sec. 204. Attorney-General v. Shire of Darebin 218 Sec. 208. Bennet v. Mayor of East Col- lingwood 1262 Sec. 209. Shire of Metcalfe v. Degraves 1262 Shire of Bungaree v. Ballarat Water Commissioners... 1262 1263, 1264 Sees. 217, 218. Shire of Bungaree v. Bal- larat Water Commis- sioners... 1270 Sees. 279, 297, 309. Shire of Ballarat v. Beaton 858 Shires Statute 1869 continued— col. See. 297. Royle v. Shire of Avon ... 858 Bell v. Shire of Portland ... 859 Boroughs Statute 1869 (No. 359)— Sees. 4, 7, 393. Dummelow v. Mayor of St. Kilda ... 859, 860 Sees. 35, 37, 39, 122, 140. Attorney-Gene- ral v. Mayor of Eme- rald Hill 211 Sec. 44. Regina v. Percy 223 Sec. 46. Scotchmer v. Michael ... 225 Sees. 50, 72. Lennon v. Evans ... ... 220 See. 80. Regina v. Weickhardt ... 226 Sec. 91. In re Hutton, Ex parte Haynes ... ... ... 224 Sees. 137, 138. Regina v. Laurens ... 1255 Sec. 197. Carlisle Company v. Mayor of Sandhurst ... 1259,1260 Sees. 216. 217, 219. Heller v. Mayor of Essendon 1270 Sec. 229. Mayor of Newtown and Chil well v. Batten ... 1268 Sec. 237. Mayor of Newtown and Chilwell v. Batten ... 1258 Sees. 277, 283. Andrews v. Mayor of Emerald Hill 854 Sec. 283. Reed v. Mayor of Pitzroy 856, 857 Sec. 301. Drought v. Schonfeldt ... 863 Sec. 317. Regina v. Marsden, Ex parte Lazarus 1494 Sec. 319. Sinclair v. United Shire of Mount Alexander 854, 855 Sec. 326. Cotter v. Hann 1387 Sec. 327. Maher v. Muleny 1385 Sec. 330. Ryan v. Roach 1386 Sec. 360. Cadd en v. Osborne 888 Sec. 393. Daly v. Mayor of Ballarat 216 Sched. 12, part 1 , subdivision 6 Mayor of Prahran v. Wild 216 Local Government Act 1874 (No. 506) — Sees. 12, 285. Hearn v. Council of Essen- don • ... 220 Sec. 18. Hawkes v. Mayor of South Melbourne 118 Sees. 19. (v.,) 20, 285. Woolcott v. Mayor of St. Kilda 1259 Sees. 54,71. Regina v. Drevermann, Ex parte Watson 227 Sec. 71. Regina v. Musson, Ex parte Barrett 851 In re Cordell, Ex parte Walsh 227 Sec. 116. Regina v. Jones, Ex parte Darcy 222 Sec. 122. In re Smith, Ex parte Topper 222 Regina v. Pooley, Ex parte Scarlett 225 Sees. 151,260. Attorney-General v. Shire ofKyneton 219 Sees. 155, 157, 159, 160, 173. Ex parte Downey 214 Sees. 168, 169. Mayor of Brunswick v. Dawson 1478 Sec. 169. Shire of Leigh v. Shire of Hampden 211 Mayor of Richmond v. Ed- wards 212 Sees. 169, 173. Shire of Gisborne v. Murphy 229 Sec. 202. Rippon v. Denis 213 Sec. 213. Regina v. Cowie, Ex parte Ardill 217 Sec. 213 (viii). Higgins v. Egleson ... 216 CXI INDEX OF REFERENCES TO THE STATUTES. cxii Local Government Act 1874 eont. — col. Sec. 213 (xvii). Rider v. Phillips ... 217 Sees. 225, 246. Rider v. Phillips 218, 752 Sec. 239. Regina v. Shuter, Ex parte Wren 217 Sees. 248, 260. Regina v. Oakleigh Shire, Ex parte Wilson ... 1266 Sec. 253. Shannahan v. Shire of Cres- wick 1260 Blackwood v. Mayor of Essen- don ... 1260, 1261 Mayor of Sandhurst 1 v. Chom- ley 1261 Sees. 264, 269. Attorney-General v. Shire of Hampden 219, 1261, 1262 Sec. 265. M e lbourne and Hobson's Bay United Railway Com- pany v. Mayor of Prah- ran 1264, 1265 See. 274. Russell v. Shire of Leigh ... 1272 Sec. 281. Melbourne and Hobson's Bay United Eailway Com- pany v. Town of Rich- mond and Borough of Sandridge ... 1271, 1272 Sec. 285. Regina v. Templeton, Ex parte England 1267 Regina v. Mayor of Rich- mond, Ex parte Hegarty 1267 Shire of Warrnambool v. Rawe 1269 Sees., 286, 290. Schafer v. Mayor of Sand- ridge 1269 Sec. 290. Regina v. Mayor of Hotham, Ex parte Bent 1268, 1269 Sec. 294. Mayor of Wangaratta v. Meighan 1258 Sec. 367. Kensington Starch and Maizena Coy. v. Mayor of Essendon 855 See. 376. Thompson v. Mayor of Fitz- roy 857 Sees. 376, 380. O'Connor v. Mayor of Hotham ... 860, 861 Sees. 376, 380, 399. Mayor of Emerald Hill v.Ford ... 860 Sec. 377. King v. Mayor of Kew 855, 1101 Sees. 380, 439. Seott v. Mayor of Colling- wood 860 Sec. 386. Rothery v. Patterson 215, 331 Sees. 391, 393, 394. Attorney-General v. Shire of Echuca 219 "See. 392. Shire of Leigh v. Shire of Hampden 212 See. 394. Attorney-General v. Shire of Echuca 212 See. 395. Regina v. Leech, Ex parte Shire of Tullaroop 1302, 1303 Sec. 398. Regina v. Walker, Ex parte Trudgeon 776 Regina v. Cowie, 'Ex parte Clark ... 863 Sec. '399. Regina v. Foster, Ex parte Molyneux ... 747, 748 Burgmeier v. Shire of Darebin 861 Munro v. Shire of St. Arnaud 861 Wall v. Shire of Ararat .. 861 "Sec. 400. Regina v. Mayor of Walhalla, Ex parte O'Grady ... 747 Moloney v. Drought 1491, 1492 Sec. 408. Kensington Starch and Maizena Coy. v. Mayor of Essendon 855 Local Government Act 1874 cont. — col. Sec. 418. Bisp v. Mayor of Colling- wood 324, 862 Kensington Starch and Maizena Coy. v. Mayor of Essendon ... 861,862 Levy v. Mayor of Portland 862 Meury v. Mayor of Dayles- ford 862, 863 Sec. 420. Regina v. Call, Ex parte Hazard 1387 See. 446. Smith v. Shire of Lexton ... 215 See. 456. O'Callaghan v. Waugh ... 889 Sec. 511. Ex parte Scott, In re Strutt 747 Sec. 519. Regina v. Mayor of Colling- wood 73 Attorney-General v. Shire of Wimmera 404 Regina v. Shire of Bulla, Ex parte Daniels 885 Sees. 530, 531. Roebuck v. Mayor of GeelongWest ... 213 Local Governing Bodies Loan, see post Waterworks. LUNACY STATUTE 1867 (No. 309)— Sec. 3. Mayor of Daylesfordv. Senior Constable of Daylesford 864 Sees. 4, 7, 8, 73. Ex parte Wilson ... 866 See. 10. Regina v. Panton 865 Regina v. Rowe 865 Mayor of Beechworth v. 'Baker 866 Sec. 11. Smith v.Iffla 899 Roberts v. Hadden 899 Sees. 60, 149. See. 73. Sec. 74. In re M'Gregor's Estate 864, 868 866, 866 867 ... 867 ... 868 870, 871 ... 874 ... 874 872, 873 ... 873 ... 872 870 874 867, 868 In re Roberts In re Murphy In re Fulker See. 94. In re Levey ... Sees. 98, 164, 167. In re Wilkie ... Sees. 101, 149. Niven v. The Queen Sees. 101, 180. In re Teece Sec. 115. In re Heller In re Anderson Sees. 115, 143, 154. In re Heller Sees. 143, 145, 154, 155. In re Smythe... 872 Sees. 143, 163. In re Tate ... 871,872 Sees. 143, 173, 174. In re Cleland ... 873 Sec. 144. In re Rose Sec. 148. Wilkinson v. Watson Sec. 149. InreReid In re Chambers InreBayldon 870 In re Gordon 868 In re Palmer 871 Sees. 149, 173, 174. In re Palmer ... 873 Sec. 154. In re Hughes 872 InreM'Mullen 874 Sec. 163. In re Wilkie 871 Sec. 164. In re Anderson ... ... 871 Sec. 180. In re Teece 870 Lunacy Statute 1867 Amendment Act 1869 (No. 342)— InreM'Mullen 874 Sec. 3. In re Heller 872 In re Smyth 872 In re Bryce 874 MARKETS STATUTE 1864 (No. 202)— Sec. 28. Ex parte Cooke 888 M'Pherson v. Freeman ... 888 INDEX OF REFERENCES TO THE STATUTES. cxiv cot. MARRIAGE AND MATRIMONIAL CAUSES- DIVORCE Act, 22 Vict. No. 70— Repealed and re-enacted by Act No. 268 — Sec. 3. Regina v. Benson 502 Secs.7,11,48. In the Goods of M'Vea, re Murray v. Aitken 1532, 1533 Sec. 17. Crowlv. Flynn 501 Sec. 22. Jones v. Jones ... ... 531 Marriage and Matrimonial Causes Statute 1861 (No. 125)— Sec. 7. In re Kennedy 534 Sec. 39. Moore v. Widdicombe ... 501 Marriage and Matrimonial Causes Statute 1864 (No. 268)— Sees. 4, 10,27. Regina v. Young 287 Secs.8,31. Moncrieff v. Moncrieff ... 533 Sees. 10,29. Regina v. Medcalfe 287 t Sec. 14. Regina v. Griffin ... 287,501: Sec. 30. Macfarland v. Macfarland... 561 Sees. 30,31. Regina v. Binder, Ex parte Fitzpatrick 91 Sees. 30, 31. Regina v. Collins, Ex parte Collins 532, 533 Secs.30,31,32. Mitchell v. Wentworth 531, 532 Secs.30,31,40. Ex parte Hargraves 533, 534 Sec. 31. Jolly v. Jolly 532 Secs.31,34. Regina v. Smith, Ex parte Smith 532 Secs.32,33. Mitchell v. Mitchell 531 • Secs.32,39. Curtayne v. Mitchell ... 533 Sec. 34. Regina v. Pope, Ex parte Pope 532 Trengrove v. Trengrove ... 532 Sec. 39. In re Harris 658 See. 40. Ludgrave v. Belcher 91, 1302 Sec. 40. Regina v. King, Ex parte King 534 Regina v. Justices of Central Bailiwick, Ex parte M'Evoy 534, 1300 Regina v. Chairman of General Sessions, Ex parte K em- ball 1302 Moncrieff v. Moncrieff ... 1302 Sec. 46. In the Will of Woodhead ... 1520 Sec. 50. Terry v. Terry 509 Sec. 54. M'Intosh v.Clarke 504 Sees. 61, 62, 87. Ho-ah-Mie v. Ho-ah-Mie 512 513 Sees. 61,65. Gullifer v. Gullifer 515 Sec. 68. Bury v. Bury 527 Sec. 70. Maxwell v. Maxwell 506, 507 Sec. 71. Fisher v. Fisher 530 Sec. 84, Bishop v. Bishop 502 Dowling v. Dowling 517 Sec. 87. Ah Nang v. Ah Nang ... 517 Sec. 88. Bury v. Bury 526 Sec. 91. Fisher v.Fisher 527 Sec. 99. Cameron v. Cameron ... 519 Sees. 104, 105. Smith v. Smith ... 520, 528 Amendment Act 1883 (No. 787)— Sec. 15. Cameron v. Cameron ... 519 Sec. 25. Carlyon v. Carlyon 1370 Married Women's Property Act 1871 (No. 384)— Sees. 2, 3, 4. In the Will of M'Losky ... 1499 Sees. 2, 3, 4, 18. Somerville v. M Donald 548 Sec. 3. M'Leod v. M'Pherson 535. 542 Married Women's Property Act cont. — col. Sec. 5. In the Will of Cathery ... 540 Smith v. Smith ... 540, 541 Smith v. Hope ... ' ... 541 In the Will of Buggy ... 542 Griffiths v. Griffiths 1370 Sees, 5, 10. InreMulcahy 650 Sees. 6, 8, 12, 18. Griffith v. Victorian Permanent Build- ing Society . . . 541 Sees. 6, 12. In the Will of Joliffe ...1521 Sec. 8. Griffiths v. Griffiths 543 Sec. 10. M'Leod and M'Pherson ... 542 Skeeles v.. Hughes 385 In re Dickason's Trusts . . . 1458 Sees. 10, 11. Noyes v. Glassford 543 Sec. 12. Griffith v. Victorian Perma- nent Building Society . . . 121 See. 14. In re Ardagh 543 See. 17. Haylock v. Shannon 536, 537 Sec. 18. Bryant v. Patten 356, 357, 547 Wisewould v. Kerr 536 Lucas v. Kearney ' 538 Renison v. Keighran ... 539 Hutchings v. Cunningham . . . 547 Field v. Howlett ... 547,548 Spencer v. Board of Land and Works 548 Regina v. Nicholson, Ex parte Minogue 548, 829 In re Summers, Ex parte Hasker 650 Sec. 21. In re Isaacs 592 In re Nelson 617 Amendment Act 1882 (No. 736)— In the Estate of Lythgoe ... 1521 MASTER AND APPRENTICE STATUTE 1864 (No. 193)- Secs. 3, 15. Stead v.Gould 46 Sees. 6, 17. Regina v. Templeton, Ex parte M'Pherson ... 46 Sees. 9. 10. Welshman v. Robertson ... 46 Sec. 17. Regina v, Pickles, Ex parte Fickel 773 MASTER AND SERVANT ACT, 9 Vict. No. 27— Sacre v. Board of Land and Works 891 Master and Servants Statute 1864 (No. 198)— Sec. 11. Regina v. Turnley, Ex parte Gleeson 758 Regina v. Mollison, Ex parte Crichton 892 Sec. 16. Regina v. Bayne, Ex parte Rea 893 Regina v. Pearson, Ex parte Hall 893 MEDICAL PRACTITIONERS ACT 1862 (No. 158)— Sec. 14. Norrisv. Smallman ... 898,899 Medical Practitioners Statute 1865 (No. 262)— Sees. 2, 11. Norris v. Smallman ... 898, 899 Sees. 5, 7. Regina v. Medical Board ... 898 Sec. 9, Sched. III. , Par. 13. In re Medical Board, Ex parte Yee Quock Ping and Bot- trell ... 898 INDEX OF REFERENCES TO THE STATUTES. CXVl Medical Practitioners Statute cont. — col. Sec. 11. Regina v. Hartney, Ex parte Fischer 899 Sec. 12. Regina v. Shaw, Ex parte Selim 899,900 MELBOURNE (CITY OF) BUILDING ACT, 13 Vict., No. 39— Sec. 16. Regina v. Call, Ex parte M'Donald 901, 902 MELBOURNE CORPORATION ACTS — See ante under Local Government. MELBOURNE HARBOUR TRUST— See post under Passenoers, Harbours, &c. MINING— Goldfields Act 21 Vict. No. 32 — repealed by Act No. 291. M'Gill v. Tatham ... 926,927 Rosales v. Rice 946 Secs.2,3,42,53,74,93. Volunteer Extended Coy. v. Grand Junction Coy 960,961 Sec. 3. Stevens v. Webster 965 Sees. 3,4. United Sir William Don Coy. v. Koh-i-noor Coy. ... 918 Secs.3,76. Schultz v. Dryburgh 965 Sec. 4. United Sir William Don Coy. v. Koh-i-noor Coy. ... 329 Sec. 12. Hookway v. Muirhead 922, 923 Sec. 27.' James v. Higgans ... 979,991 Wilson v. Broadf oot. . . 979, 980 Harvey v. Rodda 980 Banks v. Granville 981 Sec. 32. Brinkman v. Holstein . . . 991 Sec. 41. Lee v.Conway ... 991,992 .Sec. 70. Dennis v. Vivian ... 979,991 Kirk v. Barr 1003 Jenkinson v. Cumming . . . 1003 Schultz v. Dryburgh 1004 Sec. 71. Inskip v. Inskip 1005 Sec. 76. Critchley v.Graham... 985,999 Secs.76,77. Band of Hope Coy. v. Critchley 985 Sees. 76, 84. Band of Hope Coy. v. Critchley 994 Sec. 77. Thomas v. Kinnear 921 Critchley v. Graham 935, 936 Kin Sing v. Won Paw 975, 976 Barlow v. Hayes 936 Sec. 80. Kin Sing v. Won Paw ... 978 Early v. Barker ... 988,998 Sim v. Eddy 988 Sec. 84. In re Rogers, Ex parte Shean 996, 997 Ex parte Clarke 999 Secs.84,88. Power v. M'Dermott 992, 993 Bray v. Mullen 993 Tatham v. M'Gill 993 Wardle v. Evans 993 Sec. 90. M'Dougall v. Webster ... 959 Nieman v. Weller ... 959, 960 Salmon v. Mulcahy 960 Mackeprang v. Watson ... 960 Sec. 111. Jenkinson v. Cumming 915, 916 Thompson v. Land ... 921, 922 Sec. 116. M'Cormack v. Murray 430,431 Sec. 122. Ex parte Barclay, In re Pasco 917, 918 Amending Act 24 Vict. No. Ill (repealed by Act No. 291)— Sec, 11. M'Gill v. Tatham ... 926,927 Leases of Auriferous Land Act (No. 148)— Johnson v. Thomson... 957, 958 Harwood v. Coster 951 Sec. 4. Exparte Barclay, In re Pasco 917, 918 Sec. 11. Nightingale v. Daly 966 Sec. 12. Shire of Ballan v. The Queen 325 326, 966 Mining Statute 1865 (No. 291)— Shire of Ballan v. The Queen 326 Rosales v. Rice 946 Johnson v. Thomson 957, 958 Regina v. Skinner, Ex parte Smith 981 Mulcahy v. Walhalla G.M. Coy 982 Stephens v. Jolly 983 Regina v. Carr 987 In re Clerk 989 Sec. 2. Longbottom v. White ... 916 Lee v. Conway ... 1004, 1005 Sees. 2, 80. Regina v. Webster 917 Volunteer Extended Coy. v. Grand Junction Coy. 960, 961 Sec. 3. Jennings v. Kinsella ... 920 Milne v. Morell 920 Sees. 3,7,8. Cawley v. Ling 920 Sees. 3, 13. Parade G.M. Coy. v. Royal Harry G.M. Coy. ... 919 Schonfeldt v. Beel 919 Sec. 4. Chisholmv.BandofHopeCo. 961 . 4, 5, 12, 246. Lennox v. Golden FleeceandHeales' United Coy 963, 964 Sees. 4, 7, 8. Albion Coy. v. St. George United Coy 962 Sec. 5. Keast v. DAngri 331, 918, 919 Summers v. Cooper 947 Campbell v. M'Inty re ... 944 Jones v. Joyce ... ... 946 Sees. 5, 6, 7, 71 (xiii.), 237. Oxley v. Little 924 Sees. 5, 101 (iii.), 177. Stephens v. Jolly 941 Fitzgerald v. Elliott ... 974 Newey v. Garden Gully Coy. 975 Sees. 5, 195. Summers v. Cooper 977 Sec. 7. Donaldson v. Llanberis Coy. 924 Sees. 7, 8. Baker v. Wong Pang ... 920 Sees. 13, 14. Wakeham v. Cobham 329, 918 Sec. 14. Regina v. Dowling, Ex parte M'Lean 484, 945 Sec. 16. Extended Hustlers' Freehold Coy. v. Moore's Hustlers' Coy 914,967 Sec. 24. Wissing v. Finnegan ... 950 City of Melbourne G.M. Coy. v. The Queen 951 Munro v. Sutherland ... 951 Durant v. Jackson 952 Jones v. Christenson 952, 953 Sees. 24, 37, 39. Bain v. M'Coll ... 955, 956 Sees. 24, 40. AladdinG.M.Coy. v. Aladdin andTryAgainG.M.Coy. 949 Sec. 37. Robertson v. Morris ... 948 Smith v. Golden Gate Coy. 953 Barker's G .M. Coy. v. Keating 953 Rendall v. Hadley 955 Faheyv. Koh-i-noor Coy. ... 956 Attorney-General v. Sanderson 956 Barwick v. Duchess of Edin- burgh Coy 957 cxvu INDEX OF REFERENCES TO THE STATUTES. CXVlll Mining Statute 1865 continued — col. Sees. 37, 43. Robertson v. Morris ... 956 Sees. 37, 101 (i.). Extended Cross Reef Coy. v. Creaver ... 974 Sees. 37, 189. Hutchesonv. Erk... 953,954 Sec. 39. Finnegan v. Wissing 950, 951 Hitohins v. The Queen ... 1352 Sees. 42, 43, 45. Matt v. Peel 958 Barwick v. Duchess of Edin- burgh Coy 958 Sec. 47. Regina v. Stephenson, Ex parte Black 915 Sees. 47, 49. Cruise v. Crowley 989 Sees. 49, 246. Cruise v. Crowley ... 964 Secs.71— 80. Clerk v. Wrigley 916 Sec. 71 (iii.) Barrington v. Willox ... 922 Sees. 71, (x.) 177. Longbottom v. White 976 Sec. 72. Reardon v. Norton 917 Sec. 73. Vivian v. Dennis ... 915, 920 Reardon v. Sayers ... .. 917 Sec, 80. Sayers v. Jacomb ... 916, 917 Sec. 100. Murphy v. Cotter ... 990, 991 Sec. 101. Gunn v. Harvey 403 Sec. 101 (i.) M'Millan v. Dillon 958, 959, 974 Thompson v. Begg ... 989, 990 Sec. 101 (i. and iii.) Rosales v. Bice ... 974 Sec. 101 (iii.) Cruise v. Crowley ... 942 Hyndham v. Micke 966 Sec. 101 (vi.) Regina v. Philp, Ex parte Granya Coy. ... ... 975 Sees. 101, 124— 129. Gunn v. Harvey ... 980 Sees, lol, 177. Barlow v. Hayes ... . 936 Sec. 111. Mitten v. Spargo 990 Sec. 130. Australasian G.M. Coy. v. Wilson 990 Osborne v. Elliott 990 Sec. 131. Thompson v. Begg 1008 Sec. 133. Burch v.Brown 996 Sees. 137, 218. Brennan v. Watson ... 991 Sec. 155. Vallancourt v. O'Rorke ... 992 Sees. 155, 172. Vallancourt v. O'Korke 1004 Sec. 166. Eegina v. Strutt, Ex parte Lawlor 977,978 Grant v. Lawlor 978 Sec. 171. M'Leod v. Whitfield ...1002 Murphy v. Niel 1002 Keast v. D'Angri 1002 Australasian G.M. Coy. v. Wilson 1002, 1003 Thomas v. Kinnear ... 1003 Sea Queen Q.M. Coy. v. Sea Q.MCoy 1004 Sees. 171, 212. 5 Murphy v. Niel 997 Sec. 172. Watson v. Morwood ... 1005 Watson v. Commercial Bank 1035 Colonial Bank v. Willan ...1005 Mitten v. Spargo 1006 Shaw v. Costerfield Coy. ... 1006 Lewis v. Pearson 1006 Brennan v. Watson 1006 Cock v. Sayers 1006 Collins v. Hayes 1007 Central Q.M. Coy. v. Morgan 1007 Odgers v. Waldron 1007 Secs.l72,244.Colonial Bank v. Willan ... 126 Sec. 173. Banks v. Granville 1009 Secs.l73,174.Albion Coy. v. St. George United Coy 1008 Sees. 173, 174, 175. Regina v. Rogers 1008, 1009 Sec. 174. Bainv. M'Coll 1009 Sec. 177. Wakeham v. Cobham ... 975 Pride of the East G.M. Coy. v. Winmer ... 975, 994 Regina v. Smith 976 See. 185. Sec. 193. COL. 978 978 985 986 986 ... 987 ... 987 984, 985 ... 985 ... 983 ... 983 ... 984 983 994 1001 1001 1001 Mining Statute 1865 continued — Constable v. Smith Mulcahy v. Walhalla G.M. Coy Sec. 180. Jolly v. Stephens Regina v. Clow, Ex parte Oliver Regina v. Heron, Ex parte Bryer Regina v. Akehurst.. Taylor v. Stubbs Sees.l80,185.Lindgren v. Halpin .. Oxley t. Little Roscrow v. Webster Hooke v. Burke Jolly v. Stephens Sched. 20. Barton v. Band of Hope and Albion Consols Mulcahy v. Walhalla Coy.... 978, 988, 989 Sim v.Eddy 978,979 Early v. Barker 979 Summers v. Cooper ... ... 979 See. 193, Sched. 25. Mulcahy v. Walhalla Coy Sec. 194. Palmer v. Chisholm Fahey v. Koh-i-noor Coy. ... Fattorini v. Band and Albion Consols . . . Clerk v. Wrigley ... 1001,1002 Sees. 195,197. White v. Perriam 942 InreYungHing ... 976,977 Secs.202,207, Sched.26. Spiers v. White- side ... 987, 988 Sec. 203. Grant v. Lawlor 943, 961, 987 In re Clerk 987 Secs.203,204.Keast v. D'Angri 987 Secs.203,221.In re Clerk ... 982 Sec. 212. Regina v. Brewer and Wal- halla Coy. ... 993, Moore v. White Vicary v. Bow Conway v. Louchard Lawlor v. Grant Whiteman v. M'Gallan Regina v. Maeoboy . . . Early v. Barker M'Leod v. Whitfield Sees.212,216. Constable v. Smith Seos.212,220. Regina v. Brewer Walhalla Coy Crocker v. Wigg Whiteman v. M'Gallan Brennan v. Watson Sea Q.M. Coy. v. Sea Queen Coy In re Strutt, Ex parte Lawlor 989 Regina v. Bowman, Ex parte Willan Watson v. Commercial Bank Regina v. Heron, Ex parte Bryer Learmonth v. Morris Sea Queen Coy. v. Sea Q.M. Coy See. 212. and See. 213. Sec. Sec. 217. 220. Secs.228,230, Sec. 230. Sec. 246. 994 994 966 997 997 997 998 1000 1000 994 988 998 998 995 1000 981 982 959 960 962 Mines Amendment Act 1872 (No. 446.) Sec. 3. Durant v. Jackson 952 Regina v. Orme, Ex parte Droscher 953 Jolly v. Stephens 953 Hutcheson v. Esk ... 953,954 Weddell v. Howse ... 954,955 CX1X INDEX OF REFERENCES TO THE STATUTES. cxx Mines Amendment Act 1872 continued — col. Sees. 3, 4. Constable v. Pigtail Coy. ... 954 Sec. 4. Great Northern Coy. v.Brown 948 Sec. 7. Chun Goon v. Eeform G.M. Coy. ... 1014,1023,1024 Sec. 14. Regina v. Strutt 127 Sees. 17,20. Renwiok v. Hyde 822 Sec. 19. Lawlor v. Grant 997 Sees. 20. Hok John v. Yung Hing 999, 1000 Sec. 23. Regina v. Dunne, Ex parte Golden Fleece Old Chum Coy 126, 127 Regina v. Thomson, Ex parte Costin ... ... 1000 Sec. 24. Lennox v. Golden Fleece and Heales United Coy. ... 1004 Sec. 25. Ex parte Sea Queen Coy. 1003,1004 Talent v. Dibdin 1004 Quartz Reef Drainage Act (No. 153) — In re Clow, Ex parte Hewitt 906 Regina v. Webster 917 Drainage of Mines Act 1877 (No. 596)— Sec. 3. Wheal Terrill Coy. v. Irwin 906 Mines Regulation Act 1873 (No. 480)— Sees. 2, 3, 5, 8. Kaye v. Ironstone Hill Lead G.M. Coy. ... 905 Sec. 5(viii.) Gibson v. Chalk 904 Sec. 5(xi.) Curthoysv. Kilbride ... 904 Sec. 7. Laurenson v. Count Bis- marck G.M. Coy. 905 Sec. 8. Kaye v. Ironstone Hill Lead G.M. Coy. ... 1079,1080 Regulation of Mines Act 1877 (No. 583)— Sec. 6 (x.) Stewart v. Berryman 905, 906 Sec. 6(xvi.) Stewart v. Berryman ... 904 Sec. 6(xx.) Dunstan v. Stewart... ... 905 Sec. 12. Eureka Extended Coy. v. Allen 906 Regulation of Mines Act 1883 (No. 783)— Sec. 8 (xxix.), 16. Campbell v. Parker's Extended Coy. 906, 984 NEGLECTED AND CRIMINAL CHIL- DREN'S ACT 1864 (No. 216)— Sees. 12, 16. In re Brazenall ... 560, 561 Sees. 24, 25, 27. Regina v. Gaunt, Ex parte Ward 91, 92 Sec. 27. Regina v. Justices at Rich- mond, Ex parte Edlin ... 561 OATHS ABOLITION ACT, 9 Vict. No. 9- Sec. 9. Regina v. Pearce 302 PARLIAMENT- ELECTORAL Act 1865 (No. 279)— Sec. 67. Regina v. Sturt, Ex parte Fitzgibbon 220 Sec. 116. Regina v. Hynes 1302 Sec. 133. Regina v. Cope, Ex parte Wilder 1147 PARTNERSHIP ACT 1863, 27 Vict. No. 179— In re Haroourt and Bailey... 1128 Sec. 1. In re Butchart 585, 1127, 1128 cox. PASSENGERS, HARBOURS, AND. NAVIGATION- PASSENGERS Act 1855, 18 Vict. No. 5 — Re- pealed and partly re-enacted by Act No. 255 Sec. 60. Regina v.Hill 1316 Passage Brokers Act 1863 (No. 174) — Repealed and re-enacted by Act No. 255— Sparkes v. Macfarlane 1316, 1317 Wharfage Dues Tolls and Rates Act 1864 (No. 209)— Repealed by Act No. 255— Sec. 2. Regina v. Bright 1325 Passengers Harbours and Navigation Statute 1865 (No. 255)— Partly re- pealed and amended by Act No. 312 — Sec. 40. Regina v. Pearson, Ex parte Smith 1325, 1326 Beaver v. Justices atWilliams- town, Ex parte Ham- mond 494 Sec. 45. Ramsden v. Payne 1326 Payne v. Fishley 1326 Sec. 46. Donaldson v. Vine ... . . 1325 Sees. 76,77. In re Victorian Steam Navi- gation Board, Ex parte Allen 1326, 1327 Amendment Act 1867 (No. 312)— Sec. 2. In re Victorian Steam Navi- gation Board, Ex parte Allen 1326, 1327 Melbourne Harbour Trust Act 1876 (No. 552) — Partly amended by Amend- ing Acts Nos. 749, 763— Sec. 6. In re Dowman and Mel- bourne Harbour Trust, Ex parte Clark 494 Sec. 16. Regina v. M'llwraith, Ex parte Smith 494 Sec. 46. Union Steam Navigation Coy. of N.Z. v. Mel- bourne Harbour Trust Commissioners ... 493, 494 Ex parte Cooke 888 Sec. 107. Beaver v. Justices at Wil- liamstown, Ex parte Hammond 494 Sec. 108 (x., xxiii.) Regina v. Leigh, Ex parte Lumsden... 494 PAWNBROKERS STATUTE 1865 (No. 248)— Sec. 5. Ex parte Mendelssohn ...1142 Ex parte Nyberg, In re Nicholson ... 1142, 1365 Sec. 21. Regina v. Moore, Ex parte Myers 1142 Sec. 29. Regina v. Tucker, Ex parte Aarons 1141, 1142 police offences- Gaming Act, 14 Vict. No. [9— Repealed and re-enacted by Act No. 265— Sec. 3. Regina v. Smith Brown 1112, 1113 Vagrant Act, 16 Vict. No. 22— Repealed and re-enaeted by Act No. 265, Part III.— Sees. 2, 6. In re Cornillac ... 1118,1119 Sec. 5. Swan v. M'Lennan ... 1108, 1109 INDEX OF REFERENCES TO THE STATUTES. CXXll COL. Town and Country Police Act, 18 Vict. No. 14— Repealed and re-enacted by Act No. 265— Sec. 5. Ex parte Kettle, In re M'ln- tyre 231 Sec. 15. Webb v. Andrews 752 Sec. 15(vii.) Fisher v. Wheatland 1106, 1424 Amending Act, No. 225— Repealed by Act No. 265— Sees. 11, 12. Mayor of Eaglehawk v. Wad- dington 1492, 1493 Police Offences Statute 1865 (No. 265) — Sees. 3, 23. Anderson v. Wilson ... 28 Sec. 5(vii.) Sutton v. Parker 1105 Pitches v. Burnell 1105 Morrison v. Woodgate ... 1105 Sec. 5 (viii.) Roberts v. Edwards 1105 Sees. 5 (xiii.,) 11, 12. Regina v. Lloyd, Ex parte Leonard 1105, 1106 Sec. 8. Regina v. O'Flaherty, Ex parte Winter 1106, 1114, 1115 Sec. 15. Morrison v. Clarke 753 Sec.l6(vii.) Dobson v. Sinclair ... 1115 Regina v. Shuter, Ex parte Walker 1106 Sec.l6(viii.) Regina v. Munro, Ex parte Stephen 1106 Sec. 17. Cahill v. Keilor Road Board 745 Williams v. Clauscen ... 745 Daniel v. Rowbotham ... 745 Sec. 17 (i.) Regina v. Webster ... 745 Weist v. Whittan 1106 Stewart v. Pinnegan 1106,1115 Sec.l7(vi.) Plier v. Trumble ... 482,1107 Regina v. Reid, Ex parte Brennan 745 Regina v. Mollison, Ex oarte Colclough 1106 M'Mahon v. O'Keefe ... 1107 Regina v. Lloyd, Ex parte Rowan 1107 Regina v. Taylor, Ex parte Blain 1107 Regina v. Garside, Ex parte Biggs 1107 Bailey v. Hart ... 1423, 1424 Sec.l7(vii.) Smith v. Perkins 1107 Regina v. O'Brien, Ex parte Davidson ... 1107, 1108 Cahill v.White 1108 Regina v. Little, Ex parte Reynolds 1108 Regina v. Alley, Ex parte Davey 1108 Regina v. Synnot, Ex parte Main 1115 Sec. 18. Cameron v. Thompson ... 1108 Sees. 19,32. Regina v. Templeton, Ex parte Rea 1115 See. 22. Lyon v. Jones ... 745, 746 Sec. 26. Taylor v. Phelan 1109 Morgan v. Smallman ... 1109 Clarson v. Blair 1109 Sec. 26. Regina v. Carr, Ex parte Sanderson 1109 InreRogers 1116 Sees. 26, 63. Regina v. Crotty, Ex parte Gavin 1116 : Sec. 30. Regina v. Mountford, Ex i parte Schuh 776 See. 31. Bergin v. Cohen 1109 Police Offences Statute 1865 cord.— col. Sec. 32. Regina v. Lloyd, Ex parte Allen 752 Wilkie v. Brew 1110 Headland v. Charlesworth... 1111 Zumstein v. Frey . ... 1111 Longford v. Meldrum 1111, 1116 Hitchins v. Mumby 1111 Regina v. Heron, Ex parte Hamilton 1111 Ryanv. Nagle 1111 Regina v. Barnard 1116 Regina v. Wyatt, Ex parte Strettle 1116 Regina v. Marks, Ex parte O'Day 1116, 1117 Regina v. Call, Ex parte Barber 1117 Regina v. Miller, Ex parte Dreher 1117 Sec. 35 (iv.) Regina v. Sayers ... 1111,1112 Leicester v. Short 1112 Sec. 36 (iii.) Regina v. Armstrong, Ex parte M'Pherson ... 1112 Sec. 36 (v.) Vernon v. Mollison 1112 Regina v. Benson, Ex parte Tubby 1112, 1117, 1299, 1300 Purcell v. Nimmo 1117 Sees. 43, 63. Ex parte Pat Tack, Ex parte Ah Poon 1118 Sec. 51. Miller v. Harris ... 482,1220 Melville v. Pendreigh ... 482 Sec. 56. Regina v. Huxley and Walsh 1113 Sec. 63. Cooey Hing v. Kabat 1117, 1118 Amendment Act 1872 (Gaming,) No. 424 — Sees. 2, 17. Cooey Hing v. Kabat 1117, 1 118 Cooey Hing v. Sadleir ... 1109 Regina v. Sturt, Ex parte Ah Tack 1110 Sees. 4, 6. Zucker v. Jennings 1110 Jacobs v. Jennings 1110 Regina v. Moore, Ex parte Duncan ... 1110 Sec. 10. Walker v.Cowen 1110 Amendment Act 1878 (No. 630) — Sec. 2. Bannon v. Barker 218 Sec. 5. Dobson v. Sinclair 1115 ! Police Regulations Statute 1865 (No. 257)— Repealed by Act No. 476— Secs.10,11. Power v. The Queen 1148 ! POST OFFICE AMENDMENT ACT 1873 (No. 455)— Sec. 18. Dron v. The Queen 327 POUNDS ACT,18 Vict. No. 30— Repealed and re-enacted by Act No. 249 — Ex parte Beilby 311, 1156 Douglas v. Reynolds ... 1153 Sec. 22. Bourne v. Jones 1153 Sec. 25. De Graves v. Bennett ... 1152 Sec. 32. Goldsbrough v. Fletcher ...1154 I Pounds Statute 1865 (No. 249)— Re- pealed by Act No. 478— Butcher v. Smith 1151 Wilson v. Powell 1154 Sec. 11. Wingfield v. Glass 1150 Pettett v. Mellies ... 1150,1151 O'Keefe v. Behan .1151 Sec. 20. Anderson v. Deasy 1156 Sec. 25. Parker v. Kelly 1152 INDEX OF KEPERENCES TO THE STATUTES. CXX1V Pounds Statute 1865 continued — col. Sec. 26. O'Keefe v. Behan 746 Regina v. Taylor, Ex parte Macdonald 1152 Regina v. Middleton ...1152 Sec. 33. Mulhare v. Lindsay 253,1153 Pounds Act 1874 (No. 478)— Main v. Robertson 1149 Sanderson v. Fotheringham 1155 Sees. 12, 15. Allan v, M'Intyre 1155 Sec. 14. Regina v. Hutchinson, Ex parte Jessel ... ... 458 Jones v. Campion ... 1150,1155 Sanderson v. Fotheringham 1151 Mack v. Murray 1151 O'Sheav. D'Arcy 1155 Sees. 14, 15. M'Millanv. Gove 1154 Regina v. Puckle, Ex parte Ware 1154 Sees. 14, 19, 33 (iii.) Robertson v. Main 1151 Sec. 15. Lewis v. Green 1155 Regina v. Carr, Ex parte San- derson ... ... ... 1155 Regina v. Heron, Ex parte Jones ... 1154 Schneider v. "Wright ... 1154 Sec. 17, 33 (viii.) Persse v. Smith ... 1154 Sec. 18. Bagshaw v. Wills' ... 28,1149 Sec. 21. Jones v. Falvey ... 423,424 Sec. 28. Regina v. Littleton, Ex parte Kirk 1152, 1153 Stephen v. Gill ... 1151, 1152 Sees, 28, 29. Regina v. Taylor, Ex parte Hailes 1152 Sec. 29. Regina v. Littleton, Ex parte Kirk 1152, 1153 Sec. 31. Anderson v. Deasy 1156 Sec. 33 (i.) Lodge v.Rowe ... 1155.1156 PRINTERS AND NEWSPAPERS REG- ISTRATION STATUTE 1864 (No. 212). Unrepealed — Sees. 11, 12, 19. Daily Telegraph News- paper Coy. v. Berry 232 PUBLIC WORKS- CIVIL Service Act 1862 (No. 160)— Re- pealed by Public Service Act 1883 (No. 773)— Sees. 1, 16. Geary v. The Queen ... 134 Sees. 8, 11, 40. Matson v. The Queen ... 133 Sec. 16. Fullarton v. The Queen 133, 134 Sec. 44. Payne v. The Queen ... 133 Act 16 Vict. No. 40 -So far as it relates to tolls and roads repealed and re- enacted by Act No. 289— Sec. 20. Ryan v. Polwarth 1385 Sec. 22. Robinson v. Bonfield ... 1386 Sec. 48. Hepburn v. Mayor of Haw- thorn 857 Public Works Statute 1865 (No. 289)— Repealed by Lands Compensation Statute so far as it relates to taking lands for railways — Sees. 4, 101. Regina v. Mayor of Sand- ' hurst 1261 Secs.77, 135. Topham v. Christie 1076 Sec. 131. Donaldson v. Vine 1325 RAILWAYS- MELBOURNE and Hobson's Bay Railway Purchase Act (No. 617) — In re Thompson -Re- C0L. 117 Railways Act (25 Vict. No. 150)- pealed by Act No. 289— Sec. 31. Jenkyn v. Elsdon ... 1421,1422 For Melbourne and Hobson's Bay Act see under Private Statutes. REAL PROPERTY STATUTE (24 Vict. No. 112) — Repealed and re-enacted by Act No. 213— Sec. 51. In re Kennedy 534 In the Goods of Holdsworth 451 Sec. 57. In re Sargood 550 See. 87. In re Brookfield 1274 Sec. 89. Bank of Australasia v. Vans 538 Real Property Statute 1864 (No. 213)— Sec. 2. Attorney-General v. Hoggan 323 Sees. 17,18. Weigall v. Blyth 844 Sees. 18, 19. Murphy v. Michel 844 Delap v. Mawley 845 Secs.18,47. Kemp v. Douglas 847 Secs.22,30. Dryden v. Dryden 847 Sec. 31. Henley v. Dumphy 844 Sec. 74. In re Tennant and Ritchie... 550 Sec. 78. InreWillcox 550 Sees. 79, 104. In re Hall 1306 Sec. 80. In re Bergin's Estate 1308, 1309 Sees. 79, 108. In re Macgregor's Estate 1310 In the Estate of Quinn ... 1310 Sec. 94. In re Ellis' Settled Estate ... 1310 Ex parte Staughton ... 1309 Sec. 98. In re Mahood's Estate ... 735 Ex parte Staughton ... 1310 Mahood v. Carnaby ... 1310 Sees. 114, 115. In re M'Gregor's Estate 1310 Sec. 123. In re Bowman 1274 Sec. 150. Brent v.Jones 1577 Press v. Hardy 1577 In re Goodman's Estate . . . 1577 Macartney v. Kesterson 1577, 1578 Sec. 194. White v. Hunter 355 Andrews v. Taylor 355 See. 215. Regina v. Walter ... 139,292 Sec. 218. Gutheil v. Delaney 722 REGISTRATION OF BIRTHS &c (16 Viet. No. 26)— Repealed partly by Act No. 233, (Criminal Law, &c.) see. 240, partly by Registration of Births, &c, Statute 1864— Sec. 20. Crowlv. Flynn 501 STAMPS STATUTE 1869 (No. 355)— Sees. 4, 10. In re Provincial and Subur- ban Bank .., 170,171 Stamp Duties Act 1879 (No. 645)— Sec. 47. Harriman v. Purehes ... 93 Sec. 51. Croft v. Grimbly ... 93,1286 Sec. 57. Whitty v. Du*''r.ing 93 See. 68. National Land Company v. Comptroller of Stamps 1286 INDEX OF REFERENCES TO THE STATUTES. COL. SUPREME Court- Conveyancing Act (11 Vict. No. 33) — Repealed except Sec. 13 — Sec. 13. In re Heron 66 In re Strong _ ... 179 In re Thompson ... ' 180, 181 In re Strong, Ex parte Camp- bell 897 Fentonv. Dry 1147 Franklin v. Drew 1334 In re Wayth 1334 Constitution (15 Vict. No. 10—) In re Knowles 591 Sees. 12,13. Regina v. O'Farrell... 282,283 Sec. 13. Regina v. M'Meikan ...1104 Sec. 15. In the Will of Gunning ...1525 Sec. 16. In re Hawkins 438 Carter v. Murphy 438 Chadwick v. Bennett 438, 439 In the Will of Froomes . . . 444 In the Will of Kay ... 446, 447 In the Will of Lord 447 In the Estates of Richardson and Dean 442 In the Goods of Holdsworth 451 Sec. 19. In re Brewer, Ex parte Baker 780 Regina v. Strutt, Ex parte Chatty 780 Dennis v. Vivian 780 Re Duffett, Ex parte M'Evoy 38 Ex parte Nyberg ... 277,1211 Regina v. Bailes, Ex parte Pickup 1233 Regina v. Mairs, Ex parte Vansuylen 1210 Sec. 24. House v. O'Farrell 1312 Sec. 30. Wall v. Hooper 1314 Sec. 32. InreGair ... 278 Sec. 33. Heape v. Hawthorn 30 Crooks v. Ormerod 30,31 Attorney-General v. Prince of Wales Coy. ... 31, 37 Melbourne and Hobson's Bay Railway Coy. v. Mayor of Prahran 31 In re M 'Donald 33 Davis v. The Queen 34 Goodman v . Boulton ... 35 Webster v. Power 35 Johnson v. Colclough ...35, 36 M 'Lister v. Garden Gully Coy 36 Amendment Act, 19 Vict. No. 13 — Sec. 4. Merry v. The Queen 41 Sec. 5. Davies v. The Queen ... 31 Harrison v. Smith 42 Merry v. The Queen ... 42 Ex parte Gessner 718 Attorney-General v. Mayor of Emerald Hill ... 1177 Sheriff (19 Vict. No. 19)— Sec. 176. In re Transfer of Land Statute, Ex parte Ross 434 Beavan v. Chadwick 1311 Dr» -rman v. Dogherty 1311,1312 House v. O'Farrell 1312 Horwood v. Murdoch ... 1313 THISTLES PREVENTION STATUTE 1865 (No. 250)— Sec. 4. Begina v. Gaunt, Ex parte Drummond 1381 Dugdale v. Martin 1382 Haworth v. Hebbard ...1382 Regina v. Dowling, Ex parte Laby 1382 Sees. 4, 6. Lithgow v. Summers ... 1382 TRADE MARKS- TRADE Masks Statute 1864 (No. 221)— Sec. 6. Schemmel v. Call 1392 Amending Act 1876 (No. 539)— Sec. 7. In re Rowley and Pyne, Ex parte Dalton 1391 TRANSFEROF LAND (STATUTORY)— Real Property Act (No. 140) — Murphy v. Michel 399, 844, 1399, 1403 Fitzgerald v. Archer ... 1397 Maddison v. M'Carthy ... 1354 Sees. 21, 22, 23, 81. In re Williamson 1395, 1390 Sec. 80. Ex parte Lyons 1416 Amending Act (No. 223) — Sec. 17. In the Real Estateof Twomey 1537 Transfer of Land Statute 1866 (No. 301) — Droop v. Colonial Bank ... 436 Kickham v. The Queen ...1409 Matt v. Peel 1413 London Chartered Bank v. Hayes 1414 Sees. 3, 49, 139. Moss v. Williamson 471, 472 Sees. 15, 17, 19, 49. In re Transfer of Land Statute, Ex parte Metro- politan Building Society 1412, 1413 Sees. 17,64. In re Transfer of Land Statute, Ex parte Cun- ningham ... 1411, 1412 Sec. 22. In re Transfer of Land Statute, In re Slack 1396, 1397 In re Transfer of Land Statute, Ex parte Metro- politan Building Society 1413 Secs.23,24. In re Slac'k, Ex parte Winder 1396 Sec. 24. Geraghty v. Russell 1393, 1394 Jamisonv. Quinlan 1394 In re Transfer of Land Statute, Ex parte Beissel 1394 In re Transfer of Land Statute, Ex parte Brown 1394 In re Transfer of Land Statute, Ex parte Ma- honey 1397 In re Transfer of Land Statute, Ex parte Gunn 1394 In re Transfer of Land Statute, Ex parte Ay 1 win 1397 Attorney-General v. Hoggan 1394 Archibald v. Archibald 1394, 1395 In re Power ... ... 1396 Sees. 24,64. In re Transfer of Land Statute, Ex parte Beissel 1412 Sees. 24, 152. Hodgson v. Hunter ...1393 0XXV11 INDEX OP KEFERENCES TO THE STATUTES. CXXV1U Transfer of Land Statute 1866 cant. — col. Sec. 25. la re Transfer of Land Statute, Ex parte Mor- gan 1396 In re Craig 1396 Slack v. Winder 1396 Sees. 27. 146. Oakden v. Gibbs 1417 Sec. 32. In re Salter 1404 Sec. 42. Mayor of Brunswick v. Daw- son 1478 Morissey v. Clements ... 1413 Sec. 47. M'Cahill v. Henty 1400 Small v. Glen 1400 Seos.47,49. Alma Consols G.M. Coy. v. Alma Extended Coy. 1399 Sec. 49. Alma Consols G.M. Coy. v. Alma Extended Coy. 1401, 1402 Hassett v. Colonial Bank . . . 1400 Robertson v. Keith 1401 Cunningham v. Gundry ... 1401 Colonial Bank v. Roach ... 1401 Cullen v. Thompson ... 1401 Munro v. Sutherland 951, 1402 Slack v. Downton 1402 Staughtonv. Brown ... 1403 Colonial Bank v. Rabbage ... 1403 Sees. 49, 50. Colechin v. Wade 472, 1400, 1405 Cunningham v. Gundry ... 1405 Kobertson v. Keith 1404 Cullen v. Thompson 1406 Sees. 49, 50, 106, 117, 130. Patchell v. Maunsell ... 1408, 1409, 1414 Sees. 49, 51. Shaw v. Scott 1401 Sees. 49. 106, 144, 146. Hassett v. Colonial Bank ... 1417, 1418 Sees. 49, 139. Moss v. Williamson ... 1404 Sec. 50. Davis v.Wekey ... 570,571 Chomley v. Firebraee 1405, 1406 Crow v. Campbell ... 1407,1432 Colonial Bank v. Pie ... 1406 Droop v. Colonial Bank 1406, 1407 Sec. 60. In the Will of Tregurtha ... 1499 Sec. 64. Jones v. Park 1412 Sees. 66, 149. Moyle v. Gibbs ... 538, 539 Sees. 67, 74. In the Real Estatetrf Gow ..' 1536 Sees. 83-85, 87. National Bank v. United Hand in Hand and Band of- Hope Coy. 1416 Sec. 84. M 'Donald v. Rowe 1415 Sec. 85. Hervey v. Inglis 1415 Ross v. Victorian Permanent Building Society ... 1416 Sees. 90, 1 10. Australian Depositand Mort- gage Bank v. Lord ... 1414 Sees. 93, 94. Louch v. Ball 1414 See. 94. Griffin v. Dunn Sees. 98, 99. Greig v. Watson 1416 See. 106. Beath v. Anderson 1312 United Hand in Hand and Band of Hope Coy. v. National Bank of Aus- tralia 1407 Registrar of Titles v. Paterson 1408 In re Transfer of Land Statute, Ex parte Bond 1408, 1410 In re Transfer of Land Statute, Ex parte Ellison 1408 Sees. 106, 107. Giles v. Lesser 1407 Sees. 106, 135. Ex parte Paterson 1407, 1408 Sec. 115. Bank of Victoria v.M'Michael 1416 Sees. 116, 118. Eotheringham v. Archer 1417 Transfer of Land Statute 1866 cont.-^ col. Sec. 117. In re Wise 1410 In re Transfer of Land Statute, In the Caveat of Pearnley 1410,1411 In re Transfer of Land Statute, Ex parte Peck 1411 Sec. 118. Miller v. Moresey 399 Sec. 132. In re Transfer of Land Statute, Ex parte Slack 1399 In re Transfer of Land Statute, Ex parte Bond 1398 In re Transfer of Land Statute, Ex parte Rigby 1398 In re Transfer of Land Statute, Ex parte Pater- son 1398 In re Transfer of Land Statute, Ex parte Pat- terson 1398, 1399 Sees. 132, 135. In re Transfer of Land Statute, Ex parte Bond 1409, 1410 Sec. 130. In re Transfer of Land Sta- tute, Ex parte Bowman 1395 In re Transfer of Land Sta- tute, Ex parte Folk ... 1397 In re Transfer of Land Sta- tute, Ex parte Paterson 1398 In re Transfer of Land Sta- tute, Ex parte Ross ... 434 In re Transfer of Land Sta- tute, Ex parte Leach ... 1418 See. 153. Wiggins v. Hammill ...1410 Sec. 157. Regina v. M'Cooey 312 Regina v. Johnson & Smith 312 Sec. 159. Miller v. Moresey ... 398,1399 Amending Act 1867 (No. 317)— Sec. 2. National Bank of Australasia v. United Hand-in-Hand and Band of Hope Coy. 1416 Amending Act 1878 (No. 610)— Easements- Sec. 2. In re Transfer of Land Sta- tute, Ex parte Beissel ... 1412 Sees. 2, 3. Jones v. Park 1412 Sees. 2,3,4. In re Transfer of Laud Sta- tute.Ex parte Metropoli- tan Building Society 1412, 1413 Transfer of Land Statdte (Dower) 1869 (No. 353)- Seo. 6. In re Kerr 1411 Sec. 9. Moyle v. Gibbs ... 538, 539 TRUSTS- TRUSTEE Act 1856 (19 Vict. No. 20), incor- porating the Imperial Acts 13 & 14 Vict., cap. 60; 15 & 16 Vict., cap. 55 (repealed by Act No. 234)— In re Thornhill 1450 InreM'Leod 1450 Sec. 10. In re Lewis 1448 Sec. 15. InreOrr 1450 Sees. 16, 20, 29. Bank of Australasia v. Vans 1449 Sec. 32. In re Postlethwaite 1498 13 & 14 Vict., cap. 60; 15 & 16 Vict.,' cap. 55 — Sec. 1. Williamsonv.Courtney 1448, 1449 13 & 14 Vict., cap. 60 — See. 9. In re Weston 1449 INDEX OF REFERENCES TO THE STATUTES. cxxx Statute oe Sec. 19. Sec. 21. See. 23. Sec. 25. Sec. 31. Sec. 34. Sees. 36, 37. Sec. 45. Sec. 56. Sees. 56, 57. Sees. 56, 61. Sees. 56, 57. Sec. 60. Sec. 61. COL. Trusts 1864 (No. 234)— Kendell v. Thomson ... 1450 In re Montefiore 1451 In re Mitchell's Trust Estate 1451 Bryant v. Saunders, In re Saunders 1451 Weigall v. Barber 1452 InrePhilpott 1452 In the Will of M'Bean ... 1446 Flower v. Wilson 1453 In re Benson 1205 In re Stanton and the Statute of Trusts In re Courtney's Trusts In re Edwards In re Bourke's Trusts Pinnock v. Hull In re Dickason's Trusts Sec. 61. ... 1205 ... 1458 ... 1459 ... 1205 451, 452 534, 535, . 1458 In re Stillman's Will 1457, 1573 In re Durbridge 1434 In the Will of George Rolfe 1437 In re M 'Kay 1457 In re Youngman ... ... 1457 In re Mahe, In re O'Neill ... 1457 In re Wills' Settlement ... 1457 In the Will of Ruddock ... 1457 Osborne v. Osborne 1458 Attorney- General v. Wilson 1458 In re Leon's Trusts ... 1458, 1459 In re Williamson ... ... 1458 In re Campbell ... 1458,1459 In re Folk's Will 1433 In the Will of Downing ...1575 In re the Will of Russell ... 1459 In re Bowman's Trusts . . . 1459 Sees. 61, 77. In re Bowman's Trusts ... 1459 Sec. 66. InreWeir 1460 Sec. 77. In re Bowman's Trusts -555, 1432 Sees. 82—96. Regina v. Taylor 1455 Sec. 97. Raleigh v. M'Grath 787 Wilson v.Boyd ... 1431,1432 Hunniford v. Horwood . . . 1429 Trustees, Executors, and Agency Com- pany's Act (No. 644) — Sec. 2. In the Will of Payne ... 1526 Sees. 2, 8. In the Will of Reynolds ... 445 VOLUNTEERS STATUTE (No. 266)— Sec. 12. Hitchins v. Mumby WATERWORKS- WATERWORKS Act 1865 (No. 288) Sec. 15. Regina v. MTntyre 1111 Beechworth Waterworks 105)— Sec. 84. Shire of Beechworth Spencer 394, 1492 Act (No. 766 Bend,igo Waterworks Statute (22 Vict. No. 69) — Unrepealed — Secs.41,68(ii.) Bendigo Waterworks Coy. v. Thunder 1490 Sec. 45. Bendigo Waterworks Coy. v. Fletcher ... 1490, 1491 Melbourne Water Supply (21 Vict. No. 59)— Repealed by Public Works Statute 1865— Sec. 5. Fellows v. Board of Land and Works 1491 col. Local Governing Bodies Loan Amend- ment Act 1874 (No. 500)— Sec. 5. Mayor of Ararat v. Grano ... 1491 Sec. 6. Clunes Water Commissioners v. Winchester ... ... 1266 WEIGHTS AND MEASURES— Weights and Measures Act No. 151 — Repealed and re-enacted by Act No. 215— Council of Ballarat v. O'Connor 1495 Weights and Measures Statute 1864 (No. 215)— Sec. 49. Regina v. Caddy ... 736,1425 Pollard v. Gregory 1495 WILLS— ' Wills Act, 1 Vict., cap. 26 (incorporated by 18 Vict., No. 19)— Sec. 24. Noone v.Lyons ... 1561,1562 Wills Act Amendment— In the Goods of Campbell ... 1514 Wills Statute 1864 (No. 222)— Sec. 7. In the Will of Foley ...1516 In the Goods of Kelly ... 1515 In the Goods of Lacey ... 1516 In the Will of Dyer ... 1516 Sec. 8. IntheWillofPople ...1514 In the Will of Coleman ...1514 In the Will of Gordon ... 1514 In the Will of M'Gregor ...1514 In the Will of Holly ... 1514 In the Goods of Campbell ... 1514 In re Hughes 1515 Sec. 13. In the Will of Bannister ...1509 Secs.16,30. In the Will of Patchell ... 1502 Sec. 18. In the Will of Barrett ... 1517 In the Will of Lilley ... 1518 In the Will of Delves ... 1505 M'Gregor v. M'Coy 1567, 1568 Sec. 19. Sec. 30. Sec. 31. Broomtield v. Summerfield .. 1563 WRONGS, STATUTE OF, 1865 (No. 251)— Kaye v. Ironstone Hill Lead G.M. Coy. ... 905, 1079, 1080 Part II. Smith v. Mayor of Emerald Hill ... 1083 Sec. 12,15. M'Lean v. Board of Land and Works 349 King v. The Queen 371 Sec. 14. Shallue v. Long Tunnel Coy. 1079 PRIVATE STATUTES- COLONIAL Bank Act (19 Vict.) — Sees. 1, 3, 12, 13. Colonial Bank v. Buck- land 78,79 Melbourne and Hobson'sIBay Railway Coy's Act (16 Viet.)— Donaldson v. Vine 1325 Sec. 69. Jenkyns v. Elsdon ... 1421,1422 St. Kilda and Brighton Railway Pur- chase Act (No. 269)— Sec. 31. Melbourne and Hobson's Bay Railway Coy. v. Mayor of Prahran 151 And for other decisions on Statutes see under Statutes, cols 1363,1375 IMPERIAL STATUTES— See Statutes, cols. ... 1371, 1375 CORKIGENDA. Readers abb requested to make the following Alterations : — Col. 1, line 5. — Instead of Form and Requisites of, Sfc., read post col. 619. ; line 2 from bottom, delete in. Col. 2, line 5. — Instead of Sec. 16, read Sec. 36. Col. 6, line 27 from bottom. — Instead of Fraudulent Conveyance, read post col. 623. Col. 8, line 2. — After Claim, read col. 930. Col. 12, line 9 from bottom. — Instead of Jurisdiction, read post col. 659. Col. 28, line 19. — After Offences (Statutory,) read col. 1113; line 22, after Justice oic the Peace, read col. 753 ; line 23, instead of No. 239, read No. 229. Col. 29, par. 2, line 3. — After column, read 1 3 ; par. 5, line 4, instead of Construction and Interpretation of — {General Rules,) read cols. 1572, 1573. Col. 39, line 27 from bottom. — Instead of Bill, read post col. 1198. CoL 55, lines 5, 10, 13.— Instead of Sec. 21, read Sec. 261. Col. 59, line 8. — After Bill of Sale, read col. 107. Col. 61, line 9.— Instead of 1864, read 1865. Col. 70, line 22 from bottom. — Instead of under Crown, read col. 330. Col. 71, line 7. — Instead of Jury, read cols. 307, 308. Col. 73, line 17 from bottom. — After Local Government, read col. 853. Col. 74, line 10 from bottom. — Instead of under Trespass — To houses and lands, read col. 1312. Col. 76, line 14 from bottom. — Instead of Instrument, read Instruments. Col. 93. — Delete last paragraph. Col. 109, line 25. — Instead of Conveyance, read Preferences. Col. 116, line 32. — Instead of under Crown — Privileges, fyc, read post col. 330. Col. 124, line 7.— Instead of Sec. 14, read Sec. 20. Col. 127, line 6. — Instead of Jurisdiction of Courts of Mines, read cols. 1008, 1009 j line 30, instead of Ibid., read col. 953. Col. 134. — After Claim, read Mining instead of of Mining. Col. 143, line 34. — Instead of cestius, read cestuis. Col. 145, line 6 from bottom. — Instead of British, read Cornish ; lines 6 and 4 from bottom, instead of under Malicious Prosecution, read cols. 880, 881. Col. 152, line 19. — Instead of Rules and Articles, read Increase of Capital. Col. 159, line 25.— Instead of Rules, $c, read cols. 1022, 1023. Col. 160, line 28 from bottom. — Instead of Farrar, read Farran ; line 26 from bottom, instead of Calls, read col. 1021. Col. 161, line 14.— Instead of Rules, Sfc, read cols. 1025, 1026. Col. 184, line 22 from bottom. — Instead of N., read M. Col. 205.— Delete lines 8 and 9. Col. 221, line 13 from bottom. — Instead of 106, read 116. Col. 223, line 14. — After column, read 227. Col. 245, line 5. — Instead of In other Cases, read col. 545 ; line 4 from bottom, instead of 294, read 274 ; line 2 from bottom, instead of Sec. 39, read Sched. 39. < Col. 258, line 13 from bottom.— Instead of Sec. 75, read Sec. 78. Col. 322, line 13 from bottom.— Instead of " Constitution Act," 22 Vic, No. 68, read " Consti- tution Act"— 22 Vie. No. 68. Col. 325, line 11. — Instead of Selectors, read col. 793. CoL 332, line 31. — Instead of under Trespass — To lands and houses, read col. 945. Col. 334, lines 9 and 10 from bottom. — Instead of Practice m Granting Probate and Letters of Administration, read col. 1523; line 6 from bottom, instead of Ibid., read col. 1531. Col. 349, line 22.— Instead of Sec. 75, read Sec. 76. cxxxiv. CORRIGENDA. Col. 383, lines 26, 27. — Instead of Jurisdiction and Duty — In other cases, read col. 763. Col. 395, lines 12 and 13 from bottom.— Instead of For Facts See 8. C. post under Way, Src , read See S.O. post col. 1493. Col. 405, lines 4 and 5. — Instead of Rights and Powers, fyc, read col. 1444 ; line 13, instead of Fairnbairn, read Fairbairn. Col. 408, Par. 5.— Instead of Effect of Forfeiture, Sfc, read cols. 935, 936. Col. 411, line 4 from bottom. — Instead of Ibid., read col. 958. Col. 412. last 2 lines. — Instead of Interests in Mim.es — Claims, fyc, read col. 919. Col. 415, line 27 from bottom. — For Allen, read Allan. Col. 416, line 26, — Instead of In re Peebles, read In the Goods of Peebles. Col. 420.— Delete par. 4. Col. 431, line 14. — Instead of Symonds, read Symons; line 25 from bottom, instead of In re Peebles, read In the Goods of Peebles. Col. 448, line 33. — Instead of Allen, read Allan. Col. 454, line 21.— After 'Winding Up, read col. 1035. Col. 461, line 4. — Instead of Practice, read col. 1541. Col. 463, last line.— After " Judicature Act," read cols. 1229, 1230. Col. 465, line 10 from bottom. — Instead of Petitioning Creditor's Debt, read col. 1028. Col. 484, line 5.— After Leases, read cols. 792. 793, 794. Col. 502, line 6. — Instead of Property, Powers, and Contracts, read cols. 864, 865. Col. 539, line 14. — Instead of Dower, read col. 1470. Col. 540, line 33. — After Jurisdiction, read col. 650. Col. 548, line 4 from bottom. — After To whom granted, read col. 1520. Col. 550, line 25.— Instead of Sec. 14, read Sec. 74. Col. 566, line 29 from bottom. — After Lease, read col. 809. Col. 577, line 9 from bottom. — After Sequestration, read col. 612. Col. 589, line 4. — Instead of No. 5, read 5. Col. 591, line 25 from bottom.— Delete Sec. 13 ; line 12 from bottom, instead of Sec. 13, read Part 13. Col. 596, line 24.— Instead of Sec. 46, read Sec. 47. Col. 607, par. 2, last line. — Instead of Synnott, read Synnot. Col. 616, par. 5, line 1. — Instead of 375, read 379. Col. 618, line 8 from bottom. — Instead of 181 read 151. Col. 636, line 12. — Delete and Procedure. Col. 654, footnote to par. 4. — Instead of Sec. 77, read Sec. 79. Col. 670, line 35. — After Discharge, read col. 690. Col. 706, line 17. — Instead of col. 170, read col. 710. Col. 735, line 8. — Instead of Currie, read Come. Col. 748, line 17 from bottom. — After Bates and Rating, read col. 1267. Col. 749, lines 9 and 10.— Instead of 1860, read 1865. Col. 752, line 28.— Instead of Calls and "Winding Dp— Petition and Practice in— Calls, read col. 1026. Col. 753, par. 7, line 2.— Instead of Sec. 238, read Sec. 223. Col. 754, line 28. — Instead of Vict., read Rich. Col. 758, line 21.— Instead of Guthrie v. Gippsland Gold Mining Company, read Guthridge v. Gippslander Gold Mining Company. Col. 760, line 1 3.— Instead of Act No. 263. read Act No. 267. Col. 762, line 36. — Instead of Corden, read Carden. Col. 766, line 18 from bottom. — After Licensing Acts, read col. 833 Col. 781, par. 3, line 3. — Instead of 572, read 571 . Col. 783, line 6 from bottom.— Instead of Chalmers, read Chambers. Col. 784, lines 13 and 12 from bottom— Instead of Rights, Src, read col. 1444; line 8 from bottom, after Trustee, read col. 1444. Col. 789, line 2.— Instead of col. 326, read cols. 328, 329. Col. 801.— After par. 2, read 5 Commons, instead of 6 Commons. Col. 802.— After par. 2, read 6 Offences, Sfc, instead of 7 Offences, Src. Col. 8C3, line 5 from bottom.— Head 7 Other Points, instead of 8 Other Points Col. 805.— In subject XL of Index, read col. 819, instead of col 818 Col. 813, line 28.— Instead of 501, read 571. Col. 818, line 7.— Instead of Haimes, read Haines. Col. 824, line 26 from bottom — Instead of 1889, read 1869. Col. 834, par. 4, line 5. — Instead of Sec. 14, read Sec. 140. Col. 839, line 29. — After Purchaser, read cols 1475, 1476. Col. 863, last line.— After (Statutory,) r^ad cols. 1110, 1117 1118 Col. 864.— In Index IV. (b) read Supersedeas, instead of Sup'ercede'as ?°l ««n'T fIF ar " 1 , in 4 erthe T din *i C) , M ? i,ltena,lce < Allowances and Expenses. Col. 880, line 14 from bottom.— Instead of Atcion read Action. Col. 922, line 6. — Instead of Sab-sec. iv., read Sub-sec. ivi Col. 957, line 33.— Instead of Sec. 313, read Sec. 31. Col. 967, line 18 from bottom. — Instead of 314, read 914. Col. 983, line 23 from bottom.— Instead of col. 979 read coZ qw Col. 984, par. 1.— Instead of 1853, read 1883. ».*>"• CORRIGENDA. cxxxv. •Col. 1025, line 28. — Instead of Stocpoole, read Stacpoole. Col. 1047, par. 5. — Instead of col. 1040, read col. 1046. Col. 1075, par 2, lines 2 and 3. — Instead of Sec. 14, read Sec. 20. Col. 1185, par. 2, line 2. — Instead of disallowed, read allowed. Col. 1207, Index (4.)— Instead of col. 1210, read col. 1209. ■Col. 1211, par. 6, line 4.— Instead of No. 19, read No. 10. Col. 1227, line 10 from bottom. — Instead of Order 14, read Order 16. Col. 1230, last par., line 3. —Instead of Order 10, read Order 9. <3ol. 1232, par. 4, line 2. — Instead of Order 28, read Order 38. Col. 1234, line 39.— Instead of Jiules 6 and 7, read Rule 6. Col. 1284, lines 15 and 21— Instead of 233, read 223. Col. 1313, heading. — Instead of Settlements, read Sheriff. Col. 1325, line 27. — Instead of Sec. 5, read Sec. 46 ; line 4 from bottom, instead of Sec. 4, Col. 1356, line 17.— Instead of 106-108, read 806-808. Col. 1375, line 19. — Instead of Smith, read Smyth. Col. 1380, par. 5, line 3.— Instead of 810, read 808. Col. 1382, par. 4, line 1. — Instead of Foming, read Forming. Col. 1396, par. 3 from bottom, line 1. — Instead of 27, read 25. Col. 1401, line 11 from bottom.— Instead of .1400, read 140ti. Col. 1416, line 17. — Instead of see facts ante column for 1060, read see for facts ante column 1060. Col. 1425, line 1 1 from bottom. — Instead of Hermert, read Hemert. Col. 1463, line 3. — Instead of Webster, read Baker. . Hig*0t OP REPORTED CASES IN THE SUPKEME COURT, COURT OF INSOLVENCY AND THE COURTS OP MINES, AND VICE- ADMIRALTY OF THE COLONY OF VICTORIA. FROM 1861 TO 1885. ABATEMENT. Of Actions.] — See under Practice and Pleading. Op Insolvency Proceedings.] — See in re Mann, post under Insolvency — Seques- tration.] — The Petition, &c. — Form and Requisites of, &c. Of Nuisances.] — See Nuisance, Of, Legacies.] — See Legacy. ABATTOIRS. "Abattoirs Stat." No. 356, Sees. 7, 8, 27, 28, 41— Ones.] — L. was sued in the Police Court, Geelong, by T., the Town Inspector for Geelong, for dues on the slaughtered cattle in a slaughter- house owned by him, within a mile of Geelong. The Geelong Abattoirs were leased to one W. Held, that under Sec. 41, T. and not W.i, was the proper person to sue; that in Sec. 1 the words " and in every such last mentioned, &c," should be read " but every such last mentioned, &c.j" and that L. was liable to pay the dues to the Town Council of Geelong. Lowe v. Tweedale, 3 V.R. (L.,) 225 j 3 A.J.R. 110. Being in possession of a Skin with Defaced Brand —"Abattoirs Statute," Sec. 16.]— The "brand" mentioned in Sec. 36 of the "Abattoirs Statute," which section imposes a penalty upon any one having in his possession a skin from which the brand has been defaced, is a fire-brand upon the skin itself, and not a mere surface brand upon the wool. Smith v. McGann, 2 V.L.R. (L.,) 266. Granting License for.] — See Regina v. CaulfielA Road Board, post under Mandamus. ABDUCTION. See CRIMINAL LAW. ABSCONDING DEBTOR. e INSOLVENCY AND FUGITIVE OFFENDERS. B ACCOUNT. ACCESSORY. Doctrine of Accessories — When applicable.]— The doctrine of accessories applies only to an indictable offence in which there is. a principal offender. Regina v. Barry ex parte Gonnor,' 5 A.J.E., 124. For facts see S.Q. under Licensing Acts. ACCIDENT. See NEGLIGENCE. ACCOUNT. 1. General principles and who may be com- pelled to Account. 2. Re-opening Settled Accounts. 3. Directing Accounts to be taken. 4. Practice. 1. General Principles and who mat be compelled to account. E., M., and L. entered into a Government Railway Contract. In this L. acted as a trustee for R. G, N. G., and J. W. By articles of partnership L. was as such trustee to receive $ of the entire profits, E. and M. each T V By Indenture E. G., N. G., and J. W., assigned their joint and several estate to trustees upon trust for their creditors. By deed, March, 1860, executed between E„ M., and L., R. G., N. G., and J. W. and their trustees, W. W. and the Bank of N. S. W, the partnership between . E., M.,..and L., was dissolved, and a fresh part- nership established between W. W. and L., in which L. represented N. G., R. G., J. "W., and ' their trustees, and certain funds were assigned to the trustees for payment of cecfcain scheduled debts; and it was provided that L. should! give to E. and M. respectively, bonds con- ditioned for payment of a sum of money equal to -fc of net profits of the contract within three months after the completion of the contract, and that the 'completion of the, contract meant the time when certain retained percentages should become payable by Govern- ment, i.e., twelve months after the Railway was opened for traffic. JBy deed, July, 1861, between same parties, J. W. was to take L's. place in the partnership of "W. W. and L„ and J. W., as a personal liability of -his own, but not so as to render other parties liable or to interfere with existing liabilities; was to give the bonds men- tioned in Indenture, March,1860. The bonds given by L. were given up by E. and M. and cancelled. The Railway was opened 1st April, 1862. On 6th December, 1862, E. and M. filed bill against E. G., N. G., J. W., their trustees, and W. W., praying for an account, for a declaration that certain entries and charges in partnership boplssr were improperly entered and charged, anjd? certain bills of exchange wrongfully accepted, and certain moneys wrongfully -applied. Held that bill was filed before time had' arrived entitling plaintiff to an account; that the alleged improper entries and charges, acceptance of bills and misapplication of moneys, could have no effect in the only account in which the •plaintiff.- was entitled; -viz. : — an account of the entire profits -of the contract, deduetingi ouijay f rom receipts; that plaintiff was entitled to an account against J. W. only, and that the accounts in that case would be of such a complicated nature that it was a fit subject for an account in Equity. Eeference to Master to take an account of the net profits. Evans v. Guthridge, 2 W. and W. (E.,) 83. Sale of Wool — Release of Debt] — Defendants advanced to plaintiffs a sum of ,£694 18s. 9d. on a shipment of wool to England. After the advance plaintiffs found it necessary to call a ^meeting of their creditors. A composition of 6s. 8d. in the pound was offered, but ultimately the creditors, including the defendants, con- sented to release their debts on payment of 10s. in the pound, the defendants being creditors for about .£600, besides the ,£694 18s. 9 and furnished accounts from .time to time to the, acting trustee, including charges for commission as agent, and costs as solicitor. The costs were taxed." exparte, and allowed him ACCOUNT. In account without investigation. In 1867, at the instance of a cestui gue\ trust objecting to M.'s account, an order for re-taxation was obtained, and, had been partly acted upon, when M. died. A suit was instituted in 1869, against M.'s administrator, seeking an account of his receipts. Held, that the course of dealing did hot amount to a conclusive settle- ment of accounts, that the recommendatory ■words in the will were material in considering the effect of such dealing as toisuoh settlement, •and account directed, limited by consent to items for costs. Phelan v. Macoboy, 1 V.E..(E.,) 85; 1 A.J.E., 3. Confirmed on appeal: sub nam. Macoboy v. Phelan, 1 A.J.E. 52. Partnership — Ship.]-r-Plaintiff and defendant were partners in a ship called the "T." The " T." was lost andinsurance moneys recovered ; the plaintiff and defendant then purchased the ■" B. P.," plaintiff advancing most of the money -and defendant being credited with a sum of .£587 due to him from former transaction and with £18 a month as wages. The " E. P." made •several voyages, and accounts to December, 1869, were made up, by which it appeared that defendant was credited with £1068. The plaintiff then advanced nearly £2000 for repairs and outfit, and ship made several voyages at great profit as plaintiff alleged, until July, 1871, when she was sold for £2500. £1831 of this was remitted to the plaintiff for purchase- money and £420 for profits, defendant claiming to retain a large sum as his own. Bill by plain- tiff for accounts. Defendant in answer denied that he was part owner of the " B. P.," and therefore not, liable for losses, and that his wages were to 'be paid him irrespective of losses, and he alleged tbat accounts were signed by him without his understanding them, and claimed a re-opening of accounts as to the " T." Held, that the former accounts having been settled could not be re-opened, and account decreed of receipts and disbursements by defendant, giving him credit only for pay- ments actually made, and account of profits. Smith v. Knarston, 3 A.J.E. 94. 3. Directing Accounts to be Taken. Simple Account within Bale 19 of Cap. VI. of Supreme Court Rules ] — T. and S. dissolved part- nership, and referred differences to arbitration. . ' The arbitrator employed an accountant, who struck a balance, to which the parties did not object, but no award was made. T. and S. jointly deposited with a bank an acceptance in favour of the firm for a debt owing at the dissolution. After dissolution T. renewed the acceptance without consulting S. T. then discounted" the whole acceptance and left the colony. S. assigned his interest in the accept- . ance to a third person. The person to whom ,iT. had discounted , the acceptance sued the acceptor when the acceptance was overdue. ,S. filed a bill against T. and the person to whom he had discounted • the acceptance, and the acceptor was restrained from paying to such person more than half the, acceptance, and the acceptor accordingly paid half to him and half to S^s assignee. T. was never served with the bill in this suit. T. on his return filed a bill against S. and his assignee, praying an account of the partnership at its dissolution, and that if S. or his assignee had received more than was due to S. of the partnership assets, he or his assignee should be directed to pay to T. what should be found due. Evidence was given of the balance struck by the accountant. Held, that T. was hot estopped by the decree in the previous suit, and that the matter was one of "simple account" within Eule 19 of Cap vi. of the Supreme Court Eules, and decree made in favour of T. without a reference. On appeal, Held, that Eule 19 contemplated the case of an ordinary bill for account ; that to bring a case within this Eule a special prayer in the bill is not necessary, though the pro- ceedings may, if the plaintiff choose, be framed to meet the case, and appeal dismissed. Taylor v. Southwood, 1 W. & W. (E.,) 29. Under Supreme Court Eules, Cap. vi., Eule 19, an account was taken at the hearing of a suit for redemption. Bulling v. Bryant, 1 W. & W. (E.,) 121. Supreme Court Eules, Cap. VI., Rule 19.] — Where the evidence was unsatisfactory and by no means conclusive, and not unlikely to be, at all events, to a certain extent, rebutted, a decree for a specific sum under the Supreme Court Eules, in place of a decree for an account, should not be made. TucTcett v. Alexander, 1 W. & W. (E„) 87, 94. Quaere, Whether Eule 19, Cap. 6, of the Supreme Court Eules, should, be held to apply to the case of a Defendant who has not defended the suit; as this point was overlooked, and not argued, in Taylor v. Southwood, 1 W. & W. (E.,) 29.— Ibid. See S.C. under Insolvency — Fraudulent Conveyance. 4. Practice. Co-defendants not interested in accounts which only affect one defendant — Parties— Costs.] — Where a plaintiff in a suit, the main object of which was accounts, has no rights as to account except against one defendant, the other parties should be kept before the Court, so that the account may determine that defendant's rights against them for any sums he may have to pay to the plaintiff and also to give him facilities for access to books and papers, but plaintiff was made to pay costs of all parties defending up to and inclusive of hearing. Evans v. Guthridge, 2 W. & W. (E.,) 83. " Four-day Order"for Filing.-^Where a defendant in a suit for an account, failed to bring in his accounts in the Master's office, within the time limited for that purpose by the Master, the Court, on the ex parte application of the Plain- tiff, granted a " four-day order " for the filing by the defendant of his accounts. Oronan v, Edwards, 5 W. W. & a'B. (E.) 15. In Master's Office— Right of cestuisque trust to. — In a suit by cestuisque trusts against trustees, the cestuisque trusts are entitled to have accounts ACTION. S taken in the Master's Office, although they ■were furnished with accounts before the summons was issued, and the answer had accounts attached to it. Snaith v. Dove, 4 A.J.R., 140. " Statute of Evidence" No. 197, Sees. 7, 8, 10— Affi- davits — Appeal] — Before making an order under Act No. 197, Sees. 7 and 8, which require that accounts should be filed, the Master-in-Equity should, before directing accounts to be filed, give the respondent an opportunity of answer- ■ ™gj hy way of affidavit, or vivb\ voce evidence, the statements in the affidavit on which the summons was based. Since the Act does not indicate the manner of evidence in the office, affidavits are not the most fitting evidence before the Master. Affidavits in support of a summons under Sec. 7 should be explicit, referring to de- fects in certain accounts presented, and show- ing definitely a demand for proper accounts and a refusal. An appeal will lie against an order of the Master under Sec. 7, rejecting viva voce evidence tendered in answer to affidavits on which summons was based, and directing accounts to be filed. In re Wharton, ex parte Smith, 3 V.L.E. (B.,) 260. Cost of Account! — When Plaintiff in Error.] — On taking accounts in a suit, it was found that the defendant was right as to the amount due. Held, that the plaintiff should not have the costs of taking the accounts. McPherson v. Hunter, 2 A.J.E., 36. Of taking Accounts — Finding in Defendant's favour — Accounts necessitated by Defendant's conduct.] — When the result of taking accounts in the Master's office in a partnership suit, was sub- stantially in the defendant's favour, but the pro- ceeding had been necessary on account of conflicting statements by him as to the amount due (the matter being within his knowledge.) Held, that the costs thereof were properly im- posed upon him. James v. Greenwood, 2 A.J.K., 41. Of Decree — When Defendant made no Tender of Sum Due.] — When accounts had been taken, and it was found that the defendant was right as to the sum really due, but he made no tender of that sum, he was not allowed the costs of the decree. McPherson v. Hunter, 2 A.J .R., 36. In taking accounts under a decree it is entirely for the chief clerk to direct what parties shall bring in accounts ; Molesworth, J , refused to interfere with his discretion in this respect. Bell v. Clarice, 10 V.L E. (E.,) 283, 305: 6 A.L.T., 127. ACT OP GOD. What is not] — See Davis v. Bull, pott under Mining. — Claim. When a Defence.] — Where the law creates a duty or charge, and the person is umible to- perform it by reason of the Act of God, he is excused from performance ; but if a person; contracts to do a certain thing, and it becomes- impossible by reason of the Act of God, he may- be liable in damages for its non-performancei Connor v. Bpence, 4 V.L.K. (L.,) 243, 259. If a ship owner enter into a special contract to carry goods in a particular ship, and the ship be damaged by the Act of God, but the damage done is such that she could be made capable of resuming the voyage, though, from an economical point of view it might be unwise to do so, the ship owner is liable in damages for non-performance of his contract, though semMe that if the ship or the goods were totally destroyed by the Act of God the ship owner would not be liable for such non- performance. Ibid. AOT OP PARLIAMENT. See STATUTE. ACTION. 1. Generally. 2. Notice of Action. 3. Limitation of.— See Limitations Statute ACCOUNT STATED. Action on.] — See under Monet Claims. 1. Generally. When maintainable.] — No action lies on an Order or Rule of Court to pay money. Gregory v. King, 1 W. & W. (L.,) 92. Assumpsit — Against heir on whom lands have- descended for money payable as price of goods aold- and delivered to ancestor.] — Where A. was indebted to plaintiffs for money payable a* price of goods sold and delivered to A., and A.'s lands descended on B. his heir. Held that assumpsit would lie against B. for such amount due on an account stated between plaintiffs and A. in his lifetime. M'Ewan v. Honour, 2. W. & W. (L.,) 273. » ACTION. 10 Cause of Action — Action when maintainable.] M., a sharebroker, declared against B. and C., sharebrokers, to recover damages for that the defendants conspired to dissolve the Stock Exchange, of which plaintiff and defendants were members, "for the purpose of injuring the plaintiff of his just rights," and for that "In furtherance of the said conspiracy, they said to W. sharebroker, these words—' Do you know that fellow?" (meaning the plaintiff,) " Beware of him ; he has given a lot of trouble' (meaning he was not fit to be trusted.' ' ) H eld on demurrer that the declaration disclosed no cause •of action. Moorhead v. Brown, 4 W. W. & a'B (L.,) 143. . Against whom maintainable. — Detention of Ship.] — H sold a ship to W. Before the sale the master had been employed by H., and after the sale by W. The sale was effected in the China Seas by an agreement entered into by the master in pursuance of an authority given by H , and by the agreement it was stipulated that after the sale the vessel was to be sailed as W.'s, though still registered in the name of H., and so to continue till the whole of the purchase money was paid After the sale the master was employed by W., and while in such employ he brought the vessel to Sydney ; but, •on receiving a message from H., whom he had appointed agent of the vessel, brought the vessel to Melbourne, and in consequence W. lost the opportunity of obtaining valuable freight in China. W. sued H. for detention. Meld, that though H. might have been guilty of improper conduct in offering the advice he. did to the master, the latter was a free agent, in W.'s employ, and could have adopted or rejected the advice as he saw fit ; and that no action for detention would lie against H. Wilson v Holmes. 1 V.E. (L.,) 53 : 1 A.J.E., 117. Money Recovered in— What is.] — Money paid between the parties in settlement of an action, is not money " recovered " in the action ; and c«sts are part of the damages recovered. Bay v. Union G. M. Coy., 2 V.L E. (L.,) 11. When Maintainable.] — Where the cause of action is the same, the plaintiff cannot sue in a .second action in a Court of Law for that which he had the opportunity of recovering, and which, but for his own fault, he might have recovered in a former action ; and, e converso, in matters arising out of contract, the cause of action being the same, and not the subject of cross action or set-off, a defendant who has had an opportunity given him to raise and has passed over a substantial ground of defence in an action brought against him, is concluded by the judgment in that action, and cannot make the omitted ground of defence the subject of an independent action; and this principle is not affected by the fact that the two actions were brought in separate Courts, and that the plaintiff in the second action seeks to recover •unliquidated damages. Burst v. Bank of Aus- tralasia, 2 V.E. (L.,) 217; 2 A J.E., 123. Who may Maintain.] — Semble, that the person ziamed by an Act of Parliament as the person to whom moneys are to be paid, is the proper person to sue in an action to recover such moneys. Roebuck v. Mayor &c, of Geelong West, 2 V L.E. (L.,) 189, 194. On Covenant to Pay — Demand.] — An action may be maintained on a covenant to pay a, sum certain on demand, without any previous demand. Nicholson v. Merry, 4 V.L.E. (L.,) 65. Actionable Wrong— Immorality.] — The owner of a boarding house sued a boarder for damages arising from loss of boarders through defend- ant's committing adultery in such boarding house. Judgment for defendant, there being no appearance for plaintiff. Hill v Power, 5 V.L E V (L.,) 400; 1 A.L.T., 169. When maintainable — Building contract — Satis- faction of Employer — Question for Jury.] — Defendant, a contractor for making a tank and well, invited tenders for the brickwork and puddling of a tank, and accepted the plaintiff's tender for the brickwork only (the puddling being left for the contractor to do himself.) The contract and specification provided that "during the building of brickwork and erection of tank, the contractor shall keep the tank clear of water, and shall be responsible f or ' tank and well being water-tight;" the work was also to be done in a substantial manner, to the satisfaction of the defendant. Held' that to justify a verdict for the plaintiff, the jury must be satisfied on three points :— That the parties had entered into the contract alleged ; that the work had been duly executed in conformity therewith ; and that the defend- ant, as a reasonable person, ought to have' been satisfied with that execution. Smith u. Sadler, 6 V.L.E. (L ,) 5. When maintainable — Debt arising out of a felony — Duty to prosecute.] — Semble, that where money has been stolen, it is not the duty of the person from whom it is stplen to take criminal proceedings before taking civil proceedings to recover the money. Foster v. Green, 3 A.L. T., 97^ 2. Notice op. " Customs Actl857" No. 13, Sec. 227.]— Notice of action under Sec. 227 of Act So. ~13 must be proved in ah action against a customs officer for detinue and trover of goods which he would not deliver up until duties imposed only by resolution of the Legislative Assembly had been paid, and for refusing to sign a "free entry" of such goods unless the duties were paid, where the duties- were demanded by the defendant virtute officii, and he had a bond fide belief that he was doing his duty. The duty of deciding as to the existence and honesty o the belief devolves on the Court and not on the jury. Stevenson v. Tyler, 2. W.W. & a'B. (L.,) 179. " Melbourne Harbour Trust Act 1876," No .552, See; 46.— Person.]— Se'e Union Steamship Coyi of New Zealand- v. Melbourne Harbour Trust Commissioners, post under Harbour Tbtjst. 11 .County Court Bailiff— Action against for not leyying qxecution — " County Court Statute 1869," See. 32 ] — See Solomons v. Mulcahy, post under CoSjntt Court — Officers of the Court. "Justices of Peace Statute 1865" No. 267, Sec. 170i— s.oticV— When Justice entitled to.] — See Smith a)., Cogdon, ,post under Justice of Peace — Actions against. ADMINISTRATION OF ESTATES. ADMINISTRATION OF ESTATES OF DECEASED PERSONS. 1. General Principles and Construction of the Administration Acts. 2; Suits and Actions for. (a) Practice Generally. (6) Parties. (c) Costs. 3. Administration ly Executors and Adminis- trators. — See Executors and Adminis- trators. 4, Grant of Letters of.— See Will. X. General Principles and Construction of Administration Acts. Administration Act 1872, Sec. 14— Does not Apply to Estates of PersonB Dying before its Date.]— On a rule nisi for a mandamus to compel the Regis- trar of Titles to register as proprietors of certain land executors, who were also devisees ill trust under a will made in 1861, but not proved till 1872, Held that Sec. 14 of the "Administration Act 1872," which did not come into operation till 1873, did not apply to such a case, but only to the case of persons dying after the Act came into operation, and rule nisi discharged. Regina v. The Registrar of Titles ex parte Grice, 4 A. J.B., 92. Under Intestates' Real Estate Act, Sees. 4, 0— Effect on Conveyance made Previously to Rule to Administer.] — By the operation of Sec. 6 of the " Intestates' Real Estate Act" No. 230, under which section the title of the person to whom a rule to administer real estate of an intestate has been granted under Sec. 4 is referred back to the time of the death, a conveyance of the land made by the heir-at-law of the intestate previously to the obtaining the rule to ad- minister is nullified. /Slack v. Winder, 4 A.J.E., 188. Intestates' Act (No, 230,) Sec. 4— Property partly Disposed of by Will — Ho Next of Kin.]— A testator left a will dated August, 1874, by which he made a specific devise and bequest to his wife 12' for life, and left the rest of his property to his trustees and executors upon trust for sale (post-^ poning the sale of that portion in which widow 1 had a life estate till after her death) but making no farther disposition of , the residue: ' The, trustees realised the whole of the estate, the sale of which was not postponed, and held the proceeds. The testator left a widow but no next of kin. Meld on information that the widow was entitled to a moiety of the entire residue besides' her life estate specifically devised and bequeathed, and that as to other moiety the Crown was entitled to what repre- sented personal estate, and the trustees, to what represented converted real estate and uncon- verted real estate subject to widow's life estate. Attorney-General v. McPherson, 3 V.LR. (E.,) 270. Act No. 427, Sec. 6.] — The Act is ubt retrospec-' tive, so that the administrator of an intestate who died before the Act came into force, and before a Crown grant was issued in respect of such, land, cannot maintain ejectment. Edmondson v. Macan, 4 V.L.E. (L ,) 422. Administration Act 1872 (No. 427.) Sec 9— Sale after Payment of Debts.] — Where real property is distributable under Act No. 427, Sec. 9, and all the debts have been paid, if all parties in- terested consent to a sale, the Court will decrees the executor to sell and divide the proceeds, but if one party insist on a division of the real estate qua real estate the executor- must divide it accordinglv. Dodgson v Clare, 5 V.L.E. (E.,) 137. Act No. 230, Sec. 4.] — A. died intestate in 1853, leaving W. his heir. W. died intestate in 1868, and a rule to administer A.'s estate was obtained in 1878. Held that A.'s real estate, was distributable as to beneficial ownership under Act No. 230 between the widow and next of kin of A; Archibald v. Archibald, 5 V.L.E. (E.,> 180. Mortgagees— S Vict., No. 17.] — Where during the pendency of a creditor's suit, instituted by mortgagees against the heir and administra- trix of an intestate, the administratrix seques- trated the estate, and the official assignee was substituted as a defendant instead of the administratrix. Held that there was nothing; in the Act 5 Vict., No. 17, to take away the preference of the mortgagees as specialty cre- ditors. Australian, Trust Company v. Webster, 1 W. &. W. (E.,) 148. Simple and Specialty Creditors — Who are.] — Australian Trust Company v. TTeister. — See under Insolvency— Jurisdiction. Estate overrun with Babbits— Motion for leave to spend Money in exterminating them, out of Income and Annuity charged on Estate.]— P. was entitled to an annuity of /B500 charged on the T. estate, which was devised by the will of the owner in fee in strict settlement subject to the annuity. The estate, a sheep-station, was infested with rabbits in such numbers that if the j" were not ia ADMINISTRATION OF ESTATES. 14 exterminated the estate would, in a few years, become unprofitable, or J>10,000 would have to bo spent in clearing it. Under these circum- stances the executors of the will moved for leave to spend £ 1300 during the course of three years, to be taken half-out of P.'s annuity, and half out of the income, of the estate. Held that the Court could- not make such order. Broumv. Abbott, 10 V.L.B-{E.,)129. Semble, that if it were shown that the pro- perty would be totally destroyed if- the money were not expended in exterminating the rabbits, the Court could order part of P.'s. annuity %o be applied in such extermination. Ibid. For other cases see under Distributions Statutes of. 21 Suits and Actions for. (o) Practice Generally. By Mortgagee — Legal and Equitable.] — Plaintiff Was legal and equitable mortgagee respectively of different portions of real estate of a deceased intestate, and as such instituted a creditor's suit against the intestate's personal represen- tative and infant co-heiresses. Decree made for an account of the mortgage debts respec- tively, interest and costs; on non-payment •within three months, for a sale of the equitably mortgaged premises ; infant defendants de- clared trustees for the purchaser, under the decree, and plaintiff directed to convey the equitably mortgaged lands to such purchaser, for the interest of the infants therein; the plaintiff within the term assigned to sell under the power of sale in the legal mortgage ; and in case proceeds of all these sales insufficient t* pay plaintiff's principal, interest, and costs, then general accounts directed of the intestate's real and personal estate. CoUyer v. Corcoran, 1 W. W. & a'B. (E.,) 16. Flea of Sequestration of Estate by Administratrix] — >-To an administration bill by a mortgage creditor on behalf of himself and all other creditors, against the administratrix and heir of an intestate, the administratrix pleaded that before suit instituted she had sequestrated the personal estate of the intestate, whereby all such personal estate became and was vested in the official assignee, and prayed to be dismissed from the suit. Held per Chapman, X, that as the whole estate passed, out of her, she was no longer a necessary party ; per the Full Court, that the plea was no answer to the bill, and that it must be overruled.: Fairbaimv. Clarke; 1W.4W, (E.,)333. Sale of Realty for payment of Debts.] — A testator died in 1867, leaving realty and personalty to trustees, who were also appointed executors, for the benefit of his wife and children ; the personal estate was insufficient for payment of debts. In a friendly administration suit by beneficiaries a decree was made authorising money to be raised for payment of debts by mortgage of the real estate, leaving it to the Master's discretion to insert a power of sale or not; Btodart v. Stodart, 6 W.W. & a'B. (E.,) 59. Advertisements for Next of Kin.]— In an adminis- tration suit advertisements for next of kin are not necessary when the next of kin can be, otherwise ascertained. Certificates of births, deaths,: and marriages are not necessary for proof of kindred which may be established by other evidence. Mulloy v. Mulloy, 1 V.B. (E-,). 167. Interlocutory Application — For Sale of Real Estate] — Where a motion was made by the plaintiff in an administration suit, for sale of the business of the intestate, and the land on which it was carried on, and the administratrix defendant objected to the sale and opposed the motion ; although it was admitted that the sale would be beneficial, the motion was refused with costs. Graham v. Graham, 2 V.B: (E.,) 145; 2 A.J.B, 104. Injunction and Receiver granted.] — An admi- nistratrix, upon obtaining administration, formed a partnership to carry on the intestate's business, and allowed the partners to exercise control over the assets employed in it. Shortly after obtaining administration, and without any necessity for sale, she advertised real estate to the value of about ,£13;0Q0 for sale for cash. On bill by persons out of the colony alleging themselves to be the sons, and only next of kin, of the intestate, and that the defendant was not the widow of the intestate as she pretended to be^mj unction granted ex parte to restrain sale and a receiver granted on motion. Graham v. Graham, 2 V.B. (E.,) 145 ; 2 A.J.B., 100. Excess of Expenditure over Receipts of Estate — Refusal of Power to Raise Money, but Grant of Order to wind up.]— On further directions where it appeared that executors had properly incurred debts in managing the estate, the Court would not sanction the borrowing of a sum of .£2500 to pay off existing debts, but granted an order to wind up the estate. Farrell v. Evans, 3 A.J.E., 71. Motion for Direction of the Court Before Decree.] — An application by administrators after the institution of a suit respecting the property in their hands but before decree, for the direction of the Court as to the manner of investing the property will be refused. Attorney-General v. 1 Huon, 4 A.J.E., 107. Motion to Dismiss Bill — Costs.] — A creditor who held a current promissory note not due at institution of suit, but which was paid- at maturity brought an administration suit which was registered as a lis pendens. Motion to dismiss bill refused because plaintiff was entitled to carry suit to a hearing to determine question of costs, and without costs because the Us pendens had been used vexatiously. O'Reilly v. Egan, 1 V.L.E. (E.,) 1. Priority of Suits — Creditor's Suit — Decree — Second Suit— Stay of Proceedings.] — It is generally _ a matter of course, where a decree in one adminis*. tration suit has been obtained, to stay all others ; and that, although the decree in the first suit 15 ADMINISTRATION OF ESTATES. 16 may be oollusive, in the sense of the executor having facilitated it ; and there is no authority to show that the impugning a plaintiffs demand in a first suit, is a reason for letting a second proceed. Per Molesworth, J., Michaelis v. Cooney, 2 V.L.E. (B.,) 63. Blending of Realty and Personalty — Defendant occupying Realty a Trustee.] — The real and personal estate of a person dying in 1867, are so far blended as to liability and beneficial ownership that they should be included in one suit. On appeal affirmed, but an inquiry as to the title of certain real estate directed in the Master's office, it not being clear whether this land belonged to the deceased or to the defendant. Dryden v. Dryden, 2 V.L.E. (E.,) 74. On appeal, Ibid, 153. Bill for Administration — Equity Pleading Rules, So. 7.] — A bill for administration, under Rule 1 of the Equity Pleading Rules, should seek it generally, and not partially. Broomfield v. Summerfield, 2 V.L.E. (E.,) 174. Foreign Assets — Receiver Pending Taking of Accounts.] — A decree was made for administra- tion against D., who was administrator in Victoria and Tasmania, and the accounts were proceeded with in the Master's office. Pending the accounts, the plaintiff moved for a receiver over the Tasmanian assets, on the grounds of inconsistencies in D.'s accounts, his incapacity to manage the property, and danger to the assets. Meld that the Court had jurisdiction to make such an appointment; but motion refused on the ground of the difficulties that might arise therefrom, and the complexity that would be added thereby to the taking of the accounts. Dryden v. Dryden, 4 V.L.E. (E.,) 202. Person Not Heard of for Many Years — Inquiries by Whom to be Made.] — In a suit for execution of trusts of a will one of the beneficiaries had not been heard of since 1855. Inquiries were directed by advertising in newspapers circulat- ing in the part of Scotland where he was born, such inquiries to be made by the administrator c.t.a., since plaintiffs in the suit were interested in preventing a discovery. Low v. Moule, 5 V.L.E. (B.,) 10. Plaintiff Ceasing to have any Interest in Suit — Stay of Proceedings — Further Prosecution of Suit by Persons found Entitled as Next of Kin but not Parties to Cause.] — The Attorney-General filed a Bill against defendants creditors who had obtained administration of an intestate's estate, claim- ing property on behalf of Crown and adminis-' trator. The Master in his report found that certain persons were entitled as next of kin, and thereupon the Attorney-General intimated he would not proceed farther in the suit. The Master (under Order 56 of Orders iu Chancery, 1828) committed prosecution of the proceedings under the decree before him to the next of kin. Motion by defendants for stay of proceedings in Master's Office. Held that in order to enable next of kin to prosecute suit and have carriage of decree, a supplemental suit was not necessary ; but such might be obtained by order upon motion, and motion for stay of proceedings' refused. Subsequently an order was made upon motion giving the next of kin the car- riage of the suit, but a motion for payment into Court of moneys in defendant's hands, before such order obtained was held to be ir- regular. Attorney -General v. Huon, 5 V.L.B. (E.,) 119; 1 A.L.T., 26. Payment out — Creditor's Suit.] — In a suit for administration by one creditor, no other credi- tors having proved, on motion for payment out of a sum of money in Master's report found as the balance after satisfying a secured creditor, order made, the executrix being through her contumacious conduct not entitled to her costs, upon terms of its concluding the suit. Martin v Keane, 5 V.L.E, (E.,) 290.; ,1 A.L.T., 75. Undefended Suit — Order for payment of Balance due.] — In an undefended suit by ten cestuisque trustent against the administrator and other _ cestuisque trustent, the Court made a decree, without reference for the payment to them by - the administrator of their share of the balance, appearing by the accounts filed by him to be in his hands, and of their costs of suit, without prejudice to the rights of the other cestuisque trustent. , ' Buggy v. Buggy, 9 V.L.B. (E.,) 134. Decree on further Directions — When made.]— Wherein an administration suit it had. been referred to the Master to inquire and report as to the estate of the deceased, and as to any out- standing debts and liabilities, and, on the suit coming on for further directions, the plaintiff asked for a decree in accordance with certain minutes of decree to which all the parties had consented, Meld, per Molesworth, J., that when a decree is pronounced in such a suit it becomes the property of all the creditors, and not merely of the parties to the suit, and that the decree would not, be granted as asked, unless the Master advertised for creditors and none, appeared. Case to stand over, to allow the Master to make the inquiry. Orfon v. Prentice, 10 V.L.E. (E.,) 258. (5) Parties. Personal Representative must be a Party,] — The Cburt will not entertain an administration suit until there is a full personal representative before the Courti and the obtaining letters of administration without the letters being taken out does not constitute such a representative. McLachlan v. McCallum, 1 W.W. & a'B. <(E.,) 110. • Wherever the Cpurt has to administer an estate and the plaintiff can raise a general administrator, a mere administrator ad litem is not sufficient. In the goods of Corcoran, 2 W. & W. (I. E. & M.,) 117. Persons claiming Adverse Title in a Chattel Real,] — In a suit against an administrator for the! pro- ceeds of a chattel real taken by him as the estate of the deceased/ he cannot insist that a. person, mot a party, oh\imed that chattel^ real- 17 ADMINISTRATION OP ESTATES. 18' by adverse title, except perhaps to have, some indemnity provided ; and such person so claim- ing is not a necessary party. G. and M. were partners in a station property ; it was agreed that M should buy G.'s interest for .£500 cash and .£2000 payable in bills, further secured by a mortgage from M. to G. of the whole. Some ; station agents advanced the £500, and took a mortgage oyer M.'s interest. G. died and his brother A. G. took out administration. A. G. died, and Mrs. A. (sister to G.) took out admi- nistration de bonis non to G. and administration to A. G. During the partnership G. and M. applied for a Crown Grant of a pre-emptive section of 640 acres ; the money for this was : found by the station agents, and included in their mortgage. M. became insolvent. Held in an administration suit against Mrs. A., that M.'s official assignee' and A. G.'s heir, though they might claim some interest in the proceeds of the pre-emptive section received by A. G., were not necessary parties. Gordon v. Allan, 3A.J.B.,95. Who must lie — Next of Kin.]— An administrator of real estate and one of the next of kin, brought a suit for administration against the adminis- trator of the personal estate. Held that the next of kin were necessary parties, as the greater part of relief sought could only be obtained in a suit in which they were before the Court, and the plaintiff had a complete remedy at law as to partial relief sought. Dryden v. Dryden, 1 V.L E. (E.,) 4. Mortgagee of Plaintiff.] — The plaintiff in an administration suit mortgaged his share of the estate. Held that the mortgagee was a neces- sary party. Cleary v. Macnamara, 4 V.L E, (E.,) 221. Supreme Court Rules, Cap. V., Rule 7.] — Supreme Court Eules, Cap. V., Eule 7, by which certain members of a class may sue on behalf of them- selves and others, does not include the case of a suit by one of the next-of-kin of an intestate against the administrator. Ibid. Next of Kin.] — One of the next of kin of an intestate filed a bill for administration on behalf of himself and all others, the next of kin, and stated in his bill the names of the others, alleging some to be within, and same without the jurisdiction. Held that the other next-of-kin within the jurisdiction, and the representatives within the jurisdiction of deceased next-of-kin, , were necessary parties.. Ibid. Executor not Proving.] — The executor named in a will, to whom leave is reserved but who does not prove the will, is not a necessary party to a suit to administer the trusts of the will. Dredge v. Matheson, 5 V.L.E. (E„) 266; 1 AI/.T., 73. Residuary Legatee— Pecuniary Legatees — Supreme Court Rules, Cap. V., Rule 7.] — Suit by creditor of a residuary legatee against executors for .administration and to enforce a charge on his share. Held pecuniary legatees under will were not necessary parties, being sufficiently represented by the executors, and that a contin- gent residuary legatee in remainder whose interest under will has been- disposed of by a codicil is not a necessary party : Eule 7 of Cap. V., does not apply to assignees or mortgagees , of legatees. Bank of New South Wales v. Strettle, 5 V.L.E. (E.,) 293 j 1 A.L.T., 83. (c.) Costs. In a creditor's administration suit an infant defendant who is in fact represented by a solicitor nominated by the plaintiff creditor is not allowed costs otherwise than between party and party. Colley v. Colley, 2 W. & W. (E.,) 111. Specific Devisees — Deficient Fund.] — In a credi- tor's suit against trustees, executors, and specific devisees, where there was a deficient fund Held that the specific devisees only were entitled to costs as between party and party, the plaintiff, executors, and trustees being only entitled to costs as between solicitor and client. Dight v. Mackay, 6 W. W. & a'B. (E.,) 163. In What Canes — Exceptions to Report — Costs of Suit for Recovery of Title Deeds — Real and Personal Representatives — Costs Party and Party.] — In a suit by the real representative against the personal representative of an intestate for adminis- tration, plaintiff had excepted to Master's report on three points, the first being that the plaintiff's costs in an equity suit for the recovery of title deeds relating to intestate's properly had not been allowed; this exception was over- ruled, the Court finding no evidence of the propriety of this suit ; as to another exception it was allowed, and no order was made as to third. Held that plaintiff and defendant were each to abide their costs of exceptions ; and as to the general costs of suit, (it appearing that each had made unfounded claims against the other as being entitled to distribution, that the defendant had made false statements of the state of the family in - his affidavit to obtain administration, and had taken possession of property before obtaining administration, that the defendant had deferred the duty of realis- ing and brought the case on to a second hearing) that eich was entitled to costs out of the estate as between party and party only. Mulloy v. Muttoy, 3 A.J.B., 7. Of Plaintiff going into Evidence.] — Suit by next of kin of an intestate for administration, and for accounts, the administrator having refused to account but having subsequently filed his accounts in the ecclesiastical jurisdiction and having by his answer submitted to account., The suit having gone on to evidence, Held at the hearing that if plaintiff had not gone into evidence the defendant would have been liable for costs up to the answer, but as plaintiff had gone into ithe evidence he was not entitled to his' costs lip to the hearing, but the whole costs must be reserved until after the taking of accounts. Maker v. O'Btiea, 3 V.L.E. (E.,) 136. id ADMINISTRATION OF 1 ESTATES. 2»i Foreign Assets and Administrator — Person seeking Administration.]— In a suit for administration, plaintiff, pending the taking of accounts in the Master's office, moved for a receiver over the foreign assets, alleging discrepancies in the aeoounts of D., who was administrator both in Victoria and Tasmania, his incapacity to manage the property, and danger to the assets. The motion was refused,' but Held that since D. had not answered the allegations against him, he must abide his own costs, and that, although the plaintiff had failed in his motion, lis costs must be costs in the cause, the appli- cation being properly brought for protection of the property; Dryden v. Dryden, 4 V.L.R. (E.,) 202. Of Plaintiff Beneficiaries.] — Where, in a suit for the administration of a testator's estate, by his beneficiaries against the representatives of his surviving trustee, the bill alleged improper investments, and non-investments of the estate, and the decree found that there had been such non-investments. Held that as no demand for accounts had been made from the surviving trustee, and the suit was amicably framed, and the bill did not pray for costs, the plaintiff should not be allowed costs of suit; that the surviving trustee having confused the affairs of the estate and occasioned the suit, no costs should be allowed his representatives. Sichel vO'Shanassy, 4 V .L.E. (B.,) 250. Costs of Obtaining Administration — Jurisdiction to direct Payment out of Estate.] — The Supreme Court, in its ecclesiastical jurisdiction, has jurisdiction to direct payment out of the estate of administrator's costs in obtaining adminis- tration. Where litigation occurred between the administrators and M., claiming under a will subsequently propounded, Held, it was the duty of the administrators to protect the pro- perty, and they were entitled to their costs of litigation with M., in opposing such will. Administrators are entitled to their costs of obtaining administration in priority out of the assets. Attorney-General v. Huon, 7 V.L.R. (E.,)30; 2 A.L.T., 130. Plaintiff and Defendant each partly successful — Hon-filing of Accounts by Administrator.] — In an administration suit the defendant, administra- tor of personalty, insisted upon the illegitimacy of the plaintiff. In the suit the plaintiff's legitimacy was established, and defendant proved his right to certain land, which right plaintiff denied. Held per Molesworth, J., that each was to abide his own costs down to hearing and proceedings in Master' s office with reference to the land; per the Fall Co-art, that defendant was entitled to receive out of estate his costs as to the proceedings with reference to the land and subsequent costs, and that plaintiff ■was" entitled out of estate to the costs respect- ing the land. Dryden v. Dryden, 7 V.L.B. (B.i) 166 j 8 V.L.B. (B.,) 177 . Where the defendant neglected to file accounts, and thereby ill great measure occa- sioned the suit, Held that' he should pay the costs of taking accounts in the suit. Ibid. Of Executor behaving outrageously.]— Where an ' executor, a defendant in an administration suit, had executed a deed delegating all- his- powers to' his co-executor, and subsequently revoked the deed and acted under the dictation 1 of one of the cestuisgue trustent, Held per MdHsiiorth, J., that he was not entitled to his <■ costs out of the estate/ but should be left to abide his own. Leahy v. Lightfodt, 8 V.IuB* (E.,) 344; 4A.L.T., 109. Costs out of the Estate — Executors allowing on* Exeoutor to Manage Estate and not filing Accounts.] , — In ah administration suit the bill alleged, that : the executors had allowed one of their number to manage the estate without inter- ference by them ; that he had mixed the moneys of the estate with his own money, and that as accounts had not been filed it was necessary to institute, the, suit. No loss had however been suffered by the estate, and the executors had* received no allowance or commission for their;, expenses and trouble. Held that the executors should not be allowed their costs out of the- estate. Bembie ttat if they had applied for an allowance for expenses, &c, the Court would' have allowed it. Butcher v. Martin, 10 V.L.E." (E.,) 260 j 6 A.L.T. 113. General Rule — Exception.]— The general rule in administration suits is that the costs should- come out of the estate ; though there are some instances in which the costs will be restricted to some part of the estate. Where the costs of any special inquiry not for the benefit of all the parties are trifling, the Court will not depart from the general rule, but will order costs to be paid out of the whole of the estate. Pfeil v. Thorogood, 10 V.L R. (E.,) 117. Executors Mismanaging Estate.] — Where execu- tors, though not acting wilfully or perversely, had been guilty of great negligence- through which loss resulted, and the persons interested in the estate brought a suit seeking to make them liable and for account. Held that the- executors should pay the costs of the suit. Upon appeal by the executors, the decree was varied in one or two particulars, and by way of set-off the costs of the appeal were ordered to- be paid by the respondents Graham v. Gibson, 8 V.L.B. (E.,) 43; 3 A.L.T., 106. Person Submitting to be before the Court when there- is a Doubt as to whether he is a Proper Party.] — In an administration suit, a defendant, as to whom there was some doubt whether he were a proper party, but who did not appeal from a decree- keeping him before the Court, was not allowed. his costs of suit. Hid. As between Solicitor and Client.] — In an admi- nistration suit the Court will not allow costs as between solicitor and client to all parties,- but only to the trustees or executors, and notj. even to them, where the suit' has been caused:' by their mismanagement of the estate. Frasef v. Cameron, 10 V.L.B. (E.,) 202. 21 AFFfMVlTfe. 22- ADMIRALTY (VICE.) COURT OP.]— See SHIPPING. ADMISSIONS. See EVIDENCE. ADULTERATION OP POOD, DRINK AND DRUGS. See HEALTH (PUBLIC.) ADULTERY. See HUSBAND AND WIFE. ADVANCEMENT. See WILL, TRUST AND TRUSTEE, AND INFANT. ADVERTISEMENT. Under Probate Practice.]— See Will Under Mining Practice.] — See Mining. Under Practice in Administration.] — See Administration. AFFIDAVITS. 1. Form and Contents. 2. Filing. 3. Practice relating to. 4. Under Probate Practice.— Bee Will. 5. Under Insolvency Practice. — See Insol- vency. 1. Form and Contents, : Interlineation in the jurat— Common Law Pro- cedure Statute 1865, Sec. 379— Instruments and Securities Statute, Secv 56.] — An affidavit filed iihder the "Instruments and Securities statute," No. 204, See. 56, verifying the residence and occupation of the attesting witness to a bill of sale : is 1 not an affidavit " read ; or made use Of" in any matter depending in Court," within See. 379 of the " Common Law Proeedkrel Statute, 1865," and so the fact that there is ari interlineation or erasure in the jurat of such an affidavit will not render it invalid. Smith v. Marfw, 3 W.W. &a'B. (L„) 35. Erasure in jurat — No Evidence that it was made before Affidavit sworn.] — Where there, was an erasure in the jurat arid no evidence that it was made before the affidavit was sworn the ■ Court declined to consider its contents. Be gina v. Foster ex parte Molynetix, 7 V.L.R. (L ,) 294 ; 3 A.L.T., 23. 2. Piling. Time of.]— Affidavits upon a motion may be filed up to opening of motion, notwithstanding that motion has stood over on account of Court being unable to hear it on the day fixed in the ■ notice. Adelaide Steamship Company v. Martin, ■ 5 V.L.R. (E.,) 45. 3. Practice relating to. Using — After Decree— Costs.] — Affidavits made after decree may, in certain cases, be used on hearings subsequent to decree, as affecting the imposition of ' costs ; e.g.; to show that the amount had been tendered and refused. Where they merely allege that reasonable offers of compromise were not accepted, they should not influence the decision as to costs. Jamieson v. Johnson, 2 V.R. (E.,) 26 ; 2 A.J.B., 7. Using — Filed after Motion.] — Answering affi- davits filed after; the opening of a motion for injunction cannot be read on the motion. Davis v. Wekey, 2 V.R. (E.,) 172. Admissions — Statements contained in Affida- vits.] — A bill set out statements made in affi- davits sworn by the defendant in other judicial proceedings, and did not expressly negative their tttith. Held that the truth' of such state* ments was not to be taken as admitted for the purposes of the demurrer. Jardine v. Soyt r 2 V.R. (E..) 152; 2 A.J.R;, 129. Using.] — An affidavit containing an erasure- not initialled 4 by the Commissioner cannot be- used in Court. Begma v. Templeton, ex parte Jones, 3 V.L.R. (L.,) 24. See S.P. as to Interlineation. Blamires v.- Dunning, 3 V.L.R. (L-,) 1«. But see S. P., Jansen v. Beaney, 4 V.L.R. (L.,) 167, where it was Held that it is not absolutely necessary' for an- interlineation in the body, of an affidavit to be initialled before- being used in Court. .23 ANIMALS. 24 Interlineation — Initialling — Affidavit of Time when Interlineation was Made.] — It id not abso- lutely necessary that the Commissioner, before whom an affidavit to be used in a cause in Court was sworn, should initial an inter- lineation in the body of the affidavit, and in answer to a summons to set aside an affidavit on the ground that such an interlineation was not initialled by the Commissioner, an affidavit may be filed that such interlineation was not made after the affidavit was sworn. Jansen v. Beaney, 4 V.L.E. (L.,) 167. Affidavit sworn Abroad — Hot Intituled — Defect how Cured.] — An affidavit sworn abroad before a Commissioner of the Supreme Court, verifying the execution of a power of attorney to a person to apply for letters of administration, but which affidavit is not intituled in any Court or matter, may be used, and the defect cured by making it an exhibit to a formal affidavit of the applicant under the power. Ira the Estate of Downing, 4 V.L.E. (I. P. & M.,) 49. Taking Affidavit — Notary — Commissioner! of Court.] — Where the execution of a power of attorney made in England was attested by a notary and not before a Commissioner of the Court for taking affidavits, the Court held that that was a matter which affected the. Court only, and could be overlooked as a mere disrespect, and that the parties could not be affected by the irregularity. In re Chaplin, 1 A.L.T., 128. Using with aView to Costs] — On further direc- tions an affidavit of facts occurring subsequent to the decree may be used on the question of .costs Murphy v. Mitchell, 6 V.L E. (E.,) 140, ,141; 2A.L.T., 26. AFFILIATION. See BASTAEDS. AGENT. See PEINCIPAL AND AGENT. AGREEMENT. See CONTEACT. ALIMONY. See HUSBAND AND WIFE. AMENDMENT. See PEACTICE AND. PLEADING. ANIMALS. 1. Liability of owner for injuries by. 2. Contagious Diseases.. 3. Dogs. 4. Cruelty to Animals 5. Other Points. 1. Liability op Owner foe Injuries by. Vicious Bull — Negligence — Scienter.] — F., a mounted constable, went to a sale of M.'s stock' on M.'s land. It was proved that F. had seen previously a notice " Beware of the Bull." The bull was offered for sale and M. declared in F.'s hearing that it was quiet. It was sold and turned out into a paddock on the fence of which F. was sitting. F. overheard remarks as to the animal's vice by people near him, and while crossing the paddock was injured by the bull. The jury returned a verdict with damages in favour of F. Eule nisi for a non- suit. Held that F. had wilfully incurred an unnecessary risk and brought on himself the injuries inflicted. Rule absolute. _ Per Privy Council that there was evidence to go to jury in support of plaintiff's ease, and that nonsuit was wrong, and that the finding of the jury was not so far against the- weight of evidence as to justify sending the case to a new trial. Nonsuit set aside. Verdict entered for plain- tiff. Forbes v. M'Donalcl, 3 V.E. (L.,), 185; 3 A.J.E., 78..' On appeal to P:C., 5 A.J.E., 85. Vicious Horse — Scienter.] — A defendant owned' a vicious horse, arid, knew of its vice. The plaintiff and defendant owned adjoining lands, and defendant had fenced his half, but plaintiff had omitted to fence^ Defendant's horse tres- passed on plaintiff's* land' and kicked one of his horses. Held that defendant was liable. Leyden v. Coram, 3 V.L E. (L.,) 94. Kicking Horse — Injury Done on Owner's Land.}— The owner of a vicious horse, knowing it to rbe so, is liable for inj uries done to persons on a pi6ce of open land accessible to the public on, which the owner has, license to turn his horse loose. And apart from the owner's knowledge, he is liable if he turn a horse loose on such land so negligently as to endanger the safety of persons crossing it. "Southall v. Jones, 5 V.L.E. (L.,) 402 ; 1 A L.T., 98. Injuries Done by Dogs. — See Doyle v. Vance, post column 28 under (3) Dogs. Injury done by Trespassing, Horse to Child sent to drive it off ] — A horse trespassed on land of M., whose wife, M. being absent, directed a chili to drive it away, and the ohild while doing so 25 ANIMALS. 26 received a kick in the mouth. Held that the child might be regarded as the agent of the owner of the land, acting under his instruc- tions in driving off the horse, and could recover against the owner of the horse. Waugh v. Montgomery, 8 V.L.E. (L.,) 290 ; 4 A.L.T., 77. 2. Contagious Diseases. Seal— "Scab Act 1862," No. 143, Sec. 5.]— The words " when required by the inspector so to do" in Sec 5 refer only to the words imme- diately preceding them, viz., "or alter his brand," and do not relate to the earlier enact- ment in the section requiring all owners to brand. The obligation to brand is unconditional dnd not dependent on a previous requirement by the inspector. McOrae v. Woodward, 2 W. & W. (L.,) 113. The information for breach of Act must be laid before justices in the name of the inspector. Where the information was laid in the name of an owner principally injured the Court granted an order to prohibit execution of the conviction. In re Taylor, ex parte Nalder, 2 W. & W. (L.,) 116. "Pleuro-Pneumonia Act/' No. 136 — Act No. 133.] — The " Pleuro-Pneumonia Act," No. 136, did not continue the former Act No. 123, but expired with it. Stick v. Hudson, 1 W. W. & A'B. (L.,) 5. Information for Keeping Scabby Sheep Without a License — Scienter.] — Magistrates dismissed an 'information under the Scab Act charging the defendant with keeping scabby sheep without a license, and stated an appeal case for the opinion of the Supreme Court. On the appeal the information was not before the Court, and the case as stated did not deny either knowledge by the defendant that his sheep were infected, or circumstances from which that knowledge might have been inferred. The Court refused to dismiss the appeal on the ground that it was necessary that a scienter should be alleged, and declined to consider how far it was bound to entertain the point then made for the de- fendant, and not previously made before the magistrates ; holding that the information not being before the Court, it was sufficient that the case, as stated, did not necessarily negative knowledge by the defendant of his sheep having been affected, or circumstances from which that knowledge might have been in- ferred. Shaw i;. Phillips, 3 W.W. & a'B. (L.,) 155. An application for a scab-licence, made after the inspector has come upon the station for the express purpose of examining the sheep, is too late. — Ibid. Scab— Act No. 231, Sees. 3, 15.]— GK was in charge of certain sheep which were scabby. He was summoned by the inspector and pleaded that the sheep were only in his charge temporarily, and belonged to several butchers whose names he offered to give. The justices dismissed the case. Upon appeal Held that G-. being "in possession or charge" under See. 3 of the Act was liable. Riley v. Gray, 4 W.W. & a'B. (L.,) 217. Scab — Appointment of Inspector— How Proved.] — The appointment of a scab-inspector and his having acted as such may be proved by his own parol evidence. Goldie v. Allen, 5 W. W. & a'B. (L.,) 82. Scab — Evidence of Ownership of Scabby Sheep] — On a proceeding against P. for having scabby sheep, a document signed by his overseer, and which was as follows ; — " I hereby declare that there are depasturing on the Kangaroo Plat Paddock, 3,800 sheep, which I admit to be scabby, the same being in my charge, the pro- perty of P.," was held inadmissible as against P. Ibid. Scab — Evidence of Infection — "Scab Act," No- 231, Sec. 22.]— Sec. 22 of the "Scab Act," No. 231, which provides that if any one sheep in a flock is proved to be infected with scab, all the sheep in such flock shall be deemed to be so infected, is to be construed as only estab- lishing a presumption, capable of being rebutted by evidence, that the whole flock is so infected, and not as making the presence of one infected sheep conclusive evidence on that point. SpurUng v. Macartney, 5 W. W. & a'B. (L„) 166. Scab — Information for not giving Notice of.] — An information alleged that P., on November 17th, on becoming aware that certain sheep of has were infected with scab, omitted to give notice to the inspector. Held that the information did not mean that P. only became aware of the sheep being infected on ,the 1 7th November; but that on the 17th November, being aware, he did not give notice. Mower v. Stephen, 2 V.E. (L.) 13 ; 2 A.J.E., 19. Scab—" Scab Act 1870," Sec. 15.]— Section 15 of the " Scab Act 1870," No. 370, as to the publishing of the inspector's address in the Government Gazette is directory only and not mandatory. Ibid. Scab— "Scab Act," No. 370, Sec. 47— Scab Brand on Sheep— No Evidence of Actual Infection.} — Where sheep were found running in a badly fenced paddock and not under care of a shep- herd, and were branded with the scab brand, but the complainant could not state whether the sheep were actually infected on the day of seizure, the justices were of opinion that the words " deemed to be infected " were insuffi- cient to satisfy Sec. 47 of the Act, and dismissed the summons. Held that the evidence was all in the direction of a breach of the Act, and that the justices, in the absence of evidence to the contrary, should have convicted, for that purpose amending the summons if necessary, McKenzie v Coutts, 3 A.J.K., 112. Scab — Power to Increase Amount of Conviction. J — Justices had fined A. at the rate of one shilling per bead of sheep for an offence under the " Scab Act," the number of sheep being then given as 700, and the amount of con- viction being accordingly fixed at .£35. It was afterwards discovered that there were 780 sheep, and the amount was accordingly 27 increased to .£39. Meld- that the decision was in strict accordance with the facts proved. Rule to quash order discharged. Regina v. ATcehurst, ex parte Gavel, 3 A.J,E., 119. Scab— "Scab Act," No. 370, Sees. 25, 26.]— ;Sec. 26 is ancillary to Sec. 25, and provides-*he penalty for not branding and keeping branded ."sheep within Sec. 25. . Stirling v. Collins, 3 VjE. (L.,) 162; 3 A.J.E., 70. Act' No. 870,.Sec 67.] — L. had caused scabby sheep to be driven by his servant into a clean district without a written authority from the Inspector. Held, that he was as liable under .Sec. 67 as if he had driven them himself. Stirling v. Little, 3 V.E. (L.,) 180 ; 3 A.J.E., 73. Scab — "Scab Act," No. 370, Sec. 49— Notice to Person across whose Run Scabby Sheep were driven.] — It is incumbent where the person who sup- ports a prohibition to a conviction for driving scabby sheep across the run of a person owning 500 sheep on that run, without notice, to prove that the person across whose run the sheep were driven did not own 500 sheep. Regina v.'Puclde, ex parte Mcintosh, 4 A.J.E., 21. Scab—" Scab Act," No. 370. Sec. 33— Notice of Disease.] — A notice to the Scab Inspector of the -existence of a " doubtful " sheep on a run is not a sufficient notice within Section 33 of the " Scab Act " to entitle the owner to a protection for dipping, or to cover actual disease which appeared subsequently to the dipping. Ker v. McWilliam, 4 A J.E., 22. Scab — Answer to Permission to Dip — " Scab Act," No, 370, Sec. 80.]— J. was fined for not giving notice of the existence of scab in a flock of sheep when he became aware of it. The sheep jsvere not actually infected with scab, but J. had dipped the sheep, his run being at the time in a quarantine district. J. had forwarded a letter to the inspector requesting permission to dip, but had received a reply that the request had been " laid before the board," but that the board had refused to grant the application. Sec. 30 of the "Scab Act" enacts that if an answer to a permission to dip is not received within seven days, the owner of the sheep may dip tbem without their being considered infected. On appeal by J. — Held that the reply that the board refused the application was not an answer within the meaning of Sec. 30, and appeal allowed. Jones v. Stephen, 4 A.J.E., 75. Scab— ".Scab Act, 1870," No. 370, Sec. 29— Notice — Amount of Fine.] — Where McC, the owner, of a ; large number of sheep, was summoned for not giving notice of his sheep being infected, and the magistrates finding that twelve of the number only were actually infected, fined him for that number only. Hfild that by Sec.. 29, the fact that one sheep was infected, was con- clusive evidence of the whole number being infected, and that the fine should have been based upon that assumption ; that notice given three years before, and a licence issued, were not a protection under the section. McWilliam v.McJoll, 5 A.J,E., 13, ANIMALS. 28 Scab— Driving Infected Sheep into Clean District] —A person who undertakes to send sheep by train from a place outside a clean district into such district, and who does not accompany them or, send any one with them, and who signs a ticket for their carriage, is not liable to a penalty under Sec. 67 of the " Scab Act 1870" for driving, such sheep into a clean district, since the offence is not committed till the sheep have crossed the boundary of the clean, district, and at the time the sheep in the above case crossed, the defendant was not driving, conducting or conveying them, nor had he charge of them. Matthews v. Elligett, 2 V.L.R. (L.,) 49. 3. Dogs. Poisoning.] — See Regina v. Puckle, ex parte White, 2 V.E. (L.,) 63 j 2 A.J.E., 57, post under Offences (S^atittoby;) Injuries caused by — Jurisdiction of Justices.]— See ex parte Hilliard, 2 V.L.E. (L.,) 2, post under Justice of the Peace. Registration of—" Dog Act," No. 239, Sees. 3, 9. — Owner.] — In cases wnere no injury has been done by a dog the person to be held owner most have had the dog in his custody and control, and evidence that a dog unregistered has bedn harboured by or permitted to live on the pre- mises of a person does not make such person the owner so as to be liable for non-registering it. Skene v. Allen, 5 V.L.E. (L.,) 179 j 1 A.L.T., 12. Injuries Done by— Liability of Owner.] — The owner of a dog is responsible for any damage fairly resulting from a trespass by that animal on the land of another, even in the absence of its owner. Doyle v. Vance, 6 V.L E. (L.,) 87; I A.L.T., 167. Sub. nom., Vance v. Doyle. V.'s dog trespassed on D.'s land, and ran barking after a mare belonging to D„ and so frightened her that she attempted to jump a fence, but fell and broke her neck. V. was not present at the time of the occurrence. Held that V. was liable for the value of the mare. Ibid. 4. Cruelty to Animals. What is— "Police Offences Statute, 1865," Sees. 3, 23.] — Hunting a tame dog with a pack of hounds is sufficient to constitute the offence of committing cruelty to animals within the meaning of the " Police Offences Statute, 1865," Sees. 3, 23. Anderson u. Wilson, 4 A.J.E., 15S. 5. Other Points. Shooting Goats Trespassing— " Pounds' Statute," No. 478, Sec. 18.] — B.'s goats were trespaasing.on W.'s land, and W. shot at them and wounded one, which did not die until nine days after- wards. Held, that W. was protected under Sec. 18 of the Act. Bagshaw v. Wills, 5 A.J.E., 115. 29 APPEAL. 30 ANNUITY. Chargeable on Seal Estate.] — A testator be- queathed to his widow an annuity of .£400, payable out of the: rents of his real estate, and {directed it to be charged in equal propor- tions on the corpus of the respective shares of his five children in such real estate, and de- clared such shares to be specific portions of real «state described as to each child by name. Held that the widow was entitled to five annuities of. ,£80 each, to be a charge upon such shares respectively until paid. Johnston m. Brophy, 4 V.L.E. (E.,) 77. Land Overrun by Babbits — Motion for Leave to Spend Money in Extermination of out of Annuity.] — ■See Brown v. Abbott, ante column. Restraint on Alienation of — Sum equivalent to Purchase of.] — A testator by will directed his ■executors to purchase an irredeemable Crovern- xnent annuity of ,£59 for life, declaring that it -was intended to be a provision for his son for life, and that it should not "be competent for «xecutors to pay the value of the annuity in lieu thereof." Held upon petition under Sec. «1 of "Statute of Trusts 1864," that the «xecutors should pay theannuitant the price of the annuity, after deducting the amount of probate duty thereon. In re Thomas, 3 V.L.E. . Kidney, under WILL — Construction and Interpretation of — (General Rules.) Devise of Lands subject to Charge — Devise in Codicil of Part of Lands free of Charge — Destruction of Charge.] — A. and his son J., being entitled to a station in the proportion of two-thirds and one-third respectively, obtained a Crown grant to them jointly of a pre-emptive section thereof. A. died, by bis will devising the station and all pre-emptive sections thereof to J. and two ■brothers in equal shares, subject to their exe- cuting a mortgage of the station to secure a fund to provide an annuity for their sisters. J., in A.'s lifetime assigned his interest in the section to A., and A. by a codicil devised the section absolutely to J. The station property «xclusiye of the section being inadequate for the mortgage to be raised, owing to sales of sheep, &c, by A., Ueld that the station property was not chargeable with the annuities. Howitt v, Smith, 5 V.L.E. (E.,) 277; suovnom. Hewitt «. Smith, 1 A.L T., 73. ' ' ANSWER. See PEACTlCE AND PLEADING. APPEAL. I. To Privy Council. (1) Where Appeal Lies. (2) Appealable Amount. (3) Secwrity and Stay of Proceedings* (4) Payment of Deposit and time for applying for leave. (5) Appeal not Prosecuted. (6) Practice. (7) Other points. n. To Full Court. ( 1 ) Jurisdiction and Powers of Court. (2) Where Appeal lies. (3) Notice and Grounds of Appeal. (4) Time for Appeal and Payment of Deposit. (5) The Hearing. (6) Security for Costs. (7) Staying Proceedings pending Appeal. (8) Costs of Appeal. (9) Cross Appeal and other points. i III. From Master in Equity. In Insolvency.] — See Insolvency. From Justices to Supreme Court.] — See Justice of Peace. In Mininq.] — See Mining. From County Court ]^$ee County Court. To General Sessions.] — See Sessions. I. To Privy Council. (I) Where it Lies. From Insolvent Court— Appealable Amount.] — Where a rule nisi obtained by a creditor for J3288 to expunge proof of a debt by another creditor for ,£50,000 was discharged. Held by the Full Court, reversing Molesworth, J., that an appeal would lie. Ex parte Rolfe, in re Rut- ledge and Co., 2 W. & W. (1. E. & M.,) 5I f Leave to Appeal to Privy Council — Act 15, Vic. No. 10, Sec. 33.] — An order confirming the Master's Eeport is one by which the rights of the parties may be ultimately determined and concluded, and therefore under Act 15, Vic. No. 10, Sec 33, an appeal to the Privy Council lies against such an order. Heape v. Haw- thorne, 2 W.W. & a' B. (E.,) 76. , Decision by which the Merits are Concluded — — What is — "Supreme Court Act," 15 Vic, Ho. 10, Sec. 33.] — An order granting a rule absolute for a new trial is not a " decision by which the merits of the case may be concluded " withip the meaning of " The Supreme Court Act," 15 Vic, No. 10, Sec. 33, which allows an appeal 31 APPEAL. to the Privy Cpuncil from a decision conclud- ing the merits of a case ; but refusing such a rule is a " decision " by which the merits are concluded within the meaning of the section. Crooks v. Ormerod, 3 W. W. & a'B. (L ,) 132. Plea — "Final Judgment, Decree, Order, or Sen- tence."] — In a suit by information by the Attorney-General at the relation of the B. Company, and bill by the B. Company against the P. Company, seeking an injunction and account of gold, the defendants put in a plea, traversing the incorporation of the plaintiff company. This plea was allowed by Molesworth, J., but overruled by the full Court. On sum- mons for leave to appeal to the P. C. — Held that a judgment on a plea does not " conclude the merits of the case" within the meaning of 15 Vic, No. 10, Sec. 33, because an answer may be put in : That where no account has . been directed, and where it is problematical whether any money will be found due by the defendants to the plaintiffs, the fact that if an account were directed there would be a dispute as to property worth £1000 will not authorise an appeal. Leave refused. Attorney-General v. Prince of Wales Company, 6 W. W. & a'B. (E.,) 4. From Order Refusing Motion for Injunction.] — Per Molesworth, J. " The meaning of the Act 15 Vic., No. 10, is that before an appeal can be allowed the Court must do something by which the rights of the parties may be concluded; not merely intimate an opinion upon an inter- locutory application, which being applied to the case at the hearing would determine the rights of the parties. The Court must do some curial act which would determine the rights of the parties." Motion for leave to appeal to the Privy Council from an order refusing a motion for an injunction dismissed with costs. Mel- bourne and Hobson's Bay Railway Company v. Mayor of Prahran, 6 W.W. & a'B. (E.,) 228, 238. Interlocutory Injunction.] — Where an order sought to be appealed from is an interlocutory one, and the result of such appeal may or may not be final, inasmuch as there are other ques- tions involved than those which the interlocu- tory application deals with, the Court will not give leave to appeal. Davis v. The Queen, 6 W.W. & a'B. (E.,) 106. From Primary Judge.] — On motion for leave to appeal to the Privy Council from the decision of the Primary Judge, within the fourteen days allowed for an appeal to the Pull Court, Held that the Act 19 Vic, No. 13, sec 5, gives the right to appeal to the Privy Council without an appeal to the Pull Court. Davis v. The Queen, 1 V.R. (E.,) 33 ; 1 A. J.R., 22. Leave to appeal will not be granted against the refusal of an order nisi to quash on certiorari an order for commitment of an attorney for misbehaviour at Petty Sessions. Regma v. Mollison, 3 V.E. (L.,) 3. Appeal to Privy Council — From Primary Judge— "Final Judgment Order or Decree."] — There may bean appeal direct to the Privy Council from the Primary Judge. The allowance of a demurrer is not generally conclusive, and. therefore it is not the subject of appeal. But if the judgment even on demurrer is final leave will be given to appeal, but if a demurrer is for want of parties it is not final, and leave will be refused. Woolley v. Ironstone Hill Lead O.M. Company, 1 V.L.K. (E.,) 237. Against an order placing shareholders on list of contributaries for the amount of i52300 each an appeal lies. In re Cognac Company, Dwyer and Kelly's case, 3 V.L.B. (E.,) 146. An appeal does not lie against an order overruling a demurrer, because nothing is con- cluded by such order. Longstaff v. Keogh, 3 V.L.E. (E.,) 189. Order Overruling Plea.] — Since an order over- ruling a plea is so conclusive that the same defence cannot be raised at the hearing, an appeal to the Privy Council lies from such an order. Brougham v. Melbourne Banking Cor- poration, 3 V.L.B. (E.,) 202. Appeal from Interlocutory Decree.] — A motion, by a defendant, for leave to appeal to the Privy Council, was supported by an affidavit in general terms, that the interlocutory order sought to be appealed from was in respect of a matter in issue above the value of J3500. The order affirmed a decree, which directed an account; and the amount payable by the de- fendant depended upon the result of the account. There was no affidavit by the plain- tiff that the amount in issue was under ,£500. Held, that if the decree had been final, leave to appeal would have been granted ; but that being only interlocutory, defendant would be entitled to raise the whole question of its liability, upon an appeal from the decree on further direction ; and motion dismissed with- out costs. United Hand-in-Hand and Band of Hope Company v. National Bank of Austral- asia, 6 V.L.R. (E.,) 198; 2 A.L.T., 72. From Order Discharging Rule Nisi to Rescind Order of Judge for Delivery of Bill of Costs.] — Leave was granted to appeal to the Privy Council against an order of the Court dis- charging a rule nisi to rescind an order of a judge for delivery of a bill of costs ; it being sworn and not denied that the sum involved exceeded .£500. Re Duffett ex parte McEvoy, 8 V.L.B. (L.,) 160. Ejectment — Appeal by Unsuccessful Defendant.] — In an action of ejectment, where the lease would expire before the appeal could be decided, the Court allowed the unsuccessful defendant (tenant,) to appeal on the terms that the plaintiff be allowed to issue execution, on giving security for carrying out the decision of the Privy Council, and for paying to the appellant the mesne profits, after deducting rent, &c, the amount to be ascertained by 33 APPEAL. 34 the prothonotary, if the parties could not agree upon it. The appellant to pay the costs of the action when execution issued, the plaintiff giving security to refund them if the appeal should be allowed, and the appellant to give security for £400 for the costs of the appeal. Poole v. Halfey, 8 V.L.E. (L.,) 317. (2) Appealable Amount. Value of Subject Matter.] — Upon application under the Orders in Council for leave to appeal to the Privy Council, the value of the matter in issue is a fact to be tried and controverted, and upon which both sides are to be heard. Kettle v. The Queen, 3 W. W. & a'B. (E.,) 141. From Judgment on Demurrer— Claim £500 but Kot yet Tried.] — Leave refused. See M'Kinnon v. Board of Land and Works, 3 A. J.K., 47. Appealable Amount — Incidental Effect of a Decree.] — Where a decree was made in a suit for specific performance of an agreement to give a right-of-way by which a right-ofrway was granted, the owner of an adjoining lot refused to give the defendant a right-of-way over a certain piece of land (alleged by the defendant to be worth to himself £500,) because of the defendant being unable to give to the said owner a certain right-of-way in consequence of the said decree. On motion for liberty to appeal to the Privy Council against the decree, Held that the incidental effect of a decree upon other property of the defendant not directly affected by the decree could not be taken into account in making up the appealable amount, and motion refused. Wakefield v. Parker, 6 W. W. & a'B. (E.,) 322; N.C., 40. Matter "Indirectly" Involving a Claim or De- mand Eelative to Property of the Value of £500.]— A company was fined £10 by a Justice's Order, and the Supreme Court affirmed the order. An application for leave to appeal to the Privy Council was granted on the uncontradicted affidavit of the company's secretary that the case "indirectly" involved a claim or demand relating to property of the value of £500. Bendigo Waterworks Company v. Thunder, 1 V.E. (L.,) 123; 1 A.J.E., 103. From Order as to Compulsory Sequestration — How Amount Determined.] — The value of the debtor's estate, and not the amount of the petitioning creditor's debt, is the standard by which the amount of the matter in issue is to be measured on an appeal to the Privy Council, under Sec. 33, of No. 10, from an order granting or refusing compulsory sequestration. In re M'Donald, 2 V.B. (I. E. & M.,) 12; 2 A.J.K., 131. But where the -property could be recovered by the assignee only by a litigation, which the Court thought must be unsuccessful, leave to appeal refused. — Ibid. Direct from Primary Judge— Appealable Value — Amount of Security — Mining under a Street.]— By a decree made by the Primary Judge an- injunci tion was granted restraining defendants from mining under a street ad medium filum viae. The plaintiff not being satisfied with this, applied for leave to appeal direct to' Privy Council. The affidavit of the appellant stated value of the right -sought to be £500. The affidavit of the respondent did not deny'this, but stated that such a right could not have a definite value. Held that as no affidavit had been made specifically stating that the value of right was not £500, leave would be given, and the security was entered as £300, the case being not a heavy one. The Extended Hustler's Freehold Company v. Moore's Hustler's Freehold Company, 5 A.J.R., 154. Amount in Issue of the Value of £500.] — Leave to appeal to the Privy Council, under the Orders in Council of June 9th, 1860, will not be granted where the matter in issue is of the value of £500, and there is nothing else involved. Gardiner v. McCulloch, 2 'V.L.E. (L.,) 128. Interest on Judgment.] — Interest upon the damages awarded in an action is not to be considered as part of the sum in issue for the purpose of obtaining leave to appeal to the Privy Council under the Orders in Council of June, 1860. McSwain v. McMillan, 2 V.L.E. (L.,)'27l. Amount in Issue — Award of £6000 — Differ- ence in New Award, £320.] — Arbitrators had made an award of £6000 as the pur- chase money of a business, and the award was referred back to the arbitrators by order of the Court, and the amount awarded by the new award was less by £220 than the sum awarded by the former one. On an application for leave to appeal to the Privy Council against the order referring back the award — Held that the matter in issue was not the value of the business, but the difference between the two valuations of the arbitrators, and this being under the appealable amount, leave was refused. In re Armstrong and Culley, 4 V.L.E. (L. ,} 178. (3) Security for Costs and Staying Proceedings* Security for Costs — By the Crown — 15 Vic, No., 10; Sec. 33— Act, No. 841.]— Under 15 Vic, No 10, the Court must require security for costs all cases ; and under the " Crown Remedies, and Liabilities Statute, 1865," No. 241, the- Crown is in the same position as a subject as to the right and liability to security for costs. Davis v. The Queen, 1 V.E. (E.,) 33; 1 A.J.E.* 22. Staying Proceedings Pending an Appeal to Privy Council — Costs.] — On motion for leave for de- fendant to appeal to the Privy Council, and that all proceedings to execute the decree or enforce payment of the costs might be stayed pending such appeal. Ordered that taxation would continue, but that no execution or pro- cess for the recovery of costs should be taken if the defendant brought" the amount into Court within one month after taxation. Semble. If the amount be brought into Court, the Court will direct that it may be taken out by.plain- tiffs on giving security to refund the amount so- - '— - : -- - - - -c- • 35 APPEAL. 36 taken out in the event_ of the decree being varied or reversed as to costs by the Privy Council. Larnach v. Alleyne, 2 W.W. & a'B. (E.,) 39. Security — Against Crown.] — Upon leave being given to appeal against a decision in favour of the Crown the Court is bound by the Orders in Council, if the decree be carried into execu- tion, to require that the Crown shall enter into security for the due performance of the order •of the Privy Council on the appeal. Kettle v. The Queen, 3 W.W. & a'B. (E.,) 141. Security for Costs.] — In giving leave to appeal to the Privy Council the Court has no jurisdic- tion to dispense with security for costs, but has merely a discretion as to lie amount. Good- man v. Boulton, 5 W.W. & a'B. (E.,) 86. Staving Proceedings.] — Execution of convey- ances, and delivery of possession, come within the words "performing any duty" in the Act 1 5 Vic, No. 10, Sec. 33, and in the Order in Council relative to appeals to the Privy Council, as to which proceedings may be stayed, pending an appeal to the Privy Council. Goodman v. Boulton, 5 W. W. & a'B. (E.,) 86, 101. Several actions were brought under Act 241, and judgments obtained against the Crown, but the Supreme Court refused leave to appeal ■except upon the terms of the Attorney-General paying tie amounts of the verdicts with costs, :and absolutely refused leave in two of the •cases where the amount recovered was less than ,£500. Held per Privy Council, upon petition that leave to appeal should be given •without the terms of finding security for the costs of the appeal or the other terms imposed, the appeals to be consolidated. In re Attorney- ■General, L.R. 1 P.O., 147. Act 15 Vic, No. 10— Time for Perfecting Security.] — Leave to appeal was given by the Court on terms of giving security within three months -for the costs of the appeal. A bond was approved of by the Master and filed as of record, but such bond, owing to objections by defendant's solicitors as to competency of sure- ties, was not filed within the three months. Thereupon the Court revoked the leave to appeal already given. Held per Privy Council, upon petition, that plaintiffs were at liberty to appeal upon lodging in.the Colonial Office the sum of .£300 as security for the costs of the appeal, liberty being given to the plaintiffs to apply to Supreme Court of Victoria to cancel the bond lodged there. Webster v. Power, I.E. 1 P.C., 150. Issuing Execution pending Appeal — Restitution.] — Where a rule nisi for leave to appeal to the Privy Council has been obtained, if execution be issued before the return of the rule, a Judge in Chambers may order restitution to be made. Munro v. Sutherland, 4 A.J.B., 169. Security for Costs— Failure to Give Security -within the Three Months Provided in 15 Tic, No. 10— Absence of Master During Vacation — Supreme Court Rules, Chap. 1, Sec. 15.]— The defendant C. obtained an order on October 20, 1873, for leave to appeal to Privy Council, and did not give the security until February 11, 1874, alleging the intervention of the Long Vaca- tion, December 23 — February 1, and the absence of the Master during that time. On motion to set aside the order Held that in the case of an appeal time runs during the vaca- tion, and that Supreme Court Rules, Chap. 1, Sec. 15, only applies to ordinary proceedings in the Victorian Court, and not to proceedings under Imperial provisions. Order made re- scinding order of October 20, 1873. Johnson v. Colclough, 5 A.J.B., 66. Stay of Proceedings — Security — Receiver.] — On motion for leave to appeal under the Orders in Council either execution of order appealed from may be stayed simply, or execution may be allowed to go, the respondent giving security to perform such order as Privy Council may make. A receiver may be appointed upon a substantive cross motion by the respondent. Johnson v. Colclough, 1 V.L.B. (E.,) 31. 15 Vic, No. 10, Sec. 33— Stay of Proceedings.]— On motion for leave to appeal against a decision of Mr. Justice Molesworth in a case respecting the forfeiture of mining shares, a consent order was drawn embodying terms on which plaintiff (the respondent) should be allowed to deal (pending appeal) with shares to which decree declared him entitled. M'Lister v. Garden Gully Company, 5 A.J.B., 170. Security for Costs.] — Semole, that the Master cannot, when considering the security to he given, entertain the question of the probability or improbability of success. Newey v. Garden Gully Company, 2 V.L.B. (E.,) 26. Staying Proceedings — When Granted.] — On motion for leave to appeal to the Privy Council, the Court can only stay execution of the judg- ment, upon the applicant giving security, or allow execution to be carried out, the respondent giving security. The Court has no power to impose terms on the appellant, notwithstanding that, by a decree in another suit almost similar in its facts, the Privy Council has virtually decided against him. Ibid. Staying Proceedings.]— On leave being granted to appeal against an order placing two share- holders on the list of contributories to the amount of .£2,300 each, such order being obtained by one creditor only, stay of proceed- ings will not be ordered unless all parties interested, including the official liquidator, are heard. In re Cognac Company, Dwyer and Kelly's case, 3 V.L.B. (E.,) 146. Accounts.] — Proceedings will not be stayed pending an appeal on the ground that the. decree directed accounts to be taken which in the event of an appeal being allowed would have to be taken on a different footing. White v. Londsn Chartered Bank, 3 V.L.B. (E.,) 174. , Staying Proceedings — Security.] — When an appeal is pending to the Privy Council from an 37 APPEAL. 38 -original decree, and no stay of proceedings is obtained thereon, and an order on further directions is made, the Court will not stay pro- ceedings until security be given to refund, so as to preserve the subject matter of the suit until the appeal to the Privy Council has been disposed of. The United Hand-in-Hand and Band of Hope Company v. National Bank of Australasia, 4 V.L.B. (E.,) 173. (4) Payment of Deposit and Time for Appealing. Time for Appealing — 15 Vic, No. 10, Sec. 83.] — Where an application for leave to appeal had been made within the thirty days prescribed by the Act, and had been adjourned and referred to another judge, and was finally heard beyond the period of thirty days. Held that the application having originally been made within the thirty days, the provisions of the Act were sufficiently complied with, and leave to appeal given. Attorney-General v. Prince of Wales Company, 6 W. W. & a'B. (E.,) 4. Payment of Deposit — Suing in forma pauperis.] — On motion to appeal to Privy Council, the deposit not having been paid, Held that the payment of deposit was a condition precedent, -even although the appellant was suing in forma pauperis, and appeal struck out Merry v. Hawthorn, 6 W. W. & a'B. (E.,) 329. (5) Appeal not Prosecuted. Appeal not Prosecuted.] — Defendants obtained leave to appeal to the Privy Council upon giving, within three months, security for the costs of the appeal ; execution for recovery of plaintiffs' costs of suit being stayed until they gave security for refunding such costs if so ordered by the Privy Council. The appeal was not proceeded with, and no security for costs given by the defendants. After the lapse of the three months, order made revoking the leave to appeal, and giving liberty to the plaintiffs to proceed for their costs, notwith- standing the former order. The Mayor, %c, of Ballarat v. the Bungaree Road Board, 1 V.E. between indemnifying and giving security, and that the award was valid. An award that one of the parties give up the deeds deposited with the arbitrator is not too indefinite, as they might easily be identified. Where a sum awarded was made payable "forthwith," Held that, as no mention was made of a demand, a demand was unnecessary, and that interest might be recovered at the rate of eight per cent, from the day of publica- tion. Hancock v. Woolcott, 5 A J.E., 80. Validity of.] — Where the arbitrators have stated matters which they need not have stated, but, upon the face of their award, they have not stated anything which conclusively shows that the sum awarded is wrong, it is not open, to the defendant, upon a bill of exchange given for part of the sum awarded, to impeach the award on the ground that the award is wrong, since that would be in effect to hear an appeal from the decision of the arbitrators. Anderson v. Stewart, 2 V.L.E. (L.,) 75. Validity of — Evidence — Misrecital.] — If an award, contain a wrong recital of the submission that is immaterial. Where an arbitrator, an expert* made an award upon an inspection of certain leasehold premises — the subject matter — such inspection having been previously made pro- fessionally on behalf of one of the parties without taking other evidence, his award was upheld. In re Backhaus St Steele, 5 V.L.K. (L.,) 184 j 1 A.L.T., 11. Finality of Decision.] — There is a difference between a case where an arbitrator must award that different acts are to be done by several parties, and a, case in which all the matters in dispute resolve themselves into money claims. In the former case the arbitrator must award specifically, in the latter he may award generally the amount to be paid by one or more of the parties, such amount being a balance struck in favour of one or other of the parties after all the items have been considered. Upon the settlement of partnership accounts between. B., of the one part, and C. and others of the other part, an award that so much was due to B. by C. and the others was held to be valid and sufficiently final. Mixner v. Blair, 1 V.L.E. (L.,) 191. Finality.]— The decision of an arbitrator.in the absence of fraud or corruption, is binding on the 51 ARBITRATION AND AWARD. 52 parties, both as to matters of law and matters of fact, unless some mistake appears on the face of the award, or in some paper accompanying it, or, perhaps, by the affidavit of the arbitrator. Anderson v. Stewart, 2 V.L.E. (L.,) 75. Finality.] — Where an arbitrator having power to state a special case valued certain machinery in two alternatives, one as a going concern, the other as material for removal, subject to the opinion of the Court as to how it should be regarded, such award is not bad as wanting in finality. Chrysolite Hill Company v. Sandhurst and St. Amaud Chrysolite Company, 5 V.L.E. (L.,) 242; 1 A.L.T., 37. If the party entitled to the money agrees to accept the lesser sum, in such a case the Court will not refer back the award to the arbitrators to state facts which would enable the Court to answer the questions. Ibid. ■What may be Included in — Breach of Promise — Expenses for Journey taken at Other Party's Bequest.] — In an action for breach of promise to marry, ■with a second count for money paid in respect of a voyage undertaken by the lady at the request of the defendant, the defendant pleaded that it had been agreed under seal that it should be referred to arbitration to determine what damages the defendant should pay to the plaintiff for the breach of promise, and that the arbitrators might take into consideration all matters that would be proper for considera- tion by a jury, and that it had been admitted to the arbitrators that the voyage was under- taken at defendant's request, and that the defendant had paid the amount awarded, and that the arbitrators had considered the expense of the voyage in making the award. Held that the plea was bad, because the damages in respect of the voyage were not cognisable by the arbit- rators, the claim being a distinct and independent cause of action, and that the award should not have included the amount, and judgment for plaintiff. Khali v. Haddon, 4 A.J .R., 35. Enforcing Award — Practice.] — An action in the County Court was referred to arbitration, and an award made. The party in whose favour the award was made, at a subsequent sitting of the County Court, applied to have a verdict entered for the sum awarded. No leave to do so was contained in the agreement to refer ; but the County Court Judge ordered a verdict to be entered. Upon appeal, Held that no such verdict could be entered, but that the proper course was to take a verdict subject to the reference, or to make the liberty to enter a verdict one of the terms of the reference. Dart v. Machin, 1W.4W. (L.,) 54. Attachment for Disobedience of — Service of Eule of Submission.] — The Court overruled an objec- tion on a rule for an attachment for dis- obedience of an award, that a copy of the rule making the arbitration a Eule of Court was not served upon defendant when payment was demanded. Bateman v. Bateman, N.C., 11. When Enforceable by Attachment.] — Where the enlargement by the Judge of the time for making the award has not been made a Eule of Court, the award is not enforceable by attach- ment, and the person in whose favour it has been made is left to his remedy to sue on the- award. Be Hancock and Woolcott, 4 A.J.B., 155. Referring Back Award— Arbitrators Misled.] — A contract was entered into for the sale of the goodwill of a business together with the stock- in-trade, which was to be taken at cost price, the prices to be fixed by three arbitrators. The arbitrators fixed the prices and made their award, and the purchaser entered into pos- session, and sold some of the stock and brought more into the business. Some months after- wards the purchaser applied to refer back the award on the ground that some of the articles- had been greatly over-valued, and in support of his application produced affidavits by two of the arbitrators that they had been misled by certain cipher marks of prices marked on certain of the stock. The affidavit of the third arbitrator contradicted the statements of the other two as to their having been misled, and stated that they ascertained the value of the goods independently of the marked priees. Held, that the award should be referred back to the arbitrators so far as regarded articles- which had not been sold since the former award, which should be produced, and as to- the prices of which the arbitrators, or any two of them, had been misled. In re Armstrong and Gulley, 4 V.L.E. (L.,) 178. Eule Nisi to Refer Back— Service — Joint Party.] — Service on one of two persons, who con- stituted a joint party to an arbitration, of a- rule nisi to refer back the award is sufficient- Ibid, p. 180. Referring Back Award — Omission of Damages.]— Where the matters in issue in two actions against the same defendant were referred to arbitration by Eule of Court, and the parties afterwards agreed as to the amount of damages^ but the arbitrators, by mistake, omitted such damages in drawing up the award, so that there was nothing for the taxing order to- operate upon, the Court made absolute a rule to refer the award back to the arbitrators for amendment. Brooks v. McPherson, Cudmore v. McPherson, 8 V.L.E. (L.,) 154. Referring Back Award — To Correct Errors— Costs.] Where a first award is referred back to correct an error, the party who succeeds is entitled to- costs of the first award, so far as that has not been rendered wholly useless. Ibid, p. 208. Setting Aside.] — An award which should have been made by three arbitrators, but was in fact only made by two, the third being completely ignored, was set aside. Cain v. Cam, 3 A.J.B., 122. Setting Aside — Misconduct of Umpire.]— 'See in re Fowler and Sinnot and in re Bailey ami- Hart, post columns 54, 55. Setting Aside — Excess of Authority in Awarding: Costs.]— In a reference to an arbitrator,- there- 53 ARBITRATION AND AWARD. 54 ■was no power giTen to award costs, but the arbitrator did award costs. Held that the direction to pay costs being separable from the rest of the award did not .vitiate it, and the award was not to be set aside on that ground. In re Bailey and Hart, 9 V.L.R. (L.,) 311 ; 5 A.L.T., 102. Award not Dealing with all Matters Submitted.] — An award showing on its face that the arbi- trator has not dealt with all the matters submitted to him will be set aside on that ground. In the matter of Husbands and Husbands, 10 V.L.E. (L.,) 208; 6 A.L.T., 60. A reference to arbitration by C. and H. recited that " there were disputes between the parties relative to claims made by C. to an account, and to certain rights as a partner" of H., and that C. claimed, " either as such partner or otherwise, to recover from H. a sum of money, and an account," and referred all matters in dispute. The award found that C. was indebted to H. in a sum named, but did not mention the question of partnership. Held that the award did not deal with all the matters in dispute j and award set aside. Ibid. Application to Set Aside — 9 and 10, Will. III., Cap. 15, Sec. 2 — "Judicature Act 1883," No. 761, Sec. 13 — Supreme Conrt Eules, 1884, 0. 64, Rule 14.]— Although Sec. 13 of Act No. 761 abolishes Terms for the purpose of carrying on the ■business of the Court, yet it provides that they shall still be used as a measure for determining the time within which any act is required to be ■done, and rule 14 of Order 64 makes special provision for the time within which applications to set aside awards are to be made, the object of the rule being to substitute " the last day of the sittings of the Pull Court" for the last day of Term in9 and 10, Will. III., Cap. 15, Sec. 2. Under the joint application therefore of the Stat, of Will. III., "the Judicature Act," and the rules, an application to set aside an award must be made to the Court, or the Full Court, at some time before the last day of the sittings of the Full Court next after the award has been made. Ibid. Continuance of Action after — For Claim Already Considered.] — Declaration for money payable by the defendant to the plaintiff for money paid and expended by plaintiff for the defendant at lis request, in making a voyage. Plea — That it had been agreed under seal to refer to arbi- tration the damages defendant should, pay plaintiff for breach of promise : that the arbitrators might take into consideration in assessing damages matters that would be proper for a jury to consider; and it was admitted to the arbitrators that the voyage was taken at defendant's request, and that a sum had been awarded, which defendant had paid, and that the expense of the voyage had been considered in making the award. Replication — That plaintiff had not been allowed to state the amount of the expenses of the voyage, or the circumstances under which defendant requested her to take it. Held that the replication was bad, on the ground that if the claim could have been treated as the subject of damages it ought to have been so treated, and in that aspect it was immaterial whether it was or was- not included in the award, because no action, can be maintained for the recovery of further damages in respect of a cause of action for" which damages have already been given by arbitration, unlike the case where " all matters in difference " are referred, in which case mat- ters in difference not brought before the- arbitrator may be subsequently sued for; and that, in this instance, the specific matter of damages for breach of contract having been, submitted, and an award having been given on it, no further claim on it could be maintained. Khull v. Haddon, 4 A.J.R., 35. 7. Arbitrators and Umpires. Delegation of Functions — Discretion — Remission.] An act involving discretion cannot be dele- gated by an arbitrator. Levy v. Farrell, 1 W. & W. (E.,) 10. The delegation by an arbitrator of the- preparation of a mortgage to a conveyancer is not warranted. Ibid. When the preparation of a mortgage had been delegated by an arbitrator to a con- veyancer, the award was remitted to the arbitrator to direct the contents of the mortgage. Ibid. Appointment of.] — Where a proviso in a lease- provided for a submission to arbitration, and that one arbitrator might proceed alone in default of appointment of a second, and that the award shall be made a Rule of Court, Held T ■ that the appointment of an arbitrator must be part of the submission, and that such appointment must be made in writing, and such writing ought to form part of the rule. In re Backhaus and Steele, 5 V.L.R. (L.,) 181 ; 1 A.L.T., 11. Misconduct of Umpire— Setting Aside Award.] Certain matters were referred to two arbitrators. These being unable to agree the matters were referred to an umpire. The umpire, after the close of the arbitration, called for the attend- ance of the arbitrators who had been examined as witnesses on either side, before him, and consulted one in the absence of the other. He then made his award in favour of the 1 defendant, whose arbitrator he had so con- sulted. A rule nisi was obtained to set aside the award and the answering affidavits of the- umpire and the arbitrator stated that the reason for sending for the arbitrators was to explain to them his views, and so to allay the- dissensions between them. Eule discharged. In re Fowler and Sinnot, 5 V.L.R. (L.,) 320;. 1 A.L.T., 49. Appointing Umpire Without Express Authority — Act No. 274, Sec. 269.] — Where a submission provided in Clause 27 that the award of the arbitrators should be final and gave them no power to appoint an umpire, but they did so appoint, Held, that Clause 27 did not mean. that there should not be an umpire, and that Sec. 269 of the Act No. 274 applied and gave 53 ARMY AND NAVY. 56 them the power they had exercised. In re Bailey and Hart, 9 V.L.E. (L.,) 311; 5 A. L. T. 102. Misconduct — Partiality — Refusal to State Case. — JUt No. 274, Sec. 21.] — It was sought to set aside an award on account of the partiality and misconduct of an umpire, based upon several instances in which he seemed to have shown partiality towards one of the persons, and his refusal to state a case under See. 21 of Act So. 274 ior the opinion of the Court upon a difficult point of law, and deciding it in that person's favour. Held that the 21st Section of Act No. 274, was permissive, and not compul- :Bory, and though it is desirable that the clauses should make the statement of a case compulsory, yet the refusal did not constitute legal miscon- duct; and though the instances of partiality, taken collectively, raised a suspicion, yet they did not necessarily lead to the inference of partiality such as is necessary to make them a good ground for setting aside an award. Ibid. 8. Costs. Eeference under 31 Vic, No. 38, Sec. 21— Subse- quent Trial by Jury — Board of Land and Works.] — The Board of Land and Works, having occasion to take land for a railway, disputed with the owner the amount of compensation to be paid. Eventually it was agreed to refer the matter to arbitration, and by the reference the costs were to be in the discretion of the arbitrators. The iarbitrators awarded a certain sum and costs to the owner. The Board, being dissatisfied with the amount, applied under Act No. 38, See. 24, for a trial by jury, and the jury awarded a less sum than that awarded by the arbitrators. Upon a special case the question was, whether the owner of the land was entitled, under these .circumstances, to recover the costs of the sub- mission, reference and award. Held, per Stawell, C. J., and Williams, J., that, the Act being silent as to costs, the award as to costs was still binding by the agreement of the parties, and that the owner could recover them; but per Barry, J., that the costs were gone com- pletely. Fenton v. Board of Land and Works, IW.Sff, (L.,) 22. Taxation of.] — An attorney's clerk sued for -salary, and the defendant pleaded a set-off for a delivered bill of costs. There was a submis- sion to arbitration and one of the terms was -" Costs of action, reference and award to abide the event of the award." The arbitrator awarded a balance to the plaintiff, deeming a certain portion of the plaintiff's claim, and also a certain portion of the defendant's set-off proved. On such award the Prothonotary .gave the plaintiff costs, holding that the -"event of the award" was in the plaintiff's favour. The Court refused to review the taxation. Woolcott v. Wisewould, 1 W. W. & a'B. (L.,) 129. Taxation — Discretion of Taxing Officer.]— If the -taxing officer proceeds on a right principle the -Court does not interfere with his discretion, .even where it might be disposed to take a -different view. He cannot treat any part of the award as a nullity till it is set aside by the Court. Cudmore v. McPherson, Broom v. McPherson, 8 V.L.E. (L.,) 208. Fees of Counsel.] — There is no rule as to the cost of an arbitration, that counsels' fees are not to be allowed unless previous notice has been given. Ibid. Of Setting Aside Award] — "When the ground upon which an award was set aside was not mentioned in the notice of motion to set it aside, the application to set aside was granted without costs. In the matter of Husbands and Husbands, 10 V.L.E. (L.,) 208 ; 6 A.L.T., 60. ARCHITECT. Action to Recover Fees in Respect of Plans.] — M. employed F. to prepare plans for the erec- tion of a store, such store not to cost more than ,£4000 for erection. F. prepared plans, but such that a building could not be erected in accordance with them for less than J3600O. Various alterations were made with a view to bring the plans within the limit, but unsuccess- fully, and the project of building the store was abandoned. F. sued M. for his fees in respect of the plans, and recovered a verdict. On rule for a new trial Held, that F. was not entitled to succeed, and rule made absolute. Flannagan v. Mate, 2 V.L.E. (L.,) 157. Bee also under Wo bk and Labour. ARMY AND NAVY. " Military and Naval Discipline Act 1870," Sec. % — Infant.] — An infant may, under Sec. 2 of the " Military and Naval Discipline Act 1870," No. 389, even without his parent's consent enter into an agreement to serve; and an application by an infant's mother for his dis- charge from service as a "boy" on board a ship of war was refused. In re Hayes, 4 A.J.R., 34. "Military and Naval Discipline Act 1870," Sec. 4—. Habeas Corpus.] — On a return to a writ of habeas corpus by which the officer in charge of the ship was required to bring up the body of the infant in question, and show cause why he was detained on board, it did not appear on the face of the returns that the infant so detained was an infant, and so that an objection that lie could not take the oath of fealty could not he maintained. It did not appear on the face of the return, moreover, that the officer who administered the oath had authority under Sec. 4 of the Act to administer it ; but there being no doubt as to his jurisdiction, an amend- ment was allowed. The Court moreover held 57 ASSIGNMENT. 5& that the engagement to serve was one for the ■benefit of the infant. Ibid, p. 77. "Military and Naval Discipline Act 1870," Sees. 3-5 — Commissioned Officers.] — Commissioned officers appointed under Sec. 5 of the "Military and Naval Discipline Act 1870," are not subject to the provisions of the Act as to fines or any- other punishment, except dismissal, though persons engaged under Sees. 3 and 4 are subject to the provisions of the Act as regards fines, &c. Begina v. Sturt, ex parte Johnson, 4 A.J.R., 78. Wrongful Dismissal from Forces — Action against the Crown.] — The contract to serve the Crown in the colonial military or naval forces is unilateral, and implies no corresponding obli- gation on the part of the Crown to continue lie employment; and a petition against the Crown cannot be maintained for wrongful dismissal from such forces. Flynn v. The Queen, 6 V.L.E. (L.,) 208 ; 2 A.L.T., 21. S.P. See Power v. The Queen, 4 A. J.R. 144 post, Police. 29 and 30 Vic, Cap. 109, Sees. 19, 33, 50— Re-arrest by Commodore on a Charge of Desertion after Discharge of Prisoner on Habeas Corpus from Custody for Offence of Absence without Leave.] — A bandsman on one of H.M. ships of war was arrested and put into custody for the offence of being absent without leave, under Sec. 23, and was discharged on habeas corpus : he was re-arrested under a charge of desertion, under Sec. 19. Bolroyd. J. (in Chambers,) being of - opinion on the evidence that the second warrant was not issued for the same offence as the first, dismissed a motion for attachment for contempt of Court. Begina v. Wilson, ess parte Yates, 5 A.L.T., 55. ARREST. i Debtor's Ok Non-Payment of Debts.] — iS Act. Malicious.] — See Malicious Prosecution. Or Insolvents.] — See Insolvency. ARSON. See CRIMINAL LAW. ASSAULT. See TRESPASS— CRIMINAL LAW. ASSESSORS. In Mining Cases.]— See Mining. ASSIGNMENT. Equitable — Revocation.] — C, by writing, di- rected P. and another to hold moneys on trust, to pay the interest to his wife for life, and the - trustees consented to act on such dirdetions,- and made payment accordingly till the com- mencement of an action by C. against the trustees for money had and received. C. alleged that before suit he had revoked the directions to the trustees. Held that the equitable assignment was complete ; and that C. could not afterwards revoke the directions or sue for the money. Cowper v. Plaisted,. 5 W.W. & a'B. (L.,) 88. Equitable Assignment — Bight of Assignee to Sue- Third Party Directly in Equity.] — Per Stephen, J., that equitable assignments are not confined to assignments of choses in action, but if third party is under liability to assignor and assignor refuses the use of his name in action at law by assignee, the assignee may sue third party directly in Equity. Ross v. Blachham, 1 V.L.R. (E.,) 220. Equitable Assignment — Government" H " Order — Notice.] — P., who had undertaken some Govern- ment contracts, was in the habit of giving Government " H" orders to a bank as security for advances before and after upon the entire- amount payable to him. These orders were in form regulated by Gazette, August 24, 1858, and were in blank, the bank filling up the blank to the extent of the amount payable. In an interpleader suit, which was brought by Board of Land and Works against the bank, who- claimed as a security the sum due by Govern- ment to F., and against E. and G., who claimed the sum due as the official assignees of P., who became insolvent in November, 1874, Held affirming Molesworth, J., that a presentment of the order by the bank, and an oral request for- payment did not apprise the Government of an equitable assignment, but was merely a request for payment, that the right to the contract money was in the apparent possession of P. at the date of his insolvency, and vested in E. and G. as trustees of the insolvent estate. Qutm-e whether such an order filled up in blank would operate on moneys earned after its date. Quaere per Pull Court whether such notice should be given to the Contracting Department of Government, to the Treasurer, or to both. - Board of Land and Works v. Ecroyd, 1 V.L.R. (E.,) 304; 2 V.L.E. (E.,) 45. By Operation of Law — Sheriff's Sale — " Land Act 1865," Sec. 82.]— A bargain and sale by the Sheriff of the leasehold interest held by an execution debtor under the " Land Act 1865," .59 ATTACHMENT. 60 No 237, is an assignment by operation of law which the Board of Land and Works is bound to register under Sec. 22 of the Act. Regina v. Board of Land and Works, 2 V.E. (L.,) 151 ; .2 A.J.R , 87. Of Growing Crops — Absolute Assignment — Pur- chase without Notice.] — See Mueller v. White, post under Bill of Sale. For Benefit op Creditors.] — See Insol- vency and Debtor and Creditor. Fraudulent.] — See Insolvency. Op Personal Property.] — See Bill or Sale. Op Leases and Terms.] — See Landlord and Tenant. Op Mortgages.] — See Mortgage. Op Debts.] — See Debtor and Creditor. Op Choses in Action.] — See Debtor and Creditor. ATTACHMENT. I. Op Debts. (1) In What Cases, column 59. (2) What may be Attached, column 59. ( 3) Practice, column 60. (4) Other Points, column 61. II. Op Persons. (1) Practice and Proceedings on, column 63. (2) Of Solicitors — See Solicitor. I. Op Debts. (1) In What Oases. Foreign Attachment — "Common Law Procedure Statute" Sec. 225.] — Upon an application to set :aside a writ of foreign attachment the affi- davits showed that defendant had his place of business in Melbourne, and he had no other jplace of residence. "While he was abroad in Sydney an action was commenced against him, and a writ of foreign attachment issued. Meld that the circumstances were sufficiently suspicious to justify the writ, and application refused. Synnot v. Bay, 1 V.L.K. (L.,) 70. (2) What may be attached. " Common Law Practice Act," Sec. 179 — Construc- tion — Surplus in hands of Sheriff after Sale.] — The surplus in the hands of the Sheriff after a levy and sale by him under an execution, are not ■" monies of the judgment debtor in his hands," •which can be attached by a second judgment creditor, under the " Common Law Practice Act," Sec. 179. Per Stawell, O.J.—"I think that the Act only applies to cases in which the money, or goods to be converted into money, has been placed in the hands of one person by another; and, where the person has received them by the express or implied consent of the debtor, then only is he a garnishee within this Act. In all cases of agency and bailment the Act will apply, and has been held to apply." Oriental Bank v. Grant, 1 W. & W. (L.,) 16. Writ of Foreign Attachment When Issued — What may be Attached Thereunder.] — A writ of foreign attachment may be issued in an action in the Supreme Court on a judgment recovered in the Court of Vice-Admiralty ; and the separate property of one defendant may be attached on such a writ for a joint debt of himself and other defendants. White v. Glover, 5 W. W. & A'B. (L.,) 40. Debt Accruing Due — Money Due on Contract — Assignment.] — G. contracted with a Borough Council to construct a drain, under an agree- ment which provided that payments at the rate of 50 per cent, on the work done should be made to the contractor and the balance on completion of contract. G. received the 50 per cent, on the work he had done. He then assigned to B., whom the Council accepted as contractor. H., a creditor of G., sought to attach moneys in the Council's hands. Held, that the debt was not one existing or accruing due to G., and that G. having assigned all his interest, H. could not be in any better position than G. Judgment for defendant. Harkness v. Mayor, Sfc, of Maryborough, 3 A.J.B., 26. (3) Practice. On Foreign Judgment — Irregularity — Waiver.] — As a rule no attachment can be granted under a foreign judgment unless a rule or summons to show cause has previously been granted; but where an order had been obtained for attachment under a foreign judgment, and no rule or order to show cause had been taken out, but the plaintiff had slept on his rights and allowed two months to elapse without taking any steps to set aside the attachment, Held, that he had waived the irregularity and could not have the attachment set aside. Maim v. Kirk, 1 A.J.B., 155. Assignment of Debt Before Attachment Issued.] — Where an assignment of the garnishee's debt had been made by the judgment debtor before attachment was issued, the Court set aside the attachment. Cohu v. Strachan, 5 A.J.B., 381 Foreign Attachment — Appearance after Judgment.] — Where after judgment had been signed in ' default and foreign attachment issued, defend- ants moved for leave to defend the action, and to set aside the attachment ; the Court directed that defendants might plead to the declaration in the action, the trial to take place in the usual way, but no proceedings to be taken on the record beyond verdict and trial without special leave. Croaker v. Baines, N.C., 16. Foreign Attachment— Act No. 274, Sec. 221— Appearance and Pleading Without Entering into a Bond.]— A writ of foreign attachment was issued against D. D. afterwards appeared to the declaration, and pleaded without enter- ing into a bond. Held, per Stawell, C. J; and Stephen, J. (dissentiente Barry, J.) that €1 ATTACHMENT. 62 there was nothing in Sec. 221 to deprive D. of ."his common-law right to appear and plead without entering into a bond. Fogarty o. Dennis, 5 V.L.K. (L.,) 479. Garnishee Disputing Liability — Defence — " Common law Procedure Statute 1864," Sec. 804.] — Where a garnishee denies his liability, and proceedings are taken under Sec. 204 of the " Common Law Procedure Statute 1864," to compel payment of the amount of a judgment debt, the only question between the judgment creditor and the garnishee is, whether the lattei owes money to the judgment debtor, and he cannot impeach the validity of the judgment obtained by the plaintiff ; nor is the insolvency of the debtor since the attachment of the debt any defence to him, since the service of the order nisi to attach the debt operates as a charge, so as to make the judgment creditor a secured creditor under Sub-sec v. of Sec. 65 of the ■"Insolvency Statute 1871." Watson v. Morrow, ■6 V.L.B. (L.,) 134; 1 A.L.T., 167. Foreign Attachment — Writ Addressed to Garni- shee in Wrong Name — Practice.] — Where a writ of foreign attachment was addressed to the garnishee in the wrong name, HoVroyd, J., held that looking at Sec. 211 of the " Common Law Procedure Statute, 1865," which provides that the garnishee must be named in the affidavit, he would not allow the writ to be amended, but that the application must be ■commenced de novo. Bailey v. Barclay, 6 A.L.T., 66. (4) Other Points. Effect of a Consent Order — Costs — 4 Vic, No. 6, Sec. 5.] — C. sued S. a foreign debtor, and issued a writ of foreign attachment to N. as garnishee, who held valuables of S. attaching such to a certain extent. P. sued,S., and issued another writ. The parties agreed that N. should sell and hold proceeds, subject to .attachment to meet the claim in each action with ■costs, and that N. should write to S. and learn if he admitted claims, and if so, N. should pay ; but, if not, that S. should be at liberty to appear and defend each action, N. retaining ^sufficient proceeds to satisfy judgments. This .agreement was embodied in a consent order. XJ. then sued S. and obtained a writ, subject to the order supposed to exist, and referred to in the consent order, and attaching the " residue " ■ of the valuables in N.'s hands. On summons l>y U. calling upon S., N. and other plaintiffs to show cause why the whole of the valuables in N.'s hands should not be attached to satisfy TJ.'s ■claim. Held, that the consent order was informal and invalid; but as it embodied a i>on& fide agreement, supported by considera- tion, and as U.'s order recognised the claims in the preceding actions, those claims were pro- tected by Sec. 5 of Act No. 6, and U.'s order •could only be enforced subject to such claims as far as the actual debts were concerned, but not as to costs, which were prospective, and could not then be the subject of a bond fide •claim or lien. XJdall v. Stevens, 2 W. & W. necessity, in order to charge the acceptor, to- present an unqualified general acceptance for payment, and bringing an action on such am acceptance is a sufficient demand. Lillies «- Harty, 2 A.J.R., 83. (b) Payment. What Amounts to.] — A bill of exchange was drawn by R. upon and accepted by H. Wheft the bill arrived at maturity it was dishonoured, and the endorsee (a bank) debited it to the- account of R., whose account at the bank was. then only in credit to the extent of 16s. 6d.. The bill was never paid by R. or H. Heltk that debiting the account at the bank did not amount to payment, and that the acceptor was. not discharged. London Chartered Bank m Rickey, 2 A.J.R , 83. 7. Renewal. Time for.] —The request for renewal should be- made as promptly as possible; when one bill has matured the other should be ready to take- its place, or the holder should be apprised as. 97 BILLS OF EXCHANGE AND PROMISSORY NOTES. 98 quickly as possible of the acceptor's intention to ask for a renewal. Per Barry, J., the request for renewal should be made before the first bill is presented. Rowan v. Mitchell, 3 V.R. (L.,) 20 ; 3 A.J.E., 31. 8. Notice of Dishonoub. To Whom Given— Drawer and Endorser having Assigned his Estate. J — L. drew and endorsed a bill in favour of A. L. afterwards assigned his estate to trustees, by a creditor's deed, upon trust for his creditors. The bill was subse- quently dishonoured, and A., without giving notice of dishonour to L. or the trustees, sought to prove on the estate in respect of the bill. Held that notice of dishonour should have been given to the trustees, and that A. could not prove. In re Levy, 2 V.R. (E.,) 33 ; 2 A.J.R., 11. Waiver of.] — A., after the dishonour, executed the creditors' deed. Held that A., as the holder of the bill for which the trustee was liable, having lost his right to resort to him by not giving notice of dishonour, neither the assignor nor trustee could revive the liability as against other creditors. Ibid. Waiver — What is.] — An acknowledgement that the amount of a bill is due by an endor- ser seems not to be a waiver of want of notice of dishonour, but admissible evidence that it has been given. In re Levy, 2 A.J.K., 11. Omission to Give.] — The inability of the acceptor of a bill of exchange to pay it affords no excuse for the omission to give notice of hishonour. Ibid. Notice Given by Holder to his Immediate Endorser and Communicated to Drawer.] — Action by holder against drawer and endorser. Verdict for plaintiff. It appeared that notice of dishonour was givenfby plaintiff to his immediate endorser, and that by him it was communicated to the drawer. Held on rule nisi for nonsuit to be a sufficient notice; notice of dishonour by any one party to the bill enuring to the benefit of the holder. Commercial Bank u. Ashton, 5 A.J.K., 78. Duty of Agent — Foreign Bill.] — Where a bill (Tasmanian) was dishonoured in Melbourne on Monday, February 11th, and notice of dishonour was sent to Tasmania on Tuesday, though it might have been sent on Monday by a mail leav- ing on that day, Held that although it was received as soon as if it had been sent on Mon- day, the agents in Melbourne had not used due diligence, but that the agents had not been so negligent as to entitle the principal to substan- tial damages, Bank of Van Diemen's Land v. Bank of Victoria, 6 W.W. & a'B. (L.,) 178, N.C. 1 ; affirmed on appeal by Privy Council, 3 L.R., PC, 526; 40 L.J., P.C., 28. Excuse for Delay in Giving Notice.]— A declara- tion in an action on a bill of exchange set out that a bill of exchange was made, by plaintiff and directed to B. ; that, in consequence of an agreement between plaintiff,- defendant, and B., that B. would assign chattels of equal value to amount of the bill to defendant, the defendant would endorse the bill to plaintiff as surety for the due payment, that defendant had received and retained the chattels, that plaintiff endorsed to defendant, and that defendant re-endorsed to plaintiff in considera- tion of the agreement, and that bill was dishonoured. Held on demurrer that in order to excuse want of notice to endorser, he must, as between the acceptor and himself, be primarily liable ; that the assignment being by way of security only did not relieve the acceptor or make it incumbent on the endorser to meet the bill in the first instance. Demurrer allowed. Judgment for defendant. Bees v. Martin, 5 A.J.K., 77. Misdescription in — Executors.] — There are two- requisites which are indispensable to a good notice of dishonour, viz., a description of the bill, and an intimation of its having been pre- sented for payment and dishonoured. A bill of exchange was endorsed to the defendant and L., the executors of a will, by them endorsed to the defendant, who endorsed to the plaintiff- The bill was by the plaintiff placed in a bank for collection, and the bank gave notice of dis- honour to the executors, describing the bill as placed by them and not by plaintiff for collec- tion, and intimating its dishonour. The plaintiff sued the defendant as his immediate endorser upon the bill. Held that as the defendant had not proved he was misled, the description of the bill, though erroneous, was sufficient, and that defendant was liable either personally or as executor. Billson v. Hood, 5 V.L.B. (L,) 125. 9. Actions on. (o) Generally. Parties Liable.] — The endorser of a bill of exchange cannot be sued as such unless the bill has been endorsed to him. W., a drawer, sued M., the endorser, on a bill of exchange. M. demurred on the ground that it was not alleged that the bill was accepted or endorsed by the drawer. Judgment on de- murrer for defendant. Wood v. M'Mahon, 3 V.L.K. (L.,) 282. Bight of Action — How Transferred.] — A bill of exchange drawn by the plaintiff on the de- fendant, and accepted by him, and made pay- able to a bank, but not "or order," was dis- honoured and sent back to the plaintiff. Held, that the return of the bill unpaid to plaintiff transferred to him the right of action on the bill, without endorsement; and that he might sue upon the original consideration for which the bill was given, as the dishonouring of the bill remitted the parties to their original rights. Bateman v. Cornell, 5 W.W. & a'B. (L.,) 203. Procedure on— "Instruments and Securities Statute" No. 204, Sec. 24 — Writ against Several Defendants — Affidavit of Service.] — A writ of summons had issued against the drawer and acceptor of a bill, and judgment by default was signed against the acceptor. Heidi that under Sec. 24, the affidavit of service being entitled (f intituled) '9 BILLS OF EXCHANGE AND PKOMISSORY NOTES. 100 s against both defendants, the judgment was rregular. Judgment set aside. Maritime rencral Credit Company, o. Christie, 5 A.J.R., Payment of Money Out of Court— Act No. 204, Sec. :0 — Insolvency of Defendant.] — In an action on a >ill of exchange, the defendant obtained leave o defend under Sec. 20 upon paying money into >ourt. Plaintiff recovered a verdict, and de- endant moved for a rule nisi for a new trial, rhich was refused, and, on the next day, be- anie insolvent. Judgment was afterwards igned. Held, that the action having been ried, and plaintiff having recovered a verdict, le was entitled to have the money paid out to tim. Playford v. 0' Sullivan, 5 A.J.R., 115. Per Stephen, J. (in Chambers.) — After leave s given to appear and defend, the action is at arge, and the defendant may plead any defence ie desires (even though such defence was not lisclosed in his affidavit.) English Scottish nd Australian Chartered Bank u. Lavars, A.L.T., 63. Application for Leave to Defend — "Supreme Court Jules 1884," Order 38, Eules 23 and 24.]— Per Uginbotham, J. (in Chambers,) Eules 23 and 24 f Order 38 of the " Supreme Court Rules 1884," pply to applications under the " Instruments nd Securities Statute 1864," and the copy of the rrit and summons should not be annexed to he affidavit or referred to in the affidavit as nnexed, but must be-referred to as an exhibit, nd as such must be certified to by the commis- ioner before whom the affidavit is sworn nder Rule 24 of the same Order. London Uscount Bank v. Prendergast, 6 A.L.T., 19. Practice under "Judicature Act" — Order 20, Eule , (a,) (c)— Order 26, Eule 1— Appendix C, Sec. 4 — .ct No. 204, Sec. 19, Sen. 2.] — If a writ is endorsed ccording to the form given in Sch. 2 of Act To. 204 {"Instruments and Securities Statute,") ; is a specially endorsed writ within the mean- ig of Appendix C, Sec. 4 "Supreme Court lules 1884," requiring a statement of defence. roodwin v. Heanchain, 6 A.L.T., 160. Payment into Court] — Defendants in obtaining save to defend had paid money into Court. tarry, J., (in Chambers,) ordered that this um be held by the Prothonotary as if paid in :nder a plea of payment. Young v. Dellar, A.L.T., 87. (6) Matters of Defence. Hade and Accepted on Sunday.] — A bill of xchange made and accepted on a Sunday, if ot in the ordinary course of business, is not ad. Walsh v. Hosking, 4 W.TV. & a'B. (L.,) 35. Pleading Set-off.]— Where there is a set of bills ccepted by the defendant, to whom the plaintiff i indebted, the plea of set-off should not be aised till the last bill of the set is due. Nisbet . Cox, 4 A J.E , 115. Equitable Plea— Contemporaneous Agreement not i Writing.]— To a declaration by the endorsee against the acceptors of a bill of exchange, the acceptors put in a plea on equitable grounds that before drawing the bill it had been agreed that the bill was not to be paid unless the acceptors should recover a similar amount from a third person, and alleged that, though judgment had been recovered against such third person, the acceptors had received nothing thereunder. The plea did not allege the agreement to be in writing. Held a good plea, and that there was no occasion to allege that the agreement was in writing. Waxman v. Barnard, 2 V.L.E. (L.,) 238. Prior Agreement to Eefer to Arbitration —Set-off] — M., as endorsee of a bill of exchange, sued Gr., the endorser. Ct., as an equitable plea, alleged that, as to part of the amount, J54000, finder a prior agreement in pursuance of which the bills were given, matters in dispute had been referred to arbitration, and an award was made by which M. was to pay H., the acceptor, a certain sum of money, viz., the above-mentioned sum of .£4000; and that H. claimed and offered to set-off the said sum. M. demurred to this plea on the ground that it did not show circumstances in which a Court of Equity would grant a perpetual and unconditional injunction. Replication (1) that an award had been made before the award stated in the plea (5) traversing the set-off claimed by H. Demurrer to replication. Held that the plea was good; that there was an absolute and unconditional answer in Equity to the part of the declaration pleaded to, and the fact of there being no such answer to the whole cause of action did not affect its validity; that- there might be several awards and arbitrations. Judgment for defendant on all the demurrers. Murphy v. Glass, 4 W.W. & a'B. (L.,) 199; affirmed on appeal to Privy Council, L.E., 2 P.C., 408. Agreement as to Payment of a Promissory Note.] — Plaintiffs sued on a promissory note made by defendants in favour of plaintiffs. Defendants pleaded on equitable grounds that after the note became due, and before action, it was agreed between the plaintiffs and defendants and the other makers of the note who were defend- ants' partners, that one of the other makers should give the plaintiffs a note for the same sum instead of the original one, provided that such other note should be paid when due, that the plaintiffs had taken such note which had been duly paid at maturity. On demurrer, Held that though several objections to the plea might possibly be sustained before a Judge in Chambers, yet the plea, being in effect that the Plaintiffs had been paid through another channel, afforded on general demurrer a sub- stantial defence on equitable grounds. Utter- shank v Curr, 2 V.R. (L.,) 88 j 2 A.J.R., 74. Equitable Plea— Bill of Exchange — Firm Accepting —Notice of Eetirement.]-^Oiie of the defendants in an action on a bill of exchange by the endorsee against a firm which had accepted the bill, pleaded on equitable grounds that before aceeptance he had retired, from the firm, and that the endorsement to plaintiff was made when the bill was overdue. Held bad because 1101 BILLS OF EXCHANGE AND PROMISSORY NOTES. 102 it did not allege notice of the retirement to the jprevious holders. Webster v. Tulloch, 2 A. J.K., 57. Plea of Payment] — In an action against the acceptor, the defendant pleaded that he had given a lien to the plaintiff oyer certain shares, and that he was to retain the dividends thereon, and that he did retain them, and that the pro- ceeds were more than the amount of the hill. Demurrer to plea. Held that the plea amounted to a plea of payment, there being an agreement to give and take certain things, directing the application of the thing to he done. ■ Saunders v. Matthews, 5 A.J.E., 83. Plea that Consideration Wholly Failed.] — To a declaration on a hill of exchange, the defen- dant pleaded an agreement hy which the con- sideration wholly failed. Held, on demurrer "to plea, that the plea should have alleged that there was no other consideration. .Demurrer allowed. Peck v. Willison, 5 A.J.E., 121. Note Made in Favour of Dissolved Firm.] — Semble, that it does not lie in the mouth of the maker of a promissory note to aver that the payees of the note, formerly members of a dis- . solved firm, were fictitious persons, when he was thoroughly aware of the dissolution, and of the circumstances attending the making of the note. Paterson v. Hughes, 2 V.E. (L.) 148 ; 2 A.J.E., 96. Presumption of Drawer's Liability — What Will Jiebut.] — Unless there is some written document or substantial fact to rebut the ordinary pre- sumption that a man, when he gives a bill, means to pay it, the holder must be held to recover on it. Kong Meng v. Peters, 1 A.L.T., 136. Endorsement after Maturity — No Consideration — -Promise to Accept Composition.] — To an action by endorsee of a promissory note against the jnaker, the latter pleaded — (1) that the note was endorsed to plaintiff after it became due — (2) that plaintiff gave no considera- tion for it — (3) that, before the note was •endorsed, the payee promised to accept a com- position on the amount due. Held, no defence to the action. Breading v. Dorics, 2 A.L.T., 6. Alteration.] — After the issuing and accept- ance of a bill of exchange by A., the name of A.'s wife was added as a joint acceptor with A., without the consent of the drawer. Held, a material alteration, notwithstanding that at the time of the wife's name being added, and ^thenceforward, she was a feme covert. Oriental Bank v. Beilby, 1 V.B. (L.,) 66; 1 A.J.B., 81. Alteration.] — A material alteration in a bill ■of exchange or a promissory note is one by which the instrument is made to operate differently, to speak a different language. Luth v. Stewart, 6 V.L.E. (L.,) 383; 2 A.L.T., 78. A drawer of a bill sent it to another person for endorsement before he himself had done so ; such person endorsed and returned it; the drawer then endorsed, and subsequently the words "without recourse" were inserted in the bill before the endorsement of the drawer's name. Held a material alteration ; but that, since it was merely carrying out the intention of the parties to the bill that the drawer should not be sued by such person, it did not vitiate the bill or prevent the drawer from suing him, even though his consent was not asked to the alteration, the jury finding that he must have known that he was intended to be held liable. Ibid. Forgery — Evidence to Sustain — Ratification — Estoppel.] — K.'s signature was forged to a, promissory note of which he was alleged to he the maker, and after dishonour, K. said that the signature was his, and had made the same statement as to a previous forged note held by the same holder. Held that there was no evi- dence by which an estoppel could be proved or a ratification inferred. Semble, that had K. previously paid a forged note and thereby nusled an innocent holder, the case would have been different. Keman v. London Discount and Mortgage Bank, 4 V.L.E. (L.,) 279. Forgery — Admission as to Other Bills.] — A state- ment by an acceptor resisting payment of a bill on the ground of alteration by forgery after acceptance, that other bills similarly altered were "all right and would be paid," is no admission of liability on the bill on which he is being sued. Levinger v. Fitzgerald, Johnston v. Pitngerald, 4 A.J.E., 138. Forgery — Alteration after Acceptance — Evidence — Questions for Jury.]— K. drew bills vipon F„ who accepted them, and they were subsequently endorsed to the plaintiffs. The bills were drawn upon graved forms, in which a ruled space was left in the body of the bill after the words " sum of," for the insertion of the amount. E. wrote in the ruled space what was supposed to be " one Hundred " and some odd pounds, beginning the first word with a small letter. Before this the letter " F " was subsequently inserted, and the amount in figures altered correspondingly, thus making the bills appear to be for ,£400 and odd pounds. Skilled witnesses could not determine whether this was done before or after the acceptance was written across the bill, but defendant swore that it was done after acceptance, and the jury accepted his version, and found in addition that any person using due and ordinary diligence could have, from the appearance of the bill, discovered the alteration, and that it was not negligence or want of caution on the acceptor's part to accept bills drawn with a space before the amount which began with a small letter, and brought in a verdict for the defendant. On application for a new trial or to enter a verdict for the plaintiffs, Held that the jury were at liberty to disregard the evidence of the skilled witnesses as regards the respective dates of the alterations and acceptance, and to act upon the evidence of their own senses ; that if there could be any doubt at all about the matter, the question whether it were negligence or want of caution on the part of the acceptor 103 BILL OP SALE. 104 to accept bills drawn as described, was entirely one of fact for the jury, and not of law for the Court, hut that such a question should not even have been left to the jury; and application refused. Ibid. Discharge.] — All the makers of a bill of exchange being primarily liable, giving time to one does not discharge the others. Colonial Bank v. Mttershank, 4 A.J.E., 94, 185. Waiver.] — Waiver may be by an absolute, un- conditional renunciation by the holder, though unaccompanied by satisfaction or any solemn instrument, and is a question for the jury. Ibid. As to what was held to amount to a waiver see Colonial Bank v. Ettershanlc, 4 A.J.B., 10, 45, 94, 185, affirmed on appeal to the Privy jjfouncil, 4 V.L.K. (L. ) 239. (| Waiver — Proof — New Trial.] — On a, plea of waiver to an action on a promissory note, the jj^act of waiver must be clearly proved, and if Sthe jury find in favour of the plea, on evidence runsatisfactory to the Court, a new trial will be ordered. Bank of Australasia v. Cotchett, |4 V.L.E. (L.,) 226. , 10. Other Points. Promissory Note — Evidence of Account Stated.] — A promissory note is evidence of an account stated between the maker and the payee ; but not between the maker and an endorsee. Paterson v. Hughes, 2 V.B. (L.,) 148; 2 A..I.E., 86. Accommodation Bill — When Negotiable.] — An accommodation bill in the hands of the original person for whose accommodation it was given is negotiable both before and after maturity, and before and after the death of T?ne accommodation acceptor. Clough v. Gray, 1 W. & W. (E.,) 225. 10 BILL OP SALE. 1 . Definition of, column 104. 2. What require Registration, column 104. 3. Possession of the Goods. (o) In Grantor, column 106. (b) In Grantee, column 107. 4. Property Passing by, column 107. 5. Successive Bills of Sale, column 108. 6. Fraudulent, column 109. 7. Registration. (o) Affidavit, column 109. (6) Renewal, column 110. (c) Consideration for, column 111. (d) Attestation, column 111. (e) Other Points, column \\2. Priority, column 113. Seizure under, column 113. Other Points, column 114. 8 Statutes — " Instruments and Securities Statute 1864," No. 204, Part vii. " Instruments and Securities Statute- Amendment Act 1876," No. 557. 1. Definition of. Bill of Sale or Absolute Sale.] — A document as follows : — " Sold to J. (certain property,) total price, J658 10s. . . . received payment, M_ Witness J.M," is not a bill of sale. Jones v. Rede, 2 A.J.E., 17. 2. What Beqtjire Registration. Act No. 204, Sec. 56— Act No. 557, Sec. 1— Posses- sion Bemaiuiog in the Vendor.] — Under the two- Acts the term "bill of sale" is to be construed according to their policy to include written instruments in the form of sale notes, receipts, &c, really intended as securities where the possession remains in the so-called vendor. S- signed a sale note to the following effect : " I have this day sold to B. my carts, &c, for the sum of ,£55, to be paid for at any time before" — a certain date. B. wrote out a cheque and paid for them at once. S. retained the posses- sion of the carts, &c, for a time, but B. seized them the day before S.'s insolvency. Held that the sale note required registration as a bill of sale, and, being unregistered, S.'s trustee in insolvency was entitled to the goods. In re Shaw, 9 V.L.E. (I.P. & M.,) 16; 5 A.L.T., 107. No Change of Possession — "Instruments and Securities Statute 1864," Sees. 56, 63.] — B. was- claimant of goods seized by an execution creditor under a bill of sale, whereby B. had possession of furniture in a hotel prior to the seizure of it by the creditor under the Justices' order. The bill was as follows : — " Memorandum- of agreement entered into this day of between C. M., of , publican, and B.,. whereby the said C. M. sells to the said B. that public house known as the , situated in the- main street, , with all the furniture, fixtures and fittings therein, for the sum of £ ,. £ in hand paid, the receipt whereof is hereby acknowledged; an -acceptance of this date, payable three months after date, granted by the said B. to the said C. M. ; and two- further acceptances for £ — each, also of this day's date, payable the first six months after date, and the second nine months after date, receipt of which acceptances from the said B.. is acknowledged by the said C. M., and the said C. M. hereby undertakes to give up immediate possession of the aforesaid house and premises,, with all furniture, &c, to the said B., and also- to apply to the magistrates to have the license transferred from him, the «aid C. M., to the said B. (Signed) C. M., B." The license was not transferred, nor was there any change of possession. Held that this was not a sale in the ordinary course of the trade or business of a publican, but a transfer of all that C. M. had;, and that, there having been no change of possession, the bill was void for want of regis- tration. Wangaratt a Brewery Company v. Betts,. 1 A.J.E., 79. 105 BILL OF SALE. 106 Deed of Assignment — Property in Assignor.] — If Tinder a deed purporting to be a deed of assign- ment for benefit of creditors, but not so in fact, any part of the property is allowed to remain in the apparent possession of the would-be assignor, such deed requires registration. Port v. London Chartered Bank, 1 V.E., (L.,) 162 ; 1 A J.E., 146. Sale Note Upon an Auction — Debtor Left in Possession.] — A sale note given on a sale at auction by a bailiff, under an execution, need not be registered as a bill of sale, though the judgment dehtor be left in possession of the goods. Barnard v. Mann, 2 V.L.E, (L.,) 140. Assignment of Stock-in-Trade in Trust — Immediate Possession.] — W., being sued by a Bank on an ■overdue promissory note, and being also indebted to M., who, however, was not pressing him for payment, made an arrangement with M. and the Bank whereby, in consideration of a further small advance from M., and M.'s forbearing to sue W. for a reasonable time, and also obtaining from the Bank a forbearance to sue W. on the overdue note, W. executed an assignment to M. of nearly all his stock-in-trade in trust, to sell and pay M. and the Bank xateably, and hand over the surplus to W. if there should be any. Immediate possession was given to M. Held that M.'s taking poss- ession dispensed with the necessity of register- ing the assignment as a bill of sale. Cohen v. McGee, 4 V.L.E. (L.,) 543. Over Stock on a Farm — " Instruments aud Secu- rities Statute 1864," Sec. 63.]— Sec. .63 of the "Instruments and Securities Statute 1864," which excludes from the definition of " personal chattels" "stock upon any farm which by virtue of any covenant or agreement ought not to be removed therefrom," does not apply to a covenant in a stock mortgage not to remove the stock. It applies only to a covenant or agreement existing prior to the stock mort- gage. Such a mortgage is a bill of sale requiring registration within the meaning of the Act. Teague v. Farrell, 6 V.L.E. (L.,) 480 ; .2 A.L.T., 98. Absolute Sale — Contemporaneous Parol Under- standing as to Redemption — Act No. 557, Sec. 15.] — A contract purported to be an absolute sale ■ of certain goods. Attached to this was a con- tract of the same date, under seal, for the 'letting and hiring of the same goods from the purchaser to the vendor, which was not filed as . a bill of sale. There was also a contemporaneous parol undertaking that the vendor should have the goods back if he paid the purchaser ■ off. Held that the contract did not come ■within Sec. 15 of Act No. 557, as there was no sale free from the proviso for redemption, and for the contract to be valid it required filing under Part VII. of Act No. 204. Bosel v. .Stephens, 9 V.L.E. (L.,) 379; 5 A.L.T., 142. Act No. 204, Sees. 56, 63— Act No. 557, Sec. 15— .Deed of Hiring.] — An arrangement was made between the plaintiff company and the defend- .ant that goods to be supplied to the plaintiff .should be divided into three lots, of which one lot was bought by the plaintiff and the other two were to be hired to the company, the plaintiff giving as security three contracts of hiring covering all the goods. Afterwards, in April, 1879, a fresh deed of hiring was drawn up, similar in other respects to the former ones, but declaring that the whole of the goods be- longed to the defendant. Held, that the deed of April, 1879, was so far in its nature a bill of sale that it required registration under Acts No. 204 and 557, and that the intended estoppel in the deed did not prevent the hirer from show- ing the real nature of the transaction, i.e., that it was a bill of sale. Per Barry, J., that the admission in the deed of April, that the goods were the defendant's and not the company's, must be taken as evidence that there was a contract for the sale, which ought to have been in writing and registered with the deed. Oriental Hotel Company v. Thomson, 5 V.L.K. (L.,) 485. Memorandum of Transfer when Necessary — Bill duly Filed.] — It is unnecessary to file or register a memorandum of transfer from the grantee to another person of a duly filed bill of sale. Marr v. Mayger, 4 V.L.E. (L.,) 494. Act No. 557, Sees. 15, 16 — Consideration.]— In an action for detinue and conversion the defendant as a defence produced a contract of sale from the plaintiff, and a contract of letting and hiring, which were not filed in the manner provided by Sec. 16 of the Act. It appeared also that no proper consideration was given. Held, that the defence was bad. Ver- dict for plaintiff. Howse v. Glowry, 8 V.L E. (L ,) 280. Eeceipt for Purchase Money with Inventory Attached — Act No. 557, Sec. 1.] — S. purchased a piano from A., and paid for it. Subsequently he sold his furniture, including the piano, to Gr., but remained in possession. Upon this sale the following document was given : — " 6th August, 1878. Eeceived from A. ,£250, being in full for purchase of household furni- ture and effects set out in inventory, hereunder written. [Here followed the inventory^] S." Held that this document required registration under the Act No. 557, Sec. 1. Glen v. Abbott, 6 V.L.E. (L.,) 483. 3. Possession of the Goods. (a) In Grantor. Possession in Grantor until Default of Payment — Property in Grantee — Unauthorised Sale by Auc- tioneer at Grantor's Direction before Default Made — Auctioneer Liable for Money Had and Eeceived in Action by Grantee.] — See Lockhart v. Gray, post under Monet Claims; and see cases under preceding heading. Until Default.] — Where the grantor of a bill of sale transfers his property in the goods to the grantee, but subject to his right of redemption, although it be not specifically stated in the instrument, the grantor has clearly reserved to him a special property in the goods until he makes default in payment, and has therefore a right of action for seizing and selling the 107 BILL OF SALE. 108- goods before that event arises. Frith v. Mari- time General Credit and Discount Company, 2 V.E. (L.,) 165, 168 ; 2 A.J.E., 111 (6) In Grantee. Successive Grantees.] — As between two grantees of the same goods the property is absolutely and indofeasibly vested in the first grantee if the condition be not performed by the grantor, and no action will lie by the second grantee against the first for negligently and carelessly selling the goods described in the securities of both at an undervalue. Frith v. Maritime General Credit and Discount Com- pany, 2 V.E. (L.,) 163, 168 ; 2 A.J.E., 111. Possession Taken and Sale Mad; on Default.] — In 1869, B. and Co. sold a timber-yard to S., payment for which was made partly in cash, partly by bills extending over a long period. "S. gave a bill of sale to secure the bills, which was not registered, and which provided that S. was to furnish monthly accounts. In May, 1872, default was made in furnishing the accounts and in payment, and B. took posses- sion and sold to W. Another creditor of S.'s recovered a judgment against S., and issued execution. B. paid off this judgment debt. S. sequestrated his estate, and Sharp, the official assignee, turned W. out of possession. "W. brought an action against Sharp, in which a verdict was given for defendant. A rule nisi for a new trial, on the ground of the verdict being against evidence, was discharged, the Court refusing to disturb the verdict, which evidently was based upon B.'s act in paying the judgment debt being inconsistent with his ' former possession, Williams v. Sharp, 3 A. J.E., 80. 4. Peopeett Passing Bt. Growing Crops — Absolute Conveyance — Pnr- chaser without Notice.] — G. by deed absolutely conveyed to W. a crop of wheat growing on his farm, this deed was duly registered as a bill of sale. Afterwards G. sold to M. part of this crop, M. having no notice of W.'s title to the wheat. Held that the property being abso- lutely in W., G. had no title to confer upon M. Mueller v. White, 3 V.L.E. (L.,) 92. Goods Eeferred to in the Schedule.]— The body of a bill of sale contained a provision that it should comprise all goods, &c, " described, or comprised, or mentioned, or referred to, in or by the schedule" annexed, " and now standing in and upon " the premises, or used by the mortgagor in his business. The schedule con- tained an inventory of several goods, but did not mention others, and conducted with the words : — " Together with all such goods and chattels as may for the time being be in or upon the said premises." Goods were seized which were not mentioned expressly in the schedule, but which were on the premises. Held that where a schedule was referred to in the body of a bill of sale for the purpose of furnishing detailed particulars of the articles over which the bill of sale purported to give security, it has to be regarded merely as an inventory, and could not enlarge the operation of the deed. But where the deed itself declared that it was intended to pass not only the pro- perty described but also that referred to in the schedule, the bill was not impaired by the- sehedule, and the words of the deed were not restricted to the articles enumerated, and that the goods seized were comprised in the bill. Gibbes v Rolls, 2 A.J.K., 113. A bill of sale comprised all chattels mentioned in the schedule upon certain premises at A., or otherwise used by the grantor in connection with his business in a tenement in Melbourne, and all goods brought upon the said premises, or used in connection with the said business, in addition to or substitution of the chattels men- tioned in the schedule. The grantor removed, to C, and acquired other chattels apart from those mentioned in the schedule. Held that the last mentioned chattels did not pass under the bill of sale. Smith v. Leroy, 5 A. J.E., 174. Future Property .J — The defendants as trustees- were the assignees under a bill of sale of all the plaintiff's property, present and future, on their premises and elsewhere. This property, according to the deed filed as a bill of sale, included "spirits, &c." Certain spirits which were not in existence at the time of the- execution of the bill (nor were the materials from which they were made in the possession of the plaintiffs) were sent away from the- premises to a bonded store before the defend- ants took possession of the premises. Held that such spirits were comprised in and passed to the defendants under the bill of sale. Victorian Beetroot Sugar Company v. Sherrard,. 5 A.J.E., 105. After Acquired Property — Evidence as to.] — Where a bill of sale purports to include after acquired property, the holder must adduce evi- dence of some act of affirmance by the grantor respecting such after acquired property. Dun- lop v. Tutty, 2 V.E. (L„) 14; 2 A.J.E., 35. After Acquired Property — Demand — Waiver.] — Under a bill of sale which declared that all chattels to be thereafter brought upon the- premises should form part of the security, and which gave a power to seize on default after demand in writing, the grantee seized after default, but without such demand. Held, that the seizure was illegal, and did not vest the after acquired property in the grantee. Cohen v. Oriental Banking Corporation, 6 V.L E. (L.,)> 278; 1 A.L.T., 198. Goods Seized Under an Illegal Distress.] — A bill, of sale is paramount to a faulty distress, and a. person claiming under a bill of sale will have a better title than a person who has seized the- goods comprised in the bill of sale under a, prior distress which is invalid. Regina v. Templeton, ex parte Allen, 4 A.J.E., 70. 5. Successive Bills of Sale. Registered Bill Passing Property Comprised in. Prior Unregistered Bill. — '• Instruments and Securities, Statute," Sec. 86.]— A debtor executed a bill of sale over all his property, but the bill was not. 109 BILL OF SALE. 110 registered. He afterwards executed another bill of sale to the same persons over a greater part of the same property, and this bill was registered. Certain creditors obtained a judg- ment against the assignor, and seized part of the property comprised in the registered bill. On an interpleader issue it was contended that the registered bill was void, as the assignor had no property on which it could operate at the time of executing it. Held that the registered bill was valid as against the subse- quent execution creditor. Hedrich v. Commer- cial Bank, 1 V.R. (L.,) 198 5 1 A.J.B., 155. 6. Fraudulent. Duty of Justices as to Evidence.] — "Where a bill of sale has been executed and filed, Justices on an interpleader summons should admit evi- dence which is tendered with the object of showing that the bill was not properly exe- cuted, and that no consideration was paid, and that the bill was within the mischief of 13 Eliz., Cap. V., as given to hinder, delay and defraud creditors. Dunlop v. Tutty, 2 V.R. (L.,) 14 : 2A.J.K., 35. See also Insolvency — Fraudulent Convey- ance. 7. Registration. (a) Affidavit. Description of Attesting Witness—" Clerk."]— In a bill of sale the attesting witness was described as "of S street, Melbourne, pawnbroker's clerk." In the affidavit he described himself as of "B— — street, Emerald Hill, clerk." There was no allusion in the affidavit to the person who had attested the bill of sale- nothing to identify the attesting witness of the bill of sale with the person who made the affidavit. Held that the description of " clerk " in the affidavit was insufficient. O'Donnell v. Goldstein, 4 A. J.R., 85. Act No. 204, Sec. 56— Affidavit.]— An affidavit verifying the residence and occupation of the attesting witness to a bill of sale as follows : — "I reside at Geelong, and am a law clerk." Held sufficient under Sec. 56. Douglass v. Simson, 6 W.W. & A.B. (E.,) 32. Act No. 204, Sec. 66.]— An affidavit of verifi- cation contained a description of the attesting witness, "of Kerang, in the Colony of Victoria, storeman," and there was evidence that he could be easily found by that description. Held, that it was sufficient. O'Donnell v. Patchell, 5 V.L.R. (L.,) 360. On Same Sheet of Paper — Separately Initialled.] — Where a bill of sale and the verifying affidavit are upon the same piece of paper, the affidavit need not be separately initialled by the Com- missioner before whomit was sworn. O'Donnell v. Goldstein, 4 A.J.R., 85. Bill of Sale on Several Sheets.]— A bill of sale, forming one continuous document, was written upon 11 pages ; the affidavit of verification was upon the 12th, or outer page, and the interior pages were stitched together, forming an instru- ment like a conveyance. Held, that the affi- davit was sufficient, and that it was not necessary that the different pages should have any mark to identify them. London Chartered Bank v. Kirk, 1 V.L.R. (L ,) 266. " Instruments and Securities Statute," No. 204, Sec. 56, etaeq.]— At the hearing of an interpleader summons before Justices, a bill of sale was put in, and on the back of it was endorsed the affidavit of filing, but with the blanks therein not filled up. Held that the bill of sale so endorsed was no evidence, there being nothing to connect the copy filed in the Registrar's office with the original bill produced before the Justices. Baird v. Forrest, 3 A.J.R., 22. Interlineation Unattested.] — An interlineation in an affidavit verifying a bill of sale, not initialled by the Commissioner, does not invali- date the registration, although such affidavit could not be used in court. Blamires v. Dwininj, 3 V.L.R. (L.,) 18. (6) Renewal. When Unnecessary — Seizure under Bill within Twelve Months from Registration— Act No. 557, Sec. 13.]— A bill of sale, by which chattels were mortgaged, dated July 12th, 1879, was filed on the 29th of that month, and registra- tion was renewed on the 19th July, 1880. The grantee, on February 22nd, 1881, assigned the chattels comprised in the bill to a third person, who at once took possession of them, the grantor having made default. Disputes arising as to some of the chattels, an action was instituted more than twelve months after the 19th of July, 1880. In the action the bill was tendered in evidence, but objected to on the ground that the registration had not been renewed within twelve months after the 19th of July, 1880, under Sec. 13 of the Act No. 557. Held that the objection was untenable. Pettit v. Walker, 8 V.L.R (L.,) 72 ; 3 A.L.T., 118 ; sub nom. Walker v. Pettit. Annual Affidavits— Stating Amount Incorrectly— Bill Void— Act So. 557. Sec. 13.]— Where a bill of sale has been properly registered, but the subsequent annual affidavit, required by Sec. 13 of the Act No. 557, states the amount due upon the bill incorrectly, the effect is to render the bill absolutely void as a bill of sale, as between the immediate parties to it, as well as between all others. Black v. Zevenboom, 6 V.L.R. (L.,) 473; 2 A.L.T., 96. Annual Affidavit — By Whom Made— Act No. 557, Sec. 13.] — The annual affidavit required by Sec. 13 of the Act No. 557, to be made and filed in order to keep alive a bill of sale, must be made by the person entitled to the benefit of the security, and cannot be made by his attor- ney under power. Martin v. Blamires, 4 V.L.R. (L.,) 498. "Instruments and Securities (Bills of Sale) Statute," No. 557, Sec. 13— "Manager."]— The word " manager," in the Act No. 557, Sec. 13, means, with reference to a banking corpora- tion, either the head manager at the head office, Ill BILL OP SALE. 112 wherever situate, or the manager of the branch bank at which the debt is due. An inspector in Melbourne of a bank having its head office in New South Wales, is only an "officer" within that section, and, if he make the affidavit of renewal of a bill of sale, must depose of his own knowledge to the facts. Bank of New South Wales v. Jones, 4 V.L.E. (E.,) 253. "Able to Depose of His Own Knowledge."]— Quaere, whether the words, " able to depose of Ms own knowledge," in the Act No. 557, Sec. 13, apply to the antecedent word, " manager," as well as to " other officer." Ibid. (c) Consideration for. What Sufficient— Agreement to Advance Money.] — On an interpleader summons to try the right to goods seized under an execution, and over which a bill of sale has been given, it appeared that the consideration for the bill was — not the actual payment of, but an agreement to advance money, Held, that this was a sufficient con- sideration, and that the person claiming under the bill was entitled to the goods. Harrison v. Moore, 2 V.E. (L.,) 69; 2 A.J.E., 56. See also, for remarks upon consideration Howse v. Glowry, 8 V. L.E. (L.,) 280. Act No. 557, Sec. 15 -What Must be in Writing —Consideration.]— The 15th Sec. of Act No. 557 requires that the real contract between the parties must be in writing, and the real contract is not in writing if the writing do not truly state the consideration. The considera- tion is not truly stated if it is stated to be the advance by the purchaser of a certain sum, when in reality the transaction is merely the discharge by the vendor of past debts, due to the purchaser to the amount of such sum. Bruce v. Garnett, in re Biedle, 10 V.L.E. (L.,) 126; 6 A.L.T., 13. (d) Attestation of. Attesting Witness — What Description Sufficient.] — The description of an attesting witness to a bill of sale as "managing law clerk," without stating whose clerk he is, is a sufficient descrip- tion. 0' Connor v. Paul, 5 W.W. & a'B. (L.,) 97. Description of Attesting Witness.] — In an affi- davit accompanying the registration of a bill of sale the attesting witness was described as ■" W.T.P., of Swanston-street, in the City of Melbourne, Law Clerk." Held, a sufficient description. Treacey v. Balderson, 2 V.E. (L.,) 3 ; 2 A.J.B., 15. Attesting Witness — Description — Affidavit— Act Mo. 141, Sec. 2.]— The affidavit did not in the swearing part contain a description of the occu- pation of the attesting witness, but it did in its heading ; and it did not swear to the truth of facts stated in the attestation clause, where a sufficient description of the occupation of the witness was given, but swore only to " truth of the copy " of attestation clause set out in the affidavits. Held, that the description in the heading was not sufficient, and that there being no description in the binding part, or in any document so referred to and incorporated into the affidavit as to make the facts appearing in the document part of the facts sworn to by the affidavit, the Act was not complied with. McCulloch v. Harfoot, 2 W. & W. (L.,) 267. Attesting Witness — Description — Act Ho. _ 141, Sec. 2.]— The attestation clause in a bill of sale was witnessed by " H. C. C, Solicitor, Mel- bourne," and the signature was merely " M. B." In the affidavit filed the residence and occupation of M. B. were set out, but it did not either expressly or by reference to the attestation clause above mentioned set out the residence and occupation of H. C. C. In the heading of the affidavit H. C. C. was described as "gentleman, Melbourne." Held that the requirements of Sec. 2 of Act No. 141 had not been complied with. Nathan v. Naylor, 2 W. & W. (L.,) 263. "Instruments and Securities Statute," No. 304, Sec. 56— What Requisite.]— The "Instruments and Securities Statute," No. 204, Sec. 56, must not be read as requiring that there shaU in every case be an attestation of the execution of a bill of sale, but only that wherever there is such an attestation there shall be filed a true copy of it, and an affidavit containing, among other matters, a true description of the residence and occupation of the attesting witness ; and under the " Statute of Evidence," No. 197, Sec. 55, it is not necessary that an attesting witness should be called to prove the execution of an instrument the validity^ of which is not dependent upon attestation. Smith v. Martin, 3 "W.W. & a'B. (L.,) 35. Description of Attesting Witness.] — The verify- ing affidavit of an attesting witness to a bill of sale, began " I, A. S., clerk to Messrs. B. & T., of 107 Collins Street West, in the City of Mel- bourne, do make oath and say ." There was no further description of the witness in the affidavit, but the attestation clause of the bill of sale contained a similar description. Held, that this was a sufficient description of the witness, though he was only described as deponent. Cohen v. Oriental Banking Corporation, 6 V.L.R. (L.,) 278 ; 1 A.L.T., 198. See also cases on column 109. (e) Other Points. Act No. 204, Sec. 56— Time for Registering— Antecedent Verbal Agreement] — The time for registration in Sec. 56 runs from the execution of the written bill of sale, and not from the time of an antecedent verbal agreement to assign. O'Donnell v. Patchell, 5 V.L.E. (L.,) 360. Contract of Sale Not Registered under Act No. 557.] — Where a contract of sale of chattels is not registered as a bill of sale under the Act No. 557, if such contract is invalid the remedy is at Law, and not in Equity. Davey v. Bailey, 10 V.L.E. (E.,) 240. Caveat Against Registration— Creditor, Who is— ''Bills of Sale Act," No. 557, Sec. 7.]— A caveator, in his affidavit in support of his caveat against registration of a bill of sale, alleged that one 113 BILL OF SALE. 114 H., the mother of W., the intended grantor of the bill of sale, was entitled to dower from •certain real estate which W. had entered into possession of as heir-at-law ; that the caveator had advanced moneys to H., and had taken a mortgage of her dower rights as security; and that W. had received certain sums as net rents, one-third of which the caveator claimed as such mortgagee. On these facts the caveator ■claimed to be a creditor of W. within No. 557. Meld, per Cope, J., that the caveator was not a creditor within the meaning of Sec. 7 of No. -557, since there was no privity between him and W., the caveator being like a mortgagee -out of possession; and caveat ordered to be removed. In re Caveat of Mitchison, 1 A.L.T., 124. 8. Seizure Under. Before Default— Parol Extension of Time.] — A mortgagor by bill of sale of chattels is not guilty of default so as to make the title of the mortgagee absolute, by non-payment at the time mentioned in the bill, if the mortgagee has agreed by parol to extend the time for payment. Frith v. Maritime General Credit and Discount Company., 2 V.E. (L.,) 165; 2 A.J.B., 111. On Demand.] — A. borrowed from B. .£200 for three months, at interest at 10 per cent, per annum, and granted a bill of sale of all his iurniture to B., conditioned to be void on pay- ment on demand of £200 and interest at 10 per cent, per annum. On the same day A. gave to B. his (A.'s) acceptance at three months for .£205. During the currency of the acceptance B. demanded payment of the ,£200, and interest to the time of such demand; and, on non-payment, seized the furniture under the bill of sale, and advertised its sale. A. then tendered to B. £200 and interest, conditionally ■on the bill of sale and acceptance being given up, which was refused. A. then filed his bill ■against B. for an injunction to restrain the sale, and for rectification of the bill of sale, .and obtained an ex parte injunction. On motion to dissolve the injunction, Held that the defendant should not be allowed to take the -acceptance and use it as his own, and at the -same time enforce immediate payment under the bill of sale; that although the plaintiff did jiot make a strictly legal tender, there had been a substantial, proper, and adequate offer of payment, and one sufficient to induce the ■Court to interfere by injunction and restrain ihe sale. Murphy v. Martin, 1 W.W. & a'B. Liabilities of. Sale of Crown Lands.] — See Palmer v. Boa/rd »/' Land and Works, under Crown— PrieUeg^ and Prerogatives. Under Land Acts.] — See under Land Acts. For Improper Construction of Works,] — Although the Board is a public body, dis- charging statutory duties, it is liable for the- improper execution, either by the Board or its- agents, of works constructed in discharge of those duties by which injury is occasioned. Victorian Woollen and Cloth Manufacturing: Company v. Board of Land and Works, 1 V.L.E. (L.,) 461 ; 3 A.L.T., 65. " Amending Land Act, 1865," No. 237, Sec. 23— Liability of Board of Land and Works for Tort.]— McK. brought an action against the Board for not registering the transfer of a lease under Sec. 22 of Act No. 237. Held, on demurrer to the- deolaration, that although the plaintiff had paid a fee, and although the Act authorised, certain things to be done on payment of fees, a contract was not thereby created, but that the Board was liable as in tort, judgment for plaintiff. McKinnon v. Board of Land and- Works, 3 V.E. (L.) 70; 3 A.J.E., 41. Railway Platform Insufficiently Lighted— Frieni of Passenger— Tort.]— The Board of Land and Works is liable, in an action of tort, for injuries occasioned to the friend of a passenger, whom he accompanied to the train, by the neglect to sufficiently light the platform, if the practice has been to allow friends of passengers to accompany them to the train. Sweeney v. Board of Land and Works, 4 V.L.E. (L.) 440. Public Officers.]— As regards the Government Railways, the Board of Land and Works are. 117 BOUNDARIES. 118- lot public officers, but merely a body of trustees, me of whom is a public officer for the time jeing, and to all of whom is entrusted the property belonging to the railways, on which hey carry on the business of carriers for hire, ;he carrying on of such business forming no portion of the Government service. Ibid. The mere fact that the Board of Land and Works are trustees, or receive no profit from bhe performance of their trust, will not exempt them from liability for acts of negligence com- mitted by them in the execution of their trust. Ibid. See also S.C. under Negligence. 3. Costs. No. 344, Sees. 49, 50— No. 392— Infant Owner of Land.] — An infant was entitled to a piece of land which the Board of Land and "Works required for a railway, and which the Board took, and an order was made appointing the receiver, appointed by the Court in suit, a special guardian for purpose of selling and conveying land to Board. On motion as to costs, Held that the Board was not liable for any costs under the Acts, except the costs of conveyance, which may be obtained by going before the Master under Sees. 49 and 50. Hunter v. Hunter, 5 A.J.R., 2. 16 Vic, No. 39— Acts No. 59, Sec. 2, No. 96, Sees. 1, 12— "Public Works Statute 1865," No. 289, Sec. 5 — Lands Compulsorily Taken — Costs of Petition as to.] — A board called the " Commis- sioners of Sewers," &c, was incorporated under 16 Vic, No. 39. This board compulsorily took land, paying purchase-money into Court. Under powers of No. 59, Sec. 2, a proclamation was made by Governor-in-Council, dissolving the board and transferring their rights, powers and liabilities to the Board of Land and Works. By Sec. 12 of No. 96, all the property, rights, &c, of the Commissioners of Sewers were vested in the Board of Land and Works, and Sec. 1 incorporated the Board of Land and Works. No. 289, Sec. 5, vested in the recon- stituted Board of Land and Works all the rights, powers, liabilities, &c, of the existing board. Held that Board of Land and Works were liable to pay the costs of a petition for payment out of Court of purchase-moneys, and also of a disentailing deed necessarily executed. In re Bear's Estate, 7 V.L.R. (E.,) 53; 2 A.L.T., 153. Act No. 617.]— The Act No. 617, vesting in the Board of Land and Works the undertaking, &c, of the Melbourne and Hobson's Bay United Railway Company, does not transfer to the Board any of the liabilities of the Company ; and the Board is not liable to pay the costs of a petition for payment out of Court of moneys paid in in respect of land compulsorily taken by the Melbourne and Suburban Railway Com- pany under "Land Clauses Consolidation Act 1845." In re Thompson, 8 V.L.R. (E.,) 213; 4 A.L.T., 1. BONDS. Breach — Setting Out.] — In an action against sureties in a bond for payment of any sum of ' money that might be recovered in a certain action, under the declaration, the declaration in the action on the bond contained no averment that the money was recovered under the decla- ration. Held, that the words "under the declaration " were material to be alleged in the breach. Day v. Union G. M. Company, 2 V.L.R., (L.,)ll. Assignment of Breaches, 8 & 9, Will. III., Cap. 11, Sec. 8.] — A bond secured the payment of a certain sum due for principal and interest upon a mortgage of even date after default in pay- ment of such principal and interest on a certain date. The plea averred payment of such sum according to the conditions, and the replication merely joined issue. Held, upon demurrer to- the replication that the bond was substantially" a bond to secure payment of a principal sum by instalments, and therefore within 8 and 9, Will. III., Cap. 11, Sec. 8, and that it was necessary that replication should assign breaches of con- dition. Demurrer allowed. Miller v. Tripp,* 2 W. & W. (L.,) 12. BOROUGHS. See CORPORATION AND LOCAL- GOVERNMENT. BOTTOMRY.. See SHIPPING. BOUNDARIES. Of City— Boundary Described by Eoad— Side or Boad Centre Line — " Local Government Act 1874," Sec. 18.] — A city was described in the Second Schedule to the "Local Government Act 1874," as bounded by the " western side " of a road. Held, nevertheless, that Sec. 18 of the Act applied, and that the boundary of the city was in fact * line along the centre of the road. Hawhes v. Mayor, $[c., of South Melbourne, 10 V.LE. (L,) 203; 6 A.L.T., 59. 119 BUILDING SOCIETY. 120 BREAD. See BAKER. BRIDGE. See WAT. BUILDING. ^Metropolitan.] — See Metropolis. 1. 2. S. BUILDING SOCIETY. Constitution and Rules, column 119. Registration, column 120. Powers and Liabilities of Directors andOfficers, column 120. Powers and Liabilities of Trustees, column 121. Powers and Liabilities of Society, column 121. Relation between Societies and their Members, column 121. 1. Constitution and Rules. Rules — Effect of Long Continued Departure rfrom.] — The rules of a building society must "be strictly adhered to, and are binding on the members and all persons claiming as or through members, and as between a society -and its members a long continued course of -dealing at variance with the rules is of no validity, and length of time cannot validate it. Watson v. Bendigo Building Society, 10 V.L.R. ,(L.,) 26 ; 5 A.L.T., 174. Rules Providing for Arbitration.] ^The rules of .a building society provided that all disputes between the society and a member should be referred to arbitration. The society sued D., ■a borrowing member, in ejectment for default in his payments as a mortgagor. Held that the rules were no bar to the action ; to render them such it must be established by strict proof that there was a dispute between the Society and the defendant qud member. ' J>elaney v. Sandhurst Building Society, 5 V.L.E. ,(L.,) 189; 1 A.L.T., 13. " Building Societies Act," No. 493, Sees. 2, 12, SS,, 27, 38—" Acquiring " Land— Bule ultra vires.] — The M. Society framed a new rule authoris- ing the board to "acquire freehold or leasehold •estate, or take leases or under-leases, and, where deemed expedient, erect buildings on any freehold or leasehold, for the time being, held by the society, and to sell or lease the same respectively." The Registrar refused to register this rule as being ultra vires. Held, on summons under Sec. 38 of the Act, that nothing in the Act gave the society power to take land on lease or build; the only power given being to buy, sell, and mortgage free- hold or leasehold land, and that such rule was ultra vires. In re Metropolitan Permanent Building Society, 7 V.L.R. (E.,) 86; 3 A.L.T.; 26. 2. Registration. " Building Societies Act 1874," No, 493, Sees. 2, 4, 38 — Refusal to Register — Similarity of Names — Existing Society.] — The Registrar was summoned to uphold the grounds of his refusal to register a society on the grounds that in his opinion the proposed name nearly resembled the name of an existing society, the Registrar relying on Sec. 4 of the Act. The existing society was registered after the Act 493 came into force, and it was contended that it was not an " exist- ing society" within meaning of Sec. 2, and therefore Sec. 4 did not apply. Held that " existing society " does not strictly mean a society existing at time of passing ;of Act, inasmuch as the purpose of the Act was to prevent any registered society from bearing a name too closely resembling that of another society then existing, whether registered before or after the passing of the Act, and that the Court would not interfere to supplant the opinion of the Registrar when he has formed a real and genuine one. Summons dismissed. In re Fourth South Melbourne Building Society, 9 V.L.R. (E.,) 54 ; 4 A.L.T., 182. Act No. 493, Sees. 7, 8, 9— Practice— Proof of Registration and Rules.] — The notification in the Government " Gazette " is sufficient proof of registration and incorporation of a building society under See. 8, but the rules must be proved by the production of the originals. Sandhurst Building Society v. Delaney, 3 V.L.R. (L„) 234. A society sued D. on the covenant in a mortgage deed. The new rules of the society, made since (the passing of Act No. 493, were not properly proved. Held that the plaintiff society was not entitled to recover anything due under the rules since registration under the Act. Ibid. 3. Powers and Liabilities of Directors and Officers. Secretary— Excess of Power] — Where the com- mittee of a building society authorised its secretary to place lands, of which the society was mortgagee, in the hands of an auctioneer for sale, Held, that the secretary had no power in himself to retract or suspend the authority given to the auctioneer without a resolution of the committee to that effect. Boss v. Victorian Permanent Building Society, 8 V.L.R. (E.,) 254,264; 4 A.L.T., 17. L21 CAPIAS. 122' Secretary— Power of.]— The secretary of a building society must 'beheld to have authority bo answer questions connected with property in the society's possession asked by persons interested in such property, and to receive notices in respect of it binding on the society. Hollowood v. Fourth Union Building Society, 2 A.L.T., 95. 4. Powers and Liabilities of Trustees. Trustees Selling Property — Not Precluded from Suing for Unpaid Instalments.] — The trustees of a building society gave notice to a contributing member, whose monthly instalments in respect of certain property were in arrear, that they intended to sell the property in respect of ■which the instalments were so in arrear, and also sued the member personally for the unpaid instalments. Held that the trustees were not precluded, by selling the property, from suing the member. Clendinning v Broadbent, 4 A.J.R., 157. Ejectment by Trustees — Title.] — A certificate of title in the name of the trustees of a building society personally, and not as trustees for the society, is sufficient to enable them to maintain an action of ejectment as trustees of the society. Clendinning v. Garrick, 4 A.J.R., 120. 5. Powers and Liabilities of Society. Paying Deposit to Married Woman — Liability to Husband.] — A building society which pays a deposit made with it at interest by a married woman is not protected in making such pay- ment from the liability of paying it again to the husband, although the society give him notice that they intend to pay the wife, unless he obtains an order from a Judge under Sec. 12 of the " Married Women's' Property Act." Griffiths v. Victorian Permanent Building Society, 6 T.L E. (L.,) 259; 2 A.L.T., 34. 6. Relation between Societies and theik Members. Mortgages— Sale of Mortgaged Property — Buying- in.] — The trustees of a building society have power to authorise the buying-in by. their agents of property mortgaged to the society for an advance, and sold in default of payment. Wynne v. Moore, 1 A.J.R., 156. CAPIAS. BYE-LAW. Of Municipal Corporations.] — See Corpora- tions. Mining.] — See Mining. CALLS. e COMPANY. 1. Capias ad Satisfaciendum. 2. Capias ad Respondendum. 1. Capias ad Satisfaciendum. Ca. Sa. — Writ not Abolished by " Imprisonment' for Debt Act," No. 284.]— Although Act No. 284- provides that " no persons shall be arrested' under a writ of ca. sa. unless as hereinafter provided," it does not prevent the issue of the- writ, it rather contemplates its issue. Proudfoot v. Mackenzie, 6 W. W. & a'B. (L.,) 144. Writ of Ca. Sa.] — A writ of capias ad satis- faciendum is merely a writ of the Supreme- Court and as such only has authority within the limits of the Colony. — Writ refused in the- case of an absconder from bail who had gone to- Sydney. Begina v. Robinson, 6 A.L.T., 141. 2. Capias ad Respondendum. Setting Aside.] — On a rule nisi to set aside- an order to hold to bail, the Court will not inquire into the cause of action on affidavits of the defendant, even where the affidavits show a greater value than that which plaintiff had sworn to in his affidavit. Smith v. Parnell, 2 W. & W. (L.,) 115. Capias ad Respondendum — Affidavit in Support — " Common Law Procedure Statute 1865," Sec. 332.] — If an affidavit in support of an appli- cation for a ca. re. under Sec. 332 of the- " Common Law Procedure Statute 1865," on the ground that the defendant is about to leave - the colony, shows a debt divided into distinct and severable items, the Court may sever them,, if necessary, so as to sustain the application. But if the several items are so mingled in one. sum as not to be severable, and if any one of " them cannot be sustained, such fault vitiates the whole, and an order to hold to bail ought not to issue, or ought to be rescinded. And" great particularity is necessary to justify the - arrest of the defendant. Ivey v. Cavanagh, . 4 V.L.E. (L.,) 274. When, therefore, in an affidavit in support of a ca. re., besides the general claim for interest on the bulk sum of the debt, the debt itself ' was stated to be composed of several items,. one of which was interest oh other items, the particular item itself not being severable from, such bulk sum, Held that the whole affidavit becoming, in consequence, insufficient, the ca. re. must be rescinded. Ibid. Capias ad Sespondendum —Affidavit in Support.] . —An affidavit in support of a ca. re. must state facts and materials sufficient to satisfy the Judge that the action will probably be defeated if the defendant be not held to bail. Ibid. Semble, that the mere fact that the defendant is about to depart upon a voyage in the usual course of his business is insufficient ground for holding him to bail. Ibid. Capias ad Respondendum — When Issued.] — Per Solroyd, J. (in Chambers,) a writ of capias ad.- respondendum cannot be issued after judgment. - Union Bank v. Rinderman, 6 A.L.T,, 27. U23 CERTIFICATE. 124 Capias ad Satisfaciendum.] — A writ of capias ad satisfaciendum may be issued, but no one can be arrested on it. Ibid. " Common Law Procedure Statute 1865," Sec. 339 — Capias.]— The word " capias," in See. 339 of the " Common Law Procedure Statute 1865," refers only to a " capias ad respondendum." Ibid. Where a defendant had been arrested on a writ of capias ad respondendum, issued upon a judgment debt, Held that the writ should be set aside and the defendant discharged. Ibid. CARRIER. 1. Common. 2. Generally. And See Shipping. 1. Common. Lien — When Entitled to.] — M. carried a - quantity of wool under contract with the lienor of the wool, and delivered it to the lienees, who did not pay him his freight. M. claimed a lien over the residue of the wool for a general balance owing to him and for his freight. Eeld, that he had not, as under a plea averring a carriage "for the lienees " at their request, a lien for his general balance, and that a contract with the lienees would not, in the circumstances, be implied ; but that M. had, at common law, a lien upon the residue • of the wool which was still undelivered, for its carriage. Goldsbrough v. McCulloch, 5 W. W. - & a'B. (L.,) 154. See S.CJ under Lien. Liability and Duty of as to Delivery — Special Con- tract] — F., a Chinaman, delivered to E. a case of opium to be carried to a certain place. F. signed the delivery note in Chinese characters, and E. signed the receipt note in English characters. F. could only speak English im- perfectly and could not read English, and on the back of the delivery note there was a condition endorsed to the effect that E. would not be responsible for the safe delivery of any parcels containing goods over £W in value, unless the value be declared and entered on the receipt and an extra price paid. The value was jE180; this was declared, but the value was not entered on the receipt note. Held that as P. signed voluntarily, and it must be assumed he was aware of the contents of the delivery note in order to entitle him to sue he must show that he had complied with conditions. Fong Gaep v. Reynolds, 2 W. & W. . Browne, ex parte Sandilands, 4 V.L.E. (L.,) 138. To Quash Justices' Order — Bule Nisi Omitting to State Objection— Act No. 267, Sec. 148.]— A rule nisi for certiorari to quash an order of Justices,. discharged with costs, on the ground that the rule nisi did not, under Sec. 148 of Act No. 267, set out the objections to the order. Begina v. Sturt, ex parte Lloyd, 3 A.J.E.,22. To Quash Conviction — Justice Exceeding his. Authority— Act No. 267, Sec. 159.]— Although certiorari is taken away by Act No. 267, yet certiorari to quash a conviction where a magis- trate exceeds his jurisdiction still exists. Hunter- v. Sherwin, 6 W.W. & a'B. (L.,) 26,32. "Scab Act 1870."] — The Court granted a certiorari to quash an order of Justices- convicting a person for driving scabby sheep into a clear district without the order of an inspector, where the summons had directed such person to appear at one place, and the- case was heard at another in his absence. Begina v. Drury, ex parte Cullen, 4 A.J.E., 169- And see generally as to Quashing Orders of Justices, post under Justice of Peace — Pro- hibitions to and Quashing Convictions, &c. Judge Interested.] — An order of certiorari had been obtained on the ground that a Judge in. the Court below had persisted in hearing the case although he was interested in. the question. Bule nisi to set it aside on ground that material facts had been concealed from the Judge -who granted the order. Held that the fact that the applicant after knowing the Judge was interested went on with the case- was not a material fact for setting aside order and rule discharged. Molloy v. Gunn, 2 W. & W. (L.,)76. Practice— Title of Affidavits — Writ of Certiorari upon Fiat of Attorney-General — Returns.] — A writ had been obtained upon a fiat of the Attorney- General, directed to the Court of General Sessions, &c, to remove all judgments, &c, in a certain appeal on a rating valuation. To this writ a return was made sending up a copy of the minute in the Court-book, and the - Justices were ordered to make a further return, which was made, certifying that " after the coming of this writ and the return thereto, the paper- writing annexed hereto, marked A, had' come into their custody, and is returned according to the exigency of the writ." The return, and the document were sealed with the seal of the Court. Held that the return was good. When the return to a writ is filed, the cause 129 CHAMPERTY. 130 below being then in the Supreme Court, the affidavits and the rule to quash the return should be intituled " in the Supreme Court," but the affidavits and rule may be amended. Regina v. Cope, ex parte Mayor of Essendon and Flemington, 7 V.L.B. (L.,) 337; 3 A.L.T., 30. Fiat for Writ— Proof on Oath of Six Days Notice in Writing — 13 Geo. II., Cap. 18, Sec. 6.] — Higmbotham, J. (in Chambers) refused an application for a fiat for a writ of certiorari where the applicant had not offered any proof upon oath, as required by 13 Geo. II., Cap. 18, Sec. 5, that six days' notice in writing had been given to the justices whose proceedings were sought to be quashed. Ex parte Savers, 6 A.L.T., 24. By Judge in Chambers.] — A Judge in Chambers can grant an order absolute in the first instance for a certiorari, and there is no sound distinction between the case of Justices and Wardens as to giving notice. Regina v, Carr, 6 W.W. &a'B. (L.,) 240; N.C., 59. Rule Nisi Obtained in Vacation.] — "Where a rule nisi for certiorari was obtained in vacation, and made returnable before the Court on the first day of Term, Held that the Judge in Chambers had no jurisdiction to grant such a rule. Regina v. Mclntyre, 4 W. W. & a'B. (L.,) 42. Order Nisi Made in Vacation — When Returnable.] — An order nisi for a certiorari granted in vacation cannot be made returnable in term, but must be made absolute in the first instance. Regina v. Pohlman, ex parte Thomson, 4 A.J.K., 154. After the discharge of the order, a prohi- bition may be applied for if the application be made on proper materials. Ibid. Superseding — Taking Return Off the File.] — Where a Judge; had granted a writ of certiorari, notwithstanding that it was objected that the applicant had disentitled himself by delay, and the same objection was again taken on the return to the writ, on a rule to quash the order brought up, which was confessedly bad, Held that the objection as to delay could be taken on the rule to quash, and that the Court would in such a case review the discretion of the Judge who had granted the certiorari; and rule to quash discharged, and the return taken off the file. Regina v. Bowman, exparte Garrett, 4 A.J.E., 177. CHAMPERTY. What Amounts to.] — In order to constitute Champerty it is not necessary that there must be a binding contract as between the parties, and that the contract must be such that, apart from its illegality, it would have been binding and valid ; an honorary engagement is sufficient, and parol evidence is admissible to show the true state of facts and the illegalities. A suit was instituted by nine plaintiffs to recover ground as in the illegal occupation of the defendants, the plaintiffs having no title but miners' rights. It appeared that a solicitor was substantially the plaintiff in the suit, that he had paid the expenses of the suit and had bought miners' rights for the plaintiffs. Held that it was a claim in its inception and con- coction based upon champerty and maintenance. Semble, where a plaintiff-has originally a good right and makes a bargain with his solicitor savouring of champerty, he is not to be defeated of his rights in consequence of that bargain. Collins v. Hayes, 6 W. W. & a'B. (M.) 5. What Amounts to.] — In a suit by a sole plain- tiff to set aside a forfeiture of his shares in a mining company, _other persons whose shares had been similarly forfeited contributed to the plaintiff's costs of suit, but without any agree- ment to share in the immediate result of the suit, Seld that their identity of interest war- ranted them in so contributing, and that this did not amount to champerty or maintenance. Wood v. The Freehold United Quartz Mining Company, Registered, 1 V.B. (E.,) 168; 1 A.J.K., 173. What Amounts to.] — An assignment by mort- gagees of goods, at the time Or lately the property of the mortgagors, and then in the custody of the warehouseman, of all their right and title to the goods, is not champ'ertous. Ross v. Blackham, 2 V.L.E. (E.,) 159. What Amounts to.] — A mortgagor became insolvent, and his official assignee, in consi- deration of the mortgage debt, released the equity of redemption to the mortgagees. Upon obtaining his certificate, the mortgagor procured a conveyance from the assignee of all his interest in the insolvent estate, and brought a suit to set aside the release. Held there was no champerty in the mortgagor's purchase. Brougham v. Melbourne Banking Corporation, 6 V.L.K. (E.,) 214, 226; 2 A.L.T., 81, 84. What Amounts to.] — In a suit for forfeiture of a mining claim, the sole plaintiff admitted, upon being cross-examined, that another per- son had advanced money for the purposes of the suit, and was to have a share in the claim if plaintiff was successful. Held that this amounted to champerty or maintenance, and suit dismissed with costs. Mitten v. Spargo, 1 V.E. (M.,) 22; 1 A.J.E., 69. What Amounts to — Maintenance.] — M. sued Y. for a bill of costs incurred in a suit A. v. B. Y. had advanced money to A., on security of her claims against B ., and M. had for some time conducted the case, but refused to go further unless he received security. Y. gave the undertaking to pay the costs on which this action was founded. Held that Y. was inte- rested in the suit of A. v. B., and was not guilty of maintenance ; that there is a great difference between the mortgage of a right to litigate and the mortgage of an interest in a 131 CHEQUE. 132 suit then existing, and that a person is able to mortgage his interest in an existing suit with- out being guilty of champerty. Morrison v. Young, 3 V.E. (L.,) 35 ; 3 A.J.E., 34. Creditor Purchasing from Official Assignee of an Insolvent Heir-at-Law of Mortgagor — Suit to Eedeem by.] — See Slack v. Atkinson, Mortgage — Bight to Redeem. CHARGE. See MORTGAGE. CHARITY. 1. Gifts io; 2. Application of the Fund. 3. Jurisdiction of Court of Equity. 1. Gifts to. When Valid.] — A bequest to trustees of prop- erty " to be employed in such charitable purposes as the trustees shall in their absolute discretion think fit," is not void from uncer- tainty. Sumner v. Sumner, 10 V.L.E. (E.,) 261 ; 6 A.L.T., 111. Semite, per Molesworth, J., that if the Court should hold that an application to purposes of private charity is illegal, it should prohibit the trustees from making such, not defeat the trust altogether. Ibid. " Religious, Charitable and Useful."] — A testator bequeathed a fund to trustees upon trust to distribute it amongst " such one or more, to the exclusion of any other or others, of the various religious, charitable, and useful insti- tutions in the Colony of Victoria," and in such shares and proportions as the trustees should in their absolute discretion think fit. Held that the words were not to be read as " religious or charitable or useful " in which case the gift would be bad, but the ordinary grammatical reading would be institutions which fulfilled each of the three conditions, and the gift was to be read as "religious and useful" or " charitable and useful," the word " useful " qualifying the preceding words, and that the gift was good. Attorney-General v. Wilson, 8 V.L.E. (E.,) 215; 4 A.L.T., 14. 2. Application op the Fund. Charitable Trust in Favour of Unincorporated Institutions— Scheme Imposed by Attorney-General — Representatives of Institutions.] — Where the Attorney-General appears as representing the public in a suit for the administration of the charitable trusts of a will, the Court will adopt any condition as to the payment, of the money which he sees fit to impose; but where he imposes no conditions, and the institutions are incorporated, the Court will recognise the repre- sentatives of the institutions as being the persons entitled under the will, and will order payment of the money to the managers of the respective departments of the institutions named in the will. Treacy v. Watson, 10 V.L.E. (E.,) 96; 5 A.L.T., 201. Scheme Settled by Court.] — A subscription having been raised under the name of "The Taranaki Eelief Fund," for the relief of the distress caused by the Maori rebellion, the amount subscribed was found to be in excess of the requirements, and a surplus remained in the hands of the treasurers of the fund. Upon an information by the Attorney-General, decree made for the administration of the fund. See decree for form of scheme. Attorney- General v. Larimer, 3 W.W. & a'B. (E.,) 82. 3. Jurisdiction op Court oe Equity. Charitable Trust.] — A number of persons, including the plaintiff, formed themselves into a society for charitable purposes, one of the rules of which was that there should be a com- munity of goods and other property. Suit by plaintiff, on behalf of himself and all others, against the curator who had administered to the estate of K., the founder of the society, and the Attorney-General, seeking to restrain curator from selling land, and seeking to establish a trust, and for Court to settle a scheme. Quoere, whether Court had jurisdiction at the suit of an individual member to interfere, but as no opposition was made by other mem- bers, a decree was made. Pratz v. Weigall, 7 V.L.E. (E.,) 156. CHEQUE. Consideration for Cashing.] — Campbell v. Connor, ante column 76. See under Bankers and Banking Companies. When Endorsing is Not a New Drawing.] — Ibid. Presentment for Payment — In Due Time— Notice of Dishonour.] — Kutton v. Glass, ante column 76. See under Bankers and Banking Companies. Crossed Cheques.] — See under Bankers and Banking Companies, ante column 76. Honouring Cheques.] — See cases under Bank- ers and Banking Companies. Notice of Dishonour.] — Clarke v. McLean, ante column 77. .See under Bankers and Banking Companies. Dishonouring — Liability of Bank.] — See cases collected under Bankers and Banking Com- panies—Powers and Liabilities op.— Lia- bility. Ante column 77 et seq. Specially Endorsed Writ on a Cheque — Order 3, Rule 6, App. C, Sec. 4— Notice of Dishonour.] — See Nathan v. Turnbull, post under Practice and Pleading — Under Judicature Act. 133 COHABITATION. 134 CHILDREN. See INFANT. CHOSE IN ACTION. ASSIGNMENT — DEBTOE AND CREDITOR— INSOLVENCY. CIVIL SERVICE. " Civil Service Act," No. 160, Sec. 40— What Con- stitutes a Civil Servant — Retiring Allowances on Services Being " Dispensed with."] — M. was elected at a meeting of the Board of Agriculture to fill the office of Secretary; this appointment as such was approved by the Governor-in-Council. He was not classified under Sec. 8 of the Act, nor included in any list under Sec. 11. His salary was not voted separately by any Appro- priation Bill, but was paid out of moneys granted annually to the Board. M. gave two bonds of fidelity, one reciting that he had been appointed to a certain office in the service of the Government, and in the other he was styled an employs in the Colonial Secretary's department in the capacity of Secretary to the Board. M. held office till the Board was abolished. Held, on special case, that he was not entitled to any retiring allowance under Sec. 40, that the Crown was not concluded by the recitals in the bonds, that M. was not a member of the Civil Service. Matson v. The Queen, 2 V.R. (L.,) 233 ; 3 A. J.R., 27. "Civil Service Act," No. 160 — Superannuation Allowance — Service not Continuous.] — P. served in the Civil Service for three years previously to October, 1857, when his services were dispensed with, and he received three months' salary as a compensation for his want of sufficient notice, which was to be deemed a "bar to all future pecuniary claims." P. was afterwards appointed to another office from which he retired in October, 1880. Held that Sec. 44 did not imply that the service was to be continuous, and in estimating the rate of his superannuation allowance the three previous years of service were to be taken into account, the compensation only being a bar to claims in respect of his dismissal without notice. Payne v. the Queen, 1 V.L.R. (L.,) 55 ; 2 A.L.T., 126. >'Civil Service Act," No. 160, Sec. 16 — Compensation — Services Dispensed With by Change in Depart- ment.] — P. prior to the Act No. 552 held a post as Harbor Master. Upon the coming into operation of Act No. 552, P. was transferred to *he Harbor Trust Commissioners under Sec. 40 ■of that Act, and continued to hold office as Harbor Master under such commissioners. Held that by the change in the department his services were dispensed with withitt the meaning of Act No. 160, Sec. 16, and that he was entitled to compensation therefor. Ful- larton v. the Queen, 9 V.L.R. (L.,) 181 ; 5 A.L.T., 64. "Civil Service Act," No. 160, See. 16— "Dis- pensing with" Services.] — G. was in July, 1857, appointed Inspector of Denominational Schools at a salary of ,£600 per annumn by the Governor- in-Council. In August, 1862, he agreed with Government to accept office temporarily under the Board of Education, and was in Octo- ber, 1862, appointed by Governor-in-Council Organising Inspector under the " Common Schools Act" No. 149, passed 18th June, 1862. Section 2 of No. 149, dissolved the Denomina- tional School Board. In September, 1862, the Governor-in-Council by proclamation pur- suant to Section 1 of " Civil Service Act" No. 160, declared that that Act "should not apply to officers or other persons whose salaries were or had been paid out of a vote for education." G.'s salary had up to that date been paid out of the vote for educa- tion. Held (1) that G.'s services had been " dispensed with " within the meaning of No. 160, Sec. 16 ; (2) that the determination of G.'s appointment by the dissolution of the Denomi- national Board was a change in the depart- ment ; (3) that the proclamation of September, 1862, was prospective, and did not deprive G. of rights acquired at the date of such proclama- tion. Geary v. The Queen, 2 W. W. & a'B. (L.,) 50. CLAIM. Of Mining.] — See Mining COERCION. See DURESS. COHABITATION. Persons Cohabiting — Rights and Duties as Between Themselves and with Regard to Third Persons.] — If a woman continues to live with a man apparently as his wife, the man's liabilities are, to the world, as if they were married, as between themselves their rights of property should, in the absence of evidence, be as near as may be those of married persons. Property resulting from the man's business uninvested would belong to him ; but where the property was invested in land, purchased with the man's knowledge in the woman's name, of which she has the legal estate, upon which buildings were erected, with his knowledge, with money the proceeds of » business which he allowed her to carry on, it will as between her and beneficiaries under the man's will, be held to be hers. But aliter if creditors were insisting that such gifts were a fraud on them. Murdoch v. Aheme, 4 V.L.R. (E„) 244. 135 COMPANY. 136 COIN AND COINAGE. Uttering Counterfeit.] — See Criminal Law. COLLISION. At Sea.] — See Shipping. COMMISSION. 1 Of Trustees of a Creditor's Deed.] — In a suit to administer trusts of a deed of assignment in trust for creditors, the Master allowed to the 'trustees a commission on their receipts under the deed. Upon exceptions such commission disallowed. Heape v. Hawthorne, 2 W. W. & a'B. (E.,) 76, 88. Of Agents.] — See Principal and Agent. Of Auctioneers.] — See Auction and Auc- tioneers. Of Executors and Administrators.] — See Execu- tor and Administrator. For Taking Evidence.] — See Evidence. De Lunatico Inquirendo.] — See Lunatic. COMMITMENT. By Justices.] — See Justice of the Peace. For Non-payment of Judgment Debt or Orders.]- See County Court — Debtor's Act. Of Trustees. — .See Trust. COMMON. Statutes — Act No. 117 — Construction — "Cattle and Horses."] — The words of the Act No. 117, "cattle and horses," do not include "sheep." In re Clow, 1 W. & W. (L.,) 43. Summary Jurisdiction.] — Quaere, whether any persons but commoners under the Act No. 117, are subject to the summary jurisdiction given by the Act. Ibid. COMPANY. Formation, Constitution and Incorpor- ation op Company. (1) Prospectus, column 136. (a) Misrepresentation in, column 136. (6) Variance between Prospectus and, Memorandum, column 137. (c) Alterations in, column 137. (2) Memorandum and Articles of Associa- tion, column 137. (3) Registration, column 138. (4) Proof of Registration and Incorpora- tion, column 138. (5) Amalgamation and Transfer, column 139. II. Promoters and Directors. (a) Promoters, column 141. (b)' Directors. (1) Election, column 141. (2) Qualification, column 143. (3) Contracts and Profits made with and from Company, column 143. (4) Personal Liability of, column 143. (5) Effect of Acts of on the Company,, column 147. (6) Ratification by Shareholders of Acts ultra vires of the Directors, column 148. (7) Powers of Directors in Management of the Company, column 148. III. Shareholders' Meetings and their Eights, column 149. IV. Contracts By and With the Company, column 151. V. Railway Companies, column 151. VI. Capital, column 152. VII. Shares. (1) Allotment, column 152. (2) Issue, column 152. (3) Mortgage and Lien, column 153. (4) Forfeiture, column 153. (5) Transfer and Transmission, column 155. VIII. Executions By and Against, column 157. IX. Calls, column 157. X. Suits and Actions By and Against Com- panies, column 161. XI. "Winding-up. (1) What Companies, column 164. (2) Voluntary or Compulsory, column 165. (3) Petition and Practice on, column 166. (a) By whom Presented, column 166. (6) Debts and Assets, column 166. (c) Service, Verification and Advertise- ment of Petition, column 167. (f the company was impressed upon the face of ;he note. Held that the directors and secretary vere personally liable, there being nothing to show that any other person or body was to .be iiable, the seal of the company not being sufficient for that purpose. Harrvman v. Purches, 9 V.L.E. (L.,) 234; 5 A.L.T., 76. 5. Effect of Acts of on Company. Power to Bind Company.] — Where the incurring of a debt is not ultra vires of the directors under the statute or deed of the company, but where some mere preliminaries are omitted, then, inasmuch as the public are only supposed to be acquainted with the statute or deed, and not with the modus operandi, it must be assumed that all the preliminaries have been complied with. And where aboard of directors of a'mining company incurred a debt to a bank, without the consent of the general body of the shareholders, and by the Act No. 228, under which the company was registered, the directors were substantially the company, in that the whole management of the company was en- trusted to them, and they had to conduct its affairs, so that speaking of the directors, prac- tically and legally the company would be meant, Held that the money was received and the debt incurred by the company. In re Tyson's Beef Company, 3 W. W. & a'B. (L.,) 162. Power to Bind Company.] — A mining company, managed by a board of five directors, borrowed money from a bank on the drafts of the mana- ger, authorised in that behalf by a meeting of the board at which less ' than a quorum were present, a fact of which the bank was aware. Subsequently a meeting of a quorum acknow- ledged the loan without any consideration for so doing. Held, distinguishing In re Tyson's Beef Company [3 W. W. & a'B. (L ,) 162] on the ground of the bank's knowledge of the irregularity, that the company were not bound by the loan either as originally authorised by a board less than a quorum or as subsequently without consideration acknowledged by a quorum. Colonial Bank v. Loch Fyne Company, 3 W. W. & A'B. (L.,) 168. Overdraft Sanctioned by Quorum — Cheques Signed by One instead of Two Directors.] — Where a com- pany was sued on an overdraft, and it appeared that the overdraft was sanctioned by a quorum of three out of one or other of two sub-boards of five instead of out of a single board of ten, as required by the deed, but that it was clear from the evidence there was only one board, and that two quorums of the same board were sitting at one and the same time at different places, and that, although the cheques were signed by one director, yet that the accounts of payments and receipts were received, examined, and passed by the board of directors ; Held that there was sufficient sanction for the overdraft, and that the authority to draw the cheques was sufficiently proved. Bank of New South Wales v. Moyston Junction Company, 4 W. W. & a'B. (L.,) 234. . Wrongful Dismissal of Servant — Quantum Meruit.] —An agreement was entered into between C. and one of the directors of the defendant com- pany deputed for the purpose by the other directors, whereby C. agreed to serve for a year as manager at a certain salary ; this was not put into writing, though it was ratified by the other directors. Held that though the agree- ment lacked the formality to make it binding for more than a year, yet the directors could and did ratify the agreement so as to make it good as a quantum meruit. Clough v. London and Australian Agency Company, 4 A. J.E., 69. Guarantee — Seal Not Affixed.] — The directors of a mining company gave a guarantee to a bank, headed " The New Bingwood Antimony Mining Company, Limited," and commencing "We the undersigned directors of the " above com- pany, &c. Opposite the signatures of the directors who gave the guarantee was written " Directors of the New Bingwood Antimony Mining Company, Limited," but the seal of the company was not affixed to the guarantee. Held that, assuming the directors had power to give the guarantee, their styling themselves as " directors " was merely descriptive, and did not bind the company, since the guarantee did not purport to be executed by them as directors of the company. White v. Bank of Victoria, 8 V.L.E. (M.,) 8; 3 A.L.T., 90. See also cases under Mining — Company — Directors and Officers. 6. Batification by Shareholders of Acts ultra vires of the Directors. Acquiescence in Acts of Company.] — Acquiescence of individual shareholders in an incorporated company cannot amount to the acquiescence of the corporation; nor can a corporation by acquiescence validate an illegal transaction, or disentitle itself to relief in respect of it. The Creswick Grand Trunk Gold Mining Company v. Hassall, 5 W. W. & a'B. (E.,) 49, 83. 7. Powers of Directors in Management of Company. Power of Directors Holding Office Longer than Time Prescribed to Make a Call.]— The deed of a mining company registered under Act No. 228 provided that meetings should be held in February and August of each year, for the appointment of directors; if a quorum of shareholders was not present the meeting might be adjourned for a week, and that if no new directors were appointed at these meetings the old directors were to act till new directors were appointed at the first meeting in the following year. Certain directors who made the call sued on were appointed in February, 1866 ; in August; 1866, the meeting fell through for want of a quorum, and the adjourned meeting also fell through for the same reason. No meeting was held after that, and the call was made in August, 1868. Held^ that the directors could not hold office for longer than a year, whether a meeting was held x>r not, and the nonsuit of the County Court upheld. Barfold Estate Gold Mining Company v. KUngender, 6 W. W. & a' B. (L.,) 231 ; N.C., 25. 149 COMPANY. 150 Por other cases as to making calls see cases under Calls, post columns 157 et seq., and as to Forfeiture, column 153. Sale of Shares— Employing Broker.] — The arti- cles of association of a banking company provided that the directors should manage the business of the company, and out of the funds of the company pay all expenses incurred in getting up the company, and that the directors might commence and prosecute the business of the company as soon as 20,000 shares had been allotted, and the company registered. Held that the directors had power to authorise the manager to employ a broker to place the shares in order to fulfil this condition, and that the funds of the company were liable for the broker's expenses. Strong v. Land Credit Bank of Australasia, 4 V.L.E. (L.,) 24. Evidence of Validity of Resolutions to Satisfy Sec. 64 of the " Companies Statute 1864."] — The minutes of resolutions of directors for the making of calls and for winding-up » joint- stock company were entered in a rough scrap-book, which was used for roughly draft- ing such minutes before entering them in the regular minute-book, and were signed by the chairman. Held that such minutes were prima facie evidence, under Sec. 64 of the " Companies Statute 1864," of all the conditions precedent to the validity of such resolutions. Legal and General Life Assurance Company v. Gi}l,^4i V.L.E. (L.,) 204. Indemnifying Manager Against Costs of Suit to which the Company is Hot a Party.] — The directors of a company have no right to indemnify the manager against the costs of a suit instituted by him in his individual capacity, to which the company was not a party and in which it was only indirectly interested. Hardy v. Wilson, 8 V.L.E. (E.,) 289; 4 A.L.T., 175. Payment to Officer of More than is Legally Due.] — It is within the limits of the powers of the directors of a company to pay to an officer of the company deserving of it more than they are bound to pay; and in the absence of special circumstances, e.g., improper motives, such payment is not such a grievance as would entitle the members of the company to ask for redress. Hardy v. Wilson, 8 V.L.E. (E.,) 289; 4 A.L.T., 37, 175. III. Shareholders' Meetinqs and Theib Eights. Business of Meeting as Advertised — Injunction — Proxies.] — An extraordinary meeting of share- holders in a mining company incorporated under Act No. 228 was held pursuant to an advertisement, specifying the business as " To decide as to the winding-up of the company," at which a resolution was passed empowering directors to realise the assets. Plaintiff, a shareholder, protested against this resolution, and handed in proxies of absent shareholders held by himself and others. The chairman refused to receive these, and on a division taking place the resolution was carried by a small majority, whereas if the proxies had been received it would have been lost. The property was then advertised for sale by public auction. On a bill by the plaintiff, on behalf of himself and other shareholders, to restrain the sale r Held that as rules of the company provided for the reception of proxies, they should have been received; that the advertisement only warranted a resolution to wind-up under the- Act, and not a sale ; that the meeting might have passed such a resolution to realise assets if proper notice thereof had been given ; that the plaintiff having a right to oppose the sale, was- not barred from relief by any laches in not convening a meeting to protest, four days only having intervened between the plaintiff's receiv- ing notice of the proposed sale and the sale- itself j but that though plaintiff could restrain the sale as under the vote of the meeting, he was not entitled to restrain any sale. Injunc- tion restraining defendants from selling the lease, machinery and effects of the company as under the resolution, without prejudice to their general power to sell. Hick v. Havilah Gold Mining Company, 4 W. W. & a'B. (E.,) 87. Eight to Impeach Bules.] — A shareholder is not estopped from impeaching the rules of a com- pany by a statement in his scrip that the shares are held upon the terms of the articles of asso- ciation and the rules of the company. Schmidt v. The Garden Gully Company, 4 A.J.B., 137". Mining Company— Act No. 228, Sec. 39 — Reso- lution by a Majority.] — Eules passed by amajority of shareholders in a mining company, but not by all, must be in accordance with the terms of Sec. 39 of Act No. 228. Ibid. See S.P., M'Lister v. Garden Gully Company, 5 A.J.E., 152. Vote — Neglect to Pay Calls.] — Semble, that a rule which provides that no shareholder shall be entitled to vote at any meeting unless all calls, interest, and expenses due by him have been paid, does not make a vote of such share- holder bad, unless it be objected to on being tendered. Aberfeldie Gold Mining Company v. Walters, 2 V.L.E. (E.,) 116. Meeting Irregularly Called.] — A rule of a com- pany provided that if the manager neglected for four days to call a meeting after a requisi- tion had been delivered, then a majority of the requisitionists might call a meeting. Held, that the act of the requisitionists in calling a meeting by a notice given within the four days, was not validated by the subsequent neglect of the manager to call a meeting. Ibid. Notice of Meeting Under Act No. 228, Sec. 23.] — See M'Lister v. Garden Gully Company, ante column 142. Notice of Meeting.] — Per Pull Court, where a. general meeting of a company is properly con- vened in accordance with the provisions of Act No. 228, Sec. 23, a shareholder has legal notice of the meeting, and stands in the same position as if fully cognizant of what was intended to be done thereat without actual knowledge having been brought home to him. Cushimg v. Lady BarMy Gold Mining Company, 9 V.L.E. (E.,)> 108,124; 5 A.L.T., 98. L51 COMPANY. 152 IV. Contracts By and With Company. Ultra Vires.] — As to acts of a company which ire ultra vires, in the case of companies con- stituted by Act of Parliament, there is an jlement of public interest which forbids their sxceeding their powers, even though all the shareholders agree; whereas companies con- stituted by deed of settlement may exceed their powers, provided all the shareholders agree. Lee v. Robertson, 1 W. & W. (E.,) 374, 386. Contracts With — When Company Bound.] — To render a contract made by a person with a mining company binding on the company, it is only necessary for such person to read the Act of Incorporation, or the Deed of Association, and if he is satisfied that those have been complied with, and on the face of any document brought to his knowledge there is nothing to negative that compliance, he is not obliged to go further ; but is entitled to assume that the directors have done that which they professed, and which they ought to have done.' Anderson v. Duke and Timor Gold Mining Company, 1 V.R. (L.,) 203; 1 A.J.E., 161. Duty of Person Contracting with Company.] — Persons dealing with a company are bound to see that the Act of Incorporation, or Deed of Settlement, authorises the transaction; they are not bound, to inquire into the regularity of all the proceedings. Commercial Bank a. McDonald, 2 V.R. (L.,) 211; 2 A.J.E., 120. See also post under Mining — Company — Contracts, etc. V. Railway Company. Act So. 269, Sec. 31— Hobson's Bay Railway Company.] — By the Act No. 269,' Sec. 31, it was provided that the Hobson's Bay Bail way Com- pany should not be obliged to complete, use, or maintain a piece of railway called the " loop- line," and if not completely maintained and used within two years, the Crown land on which a part of it was constructed should revert to the Crown, and the company might sell the .remainder on which the fine had been con- structed. The company completed and used for one purpose only, but not for general traffic, the portion of the loop-line constructed on private land, but no part of that constructed on Crown land. The portion used crossed a public street on a level, under an Act authoris- ing the construction of the whole line. The municipal authorities threatened to remove the gates and rails oh the part crossing the street. *On bill for an injunction, Held by Full Court, affirming Molesworth, J., that the option given to the company applied to the whole loop-line, and was to be exercised or not as regarded the whole, and that the company having acted as it did, must be taken to have abandoned the loop-line altogether. Melbourne and Hobson's . Bay Railway Company v. Mayor, 8fC, ofPrahran, 6 W. W. & a'B. (E.,) 228. Compensation for Taking Lands.] — See under .Lands Compensation. VI. Capital. Eesolution to "Write Off" Part of Paid-up Capital— False Eeturns under "Companies Statnte 1864" and "Banking Statute."]— A resolution passed at a meeting of the shareholders of a company incorporated as a limited liability company under the " Companies Statute 1864," to " write off " part of the capital account is ultra vires, and though individual shareholders may assent to such an agreement, the share- holders, as a, body, have no power to, bind dissenting shareholders. The, shareholders will not be bound to such a resolution by thpir subsequent acquiescence in the balance sheets and the returns prescribed by the directors under the "Companies Statute ,1864" and the "Banking Statute." Re the Provincial and Suburban Bank, 2 A.L.T., 47. See also post under Mining— Company- Rules and Articles. VII. Shabbs. 1. Allotment. Formal Notice of— When Necessary.]— G. applied for shares in a company with a view of quali- fying himself as a director. The form upon which he made his application requested the company to return his deposit (forwarded with the application) if the shares should not be allotted to him. The company allotted the shares, and G. subsequently sat as a director, but no formal notice of allotment was sent to him. Held, that no formal notice was neces- sary since the non-return of the deposit, G. never having asked for it or complained of its detention, was evidence that the shares were allotted; and that G.'s having satas a director was farther evidence on the same point. Legal and General Life Assurance Company v. Gill, 4 V.L.E. (L.,) 204. also post under Mining — Company- Shares. 2. Issue. Suit to Compel Issue of— Illegal Sale of Shares.] — The plaintiff was owner of ten shares in a company registered under 24 Vic. No. 109, which was registered subsequently under Aft No. 228, on which registration original shares were each subdivided into four. Before this second: registration the ten shares had been sold under a County Court execution to K. After the second registration the plaintiff applied to the company to execute a deed of settlement as holder of forty shares, and to have shares issued to him, but the company refused. Plaintiff filed a bill against the com- pany to compel the company to permit him to execute a deed of settlement to issue certificates and to enter his name on the register, sub- mitting that the sale under the County Court execution was invalid. K. was not a party to this suit. Held,.that Kwas not a necessary party, and decree ; made, as prayed. Semble. Mining shares cannot be sold under a County Court execution. Eddy v. Working Miners' Gold Minmg Company, 2 W.W. & a'B. (E.,) 110. 153 COMPANY. 154 3. Mortgage and Lien. Mortgage or Sale.] — In October, 1861, the plaintiff, in consideration of ,£18 cash, and of a debt of .£20 due by him to W. '& W., gave a bill of exchange and a memorandum of sale of a mining share to W. & W., who gave him a written undertaking to return the share upon payment of the bill. After the bill fell due the plaintiff absconded, W. & W." then trans- ferred the share (which was afterwards sub- divided -into eight shares) into their own names, paid calls in arrear and further calls, and took an active part in the management of the com- pany."^ For about two years the shares were unsaleable, but at the end of that time they rose greatly in value, and W. & TV. received about "£1200 in dividends. The plaintiff then, hearing of the rise in value, returned from New Zealand, and applied to redeem. After his application, and notice' in the newspaper cautioning purchasers, ' KT. & K. respectively purchased from W. & W.' Before the shares were transferred in the books of the company, the plaintiff filed his bill for redemption against W. & W. and M. & K. as purchasers with notice. Held that the original transaction was a mortgage, and that the plaintiff was entitled to redeem as against W. & W., an option of fssues as' to notice being given to M. & K. Niemann v~; Welter, 3 W.W. "& a'B. (E.,) 125. 4. Forfeiture of. Power of Company Registered under Act No. 238 to Hake Rules as to — Sec. 39 — Estoppel.] — In a com- pany registered under Act, No. 228 f a rule was passed which purported to provide for forfeiture of shares on non-payment of calls. N. assented to this rule, and was a witness to the affixing of the seal to it. N. being absent from home when a call was made, the notice of call was not forwarded to him by an agent who received it ; the call was unpaid, and K.'s shares were forfeited. Suit by N. to set aside forfeiture. Held that provisions for forfeiture are regarded as exceptional and to be strictly construed, and that Sec. 39 of Act No. 228, the only section which enabled the making of rules, did not authorise the company to make such a rule; that N.'s assent to the rule did not estop him from impeaching the validity of the rule, the principle of estoppel between individuals and an incorporated company not being the same as between individuals, but that N.'s conduct disentitled him to costs. Nolan v. Annabella Company, 6 W. W. & a'B. (M.,) 38; N.C., 19. Validity of Forfeiture — Qualification of Directors.] — The rules of a mining company provided that three directors should form a quorum. At a meeting at which shares were declared forfeited, three directors only attended, one of whom had previously transferred all his shares. Held, that the forfeiture was valid, since the rule as to qualification only applied to the time of elec- tion. Beeves v. McCafferty, 1 V.E. (L.,) 190; 1 A.J.E., 153. Validity — Appointment of Directors.] — A forfei- ture of shares is not valid unless the directors of the company are respectively competent to make calls and declare forfeiture. Therefore, where the directors of a company had not been duly elected in compliance with the terms of Sec. 39 of the Act No. 228, Held, that the forfeiture of shares made by them was irregular. Schmidt v. Garden Gully Company, 4 A.J.E., 66. Affirmed on appeal. Ibid, 137. It is not enough to forfeit a share that the calls which remained unpaid were made by de facto directors ; the directors must be properly qualified.' Ibid, 137. See also McLister v. Garden Gully Company, 5 A.J.E., 152. Affirmed on appeal to Privy Council, L.E., 1 Ap. Ca., 39. Validity.] — By the rules of a mining com- pany it was provided that the manager should enter in the share register, opposite forfeited shares, the words, " Forfeited by a resolution of the Board of Directors." Held, that the mere omission to make the entry did not prevent the forfeiture, if other necessary requisites had been complied with. Beeves v. M'Cafferty, 1 V.E. (L.,) 190; 1 A.J.E., 153. Notioo — Impossible Day.] — The articles of association of a mining company provided that the directors might declare any share forfeited upon which any call was in arrear, provided that notice of the intention to forfeit was given by. advertisement, and the call remained unpaid at the then next or any other meeting of directors. Calls' being in arrear, notice was advertised by the company of the. intention to forfeit "unless all caUs be paid on or before Thursday, the 31st June." Thursday was, in fact, the 1st of July, Held that the notice was insufficient as fixing an impossible day, and forfeiture set aside. It was also provided that after forfeiture the manager should cause all forfeited shares to be sold by auction, and the proceeds be applied first in payment of arrears of calls and expenses, and the surplus, if any, paid to the shareholder. Semble rj th.a.t a .for- feiture, if regular, would, before , sale, be complete so as to disentitle the shareholder t< redemption ; but that until sale he would be entitled to have the shares sold, and to hav< the benefit of the intermediate dividends anc the price procured over the amount of the unpaid calls. Wood v. The Freehold Unitec Quartz Mining Company Begistered, 1 V.E. (E., 168; 1 A.J.E., 173. Notice— Forfeiture.] — It was provided by th< rules of a mining company that the forfeiturt of shares should be confirmed by the nex meeting of the company ; that special meeting! should be convened by notice stating the par ticular business to be transacted ; and that ni matter should be determined upon unles; specially mentioned in the notice by which th< meeting was convened. The forfeiture of share of the plaintiff was confirmed at a meeting convened by an advertisement stating that th< meeting was convened "to confirm forfeitur of certain shares." Held, that this notice wa sufficiently specific, and the confirmation of th forfeiture good. Marshall v. Creswick Gram Trunk Company, 1 V.E. ;(M.,) 29 ; 1 A.J.E.,8E 155 COMPANY. 15G Notice of — Invalid.] — "Where a company had power under one of its rules, on non-payment .of a call, (1) to debit the shareholder's account therewith and with interest thereon at 15 per cent. ; or (2) to proceed against him to recover it ; or (3) to forfeit the shares ; and the share- holder was served with notice that the directors would, at their option, proceed to forfeit and ; sell the shares for the amount due and 15 per cent, interest, Held, per Molesworth, J., such notice was had, that there was no direct declaration of forfeiture, but a direction for sale, and that such declaration was necessary. Cushmg v. Lady Barkly Gold Mining Company, "9 V.L.E. (E.,) 108, 115; 5 A.L.T., 10. Where directors met at a special meeting, J ' to deal with such shares as are in arrear of a 1 certain call," and decided that those which were " in arrear should he sold by auction " on •a certain day, Semble, per Molesworth, J., that a distinct vote of forfeiture was necessary to make a forfeiture. Ibid. See also cases post under Mining — Company — Shares. Delay — Invalid Forfeiture.] — Long delay in .asserting his rights will not debar a share- holder from asserting his rights in respect of shares of which there has been an invalid for- i eiture. Schmidt v. The Garden Gully Compnny, 4 A.J.R., 66. Affirmed on appeal, Ibid, 137. (5) Transfer and Transmission. Evidence of In 'Writing.]— The 12th Eule of a -company provided that all transfers of shares in the company by or from any shareholder ■should be made in writing. B. was sued in Petty Sessions for calls as a shareholder. It appeared that B. had from time to time become the holder of thirty shares, and was entered as such in the register, and that B. had never transferred them or any of them as far as the register showed. As to fifteen of these shares a written authority was given to the manager by the original vendor; as to ten more, a similar written authority was given by the vendor after the sale, and as to the remaining five, they were transferred upon the verbal authority of the transferor. B. alleged that he had parted with twenty-five of the shares previous to action. The magistrates dismissed idle case. Held on appeal that the Court would not presume that B. transferred any of his shares without better proof, and that there was evidence to go to the magistrates of B.'s liability for calls which he had not disproved. Beefs Gold Mining Company v. Bennett, 6 W. W. &a'B. (L.,)79. Transfer to Escape Payment of Calls.] — An absolute transfer of shares made to a third person, though made to avoid payment of calls, is not, per se, mala fide. Sleep v. Virtue, 2 V.E. (L.,) 29 ; 2 A.J.B., 20. Issue of New Snares— Fraud — Liability of Trans- feree to Pay Calls.] — A resolution was passed at an extraordinary meeting of a mining company that the capital of the company should be increased by the issue of new shares, to be allotted to old shareholders. On the list of old shareholders which was handed to a person who accepted a transfer of six shares of the new issue, to show that the shares had been taken up, appeared the names of two dummies, but the list was not handed to him till after he had accepted the transfer. Held that this was not evidence of fraud that would invalidate the transfer, and that the transferee was not relieved from the liability to pay calls. Cres- wick Grand Trunk Company v, Howell, 2 A.J.K., 35. "The Companies Statute," Sec. 33, Schedule 2, Table A, Eule 10— Shareholder's Indebtedness — Rectification of Eegister — Transferee — Practice — Notice to Transferor.] — Motion by C. to compel a company to register him as owner by transfer of certain shares in company. One S. was a shareholder in the company and also its secretary. Prior to August 11th, 1873, S. was known by directors to be a defaulter in his accounts. On August 11th, 1873, though com- pany alleged that S. was indebted to it in the sum of £1880, it gave S. a receipt for £980 "in full of all demands against him by company." S. transferred ten shares to C, July 24th,1874, but company refused to register till balance of S.'s indebtedness wa3 paid. Held that Sec. 33 includes as an alleged member a person requiring a transfer, and enables him to procure a rectification of the register, either against company or against transferor; that Schedule 2, Table A, Rule 10, enables a company to enforce a debt due to it by an officer by refusing to let him assign his shares, and is not confined to debts due to company in respect of shares, calls, &c, but that transferor should have notice of the motion. On the motion being renewed, supported by an affidavit that S. had gone to New Zealand a few weeks after his pur- chase of shares, and that it was impossible to serve notice, Held that release given on August llth,1873, was good, and the benefit of.it enured to C. Motion granted. In re Gippsland Steam Navigation Company, ex 'parte Chuck, 1 V.LB. (E.,) 141. Refusal to Register Transfer — Indebtedness.] — A provision in a company's rules (Schedule II., Table A, Article 10, of Act No. 190) provided that the company might decline to register any transfer made by a person indebted to it, and also that no member could transfer without first offering shares to directors of company for the purchase of such by them. Held (1) that this power to refuse to register only applied to a voluntary transfer, and not to a transfer in invitum, as where shares were sold by a bailiff of the County Court under execution ; (2) that the indebtedness was, an indebtedness qua member as for calls, fines, &c, and did not apply to a member in the company's service who made default in his accounts ; the Act did not intend to give the company as to debts outside the constitution of the company a preferential claim above all other creditors. In ve " Com- panies Act," ex parte Trevascus, 5 V.L.B. (L.,) 195 ; 1 A.L.T., 17. .See ale« cases post under Mixing —Company — Shares, 157 COMPANY. 158 Assignment by Blank Transfers.] — Assignments of shares in a mining company by blank forms of transfer, to be filled in by ultimate pur. chasers, are valid as between the parties thereto. Atkinson v. Lansell, 4 V.L.B. (E.,; 236. VIII. Executions By and Against Company. Judgment Recovered by Company — Subsequent ■Winding-up — Suggestion on the Record — "County Court Statute 1869," Sec. 98.] — Where a company, which has recovered judgment in the County Court,is, after the judgment has been recovered, wound-up, a suggestion of the winding-up and of the appointment of the official agent must be entered on the record before judgment can be signed and execution issued in the Supreme Court under Sec. 93 of the " County Court Statute 1869," No. 345. BarfoU Estate Gold Mining Company v. Dailies, 2 V.R. (L.,) 154; 2 A.J.B., 97. Collusive Execution — Effect of Sale.] — A collusive proceeding to execution upon the property of a company, and a sale thereunder to a new company organised for the purpose, is not operative in equity to pass the property though the object be honest; and such a proceeding is inconsistent with the rights, as well of the company as of dissentient shareholders. United Hand-in-Hand and Band of Hope Company v. National Bank of Australasia, 2 V.L.K. (E.,) 206, 217, 218. IX. Calls. Notice of Making — Advertisements.] — The deed of settlement of a N.S.W. company provided that calls should be made " at such times and j>laces as the directors may determine, by one or more advertisement or advertisements in one or more of the daily newspapers published ;at Sydney and at Melbourne respectively." Calls were made by one advertisement in a Sydney daily paper and one in a Melbourne daily paper, and hy these advertisements one day was fixed for payment of the calls at Sydney, .and another for payment of the calls at Mel- bourne. On action by the company in the Supreme Court of Victoria, the plea set up the defence that " no time " was fixed, because two different times had been fixed; and that different times could not be fixed for Sydney -and Melbourne. Held, on demurrer, that the advertisements jwere in compliance with the deed of settlement, and judgment for the com- pany. Melbourne and Newcastle Minmi ColUery Company v. Hodgson, 1 W. W. & a'B. (L.,/205. Notice of,]— Where tbe rules of a company provide for publication of notice of calls by advertisement in certain newspapers, it is not sufficient if the notices are published in circu- lars. The directors are not at liberty of their own accord to substitute notice by circular for the one prescribed. Solomon v. The Collingwood Quartz Mining Company, 4 W. W. & a'B. (L.,) 128. Mining Company — Notice of— When Bad.] — A notice of calls containing neither the time nor place when and where the calls are payable is bad.' Chines and Blackwood Company v. Coulter, 1 V.B. (L.,) 192 j 1 A.J.E., 172. Objection to Sufficiency of Notice, When Taken in Time.]— On an appeal from the County Court from a decision giving a verdict for calls on shares to the company, it appeared that there had been three cases by the company against shareholders, and in the first case, which was heard before the present one, an objection as to the sufficiency of the notice of the call was taken and overruled, and it was agreed that the result of the other cases should be dependent on the decision in the first, from which an appeal was made, but abandoned. Held, on appeal, that the objection as to sufficiency of notice having been taken at the proper time could be entertained on appeal, and the notice having omitted to state the time and place when and where the call was payable was held to be bad by the Court ; and appeal allowed. Clunes and Blackwood Company v. Coulter, 1 A.J.R , 172. Mining; Company — Notice Unnecessary.] — It is not necessary for directors of a mining company to give notice of their intention of making a call before making it. Goldsborough Mining Company v. McBride, 3 A.J.K., 126. Act No. 190, Sch. 2, Table A, Rule i — Notice of Call.] — Where a shareholder promised to pay a call, Held that that was sufficient evidence of his having received due notice. Mount Brown Gold Mining and Crushing Company v. Hughes, 9 V.L.B. (L.,) 383. Making — When Made.] — Calls are made when the resolution is passed, not when the calls are payable. Where, therefore, a company's rules provided that " no call or calls shall exceed the sum of one pound per share, and there shall be an interval of one month between the making of any calls," and two calls were made at a meeting, but with an interval of one month between the time such calls were payable; Held that the two calls were made in contra- vention of the rules ; and that it was doubtful whether two calls made at the same time, although made by two separate and independent resolutions, could be severed. Hodgson v. The Fermoy Gold Mining Company, 3 W. W. & a'B- (L.,)70. Making.] — Where, by resolution of directors a call is made, but no time or place of payment therein fixed, none being required by the rules of the company, and the manager got verbal instructions from the directors fixing time and place, Semble, such subsequent verbal direc- tions are not sufficient. Cushvng v. Lad% Barkly Gold Mining Company, 9 V.L.K. (E.,) 108, 114; 5 A.L.T., 10. Liability of Shareholder — Calls Made by Increased Number of Directors.] — H. verbally applied foi shares in a company, offering to pay by bills al three and four months ; this offer was accepted and carried into effect by H. accepting twc bills drawn by him on the company, and by th« company retaining the scrip during the currencj of the bills. H. did not sign any application 159 COMPANY. 160 or articles of association, but his name was entered in the register as a, shareholder. Six directors made the first "call, that being the number fixed by a rule of the company, but by resolution the number was increased to nine, of which no notice was sent to the Registrar- General in accordance with Sec. 51 of the "Companies Statute 1864." Seven directors, three of whom had not been appointed origin- ally under Rule 50, made other calls for which H. was sued by the company, pending the currency of the/bills. The County Court Judge nonsuited theplaintiff company, Held that the registry, wasTprima facie evidence of member- ship sufficient to prevent a nonsuit ; that the form ,- of application, . though irregular, was sufficient, being accepted by the company j that Sec. 51 and Schedule A taken together made the act of the seven directors de facto valid. Appeal allowed. The Mclvor Company v. Hughes, 4 W.W. & a'B. (L.,) 111. Calls Made by Directors not Duly Elected — Share- holders not Liable.] — Highett v. Sun Quarts Mining Company, post under Mining — Com- pany — Rules, &c. Validity of Rules Giving Power to Make Calls.] — Where in an action for calls S. objected that the rules of the company under which power was given to make the calls sued for were not made at an extraordinary general meeting called in conformity with the "Mmimg Com- panies Act 1864," Held that S. having presided as chairman and signed the minutes of the meeting at which the resolution, was passed, could not dispute those facts which he had thus admitted. Solomon v. The CollvAgwood Quartz Miming Company, 4 W.W. & a'B. (L.,) 128. Second Payment to Official Agent of a Mining Company — When Calls Properly Made.] — B. was sued by R., the official agent of a mining com- pany which had been wound-up, for .calls. It appeared that a large amount of the 9th call was not paid up when the 10th, 11th, and 12th calls were respectively made. B. hadipaid his full amount of the 10th and 11th calls. The 11th call was for machinery, and was made after the works had stopped, and after the 12th call was made there would be still uncalled capital to be called up. The magistrate held that the 10th, . 11th, and 12th calls were improper, and that the 12th call could only be paid to R., and ordered B. to pay a certain sum representing all the unpaid capital he was liable for after the 9th call. Held, on appeal, that the official agent was in no better position than the directors, and B. having been treated by the directors as having paid the 10th and 1 1th calls, he could not be compelled to pay them a second time to the official agent. Judgment to be reduced by the amount B. had paid on the 10th and 11th calls. Reeves v. Brown, 6 W. W. & a'B. (L.,) 87. Payment — By Cheque— By Promissory Note.] — Payment by cheque (the payer having funds to meet it) is good payment of calls ; but pay- ment of calls by promissory, note is not good payment. Umphelby v._ WilHe, 5 A.J.E., 108. How far Payment 'of Evidence of Membership — Application for and Seceipt of Calls by Agent of Company.] — When a plaintiffs title to shares in a mining company was denied by the defen- dants, it was held that the fact of a duly- constituted agent of the defendants, having applied to plaintiff for a call, after payment of all the original calls, his payment of that call and the receipt thereof by that agent, formed sufficient evidence of membership as against defendants. Ogier v. Smith, N.C., 3. Sules Made After Incorporation — Estoppel of Mem* bers of Company.] — Rules made by a mining company registered under the Act No. 228- after incorporation, unless made at an extra- ordinary meeting, are illegal, and calls made by virtue of such rules are invalid, and pay- ment of them cannot be enforced. Bed quaere^ whether if all the shareholders in such a com- pany, after its incorporation, 'signed a deed or articles of agreement embodying rules, they would be not be estopped from setting up the invalidity of the rules. Ballarat and Chiltern Gold Mining Company v. Cleeland. 1 V.R. (L.,) 183 j 1 A.J.R., 142. Mining Company — Act No, 228 — Shareholder Not Signing Deed of Association.] — L. was sued for calls due on certain shares. L. had applied for shares and enclosed £30. 25 shares were allotted and the extra £5 was returned to him. L. did not sign the deed of association. Held that although the Act No. 228 does not contemplate a deed of association as essential, yet it appearing that both L. and the company contemplated the signing of a deed to constitute L. a member of the company, and that L. had not signed he had not become a shareholder so- as to be liable for calls.' Guiding Star Company v. Luth, 4 W.W. & A'B. (L.,) 94. See also S.P., Farrar v. Bowman, 1 W. & W.. (L.,) 150, post under Mining — Company — Calls. Transferee Objecting to Validity of his Title to- Shares.] — The directors of a mining company forfeited certain shares and Sold them to J. J. retained the shares, but refused to pay the~ calls. The company sued him for calls. Held. that J., having retained the shares, was liable for the calls, the Court not expressing any opinion as to whether the company had power- to forfeit the shares, an objection raised by J.;. and that the seal of the company appearing on. the document appointing the solicitor wquldV in the absence of evidence to the contrary, be presumed to have been duly attached. Jones- v. Star Freehold Company, 4 W. W. & a'B. (L.,) 223. Company Unable to Raise Capital Agreed Upon Impossibility of Object for which Company was Formed.] — In an action by a tramway company for calls, the defendant pleaded (2) that he had agreed, before the passing of the Act incorporating the company, to subscribe for shares in a company having certain capital, that the capital never was nor could be raised, and that only two-thirds of the number of shares agreed upon were subscribed for.- (3> 161 COMPANY. 162 that at the time of mating the calls the com- pany was indebted for more than they could legally borrow, and that the calls were to pay such illegal debts ; (5) that the time for com- pleting the tramway had elapsed without the tramway being completed, and that the time had not been extended. Held that pleas (2) and (3) were bad, but that (5) was good. Sandhurst and Inglewood Tramway Company v. Morrow, 4 W. W. & a'B. (L.,) 277. Calls Made in Eespect of Increased Capital — Company may not Sue for.]— Al Gold Mining Company v. Stackpoole, post under Mining — Company— Eules, &c. Eules Imposing Fines on Non-Payment of Calls — Fine Set Off Against Dividend.]— A clause of \h.e deed of association of a mining company pro- vided that if any shareholder refused or neglected to pay a call at the time specified for payment, he should be fined sixpence per week so long as it remained unpaid ; but no provision was made for enforcing payment of the fine. Held that the fine was not a penalty but a liquidated sum as for interest, and, being equally recoverable with a dividend, might be set off in a suit by the defaulting shareholder for recovery of a dividend payable to him by the company. Cotchett v. Hardy, 5 W. W. & a'B. (M.,) 59. Agreement Not to Sue for — Validity.]— A rule of a company, after providing for forfeiture of shares on the non-payment of calls, proceeded — " and the parties hereto hereby specially agree that the company shall have no power or authority, and are hereby expressly barred from enforcing payment of any call or calls in any court of law, or in equity." Held that the agreement was binding, and that a shareholder who had paid a call under this rule when he might have avoided doing so, could not recover the amount, since, as the company could not recover the call from him, the payment was voluntary. Coulter v. Wardill, 1 A.J.E., 165. Evidence of .Registration of Company.] — See Reeves v. Greene, ante column 138. Proceeding Before Justices — Act No. 228, Schedule —Act No. 267, Sec. 73.]— The Court held an objection, that there must be a separate com- plaint and order for each call, fatal in an appeal from an order made by justices for the whole amount. Ogier v. Ballarat Pyrites Com- pany, 4 W. W. & a'B. (L.,) 245. See also cases post Mining • Calls. - Company- X. Suits and Actions Bt and Against. Injunction — Parties.] — Where the act of a com- pany, which is sought to be restrained, is such that the majority is not competent to bind the minority, one dissentient shareholder may obtain an injunction in a suit on behalf of himself and all other shareholders except the managing body, it is not necessary to obtain the consent of such shareholders to make them parties, and it is no answer to show that some agree with the directors in the act complained of. Lee v. Robertson, 1 W. & W. (E.,) 374, 387. S.C. See Company — Shares. Company Suing in a Name Different from its Registered Name — A company was registered as the G.S.Q.M. Company. I. held certain shares in the company known to him as the G.8.G.M. Company, and the Company sued him under the latter name for calls. There was no proof that any other company was incorporated under the name sued under. Held, reversing the magistrates, that the variance between the names was fatal, and that there should have been a nonsuit. Iredale v. Guiding Star Gold Miming Company, 4 W.W. & a'B. (L.,) 198. Action at Law by Members of a Company Against the Company — Special Agreement.] — B. and others, solicitors for and shareholders in a mining company, sued the other shareholders in an action for a, bill of costs for work done in winding-up a gold mining company some years ago. _ It appeared that at a shareholders' meeting it was agreed in conversation that B. should undertake necessary proceedings, and by special agreement that B. should be entitled to sue the company for costs. On a rule nisi to enter a nonsuit, Held that there was evidence to go to a jury to enable them to infer that a special agreement had been made, taking the case out of the general rule that partners cannot sue their co-partners at law. Eule discharged. Bennett v. Solomon, 4 W.W. & a'B. (L.,) 227. Frame of Suit — Sale by Resolution Ultra Vires.] — Where the property of an incorporated company has been sold under a resolution of the share- holders, which is ultra vires, the dissentient minority may properly institute a suit in the name of the company as plaintiff ; and such a suit is the proper form of obtaining relief, and not a suit by some shareholders on behalf of themselves and all other shareholders except the defendants. The Creswick Grand Trunk Gold Mining Company, Registered e. Hassall, 5 W.W. & a'B. (E.,) 49, 79. Frame of Suit — Action for Breach of Agreement to- Take up Shares.] — Where E. was sued for breach of agreement to take up shares in a company by individual shareholders, it appearing that be had signed the memorandum of association, Held, that E. was not liable to the individual shareholders, though he might have been to the company. Nonsuit by County Court Judge, on the ground that the action should have been brought by the company, upheld. Lindsay v. Rowan, 5 A.J.E., 22. By Director and Shareholder When there is a Corporate Body Able to Sue — Suit to Restrain Direc- tors from Acting.] — An individual member of a company cannot take proceedings to restrain directors, even though they are disqualified by non-payment of calls, from acting until they have set the coporation in motion, and a suit by one director and shareholder for that pur- pose is improperly framed. Umphelby v. Wilkie, 5 A. J.E , 108. 163 COMPANY. 164 Suit Against Company — By Shareholder on Behalf of Others — Pleading.] —A member of a company complaining of a payment which the directors had made in excess of their powers, and suing on behalf of himself and other members of the company, must state distinctly whether he is one of a majority or a minority as regards the suit, and also that he was unable to get the company to institute proceedings. Haid/y v. Wilson, 8 V.L.E. (E.,) 289 ; 4 A.L.T., 37. Such a member must generally show the impossibility of inducing others to join by a result of votes at a meeting duly convened for the purpose, or in which the point is specifically dealt with, the members generally expecting that it will be. Hardy o. Wilson, 9 V.L.E. (E.,) 62; 4A.L.T., 175. Frame of Suit— By Shareholder on Behalf of all Shareholders Except Defendants.] — Before institut- ing a suit on behalf of himself and all other shareholders in a company, except the defend- ants, the shareholder instituting it procured a meeting of the company, at whichit was resolved that no action should be taken in the matter by the company. Held, that the plaintiff was. not thereby precluded from suing on behalf, &c. Benjamin v. Wymond, 10 V.L.E. (E.,) 3 ; 5 A.L.T., 153. Delay in Bringing — Excuse for.] — The necessity of first endeavouring to induce a company to proceed in its corporate name to redress an injury to it, is an excuse for delay in the institution of a suit by one shareholder on behalf of himself and all other shareholders •except the defendants. Ibid. Suit Against Company— Nominal Plaintiff,] — In a suit against the directors and manager of a mining company seeking to make them respon- sible for certain wrongful acts, and to recover calls due on shares in their names, the person by whom the suit was, in fact, instituted, and who was responsible to the nominal plaintiff for the costs of it, was a creditor of the company, who before the institution of the suit had covenanted, for valuable consideration, not to enforce the personal liability of certain of the defendants in respect of the Acts complained of by the bill, and this was pleaded by the answers as amounting to a release. Held, that as the plaintiff on the record was discharging a duty to other creditors in prosecuting the suit, and his solvency was not questioned, he was entitled to maintain the suit. Beeves v. Croyle, 2 V.E. (E.,) 42 ; 2 A.J.E., 13. Suit by Shareholder Impeaching Forfeiture — Amalgamation of Company — Necessary and Proper Parties.] — A shareholder in a mining company, wh6se shares had been forfeited and name removed from the register, brought a suit against the company impeaching the forfeiture, and seeking to have his name restored to the register. The answer of the company stated, and it was proved in evidence, that after the forfeiture the company had amalgamated with another company, and fresh shares had been issued to all the shareholders in the two com- panies, the old members of the defendant company accepting each one-third fewer shares than they had previously held. Held, that the present registered holders of the shares, repre- senting the plaintiff's original shares, were necessary parties to the suit, and that it was not necessary that the defendant should set out their names, but it was sufficient if the answer unequivocally designated the class of persons who ought to be made parties. Cushing v. The Lady BarkVy Gold Mining Company, 9 V.L.E. (E.,) 108, 124, 125 ; 5 A.L.T., 98. Suit Nominally in Name of Company — Costs.] — Where a suit was brought seeking interference of the Court as to management of the company, nominally in the name of the company, but really without the sanction of the company, and by the manager to work out his own ends, the bill was on that ground dismissed with costs. Old Welshman' s Beef Company v. Bucirde, 7 V.L.E. (E.,) 115 j 3 A.L.T., 45. Pleadings — Incorporation of Company — How Raised — Never Indebted — "Mining Companies Act," No. 228, Sec. 11.] — On a rule nisi to enter a nonsuit, it was argued that there was no evidence of due registration, the person who signed the certifi- cate not having been proved to be a clerk of the Court of Mines (Act No. 228, Sec. 11), Held, that the plea of "never indebted" does not put in issue the incorporation of a Company, that that fact invites a special traverse. Bank of New South Wales v. Moyston Junction Com- pany, 4 W.W. & a'B. (L.,) 234. Action for Deceit — Misrepresentations in Pros- pectus.] — Action by shareholders against the directors of a company for misrepresentations in a prospectus. It appeared that a balance- sheet had been struck for June, 1881, showing profits of 12J- per cent., and the business then fell off and produced only 1£ per cent, profits for the last half. The prospectus was pub- lished and received by the plaintiff towards- the end of 1881, and before the latter balance was struck. Held that there was no evidence of moral turpitude necessary to maintain an action of deceit. Per Higinbotham, J., that even if there were misrepresentations, the plaintiff was not misled by them, but by expectations founded on the announced inten- tions of the defendant, and that an action for deceit cannot be based upon a statement of intentions. Allan v. Gotch, 9 V.L.E. (L.,) 371. Action for Malicious Prosecution.] — Toungsdale v. Keogh. See post under Malicious Pbocedube and Prosecution — Other points. And see cases post under Mining — Company — Suits and Actions, &c. XI. Windino Up. (1.) What Companies. Railway Company — "Joint Stock Company's Wind- ing-up Act," 11 Vic, No. 19.]— Held by Pull Court, affirming Molesworth, J.,that a railway company incorporated by Act of Council was not within the provisions of that Act, and a rule nisi for compulsory sequestration under that Act 165 COMPANY. 166 discharged. In re St. Kildaand Brighton Bail- way Company ex parte Plevins, 2 W. & W. (I.E.&M.,)69. Railway Company.] — The provisions of "The Companies Statute 1864," relative to winding- up of companies, do not apply to a railway company incorporated by Act of Parliament. In re St. Kilda and Brighton Railway Company, 1W.W.& A'B. (E.,) 157. Unregistered Company — Act No. 228—" The Companies Statute 1864."] — A mining company under the Act No. 228 is not an " unregistered ■company " within the meaning of " The Com- panies Statute 1864," and cannot he wound-up under the latter Act. In re the Collingwood Quarts Mining Company, 5 W. W. & A'B. (E.,) 190. Foreign Corporation.] — The Oriental Bank Corporation was incorporated under that title for banking purposes throughout the British •dominions by Eoyal charter in England. Its ■directors, board of management, and head office were in England, and it carried on the business of exchange and remittance there, but not the general business of banking. It had several branches or agencies in India, Victoria, and other colonies ; and it had shareholders and •creditors throughout England, India, and the colonies. It consisted of more than five mem- bers, and was not registered under the " Com- panies Statute 1864," or under the " English Companies Act 1862." On the petition of a Victorian creditor for winding it up under the " Companies Statute 1864," Part VI., Held that the corporation could be wound-up on such a petition, even if the English Courts had already made an order to wind it up in England. In re Oriental Bank Corporation, 10 V.L.E. (E.,) 154. (2) Voluntary or Compulsory. Petition by Creditor for Compulsory Winding-up After Resolution for Voluntary Winding-up.] — Where the shareholders of a company had passed a resolution for a voluntary winding-up upon petition by a creditor for a compulsory winding-up, Held, that notwithstanding the voluntary winding-up the Court might, at its ■discretion, grant a compulsory winding-up, but that the Court would have regard to the wishes of the majority in number and value of the creditors, and such majority being in favour of .a, voluntary winding-up, application for a compulsory winding-up refused. In re Co- operative Meat Supply Association, 8 V.L.B., (E.,) 227. The Court will not, unless something in the shape of misconduct on the part of the liquidator appointed under the arrangements for voluntary winding-up be proved as a thing done and not contemplated, interfere and make an order for a compulsory winding-up. Ibid. Grounds for Granting a Compulsory Winding-up — " Companies Statute 1864," Sec. 73, Sub-sec. 5.] — On a petition under Sec. 73 (V.) of the " Companies Statute 1864," for winding-up a company, it appeared that the grounds on which it was sought to wind-up the company were— (1) that the company had been from the first carried on at a loss ; (2) that the company was largely indebted ; (3) that certain patent rights for working which the company was formed had not been transferred to it ; (4) that certain plans proposed for preparing paints according to the patent in the specifications would not produce paints at a price to compete with other makers j (5) that certain persons were elected directors who had not paid calls ; (6) that dis- putes and quarrels were taking place between the shareholders and directors. The Court held that there were insufficient grounds upqn which to make the order, and declined to interfere as to the squabbles' among the members and directors, intimating that if a majority of the company wished it the company could be wound-up voluntarily. In re Buzolich Paint Company, 10 V.L.E. (E.,) 276, 281, 282 ; 6 A.L.T., 130. (3) Petition and Practice on. (a) By whom Presented. Under " Companies Statute 1864," No. 190— Petition by Agent under Power of a Corporation Sufficient by Virtue of Sec. 154 of the Act No. 190.] — Where a corporation sought to have a com- pany wound-up, and the petition for winding- up, and the affidavit verifying the petition were both made by an agent under power of the corporation, Held that Sec. 154 of the Act No. 190 rendered it possible for the Court to dispense with the letter of Schedule 7, Clause 4, by which the petition must be verified by the petitioner or one of the petitioners, and that the petition and affidavit were sufficient. In re the Oriental Rice Company, 4 A.J.E., 33. Corporation — Power of Attorney — Sufficiency of Authority.] — A., being appointed attorney under power of a bank, the power authorising him to commence and carry on any suit, action, or other proceeding, and also, upon insolvency of any person or firm who at the time of such insolvency should be indebted to bank, or upon any such firm or person entering into compo- sition with his creditors, to prove against his or its estate, and to take such other proceed- ings with relation thereto as should seem fit. A. presented a petition for winding-up of a company. Held that "the other proceeding" meant something ejusdem generis with an action or suit, which such a petition was not, and that second part of power did not give power to originate proceedings in insolvency, and peti- tion dismissed. In re Provincial and Suburban Bank, 5 V.L.E. (E.,) 159, 166; 1 A.L.T., 6. (6) Debts and Assets. Where Petition Refused.] — D. obtained judg- ment and issued execution against a company, and a return of nulla bona was made to the writ. D. was a shareholder in the company, and had also been a director ; and in this capacity was present at a meeting at which it was agreed that the company's bank should have a first charge upon any amount which might be recovered in an action against another bank. This amount D. subsequently, but ineffectually, attempted to attach. The assets of the com- pany were considered sufficient to pay all debts, 67 COMPANY. 16S mt were not readily available, and the com- iany's prosperity depended partly upon the .ction against the bank, to which action a rinding-up would put an end, and would sacri- iee nearly the whole claim. It was not apparent hat a winding-up would satisfy the petitioner's D.'s) debt, several creditors of the company fpposed him, and it was not clearly proved hat any supported him. Upon petition for rinding-up, Held that the Court had a discre- ion in the matter, and petition dismissed rithout prejudice to renewal under altered ircumstances of the company. In re Poly- •esia Company, 4 A.J.K., 47. c) Service, Verification and Advertisement of Petition. Affidavit Verifying Petition.] — "Where a peti- ion is presented for the winding-up of a com- iany under the " Companies Statute, 1864," the ffidavit verifying it must be filed within four [ays of the presentment of the petition, in ccordance with Schedule 7, Rule 4, of that Itatute. A petition and affidavit were each lated 3rd of July, 1865 ; the petition was pre- ented 22nd July, and the affidavit filed August ith. Petition dismissed with costs. Semblethe ule is only directory for the purpose of protect- Qg an order inadvertently made in a case rhere rule has not been complied with, other- rise it is mandatory. Semble a defect in the ervice of a petition is not waived by appear- ance, but where the affidavits of service were insatisfactory the case was allowed to stand iver for further proof of service, the petitioners laying the costs of the day. In re Victorian itreet Railway Company, 2 W.W. & a'B. (E.,) 32. Verification of Petition.] — A petition for wind- ng up a company under " The Companies statute 1864." No. 190, Sec. 75, is to be iccepted without verification, and is afterwards o be verified by an affidavit made and filed rithin four days. In re Malmesbury United Srewery Company. 3 W.W. & a'B. (E.,) 81. .Injunction Under No. 190, Sec. 77.]— The affi- lavit to ground a motion for an injunction inderNo. 190, Sec. 77, should be made after ;he presentation and acceptance of the petition. aid. Service — Foreign Corporation — Head Office in England.] — Under the " Companies Statute L864," if it apply to a corporation which has an >ffice here, though not its head office, and is not registered under the statute or the *• English Companies Act 1862," if the Act apply to such i corporation, service of a petition for winding- ip is sufficient at the principal place of busi- ness in Victoria, since the " Companies Statute 1864," provides that such principal place of business shall be in lieu of a registered office. In re Oriental Bank Corporation, 10 V.L.K. (E.,) 154. (d) Effect of Order to Wind-up. First Order Bad — Second Order.] — Where an order for winding-up was bad on the face of it as showing no jurisdiction, a second order for winding-up was allowed to be made without an order to set aside the first order, the petitioner being held justified in treating the first order as a nullity. Beeves v. Bowden, 6 W.W. & a'B. (L.,)218;N.C,17. A winding-up order is not a sequestration, within the meaning of Sec. 74 of " Insolvency Statute 1871." See Oriental Bank v. Wattle Gully Company, post under Insolvency — Effect of. Suit Against the Company Sought to be Wound- Up.] — On the hearing of a petition under " The Companies Statute 1864," for an order to wind-up a company, the Court will not, at the- instance of plaintiffs in a suit against the company, give leave to proceed with the suit notwithstanding the winding-up order; but such application must be brought forward as a- substantive motion after the winding-up order has been made. In re the Melbourne and New- castle Minmi Colliery Company, 1 W.W. & a'B. (E.,) 166. (e) Concurrent Petitions. Two Petitions — Priority.] — A petition for the- winding-up of a company was presented by A. on June 24th, and another for the winding- up of the same company on June 25th by B. In the newspapers B.'s advertisement appeared in the column before A.'s A.'s petition was set down for hearing on June 26th, B.'s on June 27th. Held, per Molesworth, J., that according to the practice adopted by him, the priority of presentment, and not the advertise- ments, determined the precedence, and that A.'s petition was, therefore entitled to pre- cedence. The Court will hear both petitions, and decide between them. In re Provincial and Suburban Bank, 5 V.L.K. (E.,) 159, 177; 1 A.L.T., 15. In a contest between two petitions, one seeking winding-up order, and the other a voluntary winding-up under supervision of the Court, the Court prefers to make order for compulsory winding-up, especially where there- is difficulty in deciding as to liquidators selected by creditors. Ibid, pp. 178, 179. Foreign Corporation — Petitions in England and. Victoria — Staying Proceedings.] — The Court, on the petition of a creditor, made an order, under Sec. 176 of the " Companies Statute 1864," winding-up a. banking company incorporated by Eoyal charter in England, and having its- head office and directors there, and also an agency in Victoria. An order for winding-up the same company had also been made in England. The Court therefore directed a meeting of creditors to be held, under Sec. 83 of the Statute, and their opinion taken as to whether the winding-up in Victoria should proceed or not; and on their unanimous decision in favour of staying proceedings, made an order under Sec. 81, staying the proceedings absolutely. In re Oriental Bank Corporation, 10 V.L.K. (E.,) 154. Contributories were not allowed to attend the meeting, the Court holding that the wishes, of the creditors should be paramount. Ibid. 169 COMPANY. 170 (/) Costs. Two Petitions.] — Where one petition for wind- ing up a company is presented, and after notice of the first a second petition is presented for winding up same company or for a supervision order, the Court will not follow the usual practice of making an order on one giving carriage of proceedings and of allowing costs of both, but will only allow the costs of the former, the uncertainty in the second dis- entitling petitioners to costs. In re Provincial ■and Suburban Bank, 5 V.L.E., (E.,) 159, 174, 179. Compulsory — Abandoning — Appearance of Com- pany.] — Where a petition for compulsory wind- ing up was presented, but owing to a technical defect the petitioner gave notice of abandoning it, but the company appeared on the day fixed for hearing, Held, that the company was entitled to its costs of such appearance. In re Co-operative Meat Supply Association, 8 V.L.B., (E.,) 227. (g) Other Points. Injunction — Sequestration — Motion to Dissolve Injunction.] — Two shareholders in the "Provi- dent Institute" filed separate bills against the directors to wind up the institute, and obtained injunctions restraining the directors from fur- ther acting in the affairs or dealing with the property of the institute. Subsequently the directors voluntarily sequestrated the estate of the institute, under 11 Vic, No. 19, Sec. 3, and E. C. was appointed official assignee. The official assignee, under 5 Vic, No. 17, Sec. 56, elected to defend the suits, and he delivered to the plaintiffs a suggestion of the insolvency, and of his appointment as official assignee. On motion for the official assignee to dissolve the injunctions obtained by the plaintiffs, Seld that as the suit was by one of the members of the institute against the other members, and as " The Institute," eo nomine represented by the official assignee was insolvent, and not the individual members parties to the suit, the suit was not a " suit or action pending against the insolvent" within the meaning of 5 Vic, No. 17, See. 56. Motion dismissed. Dodds v. Foxton, Dancker v. Porter, 1 W. & W. (E.,) 271. Semble, that there is great difficulty in extending the words "suit or action at law" contained in 5 Vic, No. 17, Sec. 56, beyond an action at law. Ibid. Semble, that it is competent for the directors of a joint-stock company to effect a voluntary sequestration of the estate of the company under the 11 Vic, No. 19, Sec. 3. Ibid, at p. 276. Who May be Heard on Petition for.]— On a petition under " The Companies Statute 1864," for a winding-up order, a company, neither a creditor nor a contributor of the company sought to be wound-up, is not entitled to be heard. In re the St. Kilda and Brighton Railway Company, 1 W. W. & a'B. (E.,) 157, 160. Petition for under " The Companies Statute 1864."] — On a petition under " The. Companies Statute 1864," for winding-up a company within the provisions of that Act, it is discretionary with the Court to grant the prayer of the petition. Ibid. Facts Alleged in Affidavits and not in Petition.] —On a petition under Sec. 73, Sub-sec. 5, of the "Companies Statute 1864," the Court refused to regard anything stated in the affi- davit which was not alleged in the petition. In re Busolich Paint Company, 10 V.L.B. (E.,) 276, 280. Order for Shareholders to Pay up Calls— Service — Attachment.] — On application, under Sec. 121 of the " Companies Statute 1864," by liqui- dators for order for payment of calls by defaulting shareholders, the order was made and personal service on each of the shareholders was directed. After service of order some failed to obey it. The Court made a joint order for separate attachments for contempt to issue against those who had failed to obey. In re the Ballarat Patent Fuel and Manure Company Limited, 2 WW. & a'B. (E.,) 172. Ex parte Order for Payment of Calls by Contri- butories.] — In a voluntary winding-up under " The Companies Statute 1864,'' No. 190, the Court may make an ex parte order for payment of calls by the contributories within a specified time after service of the order, or for applica- tion by them within the same time, to revoke or vary the order ; and after the lapse of the specified time, the order will be absolute, and not liable to be set aside. In re the Belmore Silver and Lead Mining Company, 2 V.B. (E.,) 126 ; 2 A.J.E., 76. "Companies Statute 1864"— Discretion of Court.] A creditor showing that he comes within the terms of the Act is not entitled to a winding- up order ex debito justitiae ; but it is discre- tionary in the Court to grant it, and the Court may have regard to the wishes of the other creditors. In re Polynesia Company, 4 A J.R , 47. Order — Advertising and Filing — No. 190, Sch. 7, Suh-secs., 6, 7— Post Dating Order.]— Where an order was obtained to wind up a company, but the petitioning creditors omitted to advertise the order in the Government Gazette, and to file it in the office of the Insolvency Court as directed by the "Companies Act," No. 190, Sch. 7, Sub-sees. 6, 7, the Court refused an application to post-date the order. In re Cognac Company, 2 V.L B. (E.,) 73. Semble, that the provision as to filing the order in the Court of Insolvency is merely directory. Ibid. In such a case the old order is treated as having lapsed, and a fresh order may be made without the old order being discharged. In re Cognac Company, Dwyer and Kelly's case, 3 V.L.B. (E.,) 146. Precipe—" Stamp Statute," No. 335, Sees. 4,10.] Where on a petition for winding-up the fee for the praecipe is too small, and the full fee is afterwards paid before the hearing, that is no 171 COMPANY. 172" valid objection to the petition. In re Provincial and Suburban Bank, 5 T.L.K. (E.,) 159, 172, 177 ; 1 A.L.T., 15. (4.) Liquidators. Not Appointed by Winding-Up Order.] — The Court will not, in its discretion, include in an t>rder for winding-up an order appointing a liquidator, although it may have the power. In re Bed Anchor Preserving Company, 9 V.L.E. (E.,) 77. Removal — " Companies Statute 1864 " No. 190, Sees. 85, 124.] — Semble, the Court may, on an order for voluntary winding-up under super- vision of the Court, remove, under Sec. 124, liquidators appointed by shareholders, and appoint others selected by creditors, disregard- ing the three official liquidators appointed by Governor-in-Council under Sec. 85. The Court prefers liquidators selected by the creditors to those appointed by shareholders. In re Pro- vincial and Suburban Bank,, 5 V.L.E. (E.,) 159, 178. A person indebted to the company is not eligible to be appointed liquidator. Ibid. Power of Liquidator Under Winding-up Order Tinder the "Companies Statute 1864."] — A winding- up order, under the " Companies Statute 1864," does not vest the property of the company ■ wound-up in the liquidator, but merely enables him to recover property as a kind of agent of the company, suing in its name. In re Oriental Bank Corporation, 10 V.L.E. (E.,) 154, 178. (5) Sequestration. Advertising List of Shareholders — Notice to Admit or Deny Liability— 11 Vic, No. 19, Sec. 17.]— By an order under the provisions of the 11th Vic, No. 19, Sec. 17, the estate of a joint- stock company was sequestrated, and the Chief Commissioner, proceeding under this order, caused a list of shareholders to be made and advertised, and by the same advertisement gave notice that he had appointed a day for such shareholders to come in and dispute their liability in respect of their shares respectively ; and stated that in default of their so coming in by the time fixed, each of such shareholders would be peremptorily held liable in respect of such shares respectively. On the day named several shareholders appeared, and objected to any proceedings being taken till proof was given that all the shareholders in the adver- tised list had been served with a copy of the notice. The Commissioner declined to settle the point, and certified to the Court that a difficulty had arisen in the prosecution of the order. Held, that the meaning of the order should be taken to be that an advertisement should be published requiring the person named in it to appear at the day fixed, and ' that upon their appearing they should admit or deny their liability, and in the latter case have it ascertained; but that the advertise- ment threatening them with being bound by the list, in default of appearance, should be regarded as a brutum fulmen, and that the order did not properly purport so to bind them ; and that no shareholder could be bound until after service upon him requiring him to show cause, or his voluntary appearance. Held, also, that there was no necessity to show service upon all in the list before proceeding- in the inquiry as to any. In re The Provident Institute of Victoria.l W."W. & a'B. (I. E. & M.,> 3. Difficulties having arisen in the prosecution of the above order, the Court varied and added to the original order in certain respects, upon the ex parte application of the assignees seeking direction upon the. difficulties in working the order. Ibid. Under 11 Vic, No. 19— Jurisdiction of Insolvent Court.]— The deed of settlement of the P. Joint-stock Company provided that the board of directors should consist of not more than six or less than three, that all directors should be elected by ballot; and by an affirmative and merely directory clause the directors were empowered, to sequestrate if the auditors should report that the company could not meet its engagements. The board dwindled to four- directors, of whom two were re-appointed without ballot ; one was the company's solicitor. In spite of the fact that the auditors had not reported that the company was unable to meet its engagements, a meeting of the board, duly- summoned for that purpose, passed a resolution that the company was tinable to meet its engagements, and a minute of the resolution was made, which, together with the resolution, was signed by the chairman and attested by the solicitor, and filed in the office of the Chief" Commissioner of Insolvent Estates. On the petition of the chairman and managing director, under 11 Vic, No. 19, a Judgemadean order for sequestration. At the time of the presentation of the petition and making of the order, an injunction, obtained in an equity suit by a shareholder to wind-up the company, restrain- ing the chairman and managing director from dealing with the company's property, was in force, and the plaintiff in the equity suit obtained a rule nisi to set aside the order for sequestration. Held that the requirements of the deed of settlement and of the Act were complied with; that the requirements as to- sequestration being merely directory the Court had. power to entertain the sequestration, and, Semble, that it would, even had the clause been mandatory ; and that notwithstanding the suit and injunction it was competent for the chair- man and managing director to avail themselves of the liberty given to them by Sec 3 of 11 Vic, No. 19, and competent for the Judge to • exercise jurisdiction in spite of the injunction if it were brought before him. Ex parte Dodds, 1 W. & W. (I. E. & M.,) 163. 6. Contributories. Married Woman — Attachment for Non-Payment of Contribution.] — A married woman, after due ■ notice of an application to place her on the list of contributories, may, at the application, plead her coverture, and it is then in the dis- • cretion of the Court to relieve her. "Where a 173 CONDITIONS. 174 married woman did not plead coverture at the application, but at the hearing of a motion for attachment on her non-payment of contri- bution, Held that the Court would not hear the plea at that stage, and order for attachment made. In re Australian Sub-Marine Working Company, ex parte Longley, 4 W. W. & a'B. (E.J 124. Paid-Up Shares— Consideration for.]— D. and K. subscribed memorandum of association and were registered as holders of 27 shares, all printed across as " paid-up." By subsequent arrangements the property of this company was transferred to a new company, and in this new company D. and K. were registered as holders of 24 shares treated as "paid-up." None of these shares were in fact paid-up, but D. and K. gave a guarantee to the bank for advances to the company ; but there was no distinct evidence as to there being a contract that the guarantee was in consideration of the shares being treated as paid-up. Held, by Molesworth, J., and affirmed, that D. and K. were liable as contributories for 23 out of the 24 shares, that the scrip purporting to be paid- up could not, if untrue, assist D. and K.; that the guarantee was not money or money's worth, i.e., capital, to the company, and that D. and K. were not, under the circumstances, protected by the guarantees given. By the Full Court, though the Court will not go into the value of the consideration where a company purchased the goodwill and stock-in-trade of a business, yet the Court will inquire where the actual money value of services performed is capable of exact estimation. In re Cognac Company, Dwyer and, Kelly's case, 3 V.L.K. (B.,) 146. After_a winding-up order had been made on the petition of two creditors, a summons to place members on list of contributories may be taken out by the survivor of the two cre- ditors without making the personal represen- tative of the deceased a party, but that fact must appear on the face of summons. Ibid. In such a case the course of procedure, when case is adjourned into Court, will be the same as at nisi prius. Ibid. Calls Due Before Winding-up. J— "Where a com- pany was being wound-up voluntarily, and at the date of the winding-up, arrears of past calls were due, upon motion under Wo. 190, " Companies Statute 1864," Sec. 121, by the liquidators, Held (reversing Molesworth, J., who refused to make an order affecting calls due before and after liquidation) that the past and present members Qf the company were liable for such calls. In re Melbourne and Champion Bay Lead Mining Company, 6 V.L.E. (E.,)211. Order for Shareholders to Fay up Calls— Attach- ment.] — In re Ballarat Patent Fuel Company, ante column 170. Ex parte Order for Payment of Calls by Contribu- tories.] — In re Belmore Silver, ire, Company, ante column 170. Withdrawal of Application for Shares Before Allotment.] — H. and G., relying on certain alleged misrepresentations of a company's agent, applied for shares in the company, and gave cheques and promissory notes as security for value. Discovering the misrepresentations before allotment, H. and G. withdrew their application, and applied for return of cheques and notes, which was refused, although the company never attempted to enforce payment. The names of H. and G. were entered on the register of shareholders, but no notice of allotment was ever sent to them. Held, upon the company being wound-up, that the appli- cations for allotment were, [as between H. and G. and the directors, retracted before they were acted upon; and as they never received notice of the allotment or registry they were not, as between themselves and creditors or other shareholders, bound to apply to alter the registry; and that H. and G. were not liable as contributories. In re Provincial and Suburban Bank (Hall's case, Gregory's case,) 7 V.L.E. (E.,) 63; 3 A.L.T., 11. COMPENSATION. Fob Injuries.] —See Negligence. Foe Taking Lands.] — See Lands Compen- sation. COMPROMISE. Agreement for Compromise — Construction — Costs.] — An agreement of compromise con- tained the words, " actions on both sides to be withdrawn, and all costs and costs of security to be paid " by the defendant. Held that these words included only costs as between party and party, and not costs as between attorney and client. Splatt v. Quarlerman, 1W.AW. (L.,) 334. Of Clients' Suits or Claims] — See Manson v. Shire of Maffra, ante column 90, under Bae- bistee-at-Law. CONDITIONS. In Contract.] — See Conteact or Agree- ment. In Covenants.]— ike Covenants. On Sam: of Property.] — See Sale— Vendor and Purchaser. In Bills or Sale.] — See Bill oe Sale. In "Will.]— .See "Will. 175 CONSTITUTIONAL LAW CONSIDERATION. See BILLS OF EXCHANGE— BILL OP SALE— CONTRACT. 176 CONSIGNEE. Under Bills op Lading.] — See Shipping. Under Contracts op Sale.] — See Sale. In Carriage op Goods.] — See Carrier. CONSPIRACY. See CRIMINAL LAW. CONSTABLE. See POLICE. CONSTITUTIONAL LAW. 1. Parliament, column 175. 2. Other Points, column 178. 1. Parliament. Privilege — Power to Commit for Libel.] — The Legislative Council and Legislative Assembly of Victoria have all the privileges, immunities and powers which were legally held, enjoyed, and exercised by the Commons House of Parliament at the time of the passing of the " Constitution Act," and the publication outside the House, in a newspaper, of an article which the Assembly adjudged to be a libel on the Assembly, on a select committee thereof, and on a member of each, qua such member, is a contempt for which the House has authority to commit. In re Dill, 1 W. & W. (L.,) 171. Breach of Privilege — Arrest for — Speaker's War- rant.] — Qucere, whether in a warrant issued by the Speaker of the Legislative Assembly to arrest a person for breach of privilege by publication of a libel, it is necessary to allege that the privilege is one which was held, enjoyed, and exercised by the House of Com- mons at the time of the passing of the " Con- stitution Act." Ibid. Privilege— 20 Vic, No. 1— " Constitution Act," Sec. 85.]— In passing the Act 20 Vic, No. 1, the Legislature of Victoria acted within the power given to them by the " Constitution Act," See. 35, "for the Legislature of Victoria by any Act or Acts to define the privileges immunities and powers to be held enjoyed and exercised by the Council and Assembly and the members thereof respectively." Ibid. Privilege—" Constitution Act," Sec. 85.]— The impossibility of the Legislative Council or Assembly exercising the power of impeachment, which is a relative power, owing to the absence of its correlative, does not restrict the general words of Sec. 35 of the " Constitution Act" creating a power, or render invalid an enactment which gives other powers that may be exercised by the Council and Assembly. Dill v. Murphy, 1 W. & W. (L.,) 342, 356. Privilege— "Constitution Act," Sec. 35.]— Sec. 35 of the " Constitution Act," which empowers the Victorian Legislature to define the privi- leges of the Council and Assembly ?" so never- theless that no such privilege should exceed "those now held, enjoyed and exercised by the Commons House of Parliament or the members thereof," does not refer to, and imposes no restriction in consequence of, the manner in which the privileges of the House of Commons have been acquired by it, or the capacity in which they are exercised by it ; and, by virtue of Sec. 35, the powers and privileges of the Commons House, whether obtained by the lex et consuetudo parliaments or otherwise, and whether enjoyed as a deliberative assembly or as a, component part of the highest Court of the realm, may tie rightly conferred by the Victorian Legislature on the Legislative Council and Legislative Assembly of Victoria, ttid. Privilege — How Determined.] — Per Slawell, O.J. It is not clear from the terms of 20 Vic, No. 1, Sec. 2, whether, the determining on the privi- leges, &c , held, by the House of Commons is to be regarded as a question of law, of which the Judges are to possess judicial knowledge, or a matter of fact susceptible of proof. Ibid, p. 359. Privilege — How Determined.] — Per Molesworth, J.— Sec. 2 of 20 Vic, No. 1, recognises the con- venience of producing the journals of the House of Commons as evidence for some debatable question. It may mean to enable our Houses themselves to decide their own powers, or to influence their discretion in the exercise of them. It may be to enable some other tribunal to decide upon the powers of the House which are disputed by some antagonist. Ibid, p. 364. Privilege— Act 20 Tic, No. 1 — " Constitution Act," Sec. 35.] — The Act 20 Vic, No. 1, is an express exercise of the power given by the 35th Sec. only of the " Constitution Act " to the Victorian Legislature to confer powers and privileges upon the Legislative Council and Assembly; and the powers given in the 35th Sec. to define such privilege is duly exercised 177 CONTEMPT OF COURT. 17* by the Act 20 Vic , No. 1, and the power to commit for contempt is one within the meaning of the section. Ibid. Privileges.]— The Act only confers upon the Legislative Assembly the same powers possessed by the House of Commons in 1855, i.e., limited powers, and if the Assembly issue :a wai-rant of commitment for contempt against a member, such warrant should contain state- ments from which it may be determined whether those limited powers have been exceeded or not. In re Glass, 6 W.W. & a'B. <(L.,) 45. Privileges of Legislative Assembly — Warrant of Commitment by the Legislative Assembly.] — G. was ■ committed to prison by a warrant of the Legis- lative Assembly. The warrant stated only that the Legislative ,'Assembly did resolve that G. was guilty of contempt and breach of the privileges of the said Legislative Assembly, .and that the said Legislative Assembly had adjudged that the said G. be for the said offence taken into the custody of the Sergeant- at-Arms and by the said Sergeant-at-Arms delivered to and kept in Her Majesty's Gaol, &c. On return to a writ of Habeas corpus, Meld that the Legislative Assembly only possessed the privileges possessed by the House • of Commons in 1855, i.e., limited powers, and, therefore, it was essential that the warrant ^should contain statements similar to those set out in the warrant in Bill v. Murphy, or general statements, or statements equivalent thereto, i.e., averments showing whether those limited powers have been exceeded or not. Prisoner discharged. Ibid. On appeal to the Privy Council, Held that there was vested in the Legislative Assembly the right of judging for itself what constituted a contempt, and of ordering the commitment of offenders by a general warrant without setting forth the specific grounds of such com- mitment, and that as G-. had been duly com- mitted for his contempt, the Supreme Court had no power to discharge him from custody. Appeal allowed. The Speaker v. Glass, L.R., 3 P.C., 560. Privilege of Legislative Assembly — Customs Duties.] — The Legislative Assembly does not possess the privilege, by passing resolutions imposing -customs duties, to authorise the collection of those duties by a customs officer till the end of the session of Parliament in which such reso- lutions have been passed. The Supreme Court has power by itself to determine the legality of the privilege. And the statement in the pleadings of such a privilege is a question of law and not of fact, and Sec. 2 of Act 20 Vic, No. 1, making the journals of the House of Commons, and consequently of the Assembly, prvmA facie evidence of the privilege, does not turn the question of privilege into a question of fact ; and therefore the privilege could not be admitted by a demurrer to a plea averring such privilege. Stevenson v. The Queen, Banks v. The Queen, Sargood v. The Queen, Watson v. The Queen, McNaughton v. The Queen, 2 W. W. & a'B. (L.,) 143. Powers — Re-enacting Old Laws.] — There is a great distinction between Parliament and s corporation ; the former possesses unlimited powers, viz., to legislate for an unlimited period, even though its duration is limited the duration and powers of the latter are botl limited. The Legislature, notwithstanding Sec. 40 of the " Constitution Act," has power t( re-enact an old Act (19 Vic, No. 3,) which die not come into force until after the passing oJ the " Constitution Act." Ryall v. KeneaVy, ( W. W. & a'B. (L.,) 193, 202/.203, 204 ; N.C., 7 See S.C., Statutes — Construction, &c. — Particular Statutes. Qualification of Members — Act No. 128 — " Consti tution Act,' ' Sees. 60, 61.] — C. before and after the Act No. 128, was an uncertificated insolvent and as such was elected as a member. He was sued by K. therefor. Held that Act No. 128 was an Act altering the qualification oi members within the meaning of Sec. 61 of the " Constitution Act," 19 Vic, and as such did not require to be passed by an absolute majority of the whole number of the members of th< Council and Assembly respectively, or to be reserved for the signification of Her Majesty's pleasure thereon in accordance with Sec. 60 oi 19 Vic. Judgment for plaintiff. Kenny v Chapman, 1 W. & W. (L.,) 93. And see Parliament. 2. Otheb Points. Power of Extradition.] — The power of extra- dition from one part of the British dominions to another is not inherent in any colony, bu1 requires the sanction of the Imperial Parlia- ment. The Legislature has full power ovei the person of an individual so long as he remains within the limits of the colony, so as to detain persons charged with misdemeanours in other colonies, and {per Stephen, J.,) to pass laws to prevent such persons coming to the colony or to turn them out if they do come, but no further. Ray v. HtMackin, 1 V.L.B. (L.,] 274. How Far Act 241 is an Appropriation Act — Hon the Consolidated Revenue May be Applied in Satis- faction of Judgments Against the Crown.] — See Alcock v. Fergie, post Ceown — Crown Remedies and Liabilities. CONTEMPT OP COURT. 1. What amounts to, column 178. 2. Jurisdiction, column 180. 3. Practice on, column 180. 1. What Amounts to. Newspaper Comments on Pending Action.] — Dis- paraging reflections on the members of the Court calculated to lower the Court in the estimation of the public, and comments made during the proceedings which are directly or 179 CONTEMPT OF COURT. 180 indirectly calculated to prevent a fair trial to a litigant, amount to a contempt of Court. But where, during an action, a newspaper commented on the action as a "bogus" or "trumpery" action, and spoke of the political bias of the Judge in connection with an inter- locutory decision of his, the Court Held that such comments did not amount to a con- tempt of Court,, although the last comment approached very nearly to the border line. In re Syme, ex parte Daily Telegraph Newspaper Company, 5 V.L.E. (L ,) 291. Comment on Pending Case.] — A reference in a newspaper to an alleged libel as " said to have been of a most brutal character," made while the action in respect of such libel was pending, was held to be beyond the line of permissible comment, as tending to prejudice a fair trial and to warp the mind of the jury, and to be, therefore, a contempt of Court, but not such a grave contempt as to call for severe punishment. The Court, (moreover, allowed a rule nisi for committal to be discharged after an apology made by the offender, on the terms of his paying the costs of the rule. Be Syme, exparte McKinley, 6 V.L.E. (L.,) 51 ; 1 A.L.T., 154. Publication in Newspaper — Ex parte Statements.] — If a. newspaper proprietor comments on ex parte proceedings before the case is deter- mined, in such a way that the comments have a clear and distinct tendency towards direct- ing and swaying the mind of the Court or jury, he is guilty of contempt of Court. In re Feigl ex parte Herman, 9 V.L.E. (L.,) 143 j 5 A.L.T., 20. Non-Payment of Money.] — The mere non-pay- ment of costs is not a contempt of Court. The refusal to pay may be a ground for pro- ceeding by way of attachment to found a con- tempt, but is not in itself a contempt. In re Barward, 4 V.L.E. (I. P. & M.^65. Unauthorised Person Preparing Transfer — 11 Vic., Ho. 33, Sec. 13.] — A person preparing a transfer of land for reward without proper authorisation to do so is guilty of a contempt of Court under Sec. 13 of the Act 11 Vic, No. 33. Be Strong, 4 A. J.E., 150. Non-Compliance With Requirements of Act of Parliament.] — Entry upon land by a railway company in contravention of the "Land Clauses Consolidation Act 1845," is a contempt. Williamson v. Courtenay, 1 W. & W. (E.,) 21 j post under Lands Compensation. Suit Pending — Proceedings at law.] — The mere filing of a bill by the next friend of an infant seeking an account of the infant's property, and the appointment of new trustees without any order having been made, does not make it contempt for another person to proceed at law on the infant's behalf by an action of trespass and no leave of the Court is necessary to institute such proceedings at law. Durbridge v. Scholes, 6. W.W. & a'B. (E.,) 1. Party Not Obeying Order Within Time Limited for Appeal.] — Where a decree directs payment of a sum of money "forthwith," a reasonable time must be intended. A party against whom such an order is made refusing to pay within the time limited for appealing against the order, is not thereby guilty of a contempt. United Hand- in-JIand and Band of Hope Company v. National Bank of Australasia, 4 V.L.E. (E.,) 173. Offence Under 29 and 30 |Vic, Clause 109, Sees. 19, 23— Discharge from Arrest for One Offence — Ee-Arrest on Another.] — Begima u. Wilson, ex- parte Yates ; ante column 57. Failure to Pay Calls on a Company Being Wound- up.] — In re Ballarat Patent Fuel Company, ante column 170. 2. Jurisdiction. Warrant for Commitment.] — It is unnecessary, in the case of a superior Court, to set out in the warrant for arrest for a contempt of such Court, what the nature of the contempt is. In re Slack, 4 V.L.E. (L.,) 454. Commitment — Punishment.] — Commitment for contempt may be during pleasure, or until the further order of the Court, or for a time certain, or no time need be stated at all. The punishment may be by fine or imprisonment, or both. Ibid. Commitment for Definite Period.] — In certain cases a commitment to prison for a definite period for contempt of Court may be proper. Ibid. Commitment Fixing no Term of Imprisonment.] — Qumre, whether a commitment for breach of No. 33, Sec. 13, fixing no term of imprisonment, be not illegal. In re Thompson, 1 W. & W. (L,) 24. Discharge from Arrest Before Expiration of Period of Commitment.] — An order of the Court, in its Equity jurisdiction, adjudicated a party guilty of contempt, and ordered him to be committed for two months. Two days after- wards, before a warrant was drawn up there- under, the party voluntarily surrendered himself, and on applying to be discharged on the same day, on the ground that no warrant for his commitment was yet drawn up, was told by the Judge, " You may go." Held that the surrender and detention did not constitute an arrest under the warrant, and that had it done so the Judge could not have discharged him before the expiration of the two months. In re Slack, 4 V.L.E. (L.,) 454. Court of Insolvency.] — See cases collected, post under Insolvency — Jurisdiction. Coroner's Court.]— Casey v. Candler, post under Coroner. 3. Practice. For practice generally, see ante column 63, under Attachment. 181 CONTRACT OR AGREEMENT. 182: Interrogatories when Necessary.] — "Where cause had been shown against commitment of a defendant for contempt of Court, by breach of 11 Vic, No. 33, Sec. 13, and the Court deter- mined that there was a contempt, and adjudged the defendant to be committed to gaol, Held, that after these proceedings there was no need of interrogatories, there being no doubt about the contempt, the act charged against the defendant being a contempt per se. In re Thompson, 1 W. & W. (L.,) 24. Where Order Wrong.] — It is no defence to an application for committal for disobedience of an order to show that the order was wrong ; the party should apply to vary the order, and not disobey it. B. was ordered to be imprisoned, but execution was stayed provided B. paid J350O every six months. B. disobeyed the order, and alleged that the order was wrong in containing the name of the wrong Official Assignee Order for B's. imprisonment. In re Bateman, 6 W.W. & a'B. (I. E. & M.,) 15, 22 ; N.C. 42. Contempt of Court in Master's Office— Copies of Certificate Furnished to Defendant.] — During the taking of accounts in the Master's office, a defendant so behaved himself that the Master reported him as guilty of contempt of Court. The Master, in person, presented his certificate, supported by the affidavits of witnesses, and the Court held the defendant guilty of con- tempt, and, after hearing his defence, com- mitted him for fourteen days. At the hearing, the defendant appeared in person, and the Court ordered that he should be furnished gratuitously with copies of the Master's certi- ficate and the affidavits iu support thereof. In re Slack, 2 V.L.R. (E.,) 204. Service of Order Nisi to Show Cause Against Attachment.] — S., a party to a suit, attending before the Master upon taxation of costs, com- mitted acts of violence and used insulting language, and the Master reported him to the Court as guilty of contempt. The Court directed an order nisi to issue, calling upon him to show cause why he should not be attached for contempt, S. avoided service of the order by keeping house, and the Court made an order for substituted service thereof. Slack v. Atkinson, in re Slack, 4 V.L.R. (E.,) 230. Order for Committal Where Party Did Not Appear.] — Upon the hearing of an order nisi, calling upon the party in contempt to show cause against committal, the party did not appear, and the Court made an order for his committal for a fixed period, to commence to run from the date of his arrest. Slack v. Atkinson, in re Slack, 4 "V.L.B. (E.,) 230. Tor Not Filing Accounts — Four-day Order — Attachment.] — Where a party disobeys the order of the Master to file accounts, a certificate of default should be obtained from the Master, and a four-day order obtained from the Court thereon, and in default of compliance with the order, an attachment for contempt may be obtained. Tyrrell v. Stewart, 4 V.L.R. (E.,) 60. Marrying Female Ward — Execution of Settlement. Under Direction of the Court — Discharge.] — A medical man committed contempt by eloping with a ward of Court, and took her out of the- jurisdiction and married her. He then executed a settlement of her property, giving himself a life estate, and entered into an arrangement for the practice of his profession out of the- jurisdiction, which prevented his return for three years. After that time he returned, and submitting to the jurisdiction was committed' to the Melbourne Gaol. Upon motion for his release, submitting to execute such settlement as the Court might direct, the Court made no- order for his discharge, but intimated its inten- tion of preparing minutes of a proposed settle- ment, which were subsequently handed out, settling the ward's property upon herself and the children of the marriage, and excluding the husband, save in the event of there being no children living to attain a vested interest. Upon the confirmation of the report of the Master that the settlement had been executed by the parties, a verbal order was made for the discharge of the prisoner, upon which it was. intimated the sheriff might act, and a written order be drawn up afterwards. Ware v. Ware, 4 V.L.R. (E.,) 119. Turning Over — Discharge.] — Defendants arrested under an attachment for contempt should whenever arrested be turned over to the custody of the keeper of Her Majesty's gaol in Melbourne. On an application for a discharge of two of them upon consent of Attorney- General, the contempt being non-payment of costs ordered in a suit instituted by informa- tion by Attorney-General at relation of a cor- poration and bill by corporation, Held that Court would not hear counsel instructed by- Attorney-General directly to pursue a course different from that which relators wish, but will only hear counsel instructed by solicitor on the record. Three of the five imprisoned were discharged from custody on payment of their proportion of costs in suit, and the costs of their contempt. Held that such discharge did not release them or remaining two from the- balance of the costs due, and that remaining two were only entitled to discharge on payment of such balance and the costs of their con- tempt. Attorney-General v. Bentley, 6 W.W. &.. a'B. (E„) 175. CONTRACT OR AGREEMENT. I. Formation of Contracts. (a) Agreement, column 183. (b) In Writing. (1) Formation of, column 184. (2) Parol Evidence. (a) Admissible, column 185. (6) Inadmissible, column 185. (3) Construction of Contract, column 186. (c) Statute or Frauds. (1) Contracts Within, column 193. (2) Forms and Conditions Required,. column 194. J183 CONTEACT OR AGREEMENT. 184 (3) Part Performance, column 195. (d) Causes Vitiating. (1) Mistake, column 196. (2) Fraud, column 196. (e) Implied Contracts, column 196. II. Parties to Contracts. (1) Capacity of— See Drunkenness — Infant — Lunatic — Husband and Wipe. (2) Other Points, column 196. III. The Matter op Contracts. (1) Consideration, column 197. (2) Promise — Condition Precedent, column 200. (&) Impossible Contracts, column 201. (4) Illegal Contracts, column 201. (5) In Restraint of Trade, column 203. IV. Discharge and Breach op Contract, column 204. V. By and with Agents and Brokers — See Principal and Agent. VI. With Corporations — See Corporations. VII. With Companies — See Company and Mining. VIII. Op Indemnity and Guarantee — See Guarantee. IX. With Infants — See Infants. .X. Between Landlord and Tenant — See Landlord and Tenant. XI. On Sale op Goods — See Sale. XII. On Sale of Land — .See Vendor and Purchaser. XIII. What Contracts Susceptible of Specific Performance — See Specific Performance. I. Formation of Contracts, (a) Agreement. Ambiguous Agreement — Intention of Parties How . Ascertained.] — Where an agreement is ambi- guous, the Court may look at documents of the preliminary negotiations between the parties in order to ascertain their intention. Norton v. Williamson, 6 A.L.T., 101. Offer— Silence of Other Party.]— Per Full Court. One person cannot, merely by an offer, in the absence of any previous arrangement, place . another in the position of being compelled to give an answer ; and in such case silence does not evidence acceptance of the offer. Boyd v. Holmes, 4 V.L.E. (E.,) 161, 170, 171. Offer by Telegram— No Reply.] — Plaintiff at Amoy from time to time consigned tea to defendant in Melbourne, for sale upon their joint account. Each adventure formed a trans- action, there being no general partnership. In December, 1873, defendant wrote to plaintiff, " When there is no reply by either side to a telegram, the sender should use his own judg- ment j" and in April, 1874, wrote, asking that "before further ventures on joint account," they should " wire such particulars as quantity obtainable, jf good values, or can be bought well, average cost, and if freight tonnage is then obtainable ; when, if I do not reply, I will then leave the operation to your judgment fully, and as a joint account venture." In .July, 1875, plaintiffs telegraphed, "Can buy at nineteen, but exchange so much lower, . equals eighteen last year. What say you ? " to which defendant sent no reply by telegraph, but subsequently by letter declined to accept the offer. Before the receipt of the letter, however, plaintiffs had shipped the tea, which, upon its arrival in Melbourne, defendant treated as a consignment to him as agent merely, and sold it as such agent. A loss was incurred on the transaction, and plaintiff filed a bill seeking to make defendant liable for a moiety. Upon demurrer, Held by the Pull Court (overruling Molesworth, J.,) that the arrangement of December, 1873, was revoked and a new arrangement, viz., that of April, 1874, set up, and that the telegram not purporting to proceed under the new arrange- ment, there was no obligation upon the defendant to answer it, and that his silence could not be treated as assent to make a bind- ing contract ; that there was no partnership, but only a series of isolated transactions on joint account. Ibid, pp. 161, 169. Definite or Indefinite — Authority to Doctor — Eevocation before Cure.] — A ship-master retained a medical practitioner to attend one of his sea- men, and before the man was out of danger told him his services would no longer be required, as the seaman was to be removed to the hospital, and paid into Court the fees earned before his authority was revoked. Held that it was not a contract for an indefinite period, and that the master could revoke the authority. Brown v. Figg, 5 V.L.E. (L.,) 136 ; 1 A.L.T. 3. As to certainty of agreement and whether agreement is completed, see post under Specific Performance. And as to Sale of Land, see Vendor and Purchaser. And as to Sale of Goods, see Sale. (b) In Writing. (1) Formation of. Alternative Offer — Acceptance of One Alternative — Subsequent Correspondence as to Mode of Carrying out'Contract.] — N. wrote to M., June 24th, asking him whether he would buy certain property at a certain price, or would take a lease of it at a certain rent. N. replied, June 27th, that he was willing to buy at the price named, and then followed a correspondence as to the mode of payment and of taking possession. Held that there was a binding contract, and that the subsequent correspondence might be disre- garded. Morrison v. Neill, 1 V.L.E. (L.,) 287. Conditional Offer by Letter.]— H. wrote a letter to C, April 24th, offering him the whole of a cargo of coals to arrive per ship "J.," 450 tons, half cash, the .balance by acceptances, and the letter contained a note that this offer was subject to C. paying a bill for £460, due May 20th, and sending by return post a bill for balance due. Held that this letter did not contain an enforceable contract. Cakebread v. Huddart, 3 A.J.E., 121. Correspondence — Promise.] — Previously to November, 1853, a piece of Crown land in Melbourne had been excepted from sale with the intention of being used for the water supply of the city. In November, 1853, the 185 CONTRACT OR AGREEMENT. 186. Municipal Council applied to the Crown for a grant of the land for the purpose of a market. In December, 1853, the Colonial Secretary, on behalf of the Crown, wrote, sanctioning the occupation of the ground for corporation purposes, and in a further communication in February, 1854, notified that it would be necessary to resume possession of part of land for water tanks to be erected thereon. By letter in February, 1854, from Council, it was stated that no objection would be taken to resumption of part of land, but that as steps had been taken for establishment of a market something more than a permissive occupancy was required, and another request for the grant was made. By letter April, 1854, the Colonial Secretary informed the Council that "the Lieutenant-Governor had been pleased to approve of the appropriation, as such mar- ket, of a part of the land applied for, &c." On petition under Act No. 241, and bill seeking to restrain Crown from selling the land, and to enforce specific performance of the agreement, Held, per Molesworth, J., that there was, in fact, no promise on the part of the Crown to grant the land, and if there was the right to claim under it was barred by Act No. 145, Sec. 6,_as fulfilment of the promise was not sought within a year after the passing of that Act, and that even if there were a right under the Act No. 145, it was not enforceable under the Act No. 241, as amounting to a contract subsequent to the passing of the Act No. 49. Held by the Full Court on Appeal that there was in fact a promise to grant the land, but there was no promise in law, there being no consideration for the promise, and the promise itself being a, nudum pactum; that Sec. 6 of No 145 is merely an enabling enactment, and it does not bar a claim which rests upon a promise supported by consideration. Mayor, Src, o/ Melbourne v. The Queen, 4 W.W. & a'B. (E.,) 19. And see cases post under Vendob and PuBCHASEB AND SPECIFIC PERFORMANCE. (2) Parol Evidence. (a) Admissible. Written Offer Verbally Accepted — Verbal Con- dition.] — At the time a written offer to do certain work was accepted verbally, the defen- dant accompanied such acceptance by a verbal condition to which the plaintiff assented. On an action on the contract, Held that verbal condition was a part of the contract, and was admissible in evidence. Bonham v. Bropliy, 6 V.L.E. (L.,)64; 1 A.L.T., 162. Practice — When Objection Should be Made.] — Any objection to the admissibility of oral evidence as proof of a written contract should be made to the evidence when tendered, and it is too late if brought forward as a ground of nonsuit at the close of the plaintiff' s case, if no objection was made at the time of tendering it. Whelan v. Hannigan, 5 V.L E. (L.,) 35. And see Evidence. (6) Inadmissible. Contract as to Shares— Parol Addition— Local Custom.] — C. sued defendant for breach of contract in refusing to deliver certain shares in tributes Nos. 2 and 3. The contract in> writing referred only to shares in the company; but C. proved a conversation between himself, and defendant in which defendant verbally promised that the tributes should be included. Held that the parol addition could not be admitted to alter the contract; that a custom i could not be admissible in evidence unless it was general, and that C. had denied the- existence of a custom by admitting he had sometimes sold tributes apart from the shares. Plaintiff nonsuited. Chaplin v. Chalk, 3 A.J.E., - 26. Collateral Parol Agreement.] — There may be » valid verbal promise collateral with a written undertaking, but the verbal promise must be- in no way inconsistent with the subsequent written document; if there is any variation the written agreement supersedes' the verbal one. Abbott v. Commercial Bank, 5 V.L.R. (L.,)366; 1 A.L.T., 57. For facts see S.C. under Bankers, &c, column, 82. Experts.] — Where the meaning of words in general use is clear, the evidence of experts is not admissible to abridge their ordinary mean- ing by explaining a special meaning attached to such words. Bartlett v. Pyers, 5 V.L R. (L.,) 69. And see also Evidence. (3) Construction. Proviso that in One Event Contract Shall be Void — Parties not in statu quo.] — A contract, which arranged for the assignment of a licence and interest in a public-house in consideration of .£75, of which ,£25 was to be paid in cash, and the balance secured by a bill of sale, contained a proviso that if the transferee refused to ■ execute a bill of sale the agreement should be void. Held, that the transferee having obtained possession could not be permitted, after having received a benefit under the> contract, to urge the proviso as an objection. Wood v. Cutts,5 V.L.ft. (L.,) 275; 1A.LT., 40. Intention of Parties Governing Strict Gramma- tical Construction.] — J. D. contracted by the following writing : — " I have this day sold to P. 500 bushels of oats, say feed oats, at a price of 6s. 6d. per bushel, to be delivered within one month from this date, at X; and 150 bushels to be taken from my store this day, and Is. per bag to be paid or returned, and cash on delivery of the lot." Held that as the intention of the parties was shown by speci- fying the nature of the oats, and the price as to the 500 bushels, and there was no mention of these particulars as to the 150 bushels unless they were part of the 500 bushels, the intention governed the grammatical construc- tion ; that it was a contract for 500 bushels, 150 to be taken from the store at once, and the remainder to be delivered at X within a- month's time. Dixon v. Perkins, 2 W. & W. (L.,) 10. Implied Mutuality.] — A contract was inade- between manufacturers and H., by which the manufacturers agreed to employ H. as their 187 CONTRACT OR AGREEMENT. 188 -agent for sale of the whole of the goods manu- factured during a certain period, unless by accumulated stock or insufficient sales the manufacturers should not be enabled to work the machinery to the full power; in which «vent they might terminate the contract, or place a traveller.on the road to effect sales at H's. expense. Held, that there was an implied obligation upon the manufacturers to deliver all goods sold by the agent. Hooart v. Victorian Woollen Company, 7 V.L.E. (L.,) 30; 2 A.L.T., 120. Three Contracts in One Document — Unilateral.] — C agreed with H. and B. in writing as follows : " I agree to make for H. and B. the whole of the ironwork for one of their patent American sawmills," &c, " for the net sum of ■one hundred pounds, delivered in Melbourne (say .£100). I also agree to furnish the above work with pine wood framing," &c, " for the net sum of one hundred and twenty pounds (say £ 120) . H. and B. hereby agree to allow C. the sole right and title to the making of the said patent sawmill, according to their plans furnished, by the payment to them of .£50 for •each machine as tneir patent right. C." This was accepted and signed by H. and B.'s agent. Action for that the defendants (H. and B.) did not allow C. the sole right and title to the making of the said patent machines, but granted a license, &c, to one P. to do so, whereby plaintiff lost great profits, &c. Held that the document contained three independent contracts ; and that the contract for breach of which C. claimed damages was unilateral, and not mutually binding, and formed no sufficient ground of action by him against H. and B. Crossley v. Hoffman, 1I.4W. (L.,) 198. Two Documents Forming One Contract — Vendor's Xien.] — M. sold to S. two engines and sent him the following invoice : — " Melbourne, 28th June, 1872. Mr. S., Bought of M.— terms, four months— one engine, C.D.P., ,£170; one engine, W.M.B., .£175— ,£345. By acceptance, M." Simultaneously with this note, S. gave a storage receipt as for the same two engines : — " Melbourne, 28th June. 1872. Received from M. the undermentioned engines as storage : — One engine, C.D.F. ; one do., W.M.B.— S." S. gave M. a bill drawn 28th June at four months. During the currency of the bill, S. sold one of the engines to C., who claimed under the sale. The bill not having been paid by S. to M., the latter also claimed it, con- tending that they had not parted with the right of property in it, but had only agreed to give it to S. at the end of four months if he paid for it. On an interpleader issue, Held that the two agreements, the one for sale, and the other for storage, were contemporaneous, the Court could consider them as forming one contract, and that their effect was to postpone payment for the goods for four months, but in the meantime the right of possession remained with the vendors. Martin v. Coombes, 4 A.J.R., 27. Two Documents of Different Date— Bead To- gether.]— In 1860 A., the owner of patent machines for etone-breaking, and "W., railway contractor, agreed in writing that A. should supply machines to W., and repair them, and that W. should pay a royalty of JB3750, or 9d. per yard on 100,000 yards of ballast, and should W. elect to break more stone then 6d. per yard after the first 100,000 yards ; W. to pay these, sums from time to time within fourteen days after the ballast should have been " spread on the railway (by W.,) and passed and certified" by the Government engineers ; and " when such ballast should have been spread on the rail- way (by W.) without the intermixture (by .him) of any other ballast, then>nd in such case the quantity should be ascertained by and taken according to the Government measure thereof." 4000 cubic yards were broken under this agree- ment, and in 1861 A. and W. agreed in writing that W. should thenceforth repair the machines and that A. should allow them for the repairs at the rate of 4d. per cubic yard out of the royalty on the first 50,000 yards that might be broken, and 3d. per yard out of the royalty for all broken after that number; and that "such allowance should be deducted from the amount payable to A." under the agree- ment already entered into, by which the first agreement was intended; and it was expressly agreed that " except as regards the repairs and the deduction, the second memo- randum Bhould not alter the original contract." Held that the contracts must be read as if both were made on the date of the first, and that the deduction of 4d. per yard must be made on the 4000 yards of ballast broken before the second agreement, and semble, that under the contracts A. could recover for breaking stone "intermixed by W. with other broken stone," though not spread. Appleton v. Williams, 1 W. & W. (L.,) 292. Double Event.] — An agreement that one per- son should deliver and another accept goods of a certain kind ex a certain ship, to arrive, at a certain price per pound in bond all round, was held to be on a double event — the arrival of the ship, and her arrival with goods of the kind named. Cohen v. Cleve, 1 W.W. & a'B. (L.,) 167. " More or Less " — Acceptance of Smaller Number — Rescission or New Contract.] — W. agreed to sell B. 3000 ewes and 1500 wethers, " more or less," and delivered in all 3563 sheep, which were accepted by B.'s agent, in pursuance, as W. alleged, of an agreement between their agent and B.'s agent to rescind the contract and to take the number delivered in satisfaction of the contract. B. recovered a verdict. Held on rule nisi for a nonsuit, that the evidence only showed that plaintiff determined to get what he could and did not amount to a new contract to take less than the original number, and that plaintiff did not take lesser number in satisfaction. Rule discharged. Brown v. White, 3 A.J.R., 43. Quality.] — A contract contained a clause that the article contracted for should be "of the exact dimensions, the same quality of material and workmanship in wood, iron, paint, and upholstery work, and in all other respects as 189 CONTRACT OR AGREEMENT. 190 the omnibuses now in use by the said Mel- bourne Omnibus Company, and known as the New York Omnibuses." Held, that " quality" was to be taken as meaning "kind;" that a substantial compliance was insufficient; and that no claim could be maintained for extras to work done under the contract, and properly rejected as not being in accordance with the terms of the contract. McGregor v. Melbourne Omnibus Company, 1 V.E. (L.,) 56; 1 A.J.E., 73. Province of Court and Jury. — Where a pattern is specified and put forward in a contract, it is for the Court to decide whether there is any •evidence that the article is of the kind pre- scribed ; and then for the jury to decide as to the quality. Ibid. As to Construction of Building Contracts Gener- ally.] — See under Wobk and Labour. Contract to Carry on Up and Down Journeys — Entire Contract.] — A carrier contracted by written agreement as follows : — " J. M. agrees to load from W. M. & Co., Echuca, three tons general loading, and deliver same to K., B. station, within eighteen days from this date, failing which to forfeit Is. 6d. 3>er ton per day for each and every day after ■expiration of said time. The said J. M. further agrees to load from B. station six tons wool, and deliver same to W. M. and Co., Echuca, within fourteen days from date of loading, failing which to forfeit Is. 6d. per ton per day after expiration of said time." J. M. carried the goods to B. station, but on arrival there the wool was not ready, and after waiting for it for a month he departed without it, and loaded wool at M. station, which he delivered to W. M. & Co. On suit by J. M. for payment for the carriage of the goods to B. station, Held that the contract was entire, and not having been performed J. M. could not recover. McCulloch v. MacUe, 5 W.W. & a'B. (L.,) 1. Exercise of Option by One of Contracting Parties — Contract Including all Shipments.] — B. contracted with the Crown to procure certain railway plant from England and to convey it to. "Victoria. The 9th condition provided that it should be discharged at piers or into lighters at the option of the Government. Several cargoes arrived and were delivered, some along- side one pier, sometimes alongside another, and sometimes into lighters. On the arrival of one cargo, in November 1869, the Board of Land and Works, on behalf of the Crown, intimated that B. might discharge by "the best and cheapest way he could." In October, 1860, the Board gave notice that all cargoes were to be delivered alongside the pier at Williams- town ; but the contractors continued to dis- charge according to their permission given in November, 1869, and thereby saved consider- able expense. The Board refused to give the contractors their lighterage expenses since October, 1860. Petition by contractors for the amount. Held, that the contract was an undertaking by one of the parties to deliver cargo in one of two modes as the other party might elect; that such a contract was open till election made, and when made, it was closed; that the election was to be made generally as to all goods and not for each shipment; and that having been made in November, 1869, such election related to all subsequent shipments. Bule absolute to enter verdict for petitioners. Raleigh v. the Queen, 2 W. W. & a'B. (L.,) 126. Contract to Tow Ship for Fixed Price— Employ- ment of Extra Tug.] — A contract was entered into by a tug-owner with a ship-owner, to tow the ships of the latter for a fixed price, the contract to exist for a year. The contract was taken over by another tug-owner, who, during the contract, towed one of the ship-owner's vessels up the Bay, and in so doing used an additional tug. Held, that the contract included the extra tug, and that the tug- owner could charge nothing additional for her services. Holmes v. Norton, 1 A.J.B., 93. Agreement for Hiring a Ship.] — S., owner of a ship, of which T. A. was master, agreed with A., in Melbourne, that the ship "shall be hired by A. from S., for the term of three months, commencing from the 21st day of November, 1865, and ending the 20th day of February, 1866, to trade between Melbourne and the Gippsland Lakes. A. to insure and pay all working expenses, crew's wages," &c. "The present master, T. A., to remain as master, but under the pay of A. Terms— forty.pounds per month, payable monthly in advance." The ship made one voyage to the Lakes and back, and a second voyage to the Lakes, and whilst in the Lakes on her second voyage, the outlet from them was closed by storms, and the ship could not get out till June, 1866. While she was so shut in, A. gave notice to S.'s agent that he should not require her after the end of the second month of the three mentioned in the agreement, and at the end of the two months he said to the master at Sale — " We have nothing to do with the vessel ; she's given up to P. (S.'s agent) for the owners." In an action for her hire, aud for detaining her beyond the three months, &c, the plaintiff recovered a, verdict and damages ; but leave was reserved to move to enter a verdict for the defendant, on the ground that the detention was not the deten- tion of the defendant. Held, that under the agreement the possession of the ship was not transferred to A. ; that under it the possession remained in S. ; that delivery of the ship in. Melbourne was not necessary, and the delivery by A., in Gippsland, was sufficient ; that the detention was not the detention of A., and that the verdict on the issue as to detention should be entered for A. Stewart v. Austin, 3 W.W. & a'B. (L.,) 112. Exclusive License.] — A mining company en- tered into a written agreement with a tributor enabling him to mine on a certain portion of their land, and take and remove all gold, &c, therefrom, receiving from the company an amount, as wages, proportionate to the amount of gold he extracted. The agreement provided that the mine and all gold taken therefrom should for all purposes be deemed to be the 191 CONTRACT OR AGREEMENT. 192' property of the company, and further that the contractor should work such portions of the company's claim as the mine manager of the company should from time to time determine during the five years during which the agree- ment was to run, and the ti'ibutor was bound to employ not less than a certain number of workmen stated in the agreement. Held, reversing Higinbotham, J., that this amounted to an exclusive license to mine on all the land included in the agreement ; and that the com- pany could not subsequently grant to another a license to mine in a portion of the same land. Chun Goon v. Reform Gold Mining Company, 8 V.L.E. (E.,) 128, 153 ; 3 A.L.T., 137. Contract as to Mining and Auriferous Sand.] — The defendant company -agreed with W. " that he should have the whole and sole right to collect clean and take away all the mundic sand and pyrites from the company's battery after such has passed from the tables and amalgamating barrels and outside the battery house " at a certain price per ton. The defen- dants had erected ordinary stampers with a table to catch "the blanket sand;" did not erect amalgamating barrels, and saved the sand from the table and extracted the gold from it, thus allowing none of it in its original state to go to the plaintiff H. Held that H. was entitled to all the sand after it had passed from the blanket, and that although the amalga- mating barrels were not used, yet what passed from the tables would represent what he was entitled to under the original agreement. Wilson v. Rising Star Quartz Mining Company, 7 V.L.E. (L.,) 274. Security for Performance by Deposit of Stakes- Damages.] — A. and B. agreed together for the transfer of a lease and goodwill of » public- house, each party to deposit with C, a party to the deed, as stakeholder, a certain sum as security for the performance, and C. was to declare it forfeited in case of non-perform- ance. B. deposited a cheque for the amount and not cash, and received a receipt as for the cheque; this cheque was presented and dis- honoured. Held that A. was entitled to nominal damages for breach of the agreement to deposit cash, even if a forfeiture were not declared. Yon v. Tresnan, 5 V.L.E. (L.,) 407. Contract for Delivery of Railway Sleepers.] — Defendants contracted to supply plaintiff, at their mills at one place, with railway sleepers, and the contract provided that defendants should deduct or allow for all which did not •pass the inspector at another place. The evidence showed that defendants delivered some of the sleepers at the second place. Plaintiff sued for failure to deliver the residue, and the jury found for the defendant. On rule nisi for a new trial, Held that the sleepers were to be delivered at the mills, subject to a con- dition of their being afterwards approved of by the inspector at the other place. Williamson v. Mitchell, 9 V.L.E. (L.,) 343. Bill of Sale^-Assignment.] — A bill of sale given over certain chattels stated that the chattels were bargained, sold and delivered to the grantee, subject to a proviso for redemp- tion, but contained no stipulation that the grantor might retain possession till default. After default the grantor assigned the chattels ■ comprised in the bill to "W. by deed poll, which, recited that the grantor had bargained, sold, and delivered the chattels to the grantee, and assigned to W. the chattels comprised in the • bill of sale to hold them for his own benefit as the grantee might have held them, subject to the proviso for redemption. Held, per Stawell, C. J. and Williams, J., that the legal effect of the deed was that by it the goods comprised in the bill of sale were bargained and sold to W. ; that the sale was absolute on default being made by the grantor of the bill ; and that after such default the grantee was liable to deliver actual possession of the chattels to W., under an implied contract, whether he had such possession himself or not. Pettitt v. Walker, 8 V.L.E. (L.,) 72 ; 3 A.L.T.,. 118. Hydraulic Press — Calculated to Stand a Pressure of 200 Tons.] — Defendant agreed to supply plaintiff with a hydraulic press "calculated to stand a pressure of 200. tons." Held that by this agreement no power of continual resistance to a pressure |of 200 tons was bargained for,, and ;that it was sufficient if the machine- resisted such a pressure when applied to it as a test. Nathan v. Tozer, 2 A.L.T., 34. Condition for Increase of Price on Alteration of Tariff Affecting Subject Matter.] — H. contracted with H.M. Government to supply meat at a certain price, with a proviso that should there be any alteration in the tariff " affecting meat," H. should be entitled to a proportionate increase in price. Held that a tax imposed upon live stock imported into Victoria might affect meat, and that it was a question for the jury. Judgment on demurrer for the petitioner. Sawn o. The Queen, 5 V.L.E. (L.,) 424; L A.L.T., 101. Agreement by Auctioneer to Purchase Land fox Customer.] — B. wrote to E. as follows: "Eef er- ring to our conversation of this morning,. I understood you to say that if you became the purchaser of the 50 acres at E., that I should have the re-sale in lots, that you should pay me 5 per cent, and disbursements in connection! with all sales, and I should keep your counsel, attend to sale, and endeavour to secure the property for you by bidding up to a certain price. If you did not succeed in getting the property I should make no charge for my services." E. replied: "In reply, I beg to say that I agree to the terms and conditions" in your letter. "I therefore authorise you to- purchase, on my account, at auction, the 50 acres of land situated at E., at a price not exceeding i860 per acre. I shall be in the room myself, and will bid personally should I so decide, if you are not the purchaser on my behalf at or under i860." B. attended at the sale, and bid for the land, but did not succeed in purchasing it at or under .£60 per acre; but E. attended the sale and purchased for himself at £87 10s. per acre. The question was whether B.'s right to have the conduct of the 193 CONTRACT OR AGREEMENT. 194 re-sale depended on his buying for the defen- dant at or under .£60 per acre, or -whether he was to have the re-sale if the defendant became the purchaser at any priee. Held that the latter interpretation was the correct one. Bliss v. Rowan, 4 A.L.T., 77. Sale of Racehorses — " Cleared Themselves."] — In a sale of racehorses the purchaser agreed to pay additional purchase money as soon as they "cleared themselves." Held, that "clearing themselves " meant clearing expenses of feed- ing, training, &c., as well as the original purchase money. Bartlett v. Pyers, 5 V.L.E. (L.,) 69. As to cases on Concluded and Certain Agree- ments see post under Specific Performance. As to cases on Construction of Contracts for Sale of Goods see post under Sale. As to cases on Contracts for Sale of Land see Vendor and Purchaser. (c) Statute op Frauds. (1) Contracts within the Statute. See. 17— Contract Resulting in the Sale of a Chattel.]' — L. sent the following order to H. : — "You will please supply the order my son will give you, and oblige — Tours, ' L.' " The par- ticulars of the apparatus had before this been given by L.'s manager, and H. had supplied a fist of prices. The work was proceeded with, and before it was executed L. countermanded the order by a memo in writing. H. sued L. by a plaint in the County Court claiming £14 as for work and labour done, and recovered a verdict. Held, on appeal, that it was a contract for the making of a chattel, which, when com- pleted, would result in the sale of a chattel of greater value than .£10, and was within Sec. 17; that the memo in writing was not sufficient ; that an action for work and labour done could not be maintained. Nonsuit entered. Lyons v. Hughes, 1 V.L.E. (L.,) 1. Interest in Land.] — A. verbally agreed with B., a selector under the "Land Act 1869," that A. should expend labour upon B.'s selection by felling timber and preparing the land for cultivation, in consideration of A.'s having the first crop raised from such land. A. cleared and sowed the land and reaped the crop, which he removed for safe custody to B.'s house, on another part of the land. B. then refused to allow him to remove it, and A. sued him in trover. Held, that B. had no defence either under the "Land Act 1869," or the "Statute of Frauds." Lorenn v. Heffernan, 3 V.L.E. (L.,) 129. Semhle, per Stawell, C.J. Such a contract is not a contract for an interest in land. Ibid. Interest in Land.] — A permission given by a landlord to a tenant to pull down two brick walls is not an interest in lands within Sec. 4 of the Statute; and unless the contrary is expressed, carries with it leave to dispose of the proceeds. Georgeson v. Geach, 3 VLB. o provide and ship cattle into the port of H., t necessarily incidental to the very object for which the corporation was established need not be appointed under seal. Kegina v. East Col- lingwood, 1 W. & W. (L.,) 1. Appointment and Removal of Officers — Wrongful Dismissal — Salary — Damages.] — Where a muni- cipal corporation had wrongfully dismissed its town clerk, to whom an ascertained balance of salary was owing, upon application by the clerk for a mandamus to compel payment of the salary due to him and damages, Held that as the sum payable for services between the last payment and dismissal could be calculated the rule for a mandamus should go for that amount ; but that, in the absence of any certainty or capability of certainty as to the sum claimed for damages, no mandamus to compel payment of it could be granted. Ibid. Appointment and Removal of Officers — Officer Removed Disputing Validity of New Appointment — What is the Proper Course.] — The town clerk of a borough was removed de facto from office. He disputed the validity of his successor's appointment, and sued the council for salary subsequent to such removal. Held that his remedy, if any, was not by proceeding for wages in a County Court, such Court not being competent to try the right to an office ; and that the proper course was to apply for a rule calling upon the corporation to show cause why a mandamus should not issue commanding them to reinstate him in his office. Smith v. Mayor, fyc, of Clunes, 5 W.W. & a'B. (L.,) 86. Appointment and Removal of Officers — Removal—' " Local Government Act 1874," Sees. 155, 157, 159, 160, 173.] — A special meeting under Sec. 160 of the " Local Government Act 1874," is not necessary to remove an officer of a municipal corporation. The council may remove an officer either by a special meeting, of which, and the business to be done thereat, due notice must be given under Sees. 157 and 159 of the Act, and may then proceed under Sec. 160; or it may give notice under Sec. 155 of extraordi- nary business to be transacted at an ordinary meeting, at which, under Sec. 173, the council can remove any of its officers. Ex parte Downey, 2 V.L.E. (L.,) 3. Resolution to Appoint Secretary Followed by Appointment— Council Cannot Rescind.] — A reso- lution of a Shire Council to appoint a person as secretary, followed up by an appointment, is incapable of rescission. Mandamus to compel the calling of a meeting of the council tc rescind a resolution under which a secretary had been appointed, refused. Ex parte Knight, Begina v. Howes, 5 A.J.E., 107. 215 CORPORATION. 216 As to Mandamus to Compel Payment of Officer's 3alary.] — See Regina v. Mayor of Footscray, and Regina v. Shire of Bulla, ex parte Daniel, under Mandamus. As to Payment of Audit Fees.] — See cases under Audit. [b) In Respect of Making and Managing Streets, Roads, Drains, Waterworks, Sfc. For Negligent Making and Management Generally.] — See post under Local Government. Liability for Construction of Drain — Act No. 176, 3ec. 237.] — C. sued the defendant Shire Council, for negligence in constructing a drain, whereby large quantities of sludge were distributed jver plaintiff's land in all directions, and not in a defined channel, and recovered a verdict. 2>n rule nisi for new trial, Held that the Shire Council was liable for the negligent construc- tion of the drain, and that there was a good cause it action, but as the evidence of engineers pointed to the fact that no such damage had been done as the verdict assumed, the Court Urected damages to be reduced, or, in default, •ule absolute. Cameron v. Shire of Mount Rouse, 5 A.J.E., 136. [Note.— Compare Sec. 384 of Act No. 506.] Covenant to Repair.] — A municipal corpora- aon, under the Act 18 Vic, No. 15, cannot sffectually covenant to repair drains made for ihe streets over the lands of strangers. Mayor if St. Kilda v. Stevens, 2 V.E. (E.,) 165 ; 2 &.. J.E , 102. * Constructing Reservoirs and Waterworks — "Hocal government Act 1874," Sec. 446.]— The power of i municipal council to construct reservoirs or waterworks under Sec. 446 of the "Local Govern- ment Act 1874," only arises after the consent jf the G-overnor-in-Council has been obtained x> such construction. Smith v. Shire of Lexton, 3 V.L.E. (L.,) 324. Semble, that a pitched crossing through a :reek in a highway, with the lower edge raised 30 as to dam back water on the road, would not fall within the term " reservoir" or " water- works." Ibid. Authorising Removal of Material from Crown iands — " Local Government Act 1874," Sec. 386.] —A municipal council is not enabled by Sec. S86 of the " Local Government Act 1874," to luthorise the removal of material from Crown .ands, whether within or without the munici- pality, such Crown lands not being specially set ipart for that purpose. Rotherly v. Patterson, LO V.L.E. (L ,) 213 ; 6 A.L.T., 92. As to Removal of Material for Road Making from Land Temporarily Reserved for a Purpose of Water Supply.] — See Mayor of Ballarat and Ballarat East v. Bungaree Road Board, under Local SrOVERNMENT. Under 24 Vic, No. 110— Taking Land for Streets. J —It is enacted by 24 Vic, No. 110, Sees. 6 and 7, that if at any time within three years from its passing a person should establish his title to the satisfaction of the council to debentures lodged for land taken for the improvement of the ward, the council should issue to him a certificate to that effect, and the treasurer of the City of Melbourne should pay out of the corporation funds the amount of the debenture ; and that after the expiration of the three years the balance of the money secured by the debentures should be paid to the Colonial Treasurer, who should be liable therefor for ten years subsequently. A plaintiff laid claim to a balance of money which had, under these sections, been paid over to the Colonial Trea- surer. Held that the liability of the council to issue the certificate did not cease when the money was paid over; that the three years must have expired before action could be taken against the council for withholding the certifi- cate ; and that to entitle a person to maintain such action at all he must have proved his title to the land taken within the three years, since the time, being fixed by an Act of Parlia- ment, could be waived by neither party, and evidence tendered to show that there had been such a waiver as to certain of the title deeds, and subsequent acceptance by the council of plaintiff's title, was held inadmissible. Hodg- son v. Mayor of Fitxroy, 1 V.E. (L.,) 218; 1 A.J.E., 167. In Respect of Dangerous Hole on Private Land — Act 359, Sec. 393.] — Sec 393 imposes upon a borough a new duty wholly different from what it had before at Common Law. It justifies a borough in going upon private pro- perty to make a street, &c, and so justifies what would otherwise be a trespass, but in such a case the borough is liable for injuries occasioned by leaving a dangerous hole on private property near a. street, it being its duty to fence and enclose such a hole. This case was decided upon demurrer to a decla- ration. Daly v. Mayor of Ballarat, 1 V.L.E. (L.,) 134. [Note.— Compare Sec. 388 of Act No. 506.] (2) Bye-Laws. Power to Make — Act No. 506, Sec. 213, Sub-see. 8.] — A shire has only power to make bye-laws suppressing what are already nuisances at common law, not to create or define nuisances under Act No. 506, Sec. 213, Sub-sec 8. Higgins v. Egleson, 3 V.L.E. (L.,) 196. , Building Regulations — "Bye-Law Incorporating Act," No. 359, Sen. 12, Part I., Sub-Div. 6, Clause 30.]— The notice required by Clause 30, Sub- Division 6, of Act No. 359, Sch. 12, Part I„ incorporated as a bye-law by a council is only required to be given where the house is within ten feet of the street. Mayor of Prahran i». Wild, 3 V.E. (L.,) 249; 3 A.J.E., 122. Ultra Vires.]— Under Sec 27 of the Act 18 Vic, No. 15, municipal corporations established under that Act were given the care and ma- nagement of the roads, public streets, paths, 217 CORPORATION. 218 ■wharves, jetties, piers, and public thorough- fares, and were given power to make such bye- laws for carrying out these objects, &c, as might to them seem fit. A municipal corpo- ration passed a bye-law "for compelling the fencing of certain lands abutting upon the public footpaths," and took proceedings to con- vict an owner of property for non-compliance with it. Held ultra vires, and the execution of the conviction prohibited. In re Municipal Council of Kyneton, 1 W. & W. (L.,) 11. Ultra Vires — Keeping Swine — "Municipal Act," 18 Vic, No. 16, Sec. 26.] — A municipal bye-law which totally prohibits the keeping of swine within the boundaries of the municipality is ultra vires of the " Municipal Act," 18 Tic, No. 15, Sec. 26. Regimav. Cowie, ex parte Ardill, 6 V.L.E. (L.,) 20; 1 A.L.T. 136. Act No. 506, Sec. 218 — Keeping Swine — Powers of Corporation to Exclude the Whole Municipality.] — By Sec. 213 of Act No. 506, the Town Council of Emerald TTill had power to make regulations setting forth the limits of the portions of the municipality within which it should not be lawful to keep swine, and passed a regulation comprising the whole of the town. Held that there was no excess of authority in including the whole municipality in one regulation. Same case, 7 V.L.E. (L.,) 88; 2 A.L.T., 122. TJltia Vires — "Local Government Act 1874," Sec, 239.] — A municipal bye-law prohibiting the driving of cattle at certain hours through the streets, and imposing a fine of so much per head for every head of cattle so driven is ultra vires, since in such case the aggregate penalty may exceed the limit of penalty, i.e., .£20, fixed by Sec. 239 of the " Local Government Act 1874." Begina. v. Shuter, ex parte Wren, 8 V.L.E. (L.,) 138. ' " Licensed Carriages Statute 1864," No. 217 — Power to Enforce Bye-Laws — Hackney Carriage — "Eailway Yard."]— The Act No. 217 does not give a corporation the right to enforce their bye-laws within the boundaries of a railway fence; the land within that fence is private property as far as the corporation is concerned. Bule absolute for order prohibiting proceedings by corporation to enforce a conviction of a driver of a hackney carriage for standing for hire in a railway yard of a Government railway at Geelong. Begina v. Johnstone, ex parte Breen, 4 W. W. & a'B. (L.,) 246. Validity — Processions — " Local Government Act 1874," Sec. 213, Sub-sec. 17.] — A bye-law which enacts that no procession of persons or of vehicles, or both, for other than funeral purposes, shall parade or pass through any of the streets of a city, unless with the previous consent in wri- ting of the mayor, or in his absence of the town clerk, and that twenty-four hours' notice shall be given to the police is not unreasonable, and is within the powers given to a municipal corporation by Sec. 213, Sub-sec. 17 of the "Local Government Act 1874," for regulating traffic and processions. Bidet v. Phillips, 10 V.L.E. (L.,)147; 6A.L.T., 37. S.P. See Bannon v. Barker, 10 V.L.E. (L.,) 200, where it was Held that an exactly similar regulation is within Sec. 2 of the "Police Offences Statute Amending Act," No. 630, which confers powers upon local authorities to make- regulations for the route to be observed in car- riage and footways, and preventing obstruction thereof. Validity — Impeaching — Power of Justices — " Local Government Act 1874," Sees. 225, 246.] — Per Higinbotham, J. Sec. 225 of the " Local- Government Act 1874," takes away from justices who have to enforce any bye-law made under that Act any jurisdiction to entertain objections to the validity of such bye-law. If it is desired to impeach its validity it must b& done in the manner prescribed by Sec. 246 of the Act. Bider v. Phillips, 10 V.L.E. (L.,) 147; 6 A.L.T., 37. Validity — Impeaching.] — The liability of a power to abuse cannot be considered as an argument against such power having been created. Ibid, p. 152. (3) Application of Funds. Expenditure — Contracts.] — Where a municipal corporation enters into a prospective contract involving a large outlay, not only in the current but in future years, the liability should be pro- vided for by the levying a special rate, or the outlay in each year should not go beyond the income of that year. Where the council of a borough entered into a contract by which it appeared that they would incur prospective liabilities beyond the current year, (and that not by means of a special rate,) or run them- selves into debt as for the current year, on information by the Attorney-General, at the relation of a ratepayer seeking to restrain them from entering into the contract, Held that an injunction would be granted in such a case. Quaere, how far an estimate prepared under Act No. 184, Sec. 186, binds a borough council. Attorney-General v. Mayor of St. Kilda, 6 W.W. & a'B. (E.,) 141. Expenditure in Excess of Assets.] — The council of a shire placed upon the estimate of expen- diture, under Act No. 358, Sec. 204, an item of .£1100 for a bridge and shire hall. The actual revenue proved much less than that estimated ; and the shire being actually in debt for liabili- ties already incurred, the council by a majority of one entered into a contract for erecting a shire hall at a cost of .£628. Upon motion for an injunction upon an information at the rela- tion of a ratepayer, with the consent of the dissentient minority of the council, to restrain the council from expending any of the shire funds in the erection of the hall, Held that the dissentient minority had no right to assume a discriminating discretion as to which particular expenditure should be stopped ; and that the contract having been entered into, the Court would not subject the shire to liability for damages by stopping its execution. Attorney- General v. Mayor, tyc, of St. Kilda, distin- guished. Attorney-General v. Shire of Darelin, 2 V.E. (E.,) 88 ; 2 A. J.E., 42. 219 CORPORATION. 220 " Local Government Act 1874," Sees. 161, 260— Shire Council — Expenditure — Estimate — Council Meeting — Quorum — Resolution — Interpretation of Statutes.] — Under Act No. 506, corporations are tiound before incurring any considerable expense to call public attention to it by having a scheme of expenditure prepared in accord- ance with the Act. Bill and information by Attorney-General at relation of M. against the defendant corporation. Motion for in- junction to restrain defendants from enter- ing into any contract for the purpose of or expending any municipal funds in the erection of a shire hall. In an appropriation of ways and means of March 6, 1875, the first item was " Formation of streets, kerbing and channel- ling, making footpaths, and other public ■works, £2040." Held, an item of this kind, as to concluding words, implies only purposes ■ejusdem generis, and does not mean erection of a shire hall at ,£2200 ; that a resolution to do an entire thing does not warrant doing a part •only of a thing. Quwre, whether at a meeting ■of a shire council, at which a full quorum is present, if one-half withdraw, and the members left, though not a quorum, pass a resolution in accordance with a clause in the bye-laws in the schedule to the Act, the dissentients have power to withdraw and neutralise the powers of the •council. Attorney-General v. Shire of Kyneton, 1 V.L.E. (E.,) 269. Information to Restrain Unlawful Expenditure.] — A shire being desirous of erecting a bridge •over a river, which formed its boundary with another shire, and failing to agree, under Sec. 393 of the " Local Government Act," No. 506, or to have the matter settled by general sessions under Sec. 394 of that Act, proceeded without obtaining the sanction of the Governor- in-Council, under Sec. 391, to erect the bridge at its own expense. A contract was entered into, and the erection of the bridge com- menced simultaneously on both banks, the other shire making no objection. The Attorney-General, at the relation of a rate- payer of the shire, brought an information to restrain the expenditure of any of the muni- cipal funds upon any work outside the municipal limits. Injunction granted. Attor- ney-General v. Shire of Echuca, 4 V.L.E. (E.,) 4. 4. Bates. Valuations — "Local Government Act 1871," Sees' 264-369.]— The "Local Government Act 1874" shows a distinct general intent that all rates shall be based on valuations made by valuers under declaration, which valuations are to be binding unless appealed from by any person aggrieved by their being too high or too low ; and municipal corporations have no power, inder Sec. 264 of the Act, to make any altera- tion in such valuations. The only redress of a person aggrieved by the lowering of the rate of the lands of others is to appeal within a month, and the language of the Act makes it doubtful if appeal lies by any one except a person improperly put upon the roll. Attor- ney-General v. Shire of Hampden, 2 V.L.E. (E.,) 138. Alteration of Bates by Council.]— Even had a council the power (under Sec. 264) of redres- sing individual grievances it would not extend to the grievance of a class. The singular number may embrace a number of individuals, but not an entire class of individuals. Ibid. Power of Council to Grant Belief for Overpay- ment.] — Where a rate assessed has not been appealed from, and has been paid, the matter is concluded as between the ratepayer, the council, and the other ratepayers ; and it is not in the power of the council to relieve from what it regards as the hardship of an overpayment, hy applying the corporate funds to repayment. Ibid. Corporation Suing for Bates — Act No. 506, Sees. 13, 285.] — A council is empowered by Sec. 285 to sue for rates, and an objection that the cor- poration sued as the " Council of the Munici- pality of E." instead of under the corporate style given by Sec. 12 as "The Mayor, &c, of the Borough of E." Overruled. Hearn v. Council of the Borough of Essendon, 5 V.L.K. (L.,) 142; 1 A.L.T., 4. Invalid Bate — Ratepayer not Faying is Entitled to be on Burgess List — Duty of Town Clerk.] — A rate was not signed by the members of a muni- cipal council in due time as required by the "Municipal and Local Corporations Act," 27 Vic, No. 184, and a ratepayer making default as regards that rate was not placed upon the burgess list for that year. He thereupon laid an information against the town clerk for his omission to observe the requirements of See. 50 of the " Boroughs Statute," No. 359. Held that the rate being an invalid one, and the plaintiff having paid the last legally-made rate, he was entitled to be placed upon the burgess list for the year, and that the town clerk should be fined under Sec. 72 of the Act No. 359, for the omission so to place the plain- tiff on the list, it being his duty to see that the rate was in accordance with the Act under which it was made. Lennon v. Evans, 1 V. K. (L.,) 133 ; 1 A.J.E., 123. [Note. — The corresponding Sees, of Act No. 506 are Sees. 77 and 100.] And see generally under Kates and Eating. II. Election op Membebs. (1) Voters. "Electoral Act," No. 279, :Sec. 67— Notice of Intention to Apply to Become a Voter — No Summons to Show Cause.] — H. sent a notice to the town clerk (P.) of his intention to apply to have his name put on the roll of electors for Melbourne,, but did not require the town clerk to appear to show cause. E. did not appear, and an order was made that a certificate be forwarded to the returning officer. Held, on rule nisi for prohi- bition, that the order should have been preceded by a summons to show cause, and that the notice should have stated that H.'s name was erroneously omitted, or that H. was upon the roll between August 1st and 12th of the previous year, or that he was a ratepayer. Eule abso- lute. Regina v. Sturt, ex parte Fitzgibbon, 5 A.J.E., 71. 221 CORPORATION. 222 (2) Nomination and Election. "Shires Statute," No. 358, Sees. 97, 373— Last Day for Nomination of Candidates.]— Three councillors were to be elected for a certain shire. The returning officer on March 10th gave notice that candidates were to be nomi- nated not less that four days from notice, and not more than seven, and appointed Monday, the 16th, as the day of nomination. On Satur- day, the 14th, K's. nomination was duly made, and so were two other nominations, and on Monday the returning officer accepted two other nominations. Held that these nomina- tions were too late; that Sec. 373 only applied to a case where an act was required to be done on a specified day, and that day was a Sunday, but not to a case like the present where two or three days were specified for nomination. Eule absolute for a mandamus to compel returning officer to declare K. elected under Sec. 101 of the Act. Regina v. Hennessey, ex 'parte Knight, | 5A.J.E.35. [Note. — Sec. 116 of Act No. 506 corresponds with Sec. 97 of Act No. 358.] Nomination Paper — Signature — Act No. 176, See. 84.] — The nomination of G-. was signed by ten ratepayers. Below the names were the iwords, "And I, the abovenamed James G., hereby consent to Buch nomination," in G.'s own hand writing. Held that the words Jas. G. must be taken as being intended for a signature. Eule absolute to oust from office the other candidate, such nomination paper having been treated by the returning officer as invalid. Regina v. Oddie, 6 W.W. & a'B. (L.,) 231 ; N.C., 21. [Note. — Sec. 116 of Act No. 506 corresponds with Sec. 84 of Act No. 176.] S.P., See re Cordell, ex parte Walsh, 6 A.L.T., 47. Nomination Paper — Validity.] — The fact that the nomination paper of a candidate as member of a road board for a sub-division of a district, nominates him for the office of member for the district, does not render such nomination paper invalid, as being contrary to the provisions of of No. 176, Sec. 84. Regina v. Munday, ex parte Daft, 5 W.W. & A'B. (L.,) 143. [Compare Sec. 106 of Act No. 506.] Invalid Nomination Paper — Waiver of Objection — ■" Shires Statute 1869," Sees. 97, 98.]— The nomi- nation of a candidate for office as a shire councillor, if not delivered to the returning officer, at the office of the council, is invalid "under Sees. 97 and 98 of the "Shires Statute, 1869," and the objection to such nomination is not waived by the relator proceeding in the election, after protest. Regina v. O'Dwyer, ex parte Wilson, 4 A.J.E., 151. [Note. — The corresponding Sees, of Act No. 506 are Sees. 116 and 136.] Compelling Returning Officer to Seceive Nomina- tionlPaper — What Course is Proper.] —A mandamus will not be issued to compel a returning officer to receive the nomination paper of a candidate for election as a member of a road board which he had rejected and to hold an election on it. The proper course is by quo warranto. Ex parte Attenborough, in re Bent, 5 W.W. & a'B. (L.,) 103. Duty of Returning Officer.] — Semble, per Stawell, J., that the returning officer of ■ a district is not to take upon him to decide technical points of law as to the validity of a nomination paper of a candidate for member- ship of the district board, or to reject such paper for want of form ; and that, if it do not afford him sufficient information he should return it to the nominators to supply any omission there may be. Regina v. Munday, ex parte Daft, 5 W.W. & a'B. (L.,) 143. Rejection of Nomination Paper — Waiver of Objec- tion—Act No. 506, Sec. 116.] — At an election for a borough council, a returning officer rejected a nomination paper as not being signed by the candidate. The candidate voted at the election, Eule nisi to oust the elected councillor from office made absolute. Semble the directions of Sec. 116 as to publication of the time and place for lodging nomination papers are man- datory. Regina v. Jones, ex parte Darcy, 5 V.L.E. (L.,) 334 5 1 A.L.T., 50. Election — Two Persons of the Same Name on the Roll.] — There were two M. E.'s on the voter's roll, one of them (No. 162) did vote, the other (No. 170) did not vote at an election in which D. was elected by a majority of one. There was conflicting evidence as to whether two votes at the election were not given under the name of M. E. Held that if two persons did vote under the name of M. E. the election was invalid, but the Court gave the defendant D. the option of choosing the issue of an information in the nature of a quo warranto to have the point of fact tried by a jury, or of having the rule for ouster made absolute. Regina v. Duffus 4 W. W. & a'B. (L.,) 251. Irregularity in Election — Foiling Booth Not Kept Open the Whole Time of Election — "Local Govern- ment Act 1874," Sec. 122.] — At an election for a municipal councillor the polling booth was not kept open between the hours of 9 a.m. and 4 p.m. on the polling day, as required by Sec. 122 of the " Local Government Act 1874," but was closed half-an-hour to allow the scrutineers to get some luncheon. It was not shown that any voter was prevented altogether from voting, or did not vote by reason of not being able to v ote during the half -hour. Held on application for a rule nisi to oust, that a rule should not be granted unless it were shown that some person was injured through the irregularity ; and that the mere existence of an inconvenience of this kind, which was not shown to have deprived any voter of his vote, was insufficient; and rule refused. In re Smith, ex parte Topper, 8 V.L.E. (L.,)223; U.L.T., 58. 223 CORPORATION. 224 Person Elected in Place of Councillor Illegally Bemaining in Office — Election Invalid.] — Where a councillor illegally remains in office his retire- ment creates no vacancy, and if a candidate be elected to fill the supposed vacancy made by his retirement his election is invalid, and the matter is not mended by the invitation of the returning officer for candidates to come forward and fill the vacancy. Begina v. Percy, ex parte Watson, 2 A. J.E., 122. Councillor Disqualified Kesigning— Extraordinary Election to Fill the Supposed Vacancy — Election Void.] — Begima v. Dreverman, ex parte Watson, post colwm/n, . Election — When Void — "Boroughs Statute" No. 359, Sec. 44— Councillor in Excess for a Ward— Person Elected on His Eesignation.] — The Borough of Hotham was divided into three wards, and on the councillors being allotted to the wards, pursuant to Sec. 32 of the Act, six claimed to be councillors for the Middle "Ward; of these three, M., F. and P. should have been the three councillors. D. claimed to be a councillor, but on an application being made to oust him, he resigned before the case was argued, and the defendant was elected in his place, and about the same time one of the three, M., F. and P., resigned or was got rid of. On information in the nature of a quo warranto, Held that D. had no right to his seat when he was elected, and had nothing to resign, and that the defendant elected in his place was in no better position, even if all the three, M., P. and F., had resigned. Regina v. Percy, 3 A.J.E., 29. [The corresponding Section of Act No. 506 is Sec. 59.] Improper Election.] — Where the returning officer tore up three ballot papers on the ground that they were informal, and Gr., the candidate for whom they voted, was defeated by three votes, and moved to oust W., the successful candidate, from office on the ground that the three votes ought to be added to the votes scoredby G-., and that one of W.'s votes was informal because the one of those who had • Toted for him, and whose number was 53 on the roll, had voted as No. 47, the real owner of that number not having voted, Held that the three voters having sworn that they voted for G., and no affidavit to the contrary having been produced from the returning officer, their votes must be added to G-.'sj and that the number on the roll being as much a part of the descrip- tion as the name, the vote which had been given' under the wrong number for W. must be deducted from W.'s votes, and rule to oust W. made absolute. Begma v. Wilson, 1 A.J.E., 150. Informal Election— Act No. 358, Sec. 97.]— On a rule to oust a councillor from office it appeared that the advertisement for the election was inserted only in an advertising supplement of a newspaper circulating in the district; and that the returning officer did not receive the nomination paper and the deposit till the morn- ing of the nomination day, instead of the after- noon preceding. Held that the first objection was immaterial, but that the second was fatal; and rule to oust made absolute. Begima r. Miller, ex parte Nash, 1 A.J.B., 156. [Note. — The corresponding Section of Act No. 506 ia Sec. 116.] Election of Mayor — Casting Vote of Chairman — Costs.] — Where a chairman gave his casting vote at an election for mayor in a case of equal voting, instead of drawing lots as required by Sec. 128 of the Act No. 184, Held that election was invalid, and that the relator was entitled to his costs. Begma v. Bichard, ex parte Froggatt, N.C., 63. Election of President— When Office Full de facto — Practice.] — A shire was divided into three ridings ; at the time of the division there were nine councillors, five qualified for one riding, four for a second, and none for the third. Two out of the five and one out of the four ceased to be members, and three new councillors were elected for the third riding. At a shire meeting attended by six councillors (five forming a quorum) of which two were surplus councillors, W. was elected president. An Order in Council, subsequently gazetted, directed the three sur- plus councillors to retire. At another meeting of the shire, six being present, of whom S., a surplus councillor, was one, B. was elected president. Upon an order to oust E., Held that the office at the time of E.'s election was not full de facto as there was nothing to show that W. had acted as president, and that the- second election was not irregular. Enle dis- charged. Begina v. Bobinson, ex parte Torrance, 1 V.L.E. (L.,) 50. (3) Ballot and Voting Papers. Validity of Ballot Papers — Act No. 176, Sec. 147.] — Three ballot papers delivered to voters were not signed by the returning officer. Bute- nisi to oust from office, under Sec. 147 of Act No. 176, or for a quo warranto. Held that the signature on the ballot papers was not so- essential under the Act that its absence- rendered the election invalid. Eule refused- In re Lloyd, ex parte Leaker, 4 W. W. & a'B. (L.,) 226. Act No. 359, Sec. 91.] — One voting paper had. the names of three out of four candidatss struck out, and the Christian name of the fourth only, the surname being followed by the words, " I vote for Hutton only." It ap- peared too that the paper was that of O'S., and. that the words were written by F. on behalf of O'S., who was illiterate. 12 eM that the ballot paper was good, and the election valid. In re Hutton, ex parte Haynes, 5 A.J.E., 135. [Note. — The corresponding Section of Act No. 506 is Sec. 129.] Ballot Papers Handed to Voters Before 9 a.m. — " Shires Statute 1869," Sec. 104.]— A rule to oust a shire councillor on the ground that the ballot papers had been handed to some of the voters shortly after 8 o'clock, instead of at 9 o'clock, as required by Sec. 104 ofthe " Shires Statute ■225 CORPORATION. 226 1869," was refused, as there was a statement in the returning officer's affidavit that he held the poll from 9 to 4 o'clock, and it did not expressly appear that the voters who obtained the ballot papers voted before 9 o'clock. Regina, v. Boss, ex parte Bettigan,& A.J.R., 166. [Note. — Sec. 122 is the corresponding Sec- tion of Act No. 506.] Names of Candidates Not put in Alphabetical Order in Ballot Paper — Act No. 506, Sec. 122.]— Ouster -of a councillor was granted on the ground that the names of the councillors were not printed in alphabetical order as required by Sec. 122 of the " Local Government Act," No. 506. Begma v. Pooley, ex parte Scarlett, 6 A.L.T., 160. C4) Disqualification, Removal and Retirement from Office of Persons Elected. Test of Qualification as Regards Property.] — The "best test as to the property qualification of a borough councillor is the rate book. Other tests are to take the testimony of witnesses for the relator; to take the testimony of witnesses for the councillor, and,again to take the average • of the value of the property sworn to by witnesses for both. Where the rate collector, on his own authority, reduced the rates in respect of a pro- perty on account of certain buildings having been removed, and returned a portion of the rate paid in consequence, Seld that the coun- cillor having paid him the full rates was ■entitled to the benefit of such payment ; and that the Court was inclined to deal liberally with a person supporting a bona fide claim. Regina v. Power, esc parte Irons, 2 A.J. R., 107. Payment of Rates — "Boroughs Statute," No. 359, Sec. 46 — Bepeal of Previous Statute.] — An action was brought against M. to recover a penalty for sitting as a councillor without possessing the due qualification. The action was brought under Sec. 46 of the " Boroughs Statute 1869," No. 359, which provided that " no person shall be entitled to be enrolled in any year in respect of any rateable property unless before or on the 10th day of June aforesaid all such rates as shall under the provisions hereof have been made in respect of such property shall have been paid." The rates that had not been paid by M. had been made under a previous Act which the Act of 1869 had repealed. Held that there was no offence committed against the Act No. 359, and that M. was not disqualified from sitting, and rule to enter a verdict for plaintiff discharged. Scotchmer v. Michael, 2 A.J.E., 118. Act No. 358, Sees. 43, 57, 157— Part of Quali- fication Parted With.] — P. was on June 20th rated at an amount allowing a clear surplus of .£5 over the necessary amount of qualification, viz., £20. Afterwards he let part of this property (rated at ,£16) to a bank which erected a building on it, and in respect of which the bank was rated at £10. Seld that the reduction to be made was the value of the land when so let, which would have allowed a suffi- cient margin for the necessary qualification, and not at its present improved value owing to the erection. Rule for ouster of P. from office discharged. Regina v. Perrin, ex parte M'Intyre, 5 A.J.R., 138. [Note. — See. 52 of Act No. 506 corresponds with Sec. 43 of Act No. 358.] Uncertificated Insolvent — "Municipal Corporations Act 1863," Sec. 33.]— K. was insolvent in 1855 and his certificate suspended for twelve months, and he took no steps to obtain his certificate. In 1859 he became insolvent again and obtained his certificate as for that insolvency. In 1862, being again insolvent, his certificate was sus- pended for six weeks and granted at the end of that time. On the 14th of May he was elected a councillor of a borough, and on the 31st of May, 1866, he obtained his certificate as to his first insolvency in 1855. Seld that K. was an uncertificated insolvent within the meaning of the " Municipal Corporations Act 1863," No. 184, Sec. 33, at the time of his election, and was, therefore, incapable of being elected a councillor. Regina v. Enipe, 3 W. W. & a'B. (L.,) 46. [Note. — The corresponding Section of Act No. 506 is See. 53.] 37 Vic, No. 184, Sec. 34^-Member Printing for Council.] — A member of a municipal council, a printer, who executed the printing required by the council, was held disqualified as a councillor, although his printing office was the only one within twenty-five miles round, and the work was done bond, fide at the usual rates ; and an order nisi to oust him was made absolute, with costs. Regina v. Haverfield, 5 W. W. & A'B. (L.,) 228. [Note. — The corresponding Section of Act No. 506 is Sec. 54.] Not Being on the Burgess Roll — No. 184, Sec. 32.] — In January, 1868, T. was elected a borough councillor. He had not paid his rates by the 30th of June previous, and was, therefore, not placed on the roll ; but on the 28th of June he paid his rates. Seld, on rule nisi for quo war- ranto, that under Sec. 32 of No. 184, a coun- cillor must be entitled to be placed on the burgess roll for the time being in force before he is qualified for election ; and that as T. was not so entitled, not having paid his rates, the rule must be made absolute. Begina v. Thompson, 5 W. W. & a'B. (L.,) 34. Qualification for being a Member of a Road Board — Act No. 176, Sec. 33.] — In re Cope, ex parte Egan, post under Local Government. Payment of Deposit by Dishonoured Cheque — " Boroughs Statute," Sec. 80.] — "Where a councillor had paid the deposit of £10 required from a candidate by Sec. 80 of the " Boroughs Statute," No. 359, by a cheque which was dishonoured, the Court made absolute a rule to oust him from office. Begma v. Weickhardjt^l A. J.R., 78. [Note. — The corresponding Section of Act No. 506 is Sec. 117.] 227 CORPORATION. 22» Act No. 506, Sees. 54, 71 — Candidate Interested in a Contract with a Municipality.] — D. at the time of his nomination entered into a contract with a shire council to lease certain land from them for seven years and subject to certain covenants in the lease. D. was elected hut did not take his seat. Afterwards D. endeavoured "by a letter to resign, and his resignation being accepted, an extraordinary election was held to fill the supposed extraordinary vacancy at which D. was again elected. On a rule to oust from office, Held that D. was interested within the meaning of Sec. 54 of Act No. 506, and did not become a councillor either de jure or de facto at the first election, and that as he had nothing to resign there was no extraordinary vacancy, and 'that, therefore, the second election was void. Eule absolute. Regina v. Drevermann, ex parte Watson, 6 A.L.T., 141. Eule to Oust, Who May Obtain — Relator Who Has Voted.] — A person who has voted for a can- didate whom he knows to be disqualified, cannot afterwards proceed to set aside the election. "When, however, such person, although he has voted at the election, did not acquiesce in con- sidering the candidate's qualification sufficient, he may {proceed to set aside the election. Begina v. Eddy, ex parte Forbes, 2 A.J.E., 83. Eule to Oust— Heading.] — "In the Supreme •Court " is a sufficient heading in a rule to oust a councillor. Begina v. Joseph, ex parte Oliver, ■6 A.L.T., 85. Councillor declared Elected not Taking Seat Eule to Oust — " Local Government Act 1874," Sec. 71— Mandamus.]— An application under Sec. 71 of the "Local Government Act 1874," is not the proper proceeding to annul an election where a councillor declared duly elected has not taken his seat or done any act which would have the effect of filling the seat. The proper proceeding is by way of mandamus to compel the council to hold an election. Be Cordell, ex parte Walsh, 6 A.L.T., 47. Eule to Oust— Quo Warranto.]— A councillor was elected to fill a vacancy, there being two vacancies, but he was not elected specifically for either vacancy. One of the councillors in whose place the new ones were elected should have retired within twelve months of the election and it was sought to obtain a rule to oust one of the new ones eighteen months after the .election. Held that the rule to oust could not be granted, having been made more than six months from the time of the election, and that the proper course was by quo warranto ; and a rule tor quo warranto granted on payment of costs. Begina v. Donaldson, 1 A. J.B., 162. Practice— Eule to Oust— Grounds.]— It is not enough for a rule nisi to oust a councillor to state that he was unduly elected, but such rule must state fully the grounds of disqualifi- cation, and leave to amend such a rule was refused. Begina v. McDougall, ex parte Dinqs- dale, 4 A. J.E., 153. Practice.]— Where answering affidavits state facts which raise a suspicion that a relator, in an application to oust from office, is put forward by a disappointed candidate, who has disquali- fied himself by waiver and acquiescence from raising the objection, the Court before granting' a rule absolute for ouster, requires an affidavit that there was no collusion between such person and the relator. Begina v. Jones, ex parte Darcy, 5 V.L E. (L.,) 334 ; 1 A.L.T., 50. Amendment of Eule and Affidavits — Costs.] — When a rule nisi to oust a member of a " district" board, and the affidavits in support of the application called the board a "road" board, the error was allowed to be amended at the hearing of the argument, but costs were- given against the parties amending. Begina v. Munday, ex parte Daft, 5 "W. "W. & a'B. (L.,) 143. Eule to Oust — Improperly Elected Municipal Councillor Eemsing to Eesign — Costs.] — "Where an improperly elected councillor had not acted or taken his seat, but had refused to resign, Held that he should pay the costs of a rule to oust him, which was made absolute. Begina u- Wilson, 1 A.J.E., 150. Eule to Oust — Besignation — Costs.] — A borough councillor, who has been elected without any qualification, cannot, by resigning after a rule to oust has been obtained, relieve himself from the costs of making the rule absolute. Begina v. Peck, 4 A.J.E., 117. "Melbourne Corporation Act," Sec. 35 — 6 Vic, No. 7, Sec. 49 — Mayor-Elect— Eetiring Councillor.] — A councillor whose turn it was to go out of office on November 1st, was, on October 9th, chosen to be mayor-elect. He did not take advantage of the enlarged term of tenure given by Sec. 35 of the "Melbourne Corporation Act," No. 178, but retired, and was elected, notwithstanding the protest of the other can- didate that by virtue of Sec. 35 of No. 178, he was already a councillor. Held that the office of " mayor-elect " was not an office within the meaning of Sec. 49 of 6 Vic, No. 7, so as ' to disqualify him from being elected to fill the vacancy caused by his retirement ; that though he became a supernumerary councillor ex officio, he still had to go out by rotation, as elected councillor, and that the turn to go out does not then fall upon the councillor whose turn it would be to go out after him. Bx parte Bent, 2 V.L.E. (L.,) 246. (5) Bribery. Penalties For— 24 Vic, No. 114.]— C. and M. were proprietors and publishers of a paper circulating in a district of which C. was elected a member of the municipal council. Before and after the election the council sent adver- tisements to the paper and subscribed to it. Shortly before the election, while negotiations were pending between C, M. and oneM'L. to let their office to jVFL. as a job printing office, the council accepted M'L.'s tender to print an electoral roll without C.'s or M.'s knowledge, and just before the election W~L. took the office and printed the roll, but C. and M. derived no benefit nor ratified the contract, and made 229 CORPORATION. 230 no entry of it. C. was elected a member. Held that C. had incurred no penalties under the Act, since the purchase of the paper and sending advertisements by the Council were not within the meaning of the Act, and the Council's contract was not executed by C. O'Dwyer v. Casey, 2 W. & W. (L.,) 85. (b) Corporations other than Municipal. " Quorum."] — A " quorum" of a body means those present, when all should and might be present ; not a casual meeting of the required number of the body. Brougham v. Melbourne Banking Corporation, 6 V.L.E. (E.,) 214, 222 ; 2 A.L.T., 81. Power to Acquire Property in Violation of Charter.]— Semble, a corporation may have a good title to property acquired in violation of its charter. London Chartered Bank v. Hayes, 2 V.B. (E.,) 104 j 2 A.J.E., 60. (c) Liability op Corporations on Contracts and Otherwise. (1) Contracts and Resolutions. (a) Generally. Act No. 506, Sees. 169, 173— Position of Person Contracting — Formality of Meeting.] — The outside public are not required in contracting with a shire council to ascertain that all the internal formalities have been complied -with, but they are bound to know the extent of the powers conferred by the Act of incorporation, and to see that the formalities essential to the constitution of the contract itself are complied with — e.g., that the seal is attached and duly attested. Where, there- fore, a contractor was called before a meet- ing of councillors sufficient to form a quorum, and purporting to act as a duly constituted meeting, and was told that his tender was accepted, Held that he waB at liberty to assume that every form necessary to constitute a meet- ing had been observed. Shire of Gisborne v. Murphy, 1 ! V.L.E. (L.,) 63; 2 A.L.T., 118. Contract Not Under Seal — Fraud.] — Courts of Equity do not allow corporations to use their incompetency to act without seal, to obtain the advantages of incomplete bargains, and then repudiate them in a manner which would operate as fraud. Connolly v. Shire of Beech- worth, 2 V.L.E. (E.,) 1 ; for facts see S.C. post under Specific Performance; and see S.P. Trainor v. Cowticil of Kilmore, post column 230. (6) When Sealing Necessary. Contract for Erecting a Dam — Municipal Cor- poration.] — In contracts with corporations, other than joint stock companies, all the for- malities required in their execution should be observed. The affixing the seal of the corpo- ration affords all members a, protection on which they rely against the assent of the whole body being improperly pledged, and an objec- tion to a contract on the ground of the seal not being affixed should be held valid if urged. In an action against a corporation for the erec- tion of a large dam, a verdict was given for plaintiff, and a rule nisi for nonsuit was obtained on the ground inter alia that the con- tract was not sealed. Held, that since the contract sued on was dependent wholly on the instrument, and it was not for any matter essential to the corporation or for carrying on its business, and for work executory and not executed, it should have been under seal. Bule made absolute. Barker v. Municipal Council of Clunes, 2 W. & W. (L.,) 315. Attorney's Bill of Costs— Eetainer Not Under Seal.] — Where a solicitor's retainer was not under seal but the solicitor was appointed by a resolution of a council, Held that a retainer under seal was essential to enable plaintiff to recover on his bill of costs. Shire of Colac v. Butler, 5 V.L.E. (L.,)137; 1 A.L.T., 3. Where a seal of a company is attached to the document appointing a solicitor, the Court will presume it was duly attached. Jones v. Star Freehold Company, ante column 160. "Mining Company's Act," No. 409, Sec. 48.] — A bill of sale given by a mining company was sealed with the company's seal, but was not so sealed in the presence of two directors as required by the rules of the company; these rules, however, did not require attestation by the directors. Held that, under Sec. 48 of the Act No. 409. the bill of sale was binding on the company. Newey v. Rutherford, 3 V.L.E. (L.,) 340. (c) When Sealing Unnecessary. Contract Acted on — Consideration Executed.] — When the consideration for a release by an official assignee of an insolvent's equity of redemption to a corporation (mortgagee) is an agreement not under seal by the corporation to abstain from proving any portion of its debt, and such agreement has been acted on by accepting the release, Held by Privy Council, reversing Molesworth, J. (3 V.L.E., E., 190,) that the corporation is bound thereby, and that the consideration has not failed. Melbourne Banking Corporation v. Brougham, L.E., 4 App. Cas., 156. Corporation Taking Benefit Under Agreement not Under Seal — Not Allowed to Repudiate it.] — Where a corporation kept possession of certain land, the subject of an agreement for sale, even although such agreement was not under seal, the Full Court Held, apart from the ground of part performance (on which ground Chapman, J., had held they were liable,) that the corpora- tion were liable for the purchase money, as it must be presumed they took the land under the agreement, and that, therefore, it was only just that they should pay for it. Trainor v. Council of Kilmore, 1 W. & W. (E.,) 293, 301, 303, 306. Executed Contract — Liability for Nuisance Com- mitted Under.] — A borough council entered into an agreement with B. that he should receive nightsoil from the nightmen and dispose of it in a certain reserve. The corporation super- vised the disposal of the nightsoil in the garden, and subsequently returned to B. a. deposit which had been required from him as security for the due performance of it. The '231 CORPORATION. 232 contract, though signed by B., was not sealed by the council. A nuisance was committed by -the improper disposal of the nightsoil, and plaintiff sued the council for injury caused to him by such nuisance. Held that the council having ordered the work to be done, super- vised, its execution, exercised control over it, ' accepted the work when done, and returned the deposit to the contractor, could not be per- mitted to say that there was no contract ; and that they were liable. Weir v. Mayor, fyc, of East Collingwood, 2 V.E. (L.,) 32; 2 A.J.B., 39. The Court presumes that, when a professional .gentleman says he appears on behalf of a Corporation, he is properly authorised. Bule for a prohibition applied for, on the ground that the attorney by whom a company was represented in the Police Court did not prove any retainer under seal — refused. Begima v. Call, ex parte Gillow, 6 W.W. & a'B. (L.,) 216; N.C., 15. (d) Proceedings By and Against cobpobations. (2) In Other Cases. " Town and Country Police Act 1854," No. 14, Sec. 5, Par. 19 — License not Under Seal.] — K. obtained a license, not under seal, from a Municipal Corporation to slaughter cattle. This was issued subject to payment of certain market dues, which were not paid, and security for paving, flagging, &c, prescribed by the Act No. 14, was not taken by the Corporation. This license was revoked, on the ground that K. had not observed conditions. K, was summoned and convicted. A rule nisi to prohibit execution was obtained. Held, that the license should have been under seal, but that the one actually given was a substitute for what might have been given under the Act, and that K. should have conformed to its terms. Eule discharged. Ex parte Kettle, in re Mclntyre, 2 W. &W. (L.,) 21. Debentures Secured Upon a Special Bate — Act Ho. -184, Sees. 218, 239.]- A. sued on a debenture issued by the defendant corporation upon a special rate. The defendants demurred on the ground that they were not liable on the deben- tures except as to the amount of the special rate in their hands. Held that the fact that a special rate was assigned as a security did not relieve the corporation from liability as to its general funds, unless it was provided that that fund (the special rate,) was to form the sole mode of payment ; that the words of Sec. 239 of the Act No. 184, providing for the appoint- ment of a receiver " without prejudice to any other mode of recovery," pointed to the con- clusion that the loan was intended to be a debt of the corporation, and that plaintiff was entitled to maintain his action. Alroe v. Mayor of Sebastopol, 5 V.L.E. (L.,) 217; 1 A.L.T.,22 Ratification — Compromise.]— The ratification by the directors of a bank of an agreement for compromise entered into by the bank's solicitor does not bind the bank if the corporate seal be not attached. Shiel v. Colonial Bank of Austra- lasia, 1 V.E. (E.,) 40; 3, A.J.E., 30. Parties.] — Where a corporation is doing' an illegal act, the councillors who persist in the illegality are proper parties to a suit to restrain the illegality. Attorney -General v. Shire of Hampden, 2 V.L.E. (E;,) 221. Suit to Eestrain Injury to Street — Parties.]— Where a municipal corporation is charged with the care and management of a street within its boundaries, it may, as representing the ratepayers, sue to restrain irreparable injury thereto without joining the Attorney-General as a plaintiff. Mayor, fyc, of Ballarat East v. Victoria United Gold Mining Company, 4 V.L.E. (E.,) 10. Suit to Eestrain Mining. ] — Sembleper Molesworth J. The Attorney-General, a municipal corpora- tion, and the owner of private property, cannot join in an information and bill to restrain mining for the different injuries, the one com- plaining of removal of gold, the other of injury to the streets, and the third of injury to his private property. Attorney-General v. Rogers, 1 V.E. (E.,) 132, 139 ; 1 A.J.E., 120, 149. Joinder of Officer for Discovery.] — An officer of a corporation may be made a defendant to a, suit for purposes of discovery merely. B., as agent for the defendant bank, was made a defendant merely for the purposes of discovery. Held he was a necessary party. Droop v. Colonial Bank of Australasia, 8 V.L.E. (E.,) 1, 12. Action for Slander — Newspaper Company Regis- tered Under Act No. 190— Act No. 212, Sees. 11, 12, 19.] — A newspaper company registered as a corporation under Act No. 190 cannot, as a corporation, make the affidavit required by a newspaper proprietor under Act No. 212, and cannot enter into the recognizances prescribed by Sec. 19 of that Act; it cannot therefore lawfully carry on the business of newspaper proprietors nor maintain an action for slander in such business. A plea of not guilty is sufficient to raise a defence to such action. Daily Telegraph Newspaper Company v. Berry, 5 V.L.E. (L.,) 469 ; 1 A.L.T., 103. " Injunction to Eestrain Corporation from Accepting Tenders.] — Where an injunction restraining a municipal corporation from accepting tenders for contracts was obtained em parte upon the statement that tenders had been called for, when, in fact, instructions had been given to its officer to call for tenders, which he had not carried out, Held, as there was therefore no pressing emergency, and an omission to state all the facts, the injunction should be dis- solved. Attorney-General v. Shire of Wimmera, 6 V.L.E. (E ,) 24; 1 A.L.T., 125. Practice.] — Defendants cannot at the hearing for the first time raise an objection that the authority of a corporate plaintiff's solicitor to institute a suit is not proved to be under the corporate seal. Astley United Gold Mining Company v. Cosmopolitan Gold Mining Com- pany, 4 W.W. & A?B..(E.,) 96, 110. COSTS. 234 Costs.] — Where an information, which was brought against a corporation and certain councillors who were acting illegally, stated several acts which appeared unwarrantable, and the defendants admitted them without palliation, Held that the relator was entitled to his costs from the defendants, but decision refused in the suit, whether they should be paid by the corporation or by the individual defendants, on the ground that the Court had merely to deal with the plaintiffs on one hand and the defendants on the other, and not with the defendants among themselves. Attorney- General v. Shire of Hampden, 2 V.L.B,. (E.,) 221. Costs of Manager in Suit by Corporation.] — The costs of the attendance in the master's office of the manager of a corporate plaintiff will not be allowed, on taxation between party and party, except in so far as he attends as a witness. United Hand-in-Hand and Band of Hope Company v. National Bank of Australasia, 4 V.L.E. (E.,) 271, 273. COSTS. (a) In Equity. (1) Matters of Pleading. (2) In Other Cases. (b) At Law. (1) Higher or Lower Scale. (2) Matters of Pleading and Practice. (c) Under "Judicature Act 1883," and " supreme court bules 1884." (d) Generally. (1) Mode of Estimating, Taxation, fyc. (2) Mode of Enforcement — See' Attach- ment. (3) Security for Costs. (4) Of and Against Particular Persons. (5) Of Counsel, Briefs, Instructions, and Fees. In Suits for Account.] — See Account. In Suits for Administration.] — See Administra- tion. Of Appeal.] — See Appeal. Of Arbitration.]^-See Aebitbation. In Winding-up of Company.]— See Company. In Proceedings By or Against a Corporation.]— See Corporation. Of Proceedings in County Court.] — See County Court. In Actions of Slander and Libel.] — See Defama- tion. Of Commissions to Take Evidence.] — See Evi- dence. Of Executor and Administrator.] — See Adminis- tration and Executor. In Matrimonial Proceedings.]— See Husband and Wife. Of Infant.]— See Infant. Of Injunctions.] —See Injunctions. In Insolvency.] — See Insolvency. In Reference to Proceedings Before Justices and General Sessions.] — See Justice of Peace and Sessions. Of Proceedings in Mining.] — See Mining. Of Suits Between Mortgagor and Mortgagee.] — See Mortgage. Of New Trial.]— See New Trial. Of Specifio Performance.] — See Specific Per- formance. Of Trustee.] — See Trust and Trustee, Of Vendor and Purchaser.] — iee Vendor and Purchaser. And generally see various headings through- out the book. (a) In Equity. (1) Matters of Pleading. Of Plea and Argument when Costs in the Cause.] — Where a plea is held good in law, the costs of the plea and argument will bo made defendant's costs in the cause. Ramsay v. The Board of Land and Works, 5 W. W. & a'B. (E„) 16. Dismissal of Bill — Injunction, Costs of Opposing.] ' — After a bill has been, on the motion of the defendant, dismissed with costs for want of prosecution, the Court cannot entertain a motion by the defendant for payment of the costs of opposing a motion for an injunc- tion which was refused, the costs being reserved. Gourlay v. Kyte, 5 W. W. & a'B. (E.,) 194. Dismissal of Bill — Defendants Not Appearing.] — Motion for dismissal of bill with costs as to those who had answered without costs as to those who had not. BUI dismissed with costs as to all defendants. Lord v. Spence, 5 A.J.E., 99. Where Bill Dismissed on Objection Taken at the Bar.] — Where an objection upon which a bill was dismissed was not taken by answer or demurrer, but at the bar, the Court dismissed the bill without costs. Douglas v. M'Intyre, 10 V.L.B. (E.,) 219 ; 6 A.L.T., 90. Costs where Objection Taken by Answer as Upon Demurrer — Costs of Defendant who is Not Required to Answer Demurrable Part of Bill.] — Where a bill is demurrable by reason of the Statute of Limitations, and the defence is not raised by ; demurrer or plea, but in the answer, and taken as a. preliminary objection the bill was dis- missed with costs against the principal defend- ant, and also with costs as against a defendant who was required only to answer two para- graphs not affecting the demurrable part of the bill. Kemp v. Douglas, 1 V.L.E. (E.,) 92. Dismissal of Bill for Want of Prosecution.] — See Govett v. Crooke, Thompson v. Tullidge, Flan- nagan v. Flannagan, and Virtue v. Cameron, post under Practice and Pleading — In Equity— Bill. 235 COSTS. 236 Technical Pleading.] — " I always give costs where the defence is merely one of technical pleading." Per Molesworth, J. Attorney-General v. Mayor of Emerald Hill, 4 A. J.B., 48. Person Wrongly Disclaiming.] — "Where a person having an interest in the subject matter of a suit when the bill is filed, puts in an answer disclaiming all interest, he is not entitled to his costs. White v. London Chartered Bank of Australia, 3 V.L.E. (E.,) 33, 48. Effect of Joinder of Innocent Parties with Guilty Ones as Plaintiffs.] — In a suit against trustees for administration and accounts a tenant for life, who had been a party to breaches of trust, was joined as a co-plaintiff with infant remaindermen who were ignorant of such breaches. Meld, that under such circum- stances none of the plaintiffs were entitled to their costs. Lane v. Loughnan, 7 V.L.E. (E.,) 19; 2A.L.T., 113. Mining Company a Defendant — Manager Appear- ing by a Separate Counsel.]— In a suit against a mining company and its manager, if the manager has no interest distinct from the company, his appearance by a separate counsel is not justified, and he must abide his own costs. United Hand and Band of Hope Company v. Winter's Freehold Company, 3 A.J.E., 59. A defendant, against whom no relief is sought, will not be allowed his costs, and should not inflict costs by putting in an answer. Bight v Mackay, 6 W.W. & a'B. (E.,) 163. Persons Against Whom no Belief is Prayed Appearing.]— In a suit in which the bill prayed no relief against two defendants, who neverthe- less appeared and defended the suit, Held that they should abide their own costs. Benjamin v. Wymond, 10 V.L.E. (E.,) 3:5 A.L.T., 153. Costs of Charge of Collusion, Where not Proved.] — In a suit to set aside a conveyance on the ground of fraud and collusion with the trustees of a prior settlement, the charge of collusion was not proved against the trustee who appeared. Held that the Bill should be dis- missed with costs as against him, and that the plaintiffs were not entitled to have such costs over as against two other defendants, who were condemned in the other costs of the suit. Ronalds v. Bimcan, 2 V.E. (E.,) 65 ; 2 A. J.E., 30, 45. Charges of Fraud.]— A charge of fraud unsus- tained always carries costs against the unsuc- cessful party to the extent to which costs were occasioned by that charge. And a defendant who has set up a charge of misrepresentation to a suit for specific performance, which charge has broken down, and where the whole evidence was directed to that charge, must pay costs. Bromley v. Parrott, 7 V.L.E. (E.,) 172. Charges of Fraud.] — General costs are not given to an unsuccessful defendant, on the ground that fraud was improperly imputed to him in the bill. Walauck v. Corbett, 4 W. W. & a'B. (E.,) 48, 55. Where there is sufficient equity stated and proved to sustain a bill, an unsuccessful charge of fraud is only a matter affecting costs. London Chartered Bank v. Lempriere, L.E. 4 P.O., 572. 2. Other Cases. Of Abandoned Motion.] — Where a motion had been listed by a party to a suit, and, after service and before the day for hearing, notice was given to the other parties of withdrawal, and the motion had been struck out of the list, the Court refused to make an order for costs of the parties served, without notice to the party serving the notice. Warren v. Lange, 9 V.L.E. (E.,) 127. Abandoned Motion.] — After bill filed by two partners of a firm of three against the third for dissolution, and after notice of motion for an injunction to restrain defendant from dealing with the partnership assets, plaintiffs voluntarily sequestrated the estate of the firm, and neither the motion was proceeded with nor the notice countermanded. Held, that defendant was entitled to have his costs, as in case of an abandoned motion. Bates v. Loewe, 1 W. & W. (E.,) 7. Sea S.C. post under Pabtnership. Where a suit, viz., a suit to! recover back a sum of money paid under mistake on a. dis- solution of partnership, is in its nature nearly like an action at law to try a right, the costs must follow the result. Manson v. Yeo, 1 W. & W. (E.,) 187, 192. Unnecessary Notice of Motion.] — On a motion for liberty to a receiver to bring ejectment against a person in possession of land, the subject of the suit, and for an order that the person bring into Court the title-deeds of the land, separate notices of motion were given to the person of each branch of the motion, no order for costs was made, because, as an unnecessary notice was given, one portion of the costs might be set off against the other. Boyce v. Parker, 1 W. & W. (E.,) 267. Suit to Compel Election.]— In a suit to compel election, though the defendant was not called upon to elect till the bill was sealed, he was visited with costs for litigating as to the election. Whitehead v. Whitehead, 4 A. J.E., 165. Of Rule for Payment of Dividends to an Assignee of a Debt Assigned After the Execution of a Cre- ditor's Deed.] — Assignments of debts after the execution of a creditor's deed are not to be encouraged, and on making absolute two rules for payment of dividends to such an assignee, and to his assignor, who retained part of his debt, costs of only one rule allowed. In re Sloman, 1 V.E. (E.,) 129. 237 COSTS. 238 Of Undefended Suit— Prayer for Costs.] — Where a suit is undefended, and a decree made in the terms of the prayer of the Bill, the Court will not include in the original decree an order for payment of costs by the defendant, unless -there is a specific prayer for payment of them. Tyrrell v. Stewart, 4 V.L.E. (E.,) 19. Upon Appeal — Discretion of Primary Judge.] — Although on appeal the Court will entertain the question of costs, the appeal being launched on other grounds, yet a very clear case must be made out to induce the Court to interfere with the discretion of the Judge below. James v. Greenwood, 2 A.J.E., 41. An Unsuccessful Plaintiff Refused Inspection of a Deed Until After Answer.] — A. brought a suit against trustees of a creditor's deed for pay- ment of dividends under the deed and was,until rafter answer, refused inspection of the deed which at the hearing was held conclusive as to plaintiff's rights. Held that though A. was unsuccessful in the suit he was entitled to his costs up to inspection of the deed. Her- mann v. French, 5 V.L.E. (E.,) 15. Effect of Correspondence Upon Costs.] — Where repeated letters before suit from the plaintiff and his solicitor to the defendant were left wholly unanswered, and the plaintiff failed to establish his case, the bill was dismissed, but without costs. Ogier v. Booth, 9 V.L.E. (E.,) 160; 5 A.L.T., 109. Writ of Distringas.] — Upon a return of a writ of distringas against the defendant bank which appeared to answer, the plaintiff moved for a rule nisi for sequestration against the bank, which was postponed until the defen- dant bank's motion to dismiss the writ should "be heard. The Court having dismissed the writ upon such motion refused upon defendant bank's motion to make any order for costs as to bank's appearance to writ or of motion for sequestration. United Hand-in-Hand and Band of Hope Company v. National Bank of Australasia, 5 V.L E. (E.,) 8. (b) At Law. (1) Higher or Lower Scale. " Common Law Procedure Statute," No. 274, Sec. 440.] — Sec. 440 applies to defendants as well as plaintiffs. Costs in an action on a bill of •exchange, where ,£100 was the amount sued for in the writ, and jury found verdict for defendant, taxed on lower scale. Henry v. Newstead, 3 A.J.E.. 42. In an action for breach of contract the amount claimed in the writ was £50, but in the declaration the damages were laid at .£120. Verdict for defendant. Costs taxed on higher scale, because alteration had been made by plaintiff himself. Sutton v. Gemmell, 3 A.J.E , S3. Where, in a si mil ar action, the writ claimed .£150 and the declaration £100, and a verdict was returned for £56. Held that taxation should ~be on higher scale. Kronheimer v. Berghoff, 3 A.J.E., 83. Amount Claimed in Writ Governs.] — In an action on a bill of ^exchange, where the amount claimed in the writ was £53, and the defendant obtained leave to defend, and the amount claimed in the declaration was £105, the Court held that the amount in the writ governed the case, and costs taxed on lower scale. Hornby v. Livingstone, 3 A. J.E., 117. Act No. 274, See. 440.] — " The debt or damage claimed in any action," referred to in Sec. 440, is the amount named in the writ and not in the particulars of demand. The writ claimed £200, and the particulars of demand showed a balance of £92. Costs taxed on higher scale. Moorhead v. Reidle, 5 V.L.E. (L.,) 11. " Common Law Procedure Statute 1865,"Sec. 440 .] — The proper construction to be put upon Sec. 440 of the " Common Law Procedure Statute 1865," is that where the plaintiff's claim does, not exceed £100, the costs of the successful party, whether plaintiff or defendant, and whatever may be the amount recovered, must be taxed on the lower scale ; and that whenever less than £50 has been recovered, whatever may have been the amount claimed, costs must in this case also be taxed upon the lower scale. This applies only to cases in which Supreme Court costs are recoverable, and where the question is between the higher and lower scales, and does not affect cases within the " County Court Statute." Parsons v. McEwan, 4 A.J.E., 157. Act No. 374, Sec. 440.] — An action for false imprisonment was brought in the Supreme Court, and resulted in a verdict for plaintiff, damages £75,which by consent were reduced to £20. The cause of action arising in New Zea- land it could not be brought in the County Court. The Prothonataiy refused to tax except on County Court scale. A Supreme Court Judge in Chambers refused to certify for Supreme Court costs on the higher scale. On rule nisi for taxation on the higher scale, the Court refused to interfere. Gonerson v. Muir, 5 V.L.E. (L.,) 286; 1 A.L.T., 41 Act No. 274, Sec. 440.] — Plaintiff brought an action against defendant claiming £500. To the first count defendant pleaded a set-off exceeding £300, and obtained a verdict for £56. On the second count the plaintiff ob- tained a verdict for £25. Held that costs were to be taxed on the lower scale. Tattersall v. Slater, 5 A.L.T., 18. Discretion of Judge.] — The Court will not interfere with the discretion of the Judge who tried the case, as to granting a certificate for costs on the higher sale. Moore v. Nolan, 4 V.L.E. (L.,) 465. Action for Slander — Plea of Justification Not Proved.] — Defendant pleaded justification, but the Court held that the plea was not proved, and a verdict was returned for plaintiff with £5 damages. Held that costs of the action should be taxed on the higher scale. Byrne v. Lewis, 6 A.L.T., 116. 239 COSTS. 240 Suggestion to Enable Plaintiff to Obtain Higher Scale of Costs— "Common Law Procedure Statute," Bo. 274, Sec. 440, Schedule 39— Sec. 429.]— Eule nisi to enter a suggestion on the record to enable plaintiff to obtain the higher scale of costs in an action of trespass. The action was removed from the County Court into the Supreme Court t>y certiorari and the plaintiff got a verdict. The Judge certified for costs on the higher scale, Schedule 39 of No. 274, but the Prothonotary refused to tax on that scale unless plaintiff obtained a certificate that trespass was " wilful and malicious" (Sec. 429,) which the Judge refused to grant. At the trial a letter was proved warning defendant not to trespass, but it was uncertain and a matter of contest whether this letter came to defendant before or after the trespass. The suggestion was to enter this notice as before trespass. Held that such a suggestion might be traversed and Eule discharged. Dunn v. Walduck, 6 W. W. & a'B. (L„) 41. (2) Matters of Practice and Pleading. Allowing Preliminary Objection.] — No Court, in allowing a preliminary objection, ever gives costs. Begina v, Cogdon, 2 V.E. (L.,) 134; 2 A.J.E., 84. Person TakingTechnicalObjection.]_Anobjection, though technical, if taken at the proper time, generally entitles the successful objector to his costs. In re Phelan, 3 W.W. & a'B. (I E & M.,) 1. Of Defendant Causing Case to Become a Eemanet.] — A defendant, who had obtained a transfer of a cause from the list for trial by juries of four, to that by juries of twelve, after the prescribed time for such an application, on terms of paying the costs of and occasioned by the application, was held liable to pay the costs occaioned by the cause being made a remanet to the next sittings. Bay v. Synnot, 2 V.L.E. (L.,)112. Of Interrogatories— Interrogatories Not Used.] — The costs of interrogatories not used at the trial by the party delivering them, should in ordinary cases be disallowed, unless the appli- cation for interrogatories has been an act of prudence on the part of the attorney, for the omission of which he would be liable to an action of negligence. Per Higmbotham, J. (in Chambers.) English, Scottish, and Austra- lian Ghartered Bank v. Adcock, 3 A.L.T. 27. Costs of Claimant not Proceeding to Trial — " Common Law Procedure Statute 1865," Sec. 191.] — Per Stawell, C. J. (in Chambers.) The Court has power, under Sep. 191 of the " Com- mon Law Procedure Statute 1865," to award costs against a claimant failing to proceed to trial of an issue. Gaton v. Oriental Bank, 3 A.L.T., 104. Of Amendment to Cure a Nonsuit.] — Where on a nonsuit point the plaintiff declined to amend at the trial, but obtained leave to apply to the Court in Banco to amend, so as to cure the nonsuit, if the Court in Banco should consider amendment necessary, and the Court in Banco did consider such amendment necessary, on the argument of the rule nisi, and that the objection was fatal unless the plaintiff amended, Held that under the circumstances the plaintiff should have leave to amend, and without payment by him of the costs of the trial or of the rule. Boss v. Adelaide Insurance Company, 1 V.E. (L.,) 232; 1 A.J.E., 170. Of Appeal Prom Nonsuit.] — A successful appel- lant against a nonsuit is entitled to his costs of appeal, though he made no application in the Court below to set aside the nonsuit. Bale v. Loble, 4 V.L.E. (L.,) 427. (c) Under " Judicature Act 1883," and " Supreme Court Eules 1884." Eules of Supreme Court, August, 1884 — Eule 6 (a> Action of Ejectment.] — Per Williams J. (in. Chambers.) Eule 6 (a) of August, 1884, does not apply to actions in ejectment. Budduck v. Clarke, 6 A.L.T., 45. Application in Chambers— Power of Judge to Fix Costs.] — Per Holroyd, J. (in Chambers.) A Judge in Chambers has no power without the consent of both sides to fix the amount of the costs of an interlocutory application in Cham- bers. Freehold Investment and Banking Com- pany v. Thompson, 6 A.L.T., 65. Discretion of Judge in Chambers as to Costs. "Judicature Act 1883," Sec. 22 — Order 65, Eule 1.] — Where a plaintiff made an application for the costs of attending a summons under Sec. 43 of the " County Court Statute 1869," Held, per Higmbotham J. (in Chambers,) that the> combined effect of Sec. 22 of the "Judicature Act 1883," and Order 65, Eule 1, was to allow a Judge in Chambers to exercise the full dis- cretion now vested in the Court with regard to costs, and granted the application. Fahey v* Ivey and Kennedy, 6 A.L.T., 26. Jurisdiction as to Costs of Judge in Chambers — Act No. 761, Sec. 22.]— Per Williams, J. A Judge- in Chambers has power to deal with costs under Sec. 22 of Act No. 761. Coulson v. Campbell, 6 A.L.T.,89. (d) Generally. (1) Mode of Ascertaining, Taxation, Sfc. Taxation of Solicitors Bills of Costs, Generally.]— See Solicitor. When Taxable.] — Where personal representa- tives have actually paid costs, and an agree- ment has been effected by which certain items were to be allowed, and the master was to " moderate " others, and a sum of .£150 was struck off. Semble, per Molesworth, J., that the whole costs were liable to taxation. Held, on appeal, that the striking off of the sum of £150, in lieu of moderation, was a waiver of the right (if any) to have the whole costs taxed. Attorney-General v. Huon, 7 V.L.E. (Eq.,) 30, 39, 45; 2 A.L.T., 138. 241 COSTS. 242 Subject Matter Within County Court Jurisdiction.] — Where value of subject matter of suit in the Supreme Court is under .£500, costs in such a suit should be taxed on the County Court scale. Cunningham v Gundry, 3 V.L.B. (E.,) 51. Transfer from County Court — "County Court Statute," Sec. 44.]— By virtue of Sec. 44 of the " County Court Statute 1869," No. 345, if a defendant removes a cause from the County Court to the Supreme Court, and the plaintiff recover a verdict for any amount, the plaintiff is entitled to his full costs, as between party and party, without any Judge's certificate, rule, or order, and free from the effect of any privative statute, or of those which direct that costs shall be taxed on different scales, according to the amount recovered. Gerard v. Kreitmayer, 2 V. K. (L.,) 174 ; 2 A. J.K., 112. Be-Taxing — How Dispensed 'With.] — "Where in an action in which costs have been already taxed as between party and party, and under such taxation costs have been paid or are pay- able to one party, and such party then changes his attorney, if he thinks the itemB already taxed as between party and party should not be re-taxed, he need not consent to tax within the month mentioned in 11 Vic, No. 33, but may wait till the month has expired,or may go before a Judge within the month, and stating the special circumstances of the case as the reason why the items already taxed should not be re- taxed, and obtain such special order as may be proper under the circumstances. JEoj parte Mouatt, 1 W. & W. (L.,) 339. Summons to Eeview Taxation.] — Upon a sum- mons to review taxation the party seeking to review should have his costs, if successful, in principle, although the amount gained be small. Hardy v. Wilson, 9 V.L.E. (B.,) 135. Taxation — Costs of — Change of Attorney.] — Where under a taxation of costs in an action as between party and party costs have been paid or become payable to one party, and such party then changes his attorney, and within the month mentioned in 11 Vic, No. 33, has the costs taxed as between attorney and client, and the Prothonotary re-taxes the whole bill as it is; the items already taxed as between party and party must be included in such bill, in order that the propriety of the extra costs may be judged of by the taxing-officer; and the costs of taxation will depend, not on the bill of extra charges only, but on whether there is, or is not, a reduction of one-sixth of the whole bill. Mx •parte Mouatt, 1 W. & W. (L.,) 339. Where the Prothonotary in taxing costs made an affidavit showing " that he had exer- cised a discretion, and had in fact allowed only so much .as, in his opinion, the plaintiff would have been entitled to, had the issues on which he succeeded been the only ones on which the parties went to trial," the Court refused to interfere, although it was of opinion that the taxation was inconsistent. Bowie v. Wilson, 1 W. & W. (L.,) 252. Of Abortive Trial.] — The costs of an abortive- trial should be disallowed. When, therefore, at a trial the jury were discharged, and the- case set down for a second trial at the same sittings, and on the second trial a verdict was found for the plaintiff, he was nevertheless- disallowed the expenses of his witnesses for attending the Court five days previous to the abortive trial. Finlayson v. Adelaide Fire and. Marine Assurance Company, 1 A.J.R., 116. " Common Law Procedure Statute 1865," Sec. 141 — Effect of.] — Sec. 141 of the " Common Law- Procedure titatute 1865," merely prescribes the method of obtaining costs of the day, &c, and does not award them as a matter of course, and a rule for costs drawn up under this section will be set aside, if there be a reasonable ground shown for withdrawing the record. Searle v. Hackett, 2 A.L.T., 88. Confirmed on. appeal. Certificate — Delay.] — A plaintiff recovered Is. damages in an action for libel, and immediately afterwards applied to the presiding Judge for a certificate for costs. The Judge reserved his. decision, and twenty-six days afterwards granted the certificate. On an application to set aside the certificate on the ground that he- was only empowered to give the certificate- immediately, and not to allow such a long time to elapse between the application and the grant of the certificate, Held that the Judge- was not bound to give the certificate at once ; that the defendant being present when the decision was reserved, if he had wished to- object should have done so at once, and that the certificate should not be set aside. Hender-, son v. Daily Telegraph Company, 2 V.K. (L.,) 201; 2 A.J.E., 118. Certificate for Costs — Informal.] — An informal or insufficient certificate for costs is a mere- nullity, and need not be set aside. Noyes v.. Robertson, 3 V.L.E. (L.,) 195. Trespass— No Certificate at Trial— Act No. 274, Sec. 429— Act No. 345, Sec. 41— Order to Tax.]— In an action for trespass, where the plaintiff recovered less than ,£10, the Judge refused at the trial a certificate of costs, under Sec 429 of No. 274. A subsequent application was made for a certificate under Sec. 41 of Act No. 345, which was refused ; plaintiff then obtained an. order to tax his costs under the County Court scale. On a rule nisi to set aside the last- mentioned order, Held, that Sec. 41 of No. 345 does not profess to repeal Sec 429 of Act No. 274, and there was no repeal by implica- tion, and that as the certificate required by 3 and 4 Vict., Cap. 24, had not been obtained, the order to tax costs was a nullity, and there could be no waiver of it. Eule absolute. Pearcev. Thomas, 7 V.L.E. (L.,) 125 ; 2 A.L.T., 137. In Action for Trespass — Certificate — 3 & 4 Will. IV., Cap. 48, Sec. 33—8 & 9 Will. III., Cap. 11.]— The Act 8 & 9 Will. III. Cap. 11, which enables a Judge to give a certificate that there was reason for joining a defendant who succeeds, so- as to deprive him of costs, is in force in this. 243 COSTS. 244 colony, but applies only to actions for pure tres- pass j but the provisions in Sec. 32 of the Act 3 & 4 Will. IV., Cap. 42, which is more extensive, have not been incorporated in the " Common Law^ Procedure Statute 1865," and a Judge, therefore, cannot give such a certificate in actions for trespass on the case. Dakvn, v. Seller, 4 V.L.E. (L..) 114. Certificate for Costs in Action to Try a Bight.] — Oill v. Ellerman, post . under Trespass — To Land, &c. (3) Security for Costs. By Plaintiff Resident in New South Wales.]— A iplaintiff resident in New South Wales need not give security for costs, as the law of that •colony, allowing a judgment of any other colony to be registered and enforced there, Tenders such security unnecessary. Martin v. McDonough, 2 V.L.E. (L.,) 37. Applications for Security for Costs — Act No. 274, Sec. 441— Act No. 345, Sec. 43.] — Per Siginbotham, J. (in Chambers.) ITnderSec.441ofActNo.274, applications for security for costs must be made before issue joined, and the provisions of that Section extend to applications under Sec. 43 of Act No. 345 ; where defendant has sufficient property in New South Wales to pay defend- ant's costs, no order for security will be made. Reeve v. Tuthill, 2 A.L.T., 146. No security for costs can be required from a plaintiff if he is actually in Victoria, even ■though it appeared that the plaintiff had formerly lived in New Zealand, and her resi- dence in Victoria was not likely to be per- manent. Brooks v. Smith, 2 A.L.T , 147. Who Need Not Give.]— Per Higinbotham, J. (in ■Chambers.) A person recently released from prison, who is in destitute circumstances, and who brings an action for his own benefit, is not liable to give security for costs, provided that he permanently resides within the jurisdiction of the Court. Main v. Donald, 6 A.L.T., 23. The omission to set out the address of the next friend will not entitle the defendant to insist upon security for costs. Graham v. Gibson, 5 V.L.E. (E.,) 103. (4) Of and Against Particular Persons. Of the Crown.]— The rule as to costs—" That where the Attorney-G-eneral might at the hearing be called upon to pay costs had he been a private individual, there he ought not to receive costs" — applies also before the hearing, on a motion by plaintifE to dismiss his own bill. Barber v. Barter, 1 W. & W. (E.,) 153. Per Higinbotham, J. (in Chambers.) Al- though the crown solicitor is a civil servant, and paid an annual salary by the Crown for all work done by him on behalf "of Her Majesty, he is entitled to receive the costs incurred by him in opposing a rule nisi for a mandamus on behalf of an inspector of police. Ex parte Slack, 6 A.L.T., 23. Costs Against Crown.] — Where the Crown has not unequivocally admitted the right of a petitioner, but has put him to prove his case, and put forward certain objections which were given up at the hearing, costs will be given against the Crown. Allnutt v. The Queen, 2 W. & W. (B.,) 135. Attorney-General — Administration Suit.]— In aa administration suit by Attorney-General claim- ing the lestate for the Crown, inquiries were directed as to next of kin. The Attorney- General then refused to go on with the suit, as the Crown had no iterest. Semble, the claim of the Crown having failed, the Attorney-General was not entitled to his costs of suit. General v. Huon, 5 V.L.E. (B.,) 119. Attorney- General.] —Where the Attorney- General sues for revenue purposes, or for the. recovery of Crown property, and fails, he will not be allowed costs out of the property sued for. Attorney -General u. Huon, 8 V.L.E. (E.,) 182; 3 A.L.T., 131. Where the Attorney-General instituted a suit for administration of an intestate's estate, but on the appearance of the next of kin, who proved their claims, though not parties to the cause, withdrew from the suit, his costs were not allowed. Ibid. Except in cases arising out of charities, the Attorney-General is placed in the same position as a private individual as to costs. Ibid. Agent's Charges — Commissioner's Fees — Taking Evidence on Commission.] — See Anderson v.' Berridge, post under Evidence — Commission for Examination of Witnesses. Against Borough Councillor of Rule to Oust.] — See Regina v. Peck, 4 A.J.E., 117, ante column 228. Of Official Assignee.] — An official assignee who takes no interest in property settled upon the wife of an insolvent, but who is made a party to a suit respecting such property, is entitled to his costs against the plaintiff. Woodward v. Jennings, 1 W.W. & a'B. (E.,) 1, 5. Of Official Assignee.]— An official assignee of a person taking a beneficial interest under a settlement, who refuses, when applied to, to become a, co-plaintiff, but does not then dis- claim, and is therefore necessarily made a defendant, is not entitled to his costs. Ibid. And see cases post under Insolvency— Trustees and Official Assignees, their Bights, &o. Public Body — Boad Board.] — Eor circumstances in which the Court refused to give costs against a road board as a public body, see Lindsay v. Tullaroop District Road Board, 1 W.W. & a'B. (L.,) 61. Married Woman— No Separate Estate.] — Where a wife is a. co-defendant in a suit by official assignee or her husband, to set aside a convey- ance as fraudulent and void, the wife having no 245 COUNTERFEIT COIN. 246 separate estate is not liable for costs. Smith v. Smith, 3 V.L.R. (E.,) 2. See also S.P., Shiels v. Drysdale, 6 V.L.K. (E.,) 126, post under Husband and Wife — Wife's Eights, &c. — In other oases. Married Woman — Separate Property Without Power of Anticipation.] — The estate of a married woman settled to her separate use without power of anticipation cannot in anticipation be charged with costs. Webster v. Yorke, 6 W. W. & a'B. (E.,) 294, 301. Incumbrancer of Principal Defendant — Suit for Specific Performance.] — An incumbrancer from the principal defendant will not be treated differently to him in the matter of costs. Stewart v. Ferrari, 5 V.L.E. (E.,) 200. Foreigner Ignorant of English Language and Law.] — "Where a foreigner, ignorant of the English language and laws, had for some time worked a portion of the land of a mining company under a parol agreement with the directors, and subsequently entered into a parol agree- ment with the manager to work other part of the company's land on tribute, which subse- quent agreement was afterwards repudiated by the company, a suit by him for specific per- formance of the agreement having been dis- missed he was not mulcted in costs. Chun Goon v. Reform Gold Mining Company, 8 V.L.E. (E.,) 128, 154; 3 A.L.T., 137. Trustees and Mortgagees — Appeal for Costs.] — As regards trustees and mortgagees the question •of costs is one of contract, not of discretion, and trustees and mortgagees are not to be deprived of their right to costs, except for some culpable conduct, of the existence or non-existence of which an appellate Court is at liberty to judge. Per Stawell, C.J. Dryden oi. Dryden, 8 V.L.E. (E.,) 177, 181 ; 4 A.L.T., 25. (5) Of Counsel, Briefs, Instructions and Fees. Number of Counsel — Demurrer — Trial.] — In taxing costs as between party and party, only two counsel are allowed for on the argument of demurrers, and then only in heavy cases, and the fact of there being cross demurrers is not a special circumstance which will warrant the allowance of a greater number. And at the trial, three counsel will, in heavy cases, be allowed for on taxation. Young v. Ballarat Water Commissioners, 6 V.L.E. (L.,) 14; 1 A.L.T., 133. Befreshers.] — Eefreshers will be allowed to one counsel for attending on each day occupied by the jury in deliberating upon their verdict, where the case is of such a nature that the jury are likely to need the direction of the Court at any time. Ibid. Taxation— Act No. 294, Sec. 440, Sch. 89.]— Per Higinbotham, J. (in Chambers.) The words in Sec. 39 " where costs are taxed on the lower scale the fees on briefs shall be allowed pro- portionally," necessarily involve a reduction of the reasonable and proper fee, proportional to the prevailing difference between the higher scale and lower scale, i.e., a difference of one- half. Everingham v. Waddell, 3 A.L.T., 84. Refresher Pees.] — Per Higinbotham, J. (in Chambers.) When a case occupies more than one day, i.e., more than the time of one day, the Prothonotary has a discretion to allow refreshers to counsel ; but where the case occu- pies less than the time of one day he has no discretion and cannot allow them. And, if the Prothonotary exercisehis discretion erroneously, his decision ought not to be reversed, unless the mistake be a plain and also a serious mis- take, or unless the Prothonotary acted on an erroneous principle. Stephen v. Board of Land $ Works, 3 A.L.T., 112. There is no rule which fixes the limits of a day of legal labour to six hours, or confers a right to refresher fees if these limits are exceeded in any degree however small. Ibid. The hearing of a case was commenced at two o'clock on one day and was concluded at half-past two on the following day, occupying six and a-half hours in hearing. Eefreshers were marked on the briefs of the plaintiff's counsel, and these amounts, together with a charge for attendance to mark them, were included in the plaintiff's bill of costs. On taxation these amounts were disallowed by the Prothonotary. Held that the Prothonotary was right in disallowing them. Ibid. Number of Counsel.] — The name of a plaintiff having been inserted in a bill without his knowledge or authority, his name was ordered to be struck out, but the Court, holding that the case was perfectly clear, only allowed him the costs of one counsel. Lane v. Goold,8 V.L.E. (E.,) 236. Copies of Documents Accompanying Brief.] — The Court will not review the disallowance of costs of copies of documents accompanying brief to settle answers. Hardy v. Wilson, 9 V.L.E. (E.,) 135. Number of Counsel.] — Per Higinbotham^ J- (in Chambers.) The allowance or disallowance of charges made for a second counsel is a matter within the discretion of the taxing officer. Austin v. MacMnnon, 6 A.L.T., 19. COUNSEL. See BAEEISTEE-AT-LAW. COUNTERFEIT COIN. See CBIMINAL LAW. 247 COUNTY COURT. 24$: COUNTY COURT. I. Jurisdiction and Practice. (1) Jurisdiction, column 247. (2) Practice. (a) Service and form of Plaint, column 254. (b) Defence, column 256. (c) Amendment of Plaint Summons, column 257. (d) Payment into Court, column 257. (e) Wonsui* and Neu> Trial, column 258. (f) Other Points, column 259. II. Judges and Officers oar the Court. (1) Judge, column 261. (2) .Registrar, column 262. (3) Bailiff, column 262. III. Remitting Cases to County Court, column 262. IV. Transfer from County Court to Supreme Court, column 264. V. Appeal From. (1) Where it lies, column 264. (2) Time for Appealing, column 267. (3) Security for Appeal, column 268. (4) Special Case, Form, Settling and Delivery of, column 270. (5) Practice on Appeal. (a) Generally, column 273. (6) Costs, column 275. Statutes. " County Court Act," No. 29— Bepealed. "County Court Statute 1865," No. 261 — " County Court Statute 1865 Amendment Act," No. 282— Repealed. " Cownty Court Statute 1869," No. 345 — Part 4 relating to Probate Jurisdiction repealed by Act No. 427. Remainder, except Sec. 11, unrepealed. "County Court Statute 1869 Amendment Act," No. 356. I. Jurisdiction and Practice. (1) Jurisdiction. Equitable— " County Court Statute 1869," Mo. 345, Sec. 100 (2)— Devise of a Portion (not speci- fied) of a Farm, the Value of the Part being Less, but that of Whole being Greater than Limit of Jurisdiction, £500.] —A testator devised and be- queathed unto his wife all his real and per- sonal estate, with directions for her to manage his real estate (a farm of 120 acres) during her life, and to convey to his son B. a portion of 20 acres severed from such part of the farm as she should think fit when B. came of age. B. came of age, and assigned his interest by indenture to C. C. brought a suit in the County Court, praying that widow should be decreed to mark out a portion and assure it to him. The Judge of the County Court took the test of jurisdiction to be the value of the 20 acres, it appearing that the value of the whole farm was; .£555, and made a decree in plain- tiff's favor. Held on appeal, by Molesworth, J., that though County Court Judge had jurisdic- tion in a suit of this kind under Sub-division 2 of Sec. 100, when value was within the limit ,£500, yet that the test of jurisdiction was the value of the whole, the trust estate being the whole farm, and that County Court Judge had no jurisdiction. Decree reversed. Boyle v~, Carotin, 3 AJ.R-, 71- Equitable — Suit for Performance of an Agreement not to Use a Patent— "County Court Statute 1869," Sees. 100, 101.] — The inventor of a_ patent, by deed, for consideration, transferred it to a com- pany, with the sole privilege of using it. He subsequently used it for hire. Held that this was a, breach of an implied contract in the deed, to prevent which a suit for specific per- formance might be maintained in the County Court under Act No. 345, Sees. 100, 101. Shepherd v. The Patent Composition Pavement Company, 4 A.J.R., 143. Equitable— Patent Cases—" County Court Statute 1869," No. 345, Sees. 100, 108, 110— " Copyright Act 1869," No. 350, Sec. 55— It Lies on Defendant to Oust Jurisdiction — As to Amount Involved.]— Per Molesworth, J. Sees. 100 and 108 of Act No. 345 give an injunction jurisdiction to County Courts in cases where an action would lie. Sec. 55 of Act 350 enacts that County Courts shall have jurisdiction over actions, suits, &c, in matters relating to patents for inventions, and removes any restriction to such County Court prqeedings under Act No. 345, and this most probably without reference to amount involved. It is not necessary in the equitable jurisdiction under the Act No. 345, having regard to Sees. 100, 1 10, for the plaintiff to show that the amount is under the jurisdic- tion to maintain his case, it lying upon the defendant to oust the jurisdiction. Shepherd v. Patent Composition Pavement Company, 5 A.J.R., 27. Equitable — " County Court Statute 1869 " — Specific Performance — Declaration of Trust— Sub- sequent Purchaser With Notice.] — In a suit for specific performance and a declaration of trust against a vendor and a subsequent purchaser with notice, Held that County Courts had jurisdiction under Sec. 100, even though the bill alleged fraud. Cunningham v. Gwndry, 3 V.L.R. (E.,) 51. Equitable — " County Court Statute 1869," Ho. 345, Sec. 100, Sub-sec. 7— Suit to Dissolve Partner- ship—Disputed Partnership.] — The County Court has jurisdiction in suits to dissolve partnership where existence of partnership is disputed. The fact that there is a genuine dispute as to- existence of the partnership does not oust its jurisdiction, and the fact of partnership is one which a County Court Judge is competent to try j it arises in the suit itself, and is not extrinsic to the adjudication. Lee v. Andrew, 7 V.L.R. (E.,) 92. Equitable-"County Court Statute 1869," Sec.|100, Sub-sec. 4 — Exchange of Lands.] — An agreement for exchange of lands comes within the Sub-sec. 4 of Sec. 100 of " The County Court Statute 1869," No. 345, and the County Court has jurisdiction in a suit for specific performance' of such an agreement if neither property to 249 COUNTY COURT. 250 be exchanged is above .£500 in value. Darcy v. Ryan, 8 V.L.E. (E.,) 36; 3 A.L.T., 108. Equitable — Setting Aside Sale of Mortgaged Premises — " County Court Statute 1869," Sec. 100.] — Semble, per Holroyd, J. (in Chambers,) that a suit to set aside a sale of property Tef erred to a mortgage, and to have an account of what is due on an equitable mortgage, and to redeem the property comprised therein or to set aside the equitable mortgage, is within the jurisdiction conferred upon the County Court by Sec. 100 of the " County Court Statute 1869." Andrew v. Figg, 6 A.L.T., 86. Cause of Action Arising Within the Jurisdiction.] — J., in Sandhurst, ordered goods of P. & Co., in Melbourne, "to be forwarded by a carrier "to J., at Sandhurst," and F. & Co. delivered the goods in Melbourne to a carrier, to be taken to J., in Sandhurst. The Judge of the •County Court at Melbourne nonsuited F. & Co. in an action for goods sold and delivered, on the ground that the cause of action did not arise " in some material point" nearer to the ■County Court at Melbourne than to the County Court at Sandhurst. Upon appeal, Held, that the cause of action did so arise, and that J. might be sued at Melbourne under the "County Court Act," No. 29, Sec. 3, Flower v. Jackson, 1 W. & W. (L.,) 42. Causes of Action Arising Within the Jurisdic- tion.] — A contract was made by letter by H., in Melbourne, with S., at Newstead, for the delivery of floxir by S., at Castlemaine. S. broke the contract, and H. sued him in the County Court at Melbourne, and was non- suited on the ground that the suit should have been brought at Castlemaine. On appeal by H.'s attorney, who had not been allowed his ■costs on'the ground that he was negligent in advising his client to sue in the wrong Court, Semble that the action was brought in the right Court. Bullen v. Hooper, 2 V.E. (L.,) 108 ,• 2 A. J.E., 66. Cause of Action Arising Within the Jurisdic- tion.] — A County Court has no jurisdiction to hear an action on a contract which was made and broken outside the local limits of its jurisdiction, even though the defendant may reside within such limits. Crooke v. Smith, 4 V.L.E. (L.,) 95. Contract Made Out of the Colony.— A County Court has no jurisdiction in a case where the cause of action arose out of the colony. Where, therefore, C, in Melbourne, wrote to S., at Stuttgart, requesting that some goods, of which he gave a description, might be sent out to him, and stating that if they answered expecta- tion he would give a large order, and some :goods were forwarded by S. to C, a bill of lading being forwarded by S. in favour of C, and the goods arrived, and C. paid part of the purchase money, but declined to pay the balance, for which S. sued him in the County Court, Held, that the cause of action arose out •of Victoria, inasmuch as the delivery to the carrier at Stuttgart was a delivery to C, and that the County Court had no jurisdiction. Chapman v. Scheidmayer, 1 A.J.E., 115. Territorial Limits—" County Court Statute 1869," Sec. S.] — The County Court has jurisdiction over an action for the price of goods, where the goods were offered by a person in Victoria, by letter, to a person in New Zealand, who accepted by letter giving general instructions to forward them, and was served with the summons while temporarily in Victoria, since the plaintiff being resident, the defendant served, and the delivery effected in Victoria, the cause of action arose there. Green v. Lewis, 4 V.L.E. (L.,) 197. Property Converted in Victoria and Sold in India.] — Certain property was wrongfully converted in Victoria and shipped to and sold in India. The wrongdoer offered in Victoria to pay the owner the proceeds Of the sale. Held that the Court had jurisdiction over a plaint for con- version, and also over a Claim contained therein for money had and received, Powell v. Gidney, 5 V.L.E. (L.,) 20. Breach of Contract — Test of Jurisdiction.] — On a contract for the sale of 4500 sheep, the price of which came to more than i>250, 937, the price of which was under .£250, were short delivered. On suit in the County Court for £10 5s. 6d., damages for short delivery, the evidence showed that the first contract had been rescinded, and a new one to take a less number of sheep substituted. The Judge nonsuited the plaintiff on the ground of want of jurisdiction. Held, on appeal, that the issue (non assumpsit) involved the validity of the original agree- ment, and that the case was therefore beyond the jurisdiction of the County Court. Brown v. White, 2 V.E. (L.,) 209 ; 2 A. J.E., 119. But see infra. Breach of ^Contract.] — Where a contract was for doing certain work for a sum of ,£300, and the damages for breach claimed in the plaint were for a sum of ,£50, Held that the whole amount of the contract must be looked at and that the case was beyond the jurisdiction. Hogg v. Irving, 3 A.J.E., 59. But see infra. Breach of Contract.] — G. and K. tendered for repairs to a ship. The contract was obtained for the sum of ,£1650, and the profits amounted to .£354. A dispute arose as to the proportion in which the profits were to be divided, and G. sued K. in the County Court. The County Court Judge Held that the matter was beyond the equitable jurisdiction of the County Court, and trans- ferred it to the Supreme Court. On summpns in Chambers to remit it to the County Court, Held that the matter was within the, equitable jurisdiction of the County Court, and order to remitmade. Glassford V.Kennedy, 4 A. J.E., 108. Breach of Contract — Act No. 345, Sees. 39, 47.] — Held overruling Brown and White, and Hogg v. Irving, and following Glassford v. Kennedy, and Laven v. Flower, that the amount of a contract is immaterial so long as the sum sought to be recovered in the plaint by virtue of it does not exceed the limited amount. Cavanagh v. Sach, 3 V.L.E, (L.,) 259. 251 COUNTY COUKT. 252- For the facts of Zaven v. Flower, in which the point turned upon the jurisdiction of Justices, see post under Justice or thb Peace — Jurisdiction and duty — In other cases. Amount Within the Jurisdiction — Sum Claimed in Particulars of Demand in Excess of Limit — " County Court Statute 1865" — "Amending Act," No. 282, Sec. 2.] — M'G. was an executor, and paid 41100, belonging to the estate, into a bank. . K. was by the will appointed manager of certain pro- perty, and permitted by M'G. to draw cheques against the sum paid in. M'G. examined K.'s accounts, and required an explanation of a sum of .£264. K. explained that ,£80 was spent in a way he thought satisfactory. M'G. sued E. in the County Court, issuing a plaint for .£184, but claiming in the particulars of demand .£264, and giving credit for the ,£80. By Sec. 2 of the Act No. 282, the County Court had jurisdiction over a claim on "balances of account where balance does not exceed ,£250." Meld that, there being no evidence that an adjustment before action had been made by any person able to bind M'G. as to the .£80 so credited, there was no jurisdiction. Prohi- bition granted against proceedings to enforce judgment in favour of plaintiff. Eegina v. Pohlman, 4 W. W. & a'B. (L.,) 211. Contract for Sale of Goods — Amount Reduced by Credits.] — M. agreed to purchase goods from C. to the amount of ,£274. M. refused to accept part of the goods, which were re- sold by C. C. sued M. for breach of contract and allowed credit in the particulars of demand for 427, the amount realised by the re-sale, and for .£106 the amount of an accommodation bill accepted by C. and held by M. Held that the case was within the jurisdiction. Murphy v. Clarke, 3 A.J.E., 59. ' Abandoning Excess — Act No. 345, Sec. 47.] — A plaintiff claiming as damages a sum in excess of the limit may, by abandoning the claim for the excess in his particulars of claim, bring the case within the jurisdiction and maintain his action. Jensen v. Hagan, 3 V.L.E. (L.,) 21. Abandoning Excess — Act No. 345, Sec. 47.] — Where in a plaint the plaintiff indefinitely abandoned " all excess of any claim over and above the sum of 4250." Held that it was sufficient to bring it within the jurisdiction. Waxman v. McAuliffe, 5 V.L E. (L.,) 48. Set-off Exceeding Limit.] — Where in an action for money lent brought in the County Court, defendant claims an amount (.£318) by way of set-off exceeding the limit of the jurisdiction, the Court may satisfy itself as to the bona fides of the claim, and when so satisfied its jurisdiction ceases, and it can proeeed no further. Johnston v. Cox, 1 V.L.E. (L.,) 284. Act No. 345, Sec. 39 — Balance of Accounts.]— A plaint claimed 4244, but the particulars of demand showed a claim of 4338 in respect of partnership transactions which was not reduced by credits to 4250. The judge gave judgment for 4246, the balance due up to date. Higm- hotham, J. (in Chambers.under the Emergency Clause,) issued a prohibition. Nicholson v- Plimpton, 2 A.L.T., 140. Joint Liability — Contribution Within Jurisdic- tion.] — Where a defendant is sued for contribu- tion to a joint liability, the amount of which is beyond the jurisdiction of the County Court, if the defendant's contribution can be ascer- tained and is within the sum up to which the- County Court has jurisdiction, the County Court has jurisdiction in respect of the case- Parker v. Wood, 2 A.J.B., 55. Act No. 345, Sec. 77— Costs— Set-off Beyoni Jurisdiction.] — The power of a Judge to give costs under Sec. 77 " whenever any action is. brought which the Court has no jurisdiction to- try," refers to want of jurisdiction appearing on the plaint itself, and before any evidence- has been given. But where a defendant raises a defence of set-off which is beyond the- jurisdiction, the Judge is then compelled to stay his hand, and the case being taken out of his jurisdiction by something which appeared during the course of the proceedings, he has- no power to give costs under Sec. 77. Begina v. Cope, ex parte Rawson, 9 V.L.E. (L.,) 294. Transfer Where Amount Exceeds £500 — Onus, of Proof.] — Where in an administration suit an objection is raised as to the amount of the estate being beyond the jurisdiction of the- County Court, the onus of proof lies on the defendant raising it, and the production of the probate showing the estate to have been sworn under 4950, is not sufficient evidence of want of jurisdiction on that ground. Martin v. Keane, 4 V.L.E. (E.,) 115. To Set Aside a Summons Where Judgment Registered in Supreme Court — " County Court Act," No. 261, Sec. 62.]— The words " no further proceeding" in See. 62 mean "proceedings- with a view to advanee," and not to set aside. The Judge of County Court has therefore- jurisdiction, and not the Supreme Court, to set aside a judgment registered in the Supreme- Court on the grounds of bad service of sum- mons. Wrixon v. Deehan, 2 W. W., & a'B. (L.,) 16. Act No. 345, Sec. 71 — Setting Aside Judgment — Non-Service of Plaint Summons.] — Where judg- ment was obtained the defendant not being served with the plaint summons,and the Judge set the judgment aside, Held that the Judge had jurisdiction under Sec. 71 to set it aside,, and the effect was the same as if the judgment had not been obtained, and in an action of trespass for issuing execution on such judg- ment, the plaintiff obtaining such judgment cannot justify under it. Bruce v. Hart, 7 V.L.E. (L.,) 482 ; 3 A.L.T., 73. Foreign Judgment — Act No. 261, Sees. 2, 4.]— The County Court has only a local jurisdiction over judgments recovered in the colony, and has no jurisdiction in cases of judgments, recovered in New South Wales. Greville v- Smith, N.C., 67. 253 COUNTY COURT. 25* Trying Title to Property Disposed of by Justices' Order Under " Justices of the Peace Statute," Sec 121.] — B. H. mortgaged a mare to T. H., on November 21st, 1867. On May 26th, 1868, T. H. assigned the mare to the plaintiffs. The mortgage and assignment were duly registered, and on September 9th, 1868, a creditor re- covered judgment against B. H., and the mare was levied on while in the possession of B. H. On September 28th T. H. gave notice that the mare was his property, and an interpleader summons was issued on September 22nd, when T. H. not appearing, the justices dismissed the interpleader summons, and ordered the sale under the execution to proceed. T. H.'s assignees then sued the purchaser in the County Court for recovery of the mare, and at the trial no order of the Justices, as mentioned in Sec. 121 of the " Justices of the Peace Statute 1865," was produced. Held, that the County Court had jurisdiction, and that plain- tiff having had no notice of the interpleader summons were not bound by the order of the Justices. Maritime General Credit Company v. Bands, 1 A. J.B., 79. Trial of Eight to an Office.]— A County Court is not the proper tribunal to try the right to an office. Smith v. Mayor, Sfc, of Clunes, 5 W.W. &VB. (L.,)86. In Matters of Trespass by Sheep — "Pounds Statute," Sec. S3.] — The " Pounds Statute 1865," Sec. 33, does not take away the jurisdiction of the County Court to give damages for trespass by sheep. Mulhare v. Lindsay, N.C., 14. Commitment for Debt — Second Commitment for Same Debt — "County Court Statute 1869," Sees. 83, 84.] — A judgment debtor was summoned under Sec. 83 of the " County Court Statute 1869," and examined and an order made against him under Sec. 84 for payment of the debt by instalments, and for commitment in default of payment. Default having been made in payment of the second instalment the debtor was arrested under a warrant of com- mitment for the whole of the amount remaining unpaid, but was immediately discharged by the creditor on a part payment, with a promise to pay the balance. Default having been made in payment of the balance a second judgment summons was issued, and the debtor again committed. On rule nisi for a prohibi- tion, Held, that the debtor having been arrested for the whole debt the jurisdiction was exhausted, and there was no power to make a second order under Sec. 84. Regma v. Cope, ex parte Fraser, 2 V.L.B., (L.,) 261. Qucere, whether there could be several com- mitments for default of payment of the several instalments where the amount of a judgment has been made payable by instalments. " Ibid. Fraud Summons — Debtor Committed — Insolvency — Discharge — "County Court Statute 1869," Sec. 89.] — A County Court Judge has no jurisdiction tinder Sec. 89 of the " County Court Statute 1869," to direct the discharge upon an ex parte application of a debtor committed under an order on a fraud summons, and who subse- quently becomes insolvent. The application should be entertained in the presence of both, parties. Rowbottom v. Sennelly, 6 V.L.E. (L.,)409; 2 A.L.T., 85. Act No. 345, Sees. 72, 73, 74 — Action of Eject' ment — Trial Without Jury — Waiver by Consent.]— The County Court Judge has no jurisdiction to try an action of ejectment without a jury under Sees. 72, 73, 74. Such a trial is a nullity, and not an irregularity, and the fact of the appellant consenting to such a trial does, not operate by way of waiver, consent not operating to waive a nullity or create a juris- diction. Mason v. Ryan, 10 V.L.E. (L.,) 335;. 6 A.L.T., 152. To Prevent Abuse of and Correct Irregularities in Practice.] — The County Court has an inherent power (though it has only the jurisdiction- given by Legislature) to prevent the abuse of and correct irregularities in and frauds upon its own procedure and rules, and for that pur- pose to set aside proceedings which it may find to be void or irregular. Mason v. Ryan, 10- V.L.B. (L.,) 335, 340; 6 A.L.T., 152. Act No. 345, Sees. 35, 68.]— Under Sec. 68 a County Court Judge has jurisdiction to reinstate a case, which has been struck out through a defect in the summons (the name of plaintiff's attorney not being registered in the County Court book,) and to order the action to be tried at the next sittings. Giffard v. Unity QolA Mining Company, 6 A.L.T., 159. (2) Practice. (a) Service and Form of Plaint Summons. . Service of Plaint — When Unnecessary.] — Semble that where defendant appears, and his counsel takes part in the examination of witnesses, it is unnecessary to prove service of the plaint. Moore v. Prest, 1 A.J.E., 151. Service of Plaint — Affidavit.] — Where the- plaint in a suit described the plaintiffs as trustees, but the affidavit of service did not so- describe them, and it appeared that they were suing as trustees, Held that the affidavit was sufficient. Ibid. Service of Plaint Summons.]— Service of a plaint summons may be effected by serving a copy thereof, the original being produced on demand. Regina v. Bindon, ex parte Ah Soon,. 2 V.L.E. (L.,) 284. Service of Plaint Summons — "County Court Bules,"' Order 3, Eule 17.] — A plaint summons against a defendant who had left Victoria was served upon an inmate of the defendant's place of business; the Judge thought such service insuffi- cient, and dismissed the summons. Held that such service was sufficient within the meaning of Eule 17, and rule absolute for mandamus to Judge to hear the summons granted. Regina v. Leech, ex parte Ah Poy, 5 V.L.E. (L.,) 392 ; 1 A.L.T., 97. 255 COUNTY COURT. 256 Objecting to Sufficiency of Service — When Allowed— Eule 24 "County Court Eules."]— The County Court Judge dismissed a summons, asking that all proceedings on a plaint sum- mons he stayed because it had not been pro- perly served, on the grounds that the summons was irregular ; that the question of service or no service should be decided by examination of witnesses when the case was called for hearing >(Rule 21 " County Court Rules") ; that it was a question entirely between the plaintiff and the Court, and that defendant could not appear to object to service but only to defend. Edgerton -v. Snowball, 1 A.L.T., 204. Plaint Tested as of a Day Subsequent to Return Day — Striking Out— Costs— Order 3, Sule 15.]— "Where a plaint was tested as of a day subse- quent to the return day, and the case was accordingly struck out for want of due service in accordance with the County Court Practice, Order 3, Eule 15, Held, that no costs could "be awarded by the Judge of the County Court. Regina v. Cope, ex parte Smillie, 2 A.L.T., 66. Plaint Summons — Occupation of Plaintiffs Not Stated.] — A plaint summons described the plaintiffs as " trustees," and gave their address by post as "to the care of H., Lydiard-street, Ballarat." Held that this was an insufficient description of the occupation of the plaintiffs. Shaw v. Hamilton, 2 A. J.E., 86. Plaint — Particulars of Demand Annexed — " County Court Eules 1881," Eule 62.] — The particulars of demand annexed to the scheduled form of plaint are, underthe " County Court Rules 1881," Eule 62, to be read as incorporated with the plaint. Lawes v. Price, Warren v. Price, 8 V.L.E. (L.,) 250. Act Ho. 345, Sec. 66 — Special Summons.] — A claim for goods sold and delivered, the price not being previously fixed, is a liquidated •demand for which a special summons under Sec. 56 may issue. Britt v. Merizei, 5 A.J.E., 161. Pleading— Eules, Order 3, Eule 2— Bill of Ex- change.]— Under Eule 2 of Order 3 a bill of ■exchange may be set out verbatim with endorse- ments, or by a statement of the legal effect of the bill and endorsements. Morton v. Jacks, 5 V.L.E (L.,) 181; 1 A.L.T., 12. Pleading— Suing as Mortgagee — Order 3, Eules 89, 90.] — A building society sued in ejectment in the County Court. The plaint described the plaintiff as mortgagee in fee. It appeared that the plaintiff had a certificate of title in fee, and that a deed of defeasance had been executed between plaintiff society and the defendant reciting the transfer from the defendant to the society of even date, under which the plaintiff society was registered. Held that the society had substantially proved the allegation that it was suing as mortgagee. Delany v. Sandhurst Building Society, 5 V.L.E. (L.,) 189; 1 A.L.T., 13. Endorsement on Plaint Summons.] — An objection that a plaint summons is not endorsed with the name and place of abode of the issuing attorney should be taken by means of a pre- liminary application, and is too late if taken at the hearing. Ibid. Pleading— Plaint not Alleging that Married Woman has Separate Property.] — In a plaint the plaintiff was described as "M. E., the wife of T. E.," and she sued for injuries done to certain land of which "she was possessed." The plaint did not allege that she had separate property. The judge offered an amendment, and on refusal, nonsuited her. Held that no amendment was necessary ; that as a married woman she could not be possessed of the pro- perty except as her separate estate, and the objection went to a, matter of proof. Appeal allowed. Ryan v. Topham, 5 V.L.E. (L.,) 281 ; 1 A.L.T., 41. (6) Defence. Signing Notice of Defence — Attorney — " County Court Statute," Sees. 35, 56.] — Where a defen- dant's attorney signed the notice of defence as required by Sec. 56 of the " County Court Statute," No. 345, but the attorney had not signed the roll as required by Sec. 35 of the Act, and before doing which no attorney is authorised to "act or appear" for any person, Held that the words " act or appear " did not apply to appearing in Court only, and that the notice of defence was bad. Regina v. Cope, ex parte Huthnance, 1 A. J.E., 23. Notice of Intention to Defend.] — A notice of intention to defend under the " County Court Statute " is like a plea, and is delivered within sufficient time if delivered before judgment is signed, although it may have been delivered beyond the time prescribed for delivery. Masterton v. Blair, 2 V.E. (L.,) 19; 2 A.J.E., 16. Special Defence — Notice of Delivered Too Late.] — It, is within the discretion of a County Court Judge to say if he will allow a special defence to be entered into if notice be not properly given. Ibid. Notice of Special Defence — Act No. 345, Sec. 58 — Eules, Order 3, Eule 53.] — Notice of special defences (inter alia) " The Statute of Limita- tions" vras served upon the plaintiff, but no copy was delivered to the Eegistrar under tie rules. The Judge gave defendant leave to lodge a copy nunc pro tunc. Held that Sec. 58 of the Act only provided for delivery of a copy to the plaintiff, and that sufficient notice was substantially given. Weigall v. Gaston, 3 V.L.E. (L„) 98. Stating Defence— " County Court Eules 1881, " Eule 157 — Stating Different Defence.]_P«r Higmbotham, J. If a defendant give, under " County Court Rules 1881," Eule 157, a concise statement of his defence to the action, and of the points on which he relies, the effect of this is to limit his evidence to the matters included in the defence and points so stated. He cannot set up another defence without the leave of the Court. Howse v. Glowry, 8 V.L.E. (L.,) 280, 284. 257 COUNTY COURT. 258 (c) Amendment of Plaint Summons. Amendment — Costs.] — Where a plaint sum- mons was held informal by a County Court ■Judge, and the plaintiff's attorney refused to amend, and the Judge ordered the case to be struck out with £1 15s. costs, on appeal, Held that the Court had no jurisdiction to determine whether the amount of costs which the Judge would have awarded as a condition for amendment was excessive or not. Shaw v. Hamilton, 2 A.J.E., 86. Amendment of Summons— Order 3,BuleS, "County Court Rules."] — Where an amendment of a plaint summons, which was defective in not containing the number of the plaint under Order 3, Eule 3, was refused by the County Court Judge, and the summons was struct out, Barry, J. (in Chambers) granted a, mandamus for the Judge to hear the case. Regvna v. Leech, ex parte Joslce, 1 A.L.T., 32. Amendment of Plaint — Act No. 345, Sec. 119.]— A County Court Judge has powers to amend in any way so as to bring forward for adjudication the questions really in controversy between the parties at the time when the action was commenced, provided that such amendment be in "the existing action." A plaint was for work done and commission as an auctioneer, and the evidence proving a case of breach of agreement, the Judge nonsuited the plaintiff, thinking he had no power to amend by inserting a claim for such breach. Held that he had such power. Knipe v. Belson, 5 V.L.E. (L.,)405; 1 A.L.T., 99. Amendment — Discretion of Judge.] — A plaintiff stated in his plaint that all his creditors had agreed to give time, but the evidence showed that only some had so agreed, and an application was made to alter the plaint, but this was refused. On appeal, Held that amendment was rightly disallowed, and that the County Court Judge having the right to conduct the business in his Court, under the circumstances the Su- preme Court could not dictate to him as to how he should have conducted the case. Wite v. Brodie, 4 A.L.T., 88. (cJ) Payment Into Court. Payment Into Court — "Without Costs" — Act Ho. 345, Sec. 54.] — Where a sum was paid into Court "without costs" sufficient to answer defendant's liabilities, Held that Sec. 54 and Schedules 4 and 5, contemplate that costs in full, or proportionately, will also be paid in, and that the plaintiff might go on and recover his costs. McEwan v. Dynon, 3 V.L.E. (L.,) 271. Payment Into Court — Verdict for Defendant.] — If the jury find that the sum paid into Court is a sufficient answer to the action, a verdict should be entered for the defendant. Donaldson v. Woqlcott, 1 A.L.T., 98. Payment into Court — Plaintiff's Bight to Money — " County Court Statute 1869," Sec. 54.] — A plaintiff is entitled to money paid into Court under Sec. 54 of the " County Court Statute 1869," though he be subsequently nonsuited in the action. Coote v. Gillespie, 1 A.L.T., 151. Payment into Court — Costs of Defendant Opposing Payment to Plaintiff.] — Where a defendant re- fused to consent to the plaintiff's taking a sum of money which had been paid into Court in an action in which the plaintiff was nonsuited, though the defendant did not appear on the application made by the plaintiff to the Court for that purpose, he was ordered to pay the costs of such application. Ibid. Payment into Court — " County Court Rules," Order 3, Rule 41 — Nonsuit.] — Semble that the effect of Eule 41 of Order 3 of the " County Court Rules," under the " County Court Statute 1869," as to payment into Court, is to prevent a nonsuit after such payment. S.C., 6 V.L.E. (L.,) 56 ; 1 A.L.T., 155. Payment into Court — Admission of Whole Cause of Action.] — Payment into Court generally is an admission of the whole cause of action. A defendant paid a sum of money into Court generally, and the verdict was for a larger sum. The defendant appealed, and the Supreme Court directed a re-hearing, suggest- ing .£70 as the measure of damages. At the re-hearing, the verdict was for a sum less than the first verdict, but greater than the .£70. Held that defendant was entitled to a further re-hearing, but that he had admitted the whole cause of action, and the sum of J370 was again suggested. Robinson v. Highett, 9 V.L.E. (L.,) 384 j 5 A.L.T., 122. Payment Into Court — Costs not Paid — Action to Recover — Costs.] — If the defendant in the County Court pay money into such Court and do not also pay in the amount of the plaintiff's costs up to the payment into Court, the plaintiff is entitled to his costs of proceeding with the action to recover such costs, though the sum paid into Court was sufficient to meet his claim without costs. Lawes v. Price, Warren v. Price, 8 V.L.E. (L.,) 250. (e) Nonsuit and New Trial. Nonsuit — Power of Judge.] — A County Court Judge has no power to nonsuit a plaintiff against his will. Rule v. Lobbe, 4 V.L.E. (L.,) 427. Nonsuit— "County Court Statute 1869," Sec. 78.] — A County Court Judge has no power under Sec. 78 of the " County Court Statute 1869," to nonsuit a plaintiff against his will. Dobson v. Sinclair, 2 A.L.T., 8. Act No. 345, Sec. 75— Nonsuit Against Will.] — At the close of a plaintiff's case, the County Court Judge nonsuited him against his will, the plaintiff's attorney "objecting." Held that the Judge had no such power. Ferguson v. Sparlmg, 9 V.L.E. (L ,) 111. Nonsuit — Power of Judge Where Defendant Does Not Appear— "County Court Statute 1869," Sec. 70.]— Semble that Sec. 70 of the " County Court Statute 1869" contemplates a case in which the defendant is not present at the hear- ing, and gives power to nonsuit in that case. Creek v. Newlands, 4 V.L.E. (L.,) 412. 259 COUNTY COURT. 260 Judge Sitting Without Assessors — Nonsuit — New Trial.] — Where a County Court Judge sitting ■without assessors sums up the evidence and gives the grounds of his decision, if the plain- tiff in such a case abstain from interfering until the Judge has indicated his opinion on the facts, with the object of taking his chance of a verdict in his favour, he must abide that chance ; but if not, then he is entitled to have the same benefit on appeal as if he had at the time submitted to an erroneous nonsuit, in deference to the opinion of the Judge; and where it is plain to the Supreme Court that the County Court Judge has misdirected himself on the law, the verdict ought to be set aside, and a new trial directed on such terms as to costs as may be fit. Broadbent v. Vanrennen, 1W.&W. (L.,) 366. Act No. 345, Sees. 38, 78— Nonsuit— New Trial.] — P. sued P. in the County Court for money due on the sale of sheep. P. claimed a set-off, but the Judge refused it, no notice of such defence having been given under See. 58 and rules thereunder, and gave a verdict for plaintiff. Defendant then applied for a non- suit, or to enter verdict for defendant, but the Judge refused this, and also to grant a new trial, as a new trial had not been included in the notice of motion. Held that the County Court Judge was right, having no power to grant a new trial which was not asked for in the notice, or to enter a nonsuit, as no leave had been reserved for making it, or to enter a verdict for defendant except upon consent. Powers v. Fairbairn, 1 V.L.R. (L.,) 118. New Trial.] — A new trial will not be granted owing to trie absence of the defendant, who was misled by the state of the list and his witnesses, when the case was called over, if his counsel were present, cross-examined the plaintiff's witnesses, and did not ask for an adjournment till the plaintiff's case was closed. Mays v. Watmough, 6 V.L.R. (L.,) 169; 2 A.L.T., 5. (/) Other Points. County Court Judgment— Setting Aside— Act No. 261, Sec. 262—" County Court Rules," Rule 40.]— H. obtained a judgment in the County Court in 1863, but no execution was then issued. In 1869 he obtained a certificate that the judg- ment was still unsatisfied. H. then signed judgment in the Supreme Court in May, 1869, and issued execution under 28 Vic, No. 261, Sec. 262. Rule nisi to set aside judgment and execution tinder Clause 40, " County Court Rules," which provided that no execution shall be issued, except on summons to shew cause, after the expiration of a year and a day from date of trial or time limited for payment. Held that so long as the certificate remained the judgment was good, and that the plaintiff must apply to County Court to correct the judgment. Rule discharged. Hancock v. JEmmett, 6 W.W. & a'B. (L.,) 142. Setting Aside Judgment — Application For.] — The " County Court Rules," as to the time within which an application for setting aside a judg- ment should be made, do not apply to the casfr of an official assignee applying to set aside a judgment by consent signed against the insolvent, and which operates as a fraud on the- creditors, since the assignee acts in a repre- sentative eapacity.and has to consult the general body of creditors, who do not act as promptly as one person would act in the furtherance of his own interests. Andrews v. Harley, 1 V.R. (L.,) 127; 1 A.J.R., 122. Judgment— Proof of— Act No. 345, Sec. 22.]— By Sec. 22, two ways are provided for proving a judgment, either by production of the register book, or of a certified copy of the entry therein ; a rough note book, called a verdict-book, kept by the Registrar, and from which he used to- enter judgment upon the register, is not evidence of the judgment within Sec. 22. Bishop v. WoinarsM, 1 V.L.R. (L.,) 106. Judgment — When Execution May Issue.] — J. sued P. in the County Court for detention of goods, and recovered a judgment, and the Judge ordered that damages were to be reduced to a shilling if the goods were returned. P. offered to return goods, but J. refused to accept them, and had execution issued. P. then sued J. in trespass. Held that the order as to return of goods was no part of judgment, being merely a separate order that satisfaction should be entered up if goods were "returned, and that J. was at liberty to issue the execu- tion. Phillips v. Johnston, 3 V.L.R. (L.,) 230. Plaintiff Unable to Prove Service of Summons- Striking Out — Costs.] — Where the plaintiff ap- pears at the hearing, but is unable to prove Sue service of the summons, the Judge has no jurisdiction to try the case, but in striking it out, he has under Sec. 77 of the " County Court Statute 1869," no power to give costs to the defendant, that section not applying to the case, since the Judge has jurisdiction in the sense of the term intended by that section, which refers to an excess of jurisdiction appear- ing on the plaint, or subsequently in the conduct of the proceedings. Regina v. Cope, ex parte Smillie, 6 V.L.R. (L.,) 366; 2 A.L.T., 66. Act No. 345, Sec. 38— Costs Taxed After Trial] — Where costs are taxed after trial and judg- ment for them is entered, the Court will not grant a writ of prohibition to stop the execu- tion. Rowe v. Thompson, 3 V.L.R. (L.,) 135. Taxation of Costs.] — Where at the trial a Judge of the County Court reserved his decision upon a nonsuit point, Held that he need not give any direction as to taxation of plaintiff's costs until he had decided upon that point. Anderson v. Ziegler, 3 V.L.R. (L.,) 338. Taxation of Costs— Decree in Appellate Court.]— Where in an appeal from the County Court, the decree of the Appellate Court gives costs, such costs should be taxed on the County Court scale and not on the Supreme Court scale. Cunningham v. Gundry, 3 V.L.R. (E.,) 51. 261 COUNTY COURT. 262 Betaxation — Objection that Costs Should be on County Court Scale.] — A decree was made with costs on an appeal from the County Court, and the taxing-master taxed on the Supreme Court scale, no objection being made to that course at the taxation. Per Barry, J. (in Chambers) following Cunningham v. Chmdry, that no cer- tificate for costs haying been given, but only an allocatur, the application was not too late, and that costs should be taxed on the County Court scale. Howard v. Currie, 1 A.L.T., 61. Conduct Money — Debtor — " County Court Statute 1869," Sec. 88.] — Where on a summons under the provisions of Sec. 83 of the " County Court Statute 1869," the defendant had not been furnished with any conduct money, Held, per M'Farland, J., that the defendant was like any other witness, and was not bound to appear or to allege an excuse for non-attendance unless he were furnished with conduct money. Henry v. Greening, 4 A.L.T., 16. Judge's Notes of Evidence — Order 5, Rule 7 — "County Court Statute 1869."]— Rule 7 of Order 5, under the "County Court Statute 1869," No. 345, which provides that "any party to the suit may obtain a copy of the Judge's notes of the evidence at the hearing," only applies to equity proceedings, and not to actions at law. Begina v. Pohlman, 1 V.E. (L.,) 101 ; 1 A.J. E., 91. Jndge Sitting Without Assessors.] — If a County Court Judge, sitting by consent of parties without assessors, sums up the evidence and gives the grounds of his decision, his expression of opinion on the facts and on the law must be carefully distinguished. Broadbent v. Vanrennen, 1 W. & W. (L.,) 366. Subsequent Alteration of Decision by Judge After Leaving Court.] — A County Court Judge has no power to correct a mistake in his decision when he has pronounced it, entered it in his book, and has left the Court although intending to return ; and on his return one of the parties, in the absence of the other, points out the mistake and asks the Judge to correct it. Begina v. Hackett, ex parte Cline, 8 V.L.E. (L.,) 129; 4 A.L.T., 4. Semble, that where such a hiatus occurs, the Judge has no power to alter his decision at all. Ibid. II. Judges and Officebs of the Court. (1) Judge. Tenure.] — Each County Court Judge holds office at the pleasure of the Governor-in-Council, and may be removed by him without cause assigned. Per Barry S( Molesworth, J.; dissentiente Stawell, C.J. Eegina v. Rogers, ex parte Lewis, 4 V.L.E. (L.,) 334. Semoval From Office.] — S.C. Quo "Waebanto. See post under Mandamus to.] — See Mandamus. Appointed for Particular Sittings — Jurisdiction.] —A County Court Judge appointed to act for certain sittings, in the absence of the regular Judge of the district, has jurisdiction, after the conclusion of the sittings and adjournment of the Court sine die, to deal with applications arising out of causes tried at such sittings, and to sign a case on appeal therefrom. Quinlivan v. Darcey, 6 V.L.E. (L.,) 370 ; 2 A.L.T., 67. (2) Registrar. Compelling to Accept Security for Costs of Appeal.] — On an appeal from a County Court, the appellant (defendant) tendered as security a bond of two sureties justifying in stock-in- trade. The registrar refused to accept this security unless the attorney for plaintiff con- sented. Held that this was insufficient ground for refusing to accept the security, though semble that he might refuse to accept it if the costs were not fixed. Begina v. Stephen, 1 A.J.E., 164. Certificate.] — There is no rule of the County Court similar to that of the Supreme Court, that the Eegistrar set out or refer to the evidence upon which he acts, and the Judge may act on a certificate which does not refer to it. Thomson v. Andrew, 10 V.L.E. (B.,) 48, 56; 5 A.L.T., 181. (3) Bailiff. Action Against for Not Levying Execution — Notice of Action When Necessary — " County Court Statute 1869," Sec. 32.]— Before the plaintiff can be nonsuited for failing to give the notice required by Sec. 32 of the " County Court Statute 1869," in an action against a County Court Bailiff for not levying the amount of an execution, the defendant must prove that he acted in a bond fide belief that he was discharg- ing his duty under the Act, and that he had reasonable and probable cause for his belief; and the question of reasonable and probable cause is one for the jury. SoZomojis v. Mul- cahy, 4 V.L.E. (L.,) 462. A County Court Bailiff was charged with misfeasance in the exercise of his duties, and an action was brought against him in respect thereof. Held that it was for the County Court Judge to determine whether defendant acted as he did in the bond, fide execution of his office ; but as the defendant in the case could not have acted otherwise, he was entitled to notice of action under Sec. 32. Eule absolute for a nonsuit. S.C, 5 V.L.R. (L.,) 64. III. Eemittins Cases to County Coutct. Summons — Objection — Adjournment — ■' Coi nty Court Statute 1869," Sec. 42.] — In an application under Sec. 42 of the "-County Court Statu' e 1869," where the plaintiff's sole objection tj have the action remitted was that he wished to deliver interrogatories to the defendant, Hol- royd, J. (in Chambers,) allowed the summons to be adjourned in order to enable him to do so. Nixon v. Milton, 6 A.L.T., 98. " County Court Statute 1869," Sec. 43— Who May Apply — Corporation — Affidavit.] — Per Holroyd, J. A corporation can apply under Sec. 43 of the " County Court Statute 1869," to have an 263 COUNTY COURT. 261 action remitted to the County Court, and the town clerk, though not the only person who can mate the necessary affidavit, is the best person to do so. Stevens v. Mayor of Fleming- ton and Kensington, 6 A.L.T., 99. See also Tilley v. Soyt, 6 AX.T., 67. Application to Give Security for Costs or Bemit Action — Proper Time for Making — "County Court Statute 1869," See. 43.]— Per Williams, J. (in Chambers.) The proper time for making an application for the plaintiff to show cause why he should not give security for costs, or other- wise why the action should not be remitted to the County Court, is immediately after the service of the writ, and before any pleadings are delivered. Robertson v. Brown, 6 A.L.T., 46. Application Made Ex Parte.] — Where an appli- cation was made ex parte, under Sec. 43 of the " County Court Statute 1869," to remit an action to the County Court on the ground that the plaintiff was an uncertificated insolvent, Williams, J. (in Chambers,) granted the appli- cation and expressed an opinion that applica- tions of this nature should be made em parte, Stevens v. Mayor of Flemmgton and Kensington, 6 A.L.T., 98. Costs — Application for Security for.] — Per Cope, J. When an action has been remitted to the County Court under Sec. 43 of the "County Court Statute 1869," the Judge of the County Court cannot entertain an application that the plaintiff should give security for costs. Wite v. Brodie, 4 A.L.T., 36. Discretion of Judge — " County Court Statute, 1869," Sec. 103.]-Pei- Holroyd, J. (in Chambers.) A Judge has a discretion under Sec. 103 of the " County Court Statute 1869," as to whether he will order a case to be remitted to the County Court, and will not do so if he think it a proper one to be tried in the Supreme Court. Andrew v. Figg, 6 A.L.T., 86. "County Court Statute 1869," Sec. 43.]— Per Williams, J. (in Chambers.) The words "other actions of tort," in Sec. 43 of the "County Court Statute 1869," refer to all actions of tort not specifically enumerated in the section, and include actions for negligence. Taylor v. Port, 10 V.L E. (L.,) 300 ; 6 A.L.T., 129. Practice — Staying Proceedings in Supreme Court.]— Per Williams, J. (in Chambers.) The application under Sec. 43 of the Statute for a conditional order staying proceedings in the Supreme Court, and remitting the case to the County Court, unless the plaintiff within the time named in the order give full security for defendant's costs, or satisfy a Judge that he has a fit cause of action to be tried in the Supreme Court, should not be made ex parte, as the effect mght be to shut the plaintiff out from showing that he has visible means of support, and confine him to doing one of the two things mentioned in the order. In all future cases the application for the conditional order must be made on summons, calling on the plaintiff to show cause why such order should not be made. If the plaintiff can show that he has visible means of support, the summons is dismissed. If he cannot, then he must do one of the two things mentioned in the order. If he does neither, the order becomes absolute. If he does the first he merely gives notice of the fact to the defendant. If he proposes to do the second he must give notice in writing to the defendant that on a certain day at a certain time within the time limited by the order he will appear before a Judge to satisfy such Judge that he has a cause of action fit to be presented in the Supreme Court. The other side can then attend or not at will. If the plaintiff fail to satisfy the Judge, the order becomes absolute. Ibid. IV. Transfer fkom County Coubt. Act No. 346, Sec. 44.] — Williams J. (in Cham- bers) made an order, transferring a case turn- ing upon the construction of indentures of apprenticeship, and involving important points of law, to the Supreme Court. Buzolich v. Fletcher, 3 A.L.T., 15. Costs — No. 345, Sec. 45.] — If a case be re- moved from the County Court into the Supreme Court by the defendant, under Sec. 45 of the "County Court Statute," No. 345, and the plaintiff recover a verdict, no certifi- cate order or rule is required to enable the plaintiff to recover his "full" costs; that means as between party and party, and on the higher scale. Gerard v. Kreitmayer, 2 A.J.B,, 112. Costs — Summons Under Sec. 41 of " County Court Statute 1869."] — Where an action has been transferred from a County Court on the ground of want of territorial jurisdiction on the part of the County Court, and the plaintiff recovers less than .£50, the application for Supreme Court costs should be made to the Judge at the trial ; and where this has been omitted to be done, and no reason assigned for the omis- sion, the costs of a subsequent summons, under Sec. 41 of the " County Court Statute 1869," for such costs will not be allowed. Croohe v. Smith, 4 V.L.K. (L.,) 95. V. Appeal From. (1) Where Appeal Lies. Interpleader.] — An appeal lies, under Sec. 120 of the " County Court Statute 1869," from the decision of a County Court Judge, upon an interpleader summons. Barnard v. Mann, 2 V.L.R. (L.,) 140. Attorney Suing Client for Costs — "County Court Statute," Sec. 120.]— Where an attorney sued his client for costs, and the client obtained a verdict on the ground of the attorney's neg- ligence in the action in which the costs were incurred by bringing it in the wrong Court, Held that Sec. 120 of the " County Court Sta- tute" did not preclude an appeal in a case of this kind. Bullen v. Hooper, 2 V.B. (L.,) 108 j 2 A.J.R.,66. 265 COUNTY COURT. 266 From Verdict of Jury.]— Under Sec. 120 of the "County Court Statute 1869," an appeal lies from the verdict of a jury in the County Court, though no application has been made to the Judge of the County Court to set it', aside. Sheehan v. Park, 8 V.L.K. (L.,) 25 ; 3 A.L.T., Order Discharging Debtor — "County Court Statute 1869," Sees. 89, 120.]— Sec. 120 of the "County Court Statute 1869," is wide enough in its terms to give the right of appeal from an order of a County Court Judge, under Sec. 89, directing the discharge of a judgment debtor committed upon a fraud summons. Bowbottom v. HennelVy, 6 V.L.R. (L„) 409 ; 2 A.L.T., 85. Order that Case be Struck Out on Failure to Give Security.] — An appeal is not the proper remedy against an order that a case should be struck out if the plaintiff fail to find security for costs within fourteen days. The plaintiff should apply to the Judge to have the order-amended. Hourigan v. Bourke, 6 V.L.R. (L.,) 224. Nonsuit.] — If a County Court Judge nonsuit a plaintiff wrongly, i.e., against his consent, appeal is the remedy. The Judge has power and jurisdiction to nonsuit, and prohibition is not therefore the remedy. Mau v. Weightman, 3 V.L.R. (L.,) 110. Nonsuit in Deference to Judge's Opinion.] — Where a plaintiff submits to a nonsuit in deference to .a Judge's opinion, it is not neces- sary to remit the case; the propriety of the nonsuit becomes a question of law on which an appeal may be based. Davidson v. Brown, 5 V.L.R. (L.,) 288; 1 A.L.T., 43. Where plaintiff's counsel in his opening statement pointed out certain evidence and that he would claim certain damages, and the Judge intimated his opinion that the damages were too remote and that he would hold them to be such, even if the evidence disclosed and proved the facts, and the plaintiff under such circumstances elected to be nonsuited, Held that plaintiff was not debarred thereby from appealing. Sarvey v. Shire of St. Arnaud, a V.L.R. (L.,) 312; 1 A.L.T., 44. •'County Court Statute 1869," No. 345, Sec. 120— Interlocutory Order.]— Sec. 120 of Act No. 345 only contemplates appeals from such orders as, in one alternative at all events, finally dispose of case, so that the appellate Court may finally dispose of it. An appeal from an order confirming report of the registrar of County Court upon accounts directed to be taken by him in the course of the suit does not lie. Thompson v. Andrew, 9 V.L.R. (E.,) 28 ; 4 A.L.T.. 164. Commitment for Breach of Injunction — " County Court Statute 1869," Sec. 120.] — Where appel- lant had been committed by the Judge of a County Court for disobedience of an injunc- tion of that Court, and had appealed to the Supreme Court in Equity against the order, Held that the words " order of commitment " in Sec. 120 of the "County Court Statute 1869," No. 345, refer only to commitments for misconduct in Court, and that an appeal would lie from the order then appealed from, if erroneous. Shepherd v. The Patent Composition Pavement Company, 4 A. J.E., 143. Question of Fact.] — An appeal from a County Court to the Supreme Court will lie only on a question of law, or of improper admission or rejection of evidence, and not on a question of fact. Eavanagh v. Haynes, 4 A.J.R., 73. Question of Fact.] — In an action in the County Court where the evidence, as appearing on the case for appeal, all points in one direction, and is inconsistent with the Judge's decision, the Supreme Court will reverse such decision, even upon a question of fact. Hamilton v. Sefton, 3 V.L.R. (L.,) 326. Question of Fact — Act No. 34S, Sec. 120 — Amount Lodged on Appeal.] — Where a Judge has fallen into error in the reasons he gives for his decision, the Court will allow an appeal even on a question of fact, and order a re-hearing. There is no necessity for an order requiring registrar to pay over to appellant the money deposited on appeal. Jensen v. Hagan, 3 V.L.R. (L.,) 21. Question of Fact.]— Under Sec. 120 of Act No. 345, an appeal lies from the determination of the County Court upon questions of fact, but the Court will not upset such determination unless it be made clearly apparent that the judge or jury arrived at an entirely wrong conclusion upon the evidence. [Eavanagh v. I/dynes, overruled.] Black v. Permewan, Wright $ Company, 7 V.L.R. (L.,) 292; 3 A.L.T., 21. On Questions of Fact.] — In appeals involving a disputed question of fact, it is not sufficient for the appellant to show that the decision below was probably wrong. It is necessary to show conclusively that the Judge or jury have come to a wrong conclusion of fact. Brundell v. Wane, 7 V.L.R. (L ,) 319 ; 3 A.L.T., 22. Conflicting Evidence.] — Where the evidence before a County Court Judge is conflicting, the Appellate Court will not review his decision on a question of fact. Lee v. Andrew, 7 V.L.R. (E.,) 92. Where Allowed or Where Not.]— The Court will not disturb the finding of a Judge of a County Court where there is any evidence to support his finding. Bank of Australasia v. Eeave, 4 A L.T., 12. Verdict Against Evidence.] — Where there is some evidence to support the finding of a County Court Judge, the Court will not disturb his finding on the ground that it is against evidence. Nathan v. Toner, 2 A.L.T., 34. New Trial — Ee-hearing — Verdict Against Evi- dence.] — A County Court Judge in his charge to the jury told them there was no evidence of fraud, and the jury found the verdict for the plaintiff in opposition to the charge; the 267 COUNTY COURT. 268 Judge then, without giving any reason, refused a new trial. The Supreme Court allowed the appeal, and directed the case to be re-heard. Waxman v. McAuliffe, 5 V.L.E. (L.,) 48. Discretion of County Court Judge — When Inter- fered With.] — On an appeal to the Supreme Court, that Court will not interfere with the discretion of the County Court Judge in his management of the business of his Court. Mays 1/. Watmough, 6 V.L.E. (L.,) 169; 2 A.L.T., 5. A County Court Judge being dissatisfied with a verdict ordered a new trial. Held that the Court would not interfere in such a case ; new trial to be held in the County Court. Walker v. Graham, 3 A.L.T., 75. Discretion of County Court Judge — When Inter- fered With — Commitment to Prison — 21 Vic, No. 29.] — Where E. had been committed to prison in default of payment of a judgment recovered against him in the County Court, and the Judge refused on his insolvency to order his discharge, the Pull Court refused to interfere with his discretion. Ex parte Robinson, 2 W. & W. (L.,) 30. New Trial Ordered in County Court.] — Where the Judge of a County Court, being dissatisfied with the verdict, orders a new trial, the Supreme Court will not interfere with his discretion on appeal. Cooper v. Higgms, 2 A.L.T., 8. (2) Time for Appealing. Time for Appeal.]— The time for an appeal from the judgment of a County Court begins to run from the last decision in the matter, e.g., from a decision on a point reserved, and not from the trial ; and after the final judgment has been given, every previous objection is open on appeal. London and Lancashire Insurance Company v. Honey, 2 V.E. (L.,) 7. Time for Appeal— Power of Judge to Extend — Act No. 345, Sec. 120— Eules 1881, Form 44 — Notice of Appeal.]— It is not necessary that the notice of appeal should state that the requisite security has already been given, and therefore Form 44 is ultra vires. A County Court Judge pronounced his decision on December 14th, 1882, but the judgment was not entered by the registrar, and the registrar refused to accept security within the seven days men- tioned in Sec. 120. The appellant, being misled by Form 44, and thinking it necessary that security should be given before notice of appeal, failed to give the notice within seven days from December 14th, and the Judge allowed him further time. Held that the seven days runs from the date when judgment is pronounced, and that the Judge had not power to extend the time. Appeal struck out. Murray v. Dabb, 9 V.L.E. (L.,) 156; 5 A.L.T., 23. Eules Regulating— Order 5, Rule 4.]— Eule 4 of Order 5 of the "County Court Rules," of the 16th September, 1869, which prescribes the time within which an appeal case must be trans- mitted to the Supreme Court, is inoperative, no penalty being provided by it for non- compliance. Clarice v. Cameron, 6 V.L.E. (L.,) 449; 2 A.L.T., 88. The rules are to prescribe the mode of pro- cedure, and cannot impose a condition prece- dent upon a right of appeal clearly given by the " County Court Statute 1869." Ibid. Transmission of Case — Eules— Order 5, Eules 4 and 5.] — Where a case had not been trans- mitted within the time limited by Eule 4, but the Judge after transmission endorsed upon it an order to enlarge the time, the Court refused to strike the case off the list. Hunt v. Barbour, 3 V.L.E. (L.,) 189. Setting Down Appeal — Notice — "Common Law Procedure Statute," Sec. 73.]— Where four days' notice of setting down an appeal is not given under Sec. 73 of the " Common Law Procedure Statute," this is no reason for striking it off ; it must simply stand over till notice has been given. Phillips v. Byrne, 3 V.L.E. (L.,) 178. Eight to Appeal— When it Accrues.]— Where the defendant in the County Court has claimed a direction, but a verdict has been entered for the plaintiff subject to leave reserved for the defendant to move for a non- suit, there is no final decision of the Judge till the motion for the nonsuit has been heard, and the defendant has no right to appeal before making such motion. ■ Henry v. Kidd, 4 V.L.E. (L.,) 466. (3) Security for Appeal. Security for Costs — " County Court Statute," Sec. 120.] — On an appeal from the County Court the appellant must, under Sec. 120 of the " County Court Statute," pay into Court the amount of the judgment given against him, and ,£10, or give such security as shall be approved of by the registrar. Where plaintiff was nonsuited, and on appeal paid into Court JE10, but not the amount of the costs given against him, Held that the Act meant the judgment to include the costs; and case struck out of the list. Lucas v. Murray, 1 A.J.E., 130. Amount of Security.] — The amount of the judgment which an intending appellant must lodge, or give security for, includes the costs of the proceedings as well as the damages awarded. Anderson v. Ziegler, 3 V.L.E. ( L.,) 338. Security for Amount of Judgment — Act No. 345, Sec. 120.] — Sec. 120 only requires security for the amount of the judgment, where the judg- ment itself is a question involved in or the subject of the appeal. Thompson v. Rowe, 3 V.L.E. (L..) 55. Striking Out Appeal— Wrong Court— Act No. 345, Sec. 120— Bond.] — Where the bond entered into on an appeal wrongly stated the Court as the County Court at Stawell, and was, after the 269 COUNTY COURT. 270 ■expiration of seven days altered to Hamilton, rand did not bind the appellant to pay costs in case of not prosecuting the appeal as required by Sec. 120, the Court ordered the appeal to be struck out. Carroll v. Macgregor, 5 A. J.E., 65. Security for Costs — What is Sufficient — " County Court Statute 1869," See. 180.]— On an appeal .from the County Court, in giving security for costs, the appellant, instead of giving a bond for the required amount to the respondent, .gave it to the Begistrar of the Court as a trustee for the respondent. Held (dissentiente Stawell, C. J.,) that this was sufficient compliance with Sec. 120 of the " County Court Statute 1869." Play ford, v. Brown, 6 V.L.E. (L.,) 467; 2 A.L.T., 101. Insufficient Security— Waiver. j — On an appeal from a County Court, the amount of security given by the appellant was not in compliance with the Act, but after the case had been ■settled the agent of respondent's attorney accepted service of the case, and agreed to its being set down for hearing. Held that the ■objection was waived. Churchward v. Lyons, 2 A.J.E., 118. Deposit of Judgment and Costs — Subsequent With- drawal of Part.] — If the amount of a judgment and costs has been deposited in lieu of security for an appeal from a case in the County Court, and the registrar allows the appellant to withdraw part of the amount pending the appeal, the right of appeal is not thereby ^affected, since the registrar remains liable for the whole amount. Bank of Australasia v. Keirce, 8 V.L.E. (L.,) 147. Deposit by Way of Security — Cheque.] — The appellant's cheque is a sufficient deposit to entitle him to proceed with the appeal, if the registrar of the County Court chooses' to accept it as cash. Whelan v. Hannigan, 4 V.L E. (L.,) 464. Security for Untaxed Costs.] — In an appeal, the appellant lodged ,£10 to meet the costs of the appeal, but the costs of the action not laving been taxed within the time for appeal- ing, failed to lodge or give security for such ■costs. Held that the appellant might have taken out a summons to tax or tendered a, sufficient sum to cover the costs, and that he had not done all he reasonably could. Case .struck out. Griffith v. Clancey, 9 V.L.E. (L.,) 161; 5A.L.T., 24. Bond of Two Sureties Justifying in Stock-in- Trade.] — Begina v. Stephen, ante column 262. Bond as Security.] — Where the operative part of the bond complies with the Act, it is suffi- cient, even if the recitals do not so comply with the Act. Powell v. Gidney, 5 V.L.E. to the jury. Regina v. Gallagher, 1 V.E. (L.,} 20; 1 A.J.E., 27. Money Found on Prisoner — Portion Allowed for Defence.] — The property on a prisoner should not be retained unless it was in some way con- nected with the offence with which he wa& charged. When there is no clear evidence as to how the prisoners came by money found on them the property should not be returned to them, but a portion may be allowed for con- ducting their defence. Regina v. Williams, 1 A. J.E., 39. Cross-Examination of Witness — Depositions in Court Below.] — On a trial the witnesses for the- prosecution may be cross-examined on their depositions in the police court without such depositions being put in and read. Regina v. Robertson, 1 A. J.E., 140. Criminal Assaulfon Successive Days.] — A crimi- nal assault committed on successive days may- be treated as one offence, and the Crown will not be put to its election as to the particular assault upon which it intends to rely. Regina, v. Garland, 4 A.J.E., 157. (g) Other Points. The list of criminal cases, with the order of trial, which is published at each criminal ses- sions, is not binding on the Court. Regina v. Schreibvogel, 10 V.L.E. (L.,) 92. Jurisdiction of Circuit Court.] — By a proclama- tion of December, 1866, which, after reciting that by Act No. 10, Sec. 17, the Governor-in- Council was authorised to define, alter, and* vary the limits of districts within which District Courts should be holden, and that the limits of the circuit districts of Geelong, Portland, Bal- larat, Castlemaine, and Sandhurst were denned, the limits were varied and the limits of the District Court of Sandhurst and Castlemaine were defined according to such variation- A. H. T. was tried at Castlemaine for arson at Sandhurst. Held that the Court at Castlemaine had jurisdiction to try the case ; that the pre- existing limits might exist simultaneously with the new ones, and the Court have concurrent jurisdiction as to each in different places with- out abolishing them. Regina v Thompson, 4 W. W. & a'B. (L.,) 23. Identification of Prisoners on New Trial.] — Where on a new trial the prisoner, having at the former trial pleaded " Not Guilty," was not arraigned or called upon to plead, but was placed at the bar, represented by counsel, called by name, told to look to his challenges, and never raised the question of identity, Held that he "was sufficiently identified with the prisoner convicted at the former trial. Regmar- v. Whelan, 5 W. W. & a'B. (L.,) 7. 311 CRIMINAL LAW. 312 Wrongful Admission of Evidence — Correction by Judge.] — A Judge at a criminal trial overruled an objection as to the admissibility of certain evidence, but afterwards, being on consideration of the opinion that it should not have been admitted, informed the counsel for the prisoner, in the hearing of the jury before he rose to address them, that it had been struck out and was not to be considered as given. Held, that the Judge had the power so to withdraw it, and that the withdrawal was sufficient, without distinctly warning the jury to disregard it. Regina v. Bwns, 9 V.L.E. (L.,) 191 ; 5 A.L.T., 67. Charging Jury — Suggested Motive.] — In charg- ing a jury on a trial for murder, the Judge may tell the jury that in considering the case, assuming them to be of opinion that a prisoner had a motive for committing a crime, they might take into consideration that it was not suggested that any one else entertained any ill-feeling to the deceased, or had any motive for, or inducement to commit the crime. Regina v. O'Brien, 10 V.L.E. (L.,) 242; 6 A.L.T., 95. Objection Taken After Verdict.] — An objection taken after verdict recorded is not too late. Regina v. Herbert, 8 V.L.E. (L.,) 205. (3) Evidence. (a) Competency of Persons. Wife Against Husband.] — The unsworn evi- dence of an aboriginal woman was received under the " Evidence Consolidation Act" on a trial of an aboriginal for murder, though the woman described herself as the prisoner's " lubra," and as " married " to him, there being no other evidence of marriage. Regina v. Neddy Monkey, 1 "W. & W. (L.,) 40. Letter From Husband to Wife.] — See Regina v. Dowling, post column 314. Person Offending Against the " Founds Act," 18 Vic, No. 30.] — Impounding cattle out of the police district in which they were distrained is " an offence," so that the accused is not a com- petent witness. Ex parte Beilby, 1 "W. & "W. (L.,) 281. (6) Depositions. (1) Of Persons Who Cannot be Present. Woman Approaching Her Confinement — 11 & 12 Vic, Cap. 42, Sec. 17.]— The words "or so ill as not to be able to travel," contained in Sec. 17 of 11 and 12 Vic, Cap. 42, include the case of a woman sworn by her husband to be suffering from no other illness than her approaching confinement, but to be in an unfit state to travel solely on account of such approaching confinement; and a conviction which was sup- ported by the depositions of a woman absent for such reasons was upheld. Regina v. Ah Pock, 1W.T.4 a'B. (L ,) 127. Inability to Travel— Act No. 267, Sec. 80.]— H. was convicted of stealing a cheque. At the trial, depositions of a pregnant woman who was unable to travel, were put in under Sec. 80 of the Act No. 267. The fact of pregnancy was deposed to by a constable who had seen the witness shortly before the trial, and the Judge admitted the depositions. Held, on case re- served, that the constable was competent to give an opinion on the witness's inability to travel, and that there was sufficient evidence to go to the Judge of such inability. Conviction affirmed. Regina v. Hay, 3 V.E. (L.,) 160; 3 A. J.E., 69. (2) Of Prisoner Taken m Another Matter. T. had been tried for the murder of a child and had been acquitted. He was then tried for aiding and abetting the mother in conceal- ing the birth (1) By throwing the body into a river. (2) By placing the body in a hole and covering it up with sand. The evidence was as follows: — (1) The mother of the child stated that defendant had thrown the child into the river. (2) That of a witness who was told by defendant that the mother had had a child, and was shown the hole where the child was buried. (3) The depositions of defendant him- self before coroner, when Tie was not informed of his right to refuse to be sworn. T. was convicted. Held that T.'s evidence before the coroner was not admissible, as it was not that of a "free" man voluntarily given, and that without such evidence there was no evidence to convict T. Conviction quashed. Regina v. Taylor, 2 W. & W. (L.,) 153. Admissibility of Statements Before Coroner.] — Semble, it is a safe rule that, if suspicion attaches to a witness at any time before the proceedings have terminated, such a witness should be cautioned, and any evidence given after that may be used as evidence, otherwise depositions before a coroner should be rejected. C. and E. were convicted of arson ; E. as an accessory. Depositions before the Coroner were tendered, C. having been cautioned, but E. having received no caution. Conviction as to C. affirmed, quashed as to E. Regina v. Ooldwell, 2 W. & W. (L.,) 208. Act No. 379, Sees. 3, 132, 134— Act No. 301, Sec. 157.] — If a person answer a question volun- tarily his answer is admissible against him, or if an Act provides that he must answer and affords him no protection from the consequences of his answers, his position appears sub- stantially the same as if he had answered voluntarily. Where a prisoner was charged with an offence under Act No. 379, and at the trial depositions were tendered as evidence which he had made at a compulsory examina- tion under Sec. 132, Held that such deposi- tions were admissible, and that Sec. 157 of Act No. 301 did not apply to such a case. Regma v. M'Cooey, Regina v. Johnson and Smith, 5 V.L.E. (L„) 88. (c) Dying Declaration. At a trial for murder certain declarations of the murdered man were admitted in evidence, and the prisoner was convicted. It appeared from the evidence that, on September 11th, a police magistrate put the question to him, M Do 313 CRIMINAL LAW. 314 you feel you are in a dying condition." The deceased replied, " "Well, 1 don't know that I am dying now." In reply to question, "Do you believe you will die or are about to die," he answered, "Yes ; I don't think I shall get over it," and that he told the doctor that ne was convinced that nothing could save him ; that during a period ranging from the 11th to the 20th of September he told his wife that "he thought he should get better." The declara- tions were taken on September 11th, and the man died on September 20th. Held by Barry and Williams, J. X, (dissentiente Stawell, C. J.,) that the evidence was inadmissible, that the expression of such a hope of recovery rendered the declaration inadmissible ; per Stawell, C. J., that his answer to the doctor showed that he had a fair settled conviction that recovery was hopeless, and that the declaration was made under that convict ion and therefore admissible. Conviction quashed. Regina v. Whelan, 4 W. W. & a'B. (L.,) 264. (d) In Other Cases. It is a very salutary rule, and one to be observed, that the Court will not, without » very strong excuse indeed, allow evidence to be admitted, the knowledge of which has been with- held from the prisoner until the trial. Regina v. Brown, 6 W. W. & a'B. (L.,) 239 ; N.C., 59. " Criminal Law and Practice Statute," No. 233, Sec. 389.] —The propriety of the admission of such evidence is not a question of law within Sec. 389, but merely a rule of practice. Ibid. Evidence Not Produced at Committal Produced at Trial.] — The rule that evidence not produced at the committal of a prisoner should not be pro- duced at his trial, is one of practice only and may be departed from. Regina v. Schreib- vogel, 10 V.L.E. (L.,) 92. Admissibility — Statements Made in Prisoner's Absence — Admissions by Conduct.] — On the trial of E. for stealing boots, L. gave evidence (sub- ject to objection as to its admissibility) that he had heard one P. say in another Court, in B.'s hearing, that B. had brought to him certain boots, like samples which P. then produced, that E. thereupon desired that samples of the boots produced by P. might be compared with samples of the stolen boots produced by L., and that P., L . and E. made the comparison ; that P. then said he was sure that both samples belonged to the same lot of boots, and that to this E. said nothing. E. was convicted, but on case stated for opinion of the Pull Court, Held that the only part of the evidence objected to that was admissible was the request of E. for a comparison, and the fact of the comparison, which by themselves were of no weight, and conviction quashed. Regina v. Rooney, 10 V.L.E. (L.,) 227 ; 6 A.L.T , 100. Proof of Handwriting — " Evidence Act," Sec. IS —Writing in Dispute — Comparison of Handwrit- ing.] — On an information against S. N. and J. N. for conspiring to procure a false affidavit of debt, witnesses were examined on a comparison of handwriting in proof of the signature of S. N. to the affidavit. D. produced a writing- which he had seen S. TS. sign, and, on com- parison, was of opinion that the signatures were by the same person. C. looked at an order to pay money brought to him by J. N., and purporting to be signed by J. N., on which order C. had acted ; and he also looked at the instructions to prepare the affidavit of debt, which were signed by S. N. On comparing the signature to the affidavit with either of these signatures he was of opinion that the signature to the affidavit was that of the same person. The document B. had referred to, and the affidavit, both went to the jury, and counsel for S. N. and J. N. cross-examined C. and D. on their evidence as to the signature of the affidavit by S. N., and urged that their evidence, not being receivable before the " Evidence Act" was not now admissible under that Act for com- parison of writings. Held, per totam curiam, that the affidavit was a document in dispute* under the Sec. 18 of the "Evidence Act," No. 100; that D.'s and C.'s evidence for comparison of handwritings was admissible; and that sending the document produced by D. to the jury, though not regular, was not a ground for a new trial on the question of law reserved at the trial. Per Stawell, C.J., and Williams, J.,. that the affidavit was a document in dispute* simply because counsel for the prisoners cross- examined upon it. Per Molesworth, J., not only on that ground, but also because the point had not been thus argued at the trial, he not being prepared to say that mere cross-examina- tion on a document would be enough to make- it " in dispute." Regina v. Nathan, 1 W. & W. (L.,) 317. Rebutting Evidence — To Prove General Bad Cha- racter.] — P. was convicted of stealing from the- person. Evidence was given of her good character by witnesses, and then the Crown Prosecutor called as rebutting evidence two constables, who swore that P. was known to- them as a prostitute and the associate of thieves. Held that the evidence was of parti- cular and not general bad character and inad- missible. Conviction quashed. Regina v.Pearce,. 3 V.L.E. (L.,) 125. -Letter from Husband to Wife.] — Communica- tions between husband and wife are, as a rule,, not admissible in a criminal charge against the husband, but where the communications have come into the hands of a third person and are produced, they are admissible. Regina v.. Bowling, 9 V.L.E. (L.,) 79; 5 A.L.T., 5. Bight of Jury to Ask Questions so as to Elicit Evidence.] — A jury may, with the leave of the Court, through their foreman, make any inquiry which could be properly made on behalf of the prosecution or defence. Regina v. James, 10 V.L.E. (L.,) 193; 6 A.L.T., 58. At the trial of J. for stealing money from L., it appeared that L. had lodged some of his money in the Savings' Bank. After the Judge had summed up, the jury, without objection from counsel on either side, asked L. if there was an entry in his Savings' Bank pass-book which would show that he had lodged his- "315 CRIMINAL LAW. 316 money as alleged, and whether this pass-book could be produced. L. answering in the affir- mative, the jury requested that the book should "be produced, in order that they might examine it. To this counsel for the prisoner objected, but the Judge overruled the objection, and the jury saw the book and convicted J. Held, on special case, that the evidence was rightly admitted. Ibid. Admissibility — Comparison of Plaster Casts of Foot-prints.] — In order to prove that certain foot-prints had been made by a prisoner, it was proved that one of his boots had been pressed into the soil beside these foot-prints, and had made a similar impression. Plaster casts, which had been taken of the foot-prints in question, were also produced in Court, and a comparison made between them and the boots of the prisoner. Held that this evidence was properly obtained, and was admissible. Regina v. O'Brien, 10 V.L.E. (L.,) 242; 6 A.L.T., 95. Admissibility of Evidence — Threats Used by Accused.] — Evidence of threats used by a prisoner that he would shoot any person who ■should take land, which formerly belonged to the prisoner, was held admissible against him on his trial for the murder of a. person who had obtained an allotment of such land, and had been found shot dead, though the threats in question had been uttered some years before, and were used specially with reference to another allotment. Ibid. Admissibility to Show Intent.] — See Regina v. Davis, ante column 302. Irrelevant Evidence of Immaterial Fact.] — See Regina v. Ainsworth, post column 319. Wrongful Admission — Correction by Judge.] — ■See Regina v. Burns, ante column 811. .(4) Previous Convictions, Records, and Judg- ments. Act No. 233, Sec. 898— Cumulative Sentence.]— M. was tried under Act No. 267, Sec. 27, for -escaping from a gaol. Three records were produced, the first of which showed that he had been sentenced to three years' imprison- ment, and the two other records showed sentences "cumulative upon former sentence." Held that Sec. 298 of the Act was not suffi- ciently complied with; that the former sen- tence should have been referred to specifically. Regina v. Desmond, 3 V.L.E. (L.,) 48. Cumulative Sentences — Evidence of Former Con- viction — Amendment.] — One sentence cannot be 'postponed so as to commence at the end of a period for which a person is already in prison, unless the imprisonment then being undergone by the prisoner was under a sentence for another crime, and the conviction for such crime should be proved, and can only be proved by legal evidence, viz., production of the previous con- viction, or by a certificate signed by the officer having the custody of the records of the Court where the prisoner was sentenced, and mere oral evidence of the previous conviction is in- sufficient. Where, however, a sentence has been postponed improperly, the Court has power to amend it by making the imprisonment commence from the time the sentence was passed. Regina v. Fennell, 2 V.L.E. (L.,) 183. (5) Sentence and Punishment. Two Counts — Sentence on Each.] — Sentences, the one cumulative on the other, may be passed on each count of an information containing two counts, each of which charges a distinct misdemeanour. Regina v. Jones, 1 W. & W. (L.,) 221. Cumulative Sentences — Evidence of Former Con- viction.] — See Regina v. Desmond and Regmav. Fennell, ante columns 315, 316. Offence Committed on High Seas — Penal Servitude — Eeturn to Habeas Corpus.] — Two prisoners being convieted of an offence on board a British ship upon the high seas, were sentenced to penal servitude for fifteen years, and were thereupon detained in a public gaol within the meaning of the "Statute of Gaols 1864." A habeas corpus was sued out, and on the return to the writ, which was to the effect that the prisoners were detained " for the cause and to the end that they may undergo the sentence aforesaid," the Court ordered the prisoners to be discharged and set at large, on the ground that sentence of penal servitude could not be carried into execution in the colony without the intervention of a Secretary of State, as provided by 16 and 17 Vic, Cap. 99, Sec. 6. On appeal to the Privy Council, Held that the return to the writ was sufficient; and that even if it were not, the Court had at all events erred in not remanding the prisoners until it was clear that there were no lawful means of execut- ing the sentence. Regina v. Mount and Morris, 4 A.J.E., 124; 6 L.E., P.C., 283; 44 L.J., P.O., 58; 32 L.T., 279; 23 W.E., 572. For Offences Committed on the Seas — Penal Servitude.] — Even though no provision were made in the colonies for the carrying into execution of a sentence of penal servitude, yet if an Imperial Act directed such a punishment, the sentence oould not be treated as a nullity, merely because no means were provided in the colonies for carrying it out ; but on the review of Imperial and Colonial legislation, it is apparent that a sentence of penal servitude may be passed in Victoria for offences within the jurisdiction conferred on the Courts of the Colony by 12 and 13 Vic, Cap. 96. Regina v. Mount and Morris, 6 L.E., P.C., 283 ; 44 L.J., P.C., 58; 32 L.T., 279; 23 W.E., 572. For Offences Committed on the Seas — 12 and 18 Vic, Cap. 96 — 20 and 21 Vic, Cap. 8.] — Al- though the Act 12 and 13 Vic, Cap. 96, only authorised the colonial Courts to inffict punishment in the case of offences committed on the seas according to the law then in force, such law authorising transportation only for any period not less than seven years, and though the Act 20 and 21 Vic, Cap. 3, which abolished transportation and substituted penal 317 CRIMINAL LAW. 318 servitude, does not expressly include the •colonies, it is applicable to them with respect to the sentences to be passed on persons con- victed in the colonies of offences only triable there by virtue of the Admiralty jurisdiction conferred by the Imperial Act 12 and 13 Vic, •Cap. 96, on colonial Courts. Such offences might be tried after that Act in England or in the colonies, and the policy of the Act was that such offences before triable in England ■only should after it be tried in the colonies as well, and that the same consequences should ensue in the way of punishment as if they had been tried in England, and this general intent and policy should govern the construction of both Acts, in the absence of an expressed intention to the contrary. Ibid. Offence Committed Upon the High Seas — Man- slaughter— 12 and 13 Vic, Cap. 96—9 Geo. IV., Cap. 31, Sec. 9 — 16 and 17 Vic, Cap. 99, Sec. 6 — 20 and 21 Vic, Cap. 3.] — Two prisoners were tried by the Supreme Court at the Criminal .Sessions for murder committed on board a British ship upon the high seas, and were con- victed of manslaughter. The jurisdiction to try persons charged with offences committed on the sea within the jurisdiction of the Admiralty was conferred on colonial Courts in 1849 by the Act 12 and 13 Vic, Cap. 96, Sec. 1, which enacts that colonial Courts should have the same jurisdiction for trying such -offences, and be empowered to take and exercise all such proceedings for bringing persons charged therewith to trial, and "for and auxiliary to and consequent upon the trial," as by the law of the colony might have been taken if the offence had been committed upon ■any waters within the limits of the colony. Sec. 2, which relates to the sentence to be passed in such cases, provides that convicted persons shall be subject to the same punish- ment as "by any law now in force" persons convicted of the same offence would be liable to in case such offence had been committed, and was "enquired of, tried, and adjudged in Eng- land." At the time the Act passed the punish- ment for manslaughter in England was, under 9 Geo. IV., Cap. 31, Sec. 9, transportation for life, or for a term not less than seven years, or imprisonment, with or without hard labour, not exceeding four years, or fine. By 16 and 17 Vic, Cap. 99, penal servitude was, in some cases, substituted for this punishment, and by 20 and 21 Vic, Cap. 3, penal servitude was substituted for transportation. The Judge who tried the prisoners sent the case for opinion to the other Judges of the Supreme Court, who gave as their opinion that the prisoners might be sentenced to penal servitude for the same period, as under 12 and 13 Vic, Cap. 9&, they would have been sentenced to transportation ; but that by virtue of 16 and 17 Vic, Cap. 99, Sec 6, sentence of penal servitude could not be carried into execution without the interven- tion of the Secretary of State. On appeal to the Privy Council, Held that the Judges were right so far as they decided that sentence of penal servitude could be passed, and that such a sentence amounted to one of detention -and compulsory service under 27 Vic, No. 233 ; .but that the intervention of a Secretary of State was not necessary, since the direction in Sec. 6 of the Act 16 and 17 Vic, Cap. 99, that the Secretary of State should point out the place of confinement in case of a per- son sentenced to penal servitude, relates only to the manner of executing the sentence, and to matters of administration, and therefore need not be resorted to in the case of sentences passed in the colonies, which may be executed according to the local procedure. Regina v. Mount and, Morris, 4 A.J.E., 1, 38, 124; 6 L.R., P.O., 283 ; 44 L.J., P.C., 58 ; 32 L.T., 279 ; 23 W.E., 572. Removal of Prisoner to Pentridge.] — A prisoner sentenced to imprisonment at Portland Gaol, with hard labour, may be removed to the penal establishment at Pentridge by a warrant or order of the Governor, which need not be ad- dressed to any person in particular, need not be under seal, and is not to be construed in the same manner as a warrant of commitment. Regina v. McCarthy, 4 A.J.K., 155. (6) Error, Appeal, and New Trial. Error Does Not Lie in Supreme Court to Review Judgments.] — A prisoner was convicted of frau- dulent insolvency on an information containing four counts, and he received cumulative sen- tences on each count, amounting in all to six years with hard labour. On motion for a rule nisi for a writ of habeas corpus, or for the writ itself, on the ground that there is but one offence of fraudulent insolvency, that the four counts were for but one offence, and that the longest sentence allowable for that offence was three years with hard labour. Held, that the motion must be refused, and that to grant the application would be an assumption by the Court of a jurisdiction in error to review judg- ment which it does not possess. In re Millar, 3 W. "W. & A'B. (L.,) 41. The Supreme Court does not sit as a Court of Error in criminal cases, nor is there any Court of Error in such cases in the Colony. Regina v. Cleary, 5 W.W. & a'B. (L.,) 85. Appeal to Privy Council — How Granted.] — Leave to appeal against a decision of the Supreme Court discharging two prisoners under sentence was granted to the Crown, upon the terms that the order allowing the appeal should be served upon the parties themselves if they could be found, and, if they could not, upon the attorney on whose application the. writ of habeas corpus upon the return of which they were discharged issued. Regina v. Mount and Morris, 5 A J.R., 58. New Trial — When Grantedor Refused— Partiality of the Jury.] — After conviction of two prisoners for conspiracy, a new trial was applied for on the ground, amongst others, of partiality and pre- judice on the part of the jury. The affidavits as to the conduct of the jury were to the effect that one of the jurors had said before the trial that the two defendants were the " two greatest rascals in Melbourne," and that another had used words of nearly equal force in respect of the defendants, or one of them, on account of their, or his, connection with personation at a 319 CRIMINAL LAW. 320- parliamentary election. Held, that a much stronger case would be required if this were the only ground for a new trial. Regina v. Nathan, 1W.4W. (L.,) 317, 322. Hew Trial in Cases of Felony — Power of Court to Grant — "Criminal Law and Practice Statute," Ho. 233.] — The Court has power, under the " Criminal Law and Practice Statute," No. 233, to grant new trials in cases of felony; and an order for a new trial was held good, though made at the time of quashing the first convic- tion, and though the prisoner's counsel did not appear to object, the prisoner having had ample opportunity to test the question by writ of habeas, requiring the gaoler to show the grounds on which he was detained in custody, and there having been a long interval between the order for the new trial and the new trial itself. Regina v. Whelan, 5 W. W. & A*B. (L.,) 7. Granting new trials in cases of felony is a matter of practice, and so is not affected by the fact that the " Criminal Law and Practice Statute" does not in so many words give the power of granting new trials in such cases, or by there being no provision made for new trials in cases of felony by the law of England. Ibid. Hew Trial — When Granted or Eefused.] — Unless there has been a great and manifest mis- conduct of proceedings, the Court will not grant a new trial where the prisoner has been acquitted on a charge of misdemeanour. Regina v. Benjamin, 5W.W.4 a'B. (L.,) 178. Hew Trial After Judgment.] — A new trial will not be granted after judgment pronounced on a criminal charge until the judgment has been got rid of. An affidavit of the fact of a judg- ment is not necessary where the presiding Judge at the trial is a member of the Supreme Court Bench. Regina v. Ryan, 3 V.E. (L.,) 77 ; 3 A. J.E., 49. Irrelevant Evidence of Immaterial Fact.] — The evidence of a document, itself irrelevant, to prove an immaterial fact does not invalidate conviction, and is not a ground for a new trial. Regina v. Aimsworth, 1 V.L.E. (L.,) 26. Evidence Improperly Admitted ] — "Where, on a trial of a prisoner for carnally abusing a child under the age of ten years, a statement of the child, obtained by the parents by means of punishment, and made long after the commis- sion of the offence, had been received in evi- dence, the Court allowed a new trial instead of quashing the conviction. Regina v. Nixon, 8 V.L.E. (L.,) 32; 3 A..L.T., 95. When Granted — Misdemeanour.]' — A prisoner who has been convicted in the Central Criminal Court of a misdemeanour seeking before sen- tence passed for a new trial, must show to the satisfaction of the Supreme Court that a defi- nite wrong has been done him, and for that purpose he cannot refer to the course which the Crown has taken in instituting or carrying on the proceedings. Regina v. Schreibvogel, 10 V.L.E. (L.,) 92. Costs of Application for Hew Trial.] — The Court has uniformly adhered to the principle of not recognising that the Crown can receive any assistance in prosecutions, and of insisting that each prosecution should be regarded as either entirely a public, or entirely a private,, proceeding. If, however, the Attorney-General feel bound to sign an information, in his func- tion of a grand jury, and not feeling bound to go any further and put the country to the expense of prosecution, leaves the option of prosecuting to private persons, and in such a case the private person bears the whole cost,, the Court will not allow the prisoners a new trial on the ground that the verdict was against evidence, unless the applicant pays the costs of the first trial ; and the Court not having power to enforce such payment, the applicants must consent to pay such costs. Regina v. Nathan* 1 "W. & W. (L.,) 317. (7) Special Case Reserved for Full Court. Practice — Ho Appearance for Prisoner.] — Semble,. on a special case reserved, when there is no- appearance for the prisoner, the Court will not hear Counselforthe Crown. Reginav. Grandison^ 1W.AW, (L.,) 132. On a Crown case reserved, counsel for the Crown is entitled to be heard, although there- is no appearance for the prisoner. Regina »- Taylor, 2 "W. & W. (L.,) 153. Power to State on Hew Trial — When it May it Stated— Question of Difficulty at Trial — Ho. 233, Sec. 389.] — W. was tried for murder and con- victed, but the conviction was quashed and a new trial ordered on the ground of evidence having been improperly admitted. At the new trial W. was not arraigned, having before- pleaded " Not Guilty," tut was told to look to his challenges, and the trial proceeded on the previous plea. An objection was raised that W. should not be given in charge to the jury, because the information showed by its endorse- ment that the previous conviction had been quashed, and no fresh information had been filed. The Judge, considering that the objec- tion did not arise at the trial, and was matter to be raised in arrest of judgment, W. was allowed to enter new pleas, and was not after- wards allowed to withdraw. Another objection was raised, that the Court which had previously tried the prisoner was no longer a court, having adjourned sine die. W. was convicted, and his counsel moved in arrest of judgment, which was refused. The Judge in Chambers, some time afterwards, consented to state a case. Held that the questions in dispute had arisen at the trial, and that the trial commenced as soon as the prisoner was told to look to his challenges; that "the reasonable time" for stating the case ought not to expire till the first four days of the ensuing term ; and that the case in question was not reserved and stated too late, though the Court before which, the question arose was gone when the case was- reserved. Regina v. Whilan, 5 W. W. & a'B- (L.,) 7. 321 CROWN. 322 Special Case — Lapse of.] — On the acquittal of a prisoner on a charge of misdemeanour, a special case, if reserved, would lapse. Regina v. Benjamin,- 5 W. W. & a'B. (L.,) 178. Act No. 233, Sec. 389— On the Trial — Hear and Determine.]— On a trial for murder committed on the high seas, after the jury had given their Terdict of "guilty,"' doubts arose as to the proper sentence, and a case was reserved for the opinion of the Full Court. On the case coming before the Full Court, Held that the difficulty was one which had arisen "on the trial" within the meaning of Sec. 389 of the " Criminal Law and Practice Statute 1864 ;" tut that since the Court, where a case was reserved, had to " hear and finally determine the question," it had no power to deal with the question, since it could not compel the Supreme Court to pass the sentence which it might deem legal. The Court, however, gave its opinion to the Judge of the Supreme Court, who had reserved the case. Regina v. Mount and Morris, 4 A.J.R , 38. Proper Questions on Which it May be Stated.] — A question as to the manner in which a jury is empanelled, provided it be done in a manner not contrary to the "Jury Statute," is not a question of law upon which a special case could properly be stated for the opinion of the Court, but is a mere matter of procedure. Regina v. Lee, 6 V.L.K. (L.,) 225; 2 A.L.T.,23. Drawn Up by Deceased Judge — No Signature — -m Criminal Law and Practice Statute 1864," Sec. 390.] — Where a Judge drew up a special case, and it was in his own handwriting, but not signed by him as required by Sec. 390 of the " Criminal Law and Practice Statute 1864," and he died before it came on to be heard, the Court considered the case sufficiently stated and entertained it. Regina v. Duffy, 6 V.L.R. (L.,)430; 2 A.L.T., 85. CROWN. 1. Its Privileges and Prerogatives, column 321. 2. Its Liabilities Under the "Crown Remedies and Liabilities Statutes" and Otherwise, column 324. 1. Its Privileges and Pbebogatives. Property of the Crown.]— The property of the Crown is not subject to distress for arrears of rent due to the landlord of the premises on which that property is found. Regma v. Tucker, 1W.W. &a*B. (L.,)193. Eight to a Trial at Bar.]— Where the Crown is substantially a party, or is immediately or directly interested, the Crown is of right en- titled to the application for a trial at bar being granted. The fact that a petitioner, under a contract made with the Victorian Government, representing the Queen, claims money, which will have to be paid out of the Consolidated Fund, does not make the Crown directly interested; such a suit is really against the Local Govern- ment and only nominally against the Crown. Application refused. [Notb. — An order for a trial at bar was subsequently maintained upon affidavits as to nature and merits of the case.] .Sntce v. The Queen, 2 W. W. & a'B. (L ,) 193, 201, 202. Bights of to Gold upon Private Property.]— In respect of mining for gold by strangers upon private land, the Attorney-General has a right to an account of the gold raised, and to stop further mining. Attorney-General v. Scholes, 5W.W. & a'B. (E.,) 164. By the law of England, which is also the law of this country, all gold mines belong to the Crown, and that though the Crown may have granted the lands containing the mines to a subject without reservation, the gold under the grantee's land is not his, and neither he nor anybody else ha3 a right against the Crown to take it. Millar v. Wildish, 2 W. & W. (E.,) 37. Sight of Crown to Gold — Crown Grant of Lands — 5 & 6 Tic, Cap. 36.] — A grant of Crown lands under' 5 and 6 Vic, Cap. 36, made before the passing of the Act 18 and 19 Vic, Cap. 55, does not transfer to the grantee the gold and silver that may be found under the lands so granted. Woolley v. Ironstone Company, 1 V.L.R. (E.) 237. Affirmed, on appeal to P.C., L.E., 2 App. Ca. 163. Per Privy Council.] — The prerogative right of the Crown to gold and silver found in mines will not pass under a grant of the land from the Crown unless the intention that it should so pass is expressed by apt and precise words. Since the Act 5 and 6 Vic, Cap. 36, contains no reference to the rights of the Crown in the precious metals to be found under the soil, Held that the Statute has not so modified the common law that a sale of waste lands under it must be taken to include a grant of the gold and silver found under land so sold. Woolley v. Attorney-General (Victoria,) L.R., 2 App. Ca., 163. The garnishee provisions of the Act No. 274 are not applicable against the Crown. Aithm v. Godkm, 5 W. W. & a'B. (L.,) 216. Royal Pardon — " Influx of Criminals Act," 18 Vie., No. 8—" Constitution Act," 22 Vic, Ho. 68.]— Act No. 3, being recited in the Schedule to 22 Vic, No. 68, is perpetually re-enacted by it, and such power of re-enactment is given to the Legislature by the " Constitution Act." K. was convicted by Justices as having come to Vic- toria illegally contrary to 18 vie, No. 3, and it appeared that K. had been convicted of treason-felony and had been transported to Western Australia, but had received a free pardon. Held, that the prerogative of the Crown to pardon was subject to the enactment of the Legislature, and that the Crown by 323 CROWN. 324 assenting to Act No. 3 intended that such pre- rogative should be exercised subject to that Act. Conviction upheld. Ryall v. KeneaVy, 6 W. W. & a'B. (L.,) 193, 200, 201, 206; N.C., 7. S.C., see Statutes — Interpretation of, and ante column 178. Limitations Do Not Ban Against] — The "Sta- tute of Limitations," No. 213, Part 2, does not affect the Crown. Attorney. General v. Hoggan, 3 V.L.E. (E.,) 111. There is jurisdiction in Equity to entertain an information by the Attorney-General seek- ing a declaration of title to certain land by escheat owing to the death of person seized more than fifteen years ago without heirs, and an injunction to stay bringing land under "Transfer of Land Statute," No. 301, and registering another as proprietor, even though the information shows a legal title in tie Crown. Ibid. Nuisance — Injunction to Restrain Sale of Land — Sight ad Medium Filum Viae.] — By proclamation certain Crown lands were put up for sale. The petitioner purchased one lot, which was bounded by a street called " Pall Mall." Afterwards the Board of Land and "Works notified its intention of selling land upon the other side of this street, but extending sixteen feet beyond the medium filum, encroaching to that extent upon the portion of street fronting petitioner's land. Petition and bill against the board to restrain sale, and alleging a nuisance by obstructing petitioner's direct access to a reserve on the other side of the street. Held that there was no jurisdiction to prevent a nuisance on the part of the Crown, the matter not resting on a contract. Injunction granted as to the sale of the land of the half of the street fronting petitioner's land. Pike v. The Queen, 6 V.L.E. (E.,) 194; 2 A.L.T., 75. On Forfeiture for Felony — Bare Eight to Bring a Suit— 32 and 33 Vic, Cap. 38.] — A bare right to set aside a sale or to recover property conveyed away does not pass to the Crown by forfeiture for felony. Semble, only that passes to Crown which is certain, immediately ascertainable, and tangible. J. was interested under a settle- ment to certain property and he mortgaged it to defendant, and subsequently, in April, 1870, he conveyed the equity of redemption to defen- dant. To a bill seeking to impeach the con- veyance of the equity of redemption, defen- dant put in a plea that in June, 1872, plaintiff was convicted of felony and was imprisoned as a felon till July, 1877. Held that the bare right to set aside the conveyance, which was all that was vested in plaintiff at time of his con- viction, did not pass to Crown, and plea over- ruled. Quaere, whether the " Imperial Statute," 32 and 33 Vic, Cap. 33 (abolition of forfeiture for felony,) extends to Victoria. Johnston v. Kelly, 7 V.L.E. (E.,) 97; 3 A.L.T., 41. Leases by — Effect of.] — The Crown in this colony stands in the same relation to its tenant as an ordinary landlord to his tenant. Kick. ham v. The Queen, 8 V.L.E. (E ,) 1, 6; 3 A.L.T., 86. Estreated Recognizance — Act No. 379 — Act No. 241.] — G. entered into a recognizance which was estreated September, 1882. In October, 1882, G.'s estate was sequestrated, and in November judgment on the recognizance was signed' against G. G. was arrested under fi. fa., and paid the amount of the judgment and costs under a protest. Held that the Crown is not barred by the insolvency of a Crown debtor, nor is it debarred by Act No. 241 from enforcing its remedies against such a debtor, and that the judgment could not be set aside, or satis- faction in respect of it entered. Regina v, Griffiths, 9 V.L E. (L ,) 45; 4 A.L.T., 156. Act No. 506, Sec. 418.] — As the Crown is not named in Sec. 418 of Act No. 506, it is not bound by it; and therefore a. municipality is not bound to enclose or protect a hole when situated upon unalienable Crown land, nor is the Crown bound to protect the dangerous places, or to recompense the municipality for performing that duty. Bisp v. Mayor of Collingwood, 9 V.L.E. (L.,) 249; 5 A.L.T., 79. Issuing License Inconsistent with Bights of Former Lessee.] — No application lies against the Crown to prevent the issue of a license or lease inconsistent with the rights of a former lessee or owner; and proceedings cannot he taken till something be actually done. Shire of Ballan v. The Queen, 10 V.L.E. (E.,) 255; 6 A.L.T., 109. Semite — The Crown is entitled by informa- tion to redress injuries to others as well as to itself from the wrongful consequences of its own mistakes. Attorney-General v. Belson, 4 "W.W. & a'B. (E.,) 57. For facts see S.C. post under Mistake. 2. Its Liabilities Under the "Crown Behedies and Liabilities Statute" and Otherwise. Certificate HolderUnder "Land Act 1862"— "Claim or Demand" within the meaning of Sec. 27 of Act No. 241.] — A certificate holder under the "Land Act 1862," having paid the certificate fees to a solicitor and applied for a lease and tendered a rent which was refused, has no right to enforce his claim by petition under Sec. 27 of the Act No. 241, as such right is not founded on any " contract " with the Government. Simson v. The Queen, 2 W. W. & a'B. (E.,) 113. Claim Arising Out of Contract — Selection of Land under " Land Acts."] — Where a Victorian Act, assented to by the Queen, authorises a class of persons to select defined lands and pay rent for them to a land officer, the transaction,ioom- pleted by payment, constitutes a claim or demand, founded on and arising out of a con- tract entered into on behalf of Her Majesty, or by authority of Her Local Government within the meaning of the Act No. 241. The Court may make interlocutory orders against the Crown under that Act; such orders should not be mandatory, and should contain no penalty in case of non-compliance, nor should they describe the person who is to do the acts directed in them. Kettle v. The Queen, 3 W.W.&a'B. (E.,)50. 325 CROWN. 326 Claim Arising Oat of Contract — Sight to a Grant in Fee Under the "Land Aots."]-^HeJ the colony, without also showing that he had! knowledge of the proceedings, or that notice- was given to |him. Nicholson v. Robertson, 1 W. & W. (L.,) 27. " Absent Debtors Act " — Irregular Proceedings — When Defendant May Set Aside.] — To enable a defendant, when only protecting himself from the claims of others, to set aside irregular- proceedings under 4 Vic, No. 6, it is not necessary that he should have complied with the requirements of the Act. Ibid. 2. "Imprisonment for Debt Acts." Act No. 2S4, Sec. 2— Summons to Debtor to< Attend.] — A debtor summoned under the "Impri- sonment for Debt Act," Sec 2, is bound to- attend, or send a satisfactory excuse for non- attendance, though no sum for his expenses has been tendered to him, and if he fail to- attend or send such excuse, an order may be made against him in his absence. Ex parte Aplm, 4 V.L.R. (L.,) 67. "Imprisonment for Debt Statute," Sees. 2, 3.] — The " Imprisonment for Debt Statute" contem- plates that a separate summons under Sec. 2 should be taken out, and a separate order, under Sec. 3, made in respect of every sum of money recoverable under an order of Justices, - the Statute being quasi criminal in its pro-- visions, they should be strictly adhered to.- Begina v. Britchard, ex parte Smart, 2 A.L.T., 58. Fraud [Summons— Examination of Debtor — No. . 284, Sec.} 9.] — In proceeding upon a Fraud Summons, under the Act No. 284 {"Imprison- ment for Debt Amending Act,") the examination of the debtor must, under Sec. 9i be reduced to writing, the words of the Section being- mandatory and not directory; and if not reduced to writing, a commitment thereupon will be bad. ■ Begina v. Barker, 5W.W.4 a'B. (L.,) 40. Examination Not Taken Down in Writing — Waiver of Objection.]— At the examination of a debtor on the return of a fraud summons, his exami- nation was not reduced to writing, but no • remonstrance or objection was made by the debtor. Afterwards, however, he applied to be discharged from custody, on the ground that his examination bad not been reduced to writing as required by the Act regulating imprisonment for debt. Held that the taking the examination down in writing was a matter of procedure only, and that the debtor by his acquiescence had waived his right to have his- examination reduced to writing. Smith v.. Manby, 1 V.R. (L.,) 168;; 1 A.J.R., 135. -347 DEBTORS ACT. 348 Fraud Summons — Act No. 284, Sec. 9 — Examina- tion of Debtor to be Taken in Writing.] — Justices made an order upon a debtor for payment upon a summons for work and labour, and a fraud summons was issued upon which an order for commitment was made. It appeared that the •debtor's estate had been sequestrated pre- viously to the fraud summons, and he informed the Justices of this upon the examination upon the fraud summons, and that no deposi- tions in writing were taken down upon such -examination. Held that the Legislature had made it imperative upon the Justices to take down such depositions in writing, and they were not relieved from this duty either by.the silence, consent or request of the debtor. Eule absolute for prohibition. Regina v. Shelley ex Sparte Jones, 9 V.L.E. (L ,) 297; 5 A.L.T., 90. Fraud Summons — Insolvency After Commitment on — Effect of.] — Malcolm v. Milner, and in re Geary. See under Insolvency — Effect of. — In other eases. Non-Attendance on Fraud Summons — Insolvency of Debtor an Excuse &r.] — Hitchins v. Trumble. See under Insolvency — Effect of. — In other cases. Fraud Summons — Service of Order.] — A defen- dant ought not to be required to show cause why he should not be punished for disobedience of an order of Justices until a copy of the order to pay has been served upon him. Order for commitment quashed. Regina v. Scott, ex parte Munro, 5 V.L.E. (L.,) 16. Verifying Copy of Order Served Before Applying to Quash Under Act No. 571.] — See Regina v. Carroll, ex parte Coe, post under Justice of the Peace — Quashing Orders, &c. Act No. 284 — Fraud Summons — Service of Order.] — The order directing payment must be served on the debtor before he can be summoned to show cause on a fraud summons, and the Court quashed an order made on a fraud summons where this had not been done. Ex parte Keith, 5 A.L.T., 18. Fraud Summons Under Act No. 284— Service of Copy of Original Order for Payment — Waiver.] — Before a fraud summons is enforced, a copy of the original order for payment must be served, ■and proceedings under Act No. 284 being of a ■quasi criminal nature, objections as to want of service cannot be waived by appearance before the Justices when original order was made, or by part payment of the money comprised in or consent to the original order. Regina v. Coohson, ex parte Collins ; Regina v. Jones, ex parte He Portu, 9 V.L.E. (L.,) 23 ; 4 A.L.T., 148. Fraud Summons, When it May Issue — Seasonable Time for Payment — Refusal of Debtor.]— "Where a person is served with an order of Justices for payment of a sum of money, and upon being served says that he will not pay the amount, there is no necessity for allowing him a reason- able time for payment, but a fraud summons may issue at once. Regina v. Kirby, ex parte Deane, 10 V.L.E. (L.,) 6; 5 A.L.T., 171. Fraud Summons— Dismissal — Costs — Act No. 28*, Sees. 2, 3.] — O' D. obtained an order from justices for payment of a debt, the amount not being paid by H. the debtor, a fraud summons was served on H., who lived at Sale, requiring him to attend Petty Sessions at St. Kilda. H. demanded his expenses as a witness. The justices dismissed the summons with costs. Held that the Justices were right in dismissing the summons, but not with costs. O'Dono ghue V.Hamilton, 3 V.E. (L.,) 22; 3 A.J.E., 32. Effect of Act No. 284, Sec. 3.] — Per. Higin- botham, J. (in Chambers.) The Act is not in- tended to make debtors pay their debts, and if creditors abuse a fraud summons for the pur- pose of recovering payment, they must spe- cifically prove the charges they make, and where a creditor, instead of treating a false pretence as such, trusts to the debtor's sub- sequent promise to pay, he cannot rely upon the fraud. In re Levy, 3 A.L.T., 19. 3. Obdee foe Committal. Verbal Order Followed by Warrant — Affidavits to Contradict — Justices' Jurisdiction.] — D. was • summoned before magistrates for a debt under .£20, bad been ordered to pay, and had not done so. He was then summoned by a " fraud summons" under the "Act to Amend the Law of Imprisonment for Debt," No. 284, Sec. 2, for examination as to his means of payment and intentions to pay, and the Justices made a verbal order that he be committed to prison. A warrant of commitment was made, reciting the verbal order; and on such warrant, but before any written order or minute of order- was drawn up, he was put in prison. On motion for a rule nisi for a habeas corpus, Held that the Court could not look at an affidavit stating facts which impugned the recitals in the war- rant, and that the warrant showed a sufficient order to justify the detention of the prisoner; that the Acts No. 284 and No. 292 did not de- prive the magistrates of jurisdiction to imprison for debts under .£20 [overruling Adair's case, 3 W. W. & a'B. (L.,) 107,] and rule nisi dis- charged. In re Devaney, 3W.W.4 a'B. (L.,) 103. When Warrant Bad— Prisoner Wrongly Desig- nated.] — S. had been committed to gaol on a fraud summons. In the summons he had been named W. H. S., and had been so styled in all the proceedings under the fraud summons; but the warrant for commitment was made out in the name of W.S. Held, upon habeas corpus, that, the commitment was bad. Prisoner discharged. In re Slocombe, 4 W. "W. & a'B., (L.,) 248. Order for Payment by Instalments — Power of Judge.] —A Judge has no jurisdiction on a fraud summons to make an order under the "Impri- sonment for Debt Act," No. 284, for payment of a judgment debt by instalments, and in default of payment, imprisonment, though such , an order may be made on consent. But it is open to the Judge to make an order for payment by instalments, and that in the event of default 349 DECLARATION. 350. being made in the payment of any one instal- ment, the whole debt should become payable ; and for imprisonment in default of payment of the whole. McKean v. Kavanagh, 2 V.B. (L.,) 139; 2 A.J.B., 95. How Set Aside When Bad.] — The proper remedy where an order for committal in default of payment, under the " Imprisonment for Debt Act," No. 284, is bad on its face, is by rule nisi to set aside the order, and not by appeal under .Sec. 6. Ibid. When Valid—" Imprisonment for Debt Act," No. -.284, Sec. 8.] — "W. had been committed under iSec. 3 of the Act on a fraud summons for not paying amount ordered by Justices, but the -commitment did not specify the period of im- prisonment. Held that as the return did not show that there had been any adjudication of the period named in the warrant it was insuffi- cient. Prisoner discharged. In re Williams, 5 A.J.E , 160. Act No. 284, Sec. 3— Act No. 379, Sec. 75— Insol- vency Alter Commitment on Fraud Summons — Habeas Corpus Eefused.] — See in re Geary, under Insolvency — Effect of — In other cases. By Justices — Uncertain . Period — Act No. 284, Sec. 8.] — An order made by Justices under the "Imprisonment for Debt Act," No. 284, Sec. 3, ■for the commitment of a contumacious debtor " after the space of four weeks" is bad. Regina v. Bannerman, ex parte Shiels, 6 V.L.E. (L v ) -25; 1A.L.T, 136. Form of Warrant — "Imprisonment for Debt Act," Sec. 5, Seh. 3.] — A warrant of commitment upon :a fraud summons is good if it follows the form .given in Sch. 3 of the " Imprisonment for Debt Act" No. 284, though it recites merely the non- payment of an amount ordered to be paid. Be •Gamine, 6 V.L.E. (L ,) 296; 2 A.L.T., 45. What Order Should Comprise.] — An order of commitment on a fraud summons ought to state facts disclosing jurisdiction, or from which jurisdiction to commit may reasonably be inferred. It is bad if it states merely that a former order to pay has not been obeyed. Regina v. Lloyd, ex parte Gill, 5 V.L.E. (L.,) 53. What it Should Comprise.] — The order of com- mitment, under the Act No. 284, Sec. 3, upon a fraud summons must comprise only the sum and costs awarded in the original proceedings ; if it comprise further costs, e.g., the costs of ineffectual efforts to recover the sum awarded, the commitment will be bad. Regina v. Tacke, ■ ea parte Watson, 8 V.L E. (L.J 34; 3 AL.T., 105. Made in Absence of Debtor.] — Owing to the .unavoidable absence of the debtor the proceed- ings on a judgment summons were adjourned, but no notice of the day to which the proceedings were adjourned was given to the debtor, and an order was on that day made in his absence. Held, that the debtor should have had notice of the date to which the cause was adjourned, .and order prohibited. Ex parte Shakespeare, 4 A.T.T.. K Order Drawn Up Wrongly Without Notice to Debtor of Correction of Error.] — A Judge drew up an order after judgment had been signed against a defendant, ordering defendant to pay to plaintiff the amount of the judgment or commitment in default, and on the same day drew up an amended order directing payment into Court. Held, that the second order could not stand, as the debtor had received no notice of the application to amend the first order. Taylor v. Plumpton, 9 V.L.E. (L.,) 48 ; 4 A.L.T., 156. Act No.' 284, Sec. 3— Informal Order — Amended Order.] — An order made under the Act was in the form of a minute stating the particulars of the claim, the amount and date of the judg- ment, that the proceedings were by fraud summons and the decision of the justices. By an affidavit in reply, the complainant referred, to an order drawn up since the minute, but undated. On a rule nisi to quash the order, Held that the minute was defective in not spe- cifying whether any of the offences under Sec. 3 had been committed, that the onus of fixing the date of the subsequent order lay upon the complainant, and that this order was defective in not specifying the offence under Sec. 3 — it not being sufficient to state that the debtor still owes the money, and has since judgment recovered sufficient means to pay, without alleging that he neglected or refused to pay the same. Quaere, whether a defective order can be amended by a subsequent order. Regina v. Hardware, ex parte Smith, 10 V.L.E. (L.,) 325 ; 6 A.L.T , 151. Commitment under " County Court Statute 1869," Sees. 83, 84 — Second Commitment for Same Debt — Jurisdiction Exhausted.] — See Regina. v. Cope, ex parte Fraser, ante column. 253. Discharge from Commitment — Insolvency of Debtor — Ex parte Application — Jurisdiction of County Court under Sec. 89 of the " County Court Statute 1869."] — See Rowbottom v. HenneWy, ante column 254. DECEIT. Actions for.] — See Fraud and Misrepresen- tation. DECLARATION. Statutory.] — See Criminal Law — Land Acts. In Pleadings.] — See Practice and Pleading. Of Parties.!— See Evidence. 351 DEED. 35* DEED. 1. Parties to, Bights of, column 351. 2. Form and Contents of, column 351. 3. Construction, column 351. 4. Registration, column 354. 5. Setting Aside and Rectifying. (a) Setting Aside, column 356. (1) Voluntary Deeds, column 356. (2) In other cases, column 357. (6) Rectifying, column 357. 1. Parties to — Eights op. Contradicting Eecital Collateral to Purpose of Deed.] — A party to a deed wishing to contradict a recital in the deed, collateral to the main pur- pose of the deed, must aver that he was not aware of the facts at the time he executed the deed. Withers v. Greenwood, 4 V.L.B. (L.,) 491. 2. Form and Contents. Conveyance — Past Words of Conveyance.] — In deeds appointing new trustees, the only opera- tive part after the appointment of the new trustee was " hath bargained, sold, released, quitted claim, and confirmed unto the said" new trustee. Held, that the words in the deed were sufficient to pass the legal estate. Mem v. Dallas, 1 A.J.E., 89. Covenants.] — See Covenants — Landlord and Tenant — Land Acts. Proof of Execution by a Trustee of a Creditor's Deed — Attestation Clause as it Originally Stood Is Binding and Not Capable of Amendment.] — In re Wooley, 1 W. & W. (I. E. & M.,) 81. 3. Construction of. Eecital — Covenant.] — An indenture, dated October 16th, 1860, made between K. and C. of the one part, and B. of the other part, recited that B. had sold certain hereditaments to K. and C. for ,£20,000, of which only .£18,000 had been paid ; and that it had been agreed that JS2000, the balance of purchase money, with interest, should be paid at the time and should be secured in the manner thereinafter men- tioned. By the indenture the hereditaments were conveyed back to B., as mortgagee in fee, subject to redemption. It was agreed that if E. and C. should repay the ,£2000 on October 16th, 1862, "and, also, in the meantime, interest for the said principal sum," &c, " by four equal quarterly payments " on days named, then B. should reconvey the hereditaments free from encumbrance, and that K. and C. might pay off before-hand, if they so wished. K. and C. covenanted simply that they had not encumbered. All parties agreed that in case of default in payment of principal or interest on the days provided, B. might sell ; and the indenture contained the usual clauses enabling him to give title, &a. ; lastly, it was agreed that till default in payment, K. and C. should remain in possession of the premises. The interest felt two quarters in arrear. On a special case stated, Held that the indenture contained an express covenant to pay principal and interest, on which K. and C. could be sued personally in covenant for the interest in arrear. Bruce v. Kerr, I W. & W. (L.,) 141. Variance Between Becitals in a Deed and Aetna! Facts — Onus of Proof.] — Where there is a vari- ance between the recitals in a deed and the actual facts, the onus of reconciling the facts with the recitals lies on those claiming under the deed. Symons v. Williams, 1 V.L.E. (E.,) 199, 216. What Passes Under a Deed.] — Where a deed of assignment assigned " all that the said periodical known as the Melbourne Punch and the copyright thereof, and all the back numbers and bound-up volumes thereof in stock, and all the engraved blocks used since the said K. became the proprietor of the said publication in the publication of the said periodical up to the 30th of June, 1866, and goodwill, &c," Held that the words, " and all the back numbers and bound-up volumes thereof in stock," were to be interpreted by the words, "up to the 30th of June, 1866," in the next sentence, and that the assignee was entitled to recover certain volumes which were in stock on June 30th, but which had been removed between that time and the day of the- date and execution of the deed (July 27th.) Wilson v. Smith, 4 W. W. & a'B. (L.,) 131. Creditors' Deed — Release Operating as a Covenant Hot to Sue.] — A creditor's deed contained a clause permitting creditors to execute without prejudice to their securities or remedies against joint debtors, and a clause releasing the debtor without prejudice to the rights of creditors holding security, but omitting any reference to joint liability. Held that the omission could . not overrule the former clause, and that the release only operated as a covenant not to sue. Glass v.Higgins, 2 V.E., (E.,) 28 ; 2 A.J.E., 10._ What Passes by Grant of "All Ways, &c."]— A deed granting in general words, " all ways, &c," belonging or appertaining to the laud granted,- does not create a right of way. Blyth v. Parian, - 2, V.E. (E.,) Ill ; 2 A.J.E., 75. By Reference to Plan in the Margin.] — S. sub- - divided a section of land into a number of lots, reserving streets, and sold the lots by a 'plan of subdivision exhibited at the time of sale. In a conveyance of certain lots, the plan of ' subdivision was referred to as to boundaries, - and a right of way was granted over B. street, " and all other streets reserved out of the said section, and which lands and hereditaments are more clearly shown in the plan delineated in the margin of these presents." On the plan in the margin of the deed, B. street was not shown for the full length delineated on the plan of subdivision. Held that the grantee's • right of way over B. street was limited to so much of the street as was shown on the plan in the margin. Ibid. Lost Deed — Covenant for Further Assurance — Grantor Not Compelled to Execute a Duplicate After Lapse of Many Tears.] — Qeraghty v. Jiussell, ant* - columns 281, 282. 353 DEED. 354 Vesting— Divesting.] — Trust for A. for life, and m the event of her death daring the life- time of her son B. and her two youngest daughters C. or D., then upon trust for the benefit and maintenance of B., C. or D. in equal proportions until attaining age or marriage, and then upon trust to convey in equal pro- portions as B., C. or D. shall appoint, and in event of death of either of them, B , C. or B. before majority or marriage then in trust for the benefit of the survivors of them and the lawful issue of either of them so dying. Held that the event contemplated was the death of A. during the life of the three or any of them, the property vesting on their respective mar- . riages or majority, whichever first happened ; and that A. having attained twenty-one and died a bachelor, his share became vested on his majority, and was not divested on his sub- sequent death unmarried. Be "Transfer of Land Statute," ex parte Leach,, 5 A.J.R., 72. Termination of Agreement " on Giving Notice.''] — A deed contained a provision that the agree- ment contained in the deed might be put an end to by any party to it, on giving the other parties one year's notice of his intention so to do. Held that " on" giving had the same meaning as " by" giving notice, and that, notice having once been given, the agreement could not be revived by a withdrawal of the notice. Robbins ■v. Bobbins, 4 V.L.R. (L.,) 128. Merger.] — Synnot v. Parkinson, 4 V.L.R. (L„) 521, see post under Merger. Construction — Boundary.] — Where, in a grant, the land granted was described as " bounded on the west by another road and reserve to the Port Phillip Bay," the grantee was held to have a right to insist against the grantor, that, as between them the grant gave a right to the use of the road and reserve as a highway, whether it was so in fact or not. Webb v. Were, 2 V.L.R., (E.,) 28. Where, in a grant, the land granted was de- scribed as "bounded on the west by a public pro- menade extending in width to the high water mark of Port Phillip Bay," the grantor was held debarred from preventing the use by the grantee of the public promenade as a pro- menade. Ibid. Boundary — "Margin" of Sea Shore — Question for Jury.] — In a deed (a Crown grant,) the parcels fixed a starting point which had. been obliterated and was not at the water's edge, and then gave the boundaries as on the east "by the margin of Bridgwater Bay to the com- mencing point." The plaintiff contended that the " margin" meant the water's edge, and not the top of some cliffs a short distance there- from. Held, that the word " margin" was not a legal term, so that the Judge was compelled to expound it as a matter of law, and that its meaning had been properly left to the jury. Kennedy v. Shire of Portland, 1 V.L.R. (L.,) 541; 3A.L.T.. 77. False Demonstration — Per Full Court. When; there is a grant of a particular thing onee sufficiently ascertained by some . circumstance belonging to it, e.g., by terms of plain and simple description, the addition of an allega- tion, mistaken or false, respecting it, will hot frustrate the grant. A. by deed gave to B. certain land, " except the dwellinghouse and buildings connected therewith on the land, and also the field on which they stand, containing about 100 acres, bounded on the north by a road, on the east by (&,) on the south by (c,) and on the west by (" with- out any seal of the Court, or signature of a Judge or any officer of the Court to verify it, is not property attested. Dalton v. Plevins, 1 W. & W. (E.,) 177, 185, 186. Grant by Deed to Defendant by Former Owner of Servient Tenement — Replication of Prior Registra- tion of Deed on which Plaintiff Relied.]— Action by M. against B. for damages for allowing water and sewage to flow through M.'s land. Plea (1) That former owner of plaintiff's land (servient tenement) had granted permission to discharge drainage, &c, on the servient tenement. (2) On equitable grounds an agree- ment between former owners of tenements, and in consequence the construction of the drain and acquiescence in the use of the drain. Eeplication to these pleas, that deed through which plaintiff claimed was registered prior to deed under which defendant relied. Held that replication was sufficient and judgment for plaintiff. Mitchell v. Burns, 3 A. J.E., 69. 4. Setting Aside and Rectifying. (a) Setting Aside. (1) Voluntary Deeds. On Ground of Mistake — No Power of Revocation —In Favour of Wife— Act No, 384, Sec. 18.]^Suit 357 DEED. 358 by husband to set aside voluntary deeds made in favour of his wife. These deeds pur- ported to assign certain hotels, and all in- terest in them, to tustees upon trust for his ■wife, on consideration of the trustees paying husband's debts, and allowing him small weekly payments, and contained no power of revocation. It appeared that plaintiff had understood that his wife was to manage the hotel business as his agent, and that he would have power to revoke these deeds in two years' time. Held that though these deeds were ■executed, in pursuance of a contract in writing with the wife, she had no separate estate at the time of such contract, and that such contract was not binding under Sec. 18 of Act No. 384; that the deeds were voluntary, and were executed by plaintiff under a mistake and mis- apprehension of the contents, and deeds de- creed to be set aside. Bryant v. Patten, 3 V.L.E. (E.,) 86. And see cases under Fbatjdulent Convey- ances — Insolvency — Settlement. (2) In other cases. Foolishness — Absence of Professional Advice.] — Where an old man, aged 70, conveyed away his louse and land, which, except the furniture in the house, was all his property, without receiving «ny adequate consideration therefor, he being without professional advice, the Court ordered a re-conveyancc of the property, and a return of the consideration money, on the grounds of the foolishness of the old man, and the absence ■of professional advice, but gave no costs. Heed v. Buck, 10 V.L.E. (E.,) 33. Proving the Deed.] — Per Molesworth, J. — " I ■do not think it is generally necessary for a person to prove a deed which he seeks to set -aside; the litigation on the subject is based upon its existence. If there is anything in its contents affording evidence to either party, he ■may produce it. Attorney-General v. Belson, 4 W. W. & a'B. (E.,) 57, 63. (6) Rectification. On the Ground of Mistake.] — A husband brought a suit to rectify a marriage settlement on the ground of mutual mistake. The evidence showed a mistake upon the part of the husband, but the wife alleged in her answer, though there was no evidence to support it, that she married on the faith of the 'settlement as drawn, and that there was no mutual mistake. Held, per Molesworth, J., that in the absence of evidence to contradict the wife, the bill should be dismissed, with costs. Upon appeal to the Pull Court, Held that the decree was light, and that the onus of proof of mutual mistake lay on the plaintiff, and that the ■evidence was insufficient to support his case. Solomon v. Soloman, 4 V.L.E. (E.,) 40. Voluntary Deed — No Clause of Eevocation — Mis- take in Law.] — Voluntary deeds not containing any clause of revocation are valid and enfor- ceable in Equity, unless executed in mistake or obtained by fraud. Where a settlor was hindered from inserting a clause of revocation on the understanding given by his attorney that it was unnecessary, as the settlement might be got rid of by a fictitious sale and re-purchase, Held that such was a mistake in law, against which no relief would be granted, and afforded no ground for setting aside or rectifying the deed at the instance of the settlor. Moorhouse v. Bolfe, 4 A. J.R., 159. On the Ground of Mistake and Fraud.] — A lease gave the lessee an option to renew for a further term, which he exercised. The endorsement of renewal upon the old lease contained a clause that the new lease was " under and subject to covenants, clauses, and agreements in the within lease contained, and as if the same had been specifically repeated and embodied herein." Under this the lessee claimed aright of further renewal, which the lessor had dis- tinctly, in previous conversations with the tenant's agent, refused to grant. The draft endorsement was submitted to and read over by the plaintiff, who made no objection to it, ■ but asserted afterwards that he had mistaken the meaning. Upon bill by the lessor to have the endorsement rectified, on the ground of mutual mistake and fraud, the lessee denied mistake on his part, and the evidence was balanced on the question of fraud. Held that, as the plaintiff had perused the endorsement, and should have been on his guard, the effect of the words must prevail, and bill dismissed, with costs. Johnson v. Donaldson, 6 V.L.E. (E.',) 121; 2 A.L-T., 12. Amendment of Mistake — " Spirits " substituted for "Spouts."]— Hoss v. Blackham, 1 V.L.E. (E.,) 220, post under Practice and Pleading — In Equity — Demurrer. On Ground of Mistake.] — Per Molesworth, J. — To entitle a party to rectify a document, it must be shown distinctly what was the intent of both parties, and that there has been a mutual mistake. It is not enough to show what one party thought was the result of a con- versation, unless there is something in it dis- tinctly showing that the other party took the same view. Plaintiffs were merchants trading as partners ; the defendants, M. and A., were also trading as partners. Plaintiffs became indebted to defendants and other creditors, and by mortgage under Act No. 301 mortgagee! certain lands to M. as a trustee for his own firm as to one quarter, as a trustee for other creditors as to rest. Plaintiffs subsequently became insolvent, and their trustees made an arrangement by which they were entitled to buy back their estate on paying 9s. 6d in the pound, and as part of it, M. signed an agree- ment by which, for a certain preferential standing, he released to plaintiffs "Ms share" in the mortgage. He refused to release the interest of the firm therein, but offered to release his individual interest. Held, per Molesworth, J., on a suit by plaintiffs for recti- fication on ! ground of a mutual mistake and for general relief, that there was no evidence of a mistake, and that under the agreement M. had only assigned his individual share. Per Full Court, that though there was no mistake proved, the Court could grant the consequent relief prayed upon the construction of the deed 359 DEFAMATION. 360 itself without rectification, and that under the deed of agreement, M. assigned the firm's share in the mortgage. McClure v. Marshall, 9 V.L.E. (E.,) 84, 96. On Ground of Mistake ] — A bill to rectify a deed on the ground of mistake did not show that the intention of the parties, or at all events of the defendant, was not in conformity with the deed, showed no common mistake of both parties, and no fraud by one party knowing that the other was acting in ignorance. Held bad on demurrer. Harper v. Mackenzie, 1 W. & W. (E.,) 102, 106. And see Sutherland v. Peel, Attorney-General v. Belson, post under Mistake. Rectification of Mistake in a Crown Grant.] — See Grant. DEFAMATION. I. In Ordinary Cases. (1) What is Actionable. (a) Generally, column 359. (6) In Respect of Trade, column 361. (c) Upon Proof of Special Damage, column 361. (2) Privilege. (a) In Discharge of Duty, column 362. (6) Matters of Public Interest, column 363. S3) Practice and Procedure, column 364. 4) Interrogatories and Discovery, column 370. (5) Criminal Information, column 371. II. Slander op Title, column 371. 1. In Ordinary Cases. 1. What is Actionable. (a) Generally. Imputation of Illegitimacy Hot Actionable.] No action will lie for saying to a man. " Tour children are bastards." Smith v. Hethet-ton, % W.W. &a'B. (L.,) 101. Word "Bog-Trotter."]— See O' post column 365. Motley v. Elder, libel on Partner in Which Other Partner is Eeferred To.]— VV. and M. were in partnership as attornies, and M. was also President of the Board of Land and Works. S. published in a newspaper certain articles reflecting on M. as President of the Board, and in such articles W. was referred to. The articles complained of were in three counts, and were as follows : 1_ " He (M.) has closed the front door of the Land Office to the general public. He has opened a private entrance for his partner and Clients." 2—" At a time when the Land Office was closed to the general public, A., a partner in the firm of McC, V. and Co. (clients of W. and M.,) waited upon M. at the Land's Office, in company with W., the junior partner of the learned President, and obtained from him the promise that commons would in certain in- stances be open for selection. Acting on this, A. proceeded at once to T., where his firm has a branch store, and, assisted by his clerk and shopman, pegged out the whole of the common on the very day that the new "Zand Act" came into operation." 3 — "JVT.'s good offices are more easily obtained by the friends and clients of his junior partner." The innuendoes charged as to the first and third that S. meant that W. improperly availed himself of the facilities ."alleged to have been afforded by M. to him and his clients; and, as to the second, that S. meant thereby, "that when the office of the Board of Land and Works was closed to the general public, W., in company with A., unduly and improperly, and with a view to obtain an unfair advantage for the said A. and his, A.'s, said firm- over the general public in the selection of certain public lands of the said colony, viz., the T. common, waited upon his partner, the said M., and by such undue and improper means, and with such object obtained from him a promise that certain commons would in certain instances be open for selection, of which the T. common was one, and that the said A . availed himself of such prop- mise by pegging out the same on the very day thatthe new "Land Act " came into operation." Held, on demurrer, that the matters charged in the first and third counts referred to W.'s partner as President of the Board of Land and Works, and not to W. himself, and that there was nothing actionable in the words used; that the innuendo in the second count was too large for the matters charged, anil that the words used contained a charge only against M„ as President, and not against W. Wilson v. Syme, 1 V.E. (L.,) 112; 1 A.J.E., 90. Slander of Married Woman in Past Tense — Suit by Husband.] — A declaration in an action by a husband for slandering his wife set out the slanderous words used as " You," (plaintiff's wife) " kept a brothel, and that's how you got your money." Plaintiff sued on the ground that this alluded to the time of his wife's coverture, in which case he would be punish- able for allowing her to act as the defendant stated. Held, that the statement being in the past tense, it did not necessarily allude to the time of coverture, and that no action would lie. Bay. v. Wakefield, 1 A. J.E., 162. Criticism Upon an AGtor's Performance.] — An actor sued the proprietor of a paper for a criti- cism on the actor's performance, which was to the following effect : — " Faust, in the hands of that slovenly and careless actor, I. , was a farce. The great scene depends upon the sudden transformation of an old man into a young and brilliant young man. Now, when the gown and beard were twitched off, I. appeared dressed like an ordinary supernumerary in solid gar- ments. Then the delivery of his speeches was so low, sulky, and lifeless, that we were really inclined to think he had some quarrel with the management about it." The jury gave the plaintiff a verdict. The Court refused a new trial. Ireland 'v. King, 5 A.J.E., 24. 361 DEFAMATION. 362 Seaman's Certificate of Discharge — Filling Up Columns with a Cross — Question for Court.] — Where the master of a ship filled up the co- lumns relating to ability, sobriety, and conduct of a seaman's certificate of discharge with a cross, Held that it was for the Court to say whether the matter complained of was libellous ; that the mere insertion of crosses in the columns of the certificate afforded no grounds from which a libellous inference could be legi- timately deduced — nothing proper to be left to a jury; and plaintiff nonsuited. Snewin v. Doherty, 6 V.L.E. (L.,) 305; 2 A.L.T., 59. Shipmaster Writing "Declined" in the Certificate of Character Given on the Discharge of a Seaman.] — See Garsonv. Jacobsen, 5 V.L.E. (L„) 7, post under Shipping — Seamen. Words Imputing Criminal Offence — Effect Neutra- lisedby Contemporaneous Words and Circumstances.] — Words, e.g., "You are a, b y, infamous thief," in themselves importing a criminal offence, may be shown, in an action for defam- ation, by evidence of the circumstances and the connection in which they were used, to be merely terms of scurrilous abuse ; and will not then be actionable without proof of special damage. Hodgson v. Bulpit, 6 V.L.E. (L.,) 440. In Jamison v. Scott, 5 A. J.E., 24, the Court Held that the word "thief," as applied to a plaintiff, was slanderous. (5) In Respect of Trade. Imputation of Insolvency — Person Libelled Not a Trader.]— F. sued E. for libel on two counts, (1) being that E. wrote of F., " What about E. ; has he settled with you. I am going to make him insolvent, as I have tried fair means which I find of no use ;" (2) that plaintiff was Harbour Master at X,, and that the words were written in relation to his said employment. Defendant demurred to first count because it did not allege that plaintiff was a trader. Plaintiff recovered a verdict, and a rule nisi to enter verdict for defendant and the demurrer were argued together. Held, that if the words were a mere charge of insolvency urged against a' non-trader, they would not be libellous, but that it was open for the jury to say that the words were libellous, as conveying a charge of dishonest insolvency, because the Court was of opinion that they were capable of such a mean- ing. Eule discharged. Judgment for plaintiff on demurrer. Fcrmaner v. Emmerson, 5 A. J.E., 146. (c) Upon Proof of Special Damage. ■ Imputation of Drunkenness — Schoolmaster.] — It is not actionable to say of a schoolmaster "that he was drunk and fell on the floor," unless special damage can be shown. Brandrick 10 damages will carry costs ; if the verdict is for a less amount, the Judge can certify for costs. Nash v. Miller, 1 A J.E., 61, 64. Certificate for Costs — "Common Law Procedure Statute," Sec. 429 — Personal Malice.] — In an action for libel plaintiff recovered a verdict with nomi- nal damages. On application for certificate of costs, under Sec. 429 of the " Common Law Pro- cedure Statute," Meld, that the malice in Sec. 429 must be personal as distinguished from the malice which is implied by law in every libel case, and, there being no evidence of such malice, certificate refused. Walker v. Qeorge, 5 A.J.E., 99. Two Counts on Same Publication — Damages.] — A declaration contained two counts for the same publication complained of as a libel ; the first contained an innuendo that words were written of plaintiff as a member of parliament, the second as an accountant and auditor. Damages were given separately on each count. Held, that the damages on both counts could not stand, but the plaintiff might elect which he would retain. Lang ton v. Syme, 3 V.L.B- (L.,) 30. Damages — Imputation of Unchastity — Jury Not Confined to Proof of Special Damage.]— In an action for slander, imputing unchastity to an unmarried woman, though the action is not maintainable without pToof of special damage, the amount of damage proved is not neces- sarily to be the measure the jury are to adopt in awarding their damages. When they have decided to find a verdict for the plaintiff, the amount of damages to be awarded is in their discretion. White v. Jordan, 6 V.L.E. (L.,) 11 ; 1 A.L.T., 135. Question of Privilege and Fair Comment Question for Jury.] — See Creek v. Newlands and Home v. Milne, ante column 363, and DeMestre v. Syme, ante column 364. (4) Interrogatories and Discovery —See Discovery. 371 DETINUE. 372 (5) Criminal Information. Writing and Publishing, and Causing to be Written and Published."} — "Writing and pub- lishing, and causing to be written and pub- lished," are not two offences, but merely the same thing stated twice, and either in an infor- mation is sufficient. King v. The Queen, 2 V.L.B. (L.,) 17. Publishing Malicious Libel, Knowing it to be False — Inquiry into Truth — No Plea of Juitification.] — Upon a chaige under Sec. 7 of the " Statute of Wrongs 1865," of maliciously publishing a defamatory libel, "knowing the same to be false," the prosecutor necessarily undertakes to prove the falsity of the libel to the know- ledge of the accused, and the accused may therefore prove its truth if he can, although no plea of justification be entered upon the record. Ibid. Information in the Name of Prothonotary — " Judicature Act," No. 502, Sec. 32— Trial at Bar.]— An information for libel by a private prosecutor, brought in the name of the Prothonotary of the Supreme Court, under Sec. 22 of the Act No. 502, where no warrant of nisi prius has been obtained, must be tried at bar. Regina v. Trenwith, 10 V.L.E. (L.,) 250 j 6 A.L.T., 99. Such an information, though " penal ". in its consequences, is " civil " as to procedure. Ibid. Complainant Obtaining a Commitment for Trial by Justices.] — See the Queen, ex parte Farrell, v. King, ante column 283. II. Slander as Title. Evidence of Malice.] — Plaintiff was a selector of land, and was entitled to a lease from the Crown. The lease was sanctioned by the Lands Department, but before it was issued from the Titles Office, a caveat was lodged by direction of defendant, in which it was claimed that the Queen had an equitable interest in the land. It subsequently appeared that the Crown did not claim any interest in the property, and defendant stated that the only reason he knew why the caveat was lodged was that it was to protect a bank which had a claim against the land. He stated that he acted under the direction of the Minister of Lands, but could not remember the reason why the order was given. The caveat was removed in a few weeks, but plaintiff suffered damage. Held, in an action for slander of title, that there was evidence of malice to go to the jury. Matthews v. Morrah, 6 A.L.T., 9. Trade Advertisement — Special Damage.] - Nicholson v. Allen, ante column 361. -See DELIVERY ORDER. See LIEN— SALE. DEMURRAGE. See SHIPPING. DEMURRER. See PJ4ACTICE. DEPOSITIONS. Taken Before Magistrates.] — See Criminai; Law — Debtors Act. Under Commissions.] — See Evidence. DESIGNS. See Copyright. DETENTION OP PROPERTY (ILLEGAL.) See Offences (Statutory.) DETINUE. Although the aclionof detinue partakes both of the nature of an action founded on contract and on tort, yet a verdict for one of several defendants in detinue does not enure to the benefit of all, as in other actions founded wholly on contract. Plaintiffs do not stand in the same position as in actions wholly on con- tract, and, by parity of reasoning, the defen- dants do not so stand, and all are therefore not precluded by a verdict passing only against one but in favour of the others. The Board of Land and "Works declared with an informal count of detinue against S., G. and T. T. treated the count as in tort, and pleaded (1) not guilty, (2) traverse of delivery of goods. S. and G-. treated it as in contract, and pleaded (1) non detinet, (2) traverse of possession. 373 DISCOVERY. 374 The day before the trial, S. took out a summons to stay proceedings on giving up the goods, paying one shilling damages and costs, and an order was made as upon summons, but S.'s name was not removed from record. There was a verdict for plaintiff, damages one shil- ling against G., and a verdict of " Not guilty" against T., but a special finding that he did detain goods but not wrongfully. Three rules nisi were obtained, (1) by G. to arrest judg- ment, (2) by plaintiffs on behalf of T., to enter a verdict for plaintiff on the second finding, and for a new trial on the first finding, (3) by plaintiffs to enter a suggestion of Judge's order to stay proceedings against S. The Court dis- charged the first rule, made absolute the second rule as to new trial, giving leave to amend pleadings, and discharged the third rule as being useless. Board of Land and Works v. Glass, 2 W. & W. (L.,) 58. G. taxed his costs, and issued a fi. fa. for them. The Board did not proceed to a new trial, but signed judgment and gave notice of taxing final costs. Summons by G. to set aside the judgment signed. Beld, that rule for new trial was not so expressed as to justify the plaintiffs in signing judgment against any of the parties, and G.'s summons granted. Sum- mons by Board to set aside fi. fa. issued by G., or to set off against the costs of the action, the costs for which the fi. fa. was issued. Held, that the interlocutory costs of G. could not be set off against the final costs of the action, because it was still undetermined and the costs were unknown. Summons dismissed. Ibid, 2 W. & "W. (L.,) 197. Demand of Property.] — In an action of detinue for the recovery of books and other property belonging to a mining company, it appeared that the authority to the company's attorney to demand the property was not signed by a quorum of directors, or by the manager in the capacity of manager. Held that the evidence of authority to make the demand was insuffi- cient. Aladdin and Try Again Company v. Schaw, 2 V.E. (L.,) 18; 2 A.J.E., 20. Damages — Substantial.] — Substantial damages maybe awarded for the detention, in an action of detinue, although the chattels be given up. Wilson v. Thomson, 4 V.L.E. (L.,) 281. Action for Crown Grant — Title of Grantee Not in Issue— Defence.] — In an action of detinue for a Crown grant, the fact that the grant has issued in the name of the plaintiff, is prima facie sufficient to entitle him to recover the deed. The title to the land comprised in the deed is not in issue ; and the fact that the plaintiff has not complied with the "Land Act" does not form a defence to such action. Humffray v. Eumffray, 6 V.L.B. (L.,) 221. Action for Detention of Ship.] — See Wilson v. Holmes, ante column 9, under Action. Action by Executors — One Executor Fledging Pro- perty of Testator for His Own Debt — All the Execu- tors Cannot Sue.] — See Hartney v. Uiggins, post under Executors and Administratobs — Suits and Actions by and against. Jurisdiction of Judge in Chambers.]— A Judge- in Chambers has jurisdiction where, in an action of detinue, the plaintiff has tendered the defendant the amount of his lien on the goods, and the defendant has refused to receive it, to make an order staying further proceed- ings, and directing that the defendant should give up the goods on the plaintiff paying the- amount due upon them. Hellas v. Cooke, 6» V.L.E. (L ,) 426. DEVISE. See WILL. DIRECTOR. See COMPANY. DISCLAIMER. See INSOLVENCY AND TEUST' AND* TBUSTEE. DISCOVERY. I. Discovert, Production, and Inspection" of Documents. !a) Application for, column 374. 6) In What Cases, column 375. (c) Of What Documents, column 375. (er Higinbolham, J. (in Chambers,) that the report being privileged under the old procedure, and the action being a pending one, to be dealt with according to the procedure in force at the time it was commenced, the application could not be granted. Bradshaw v. Victorian Railway Commissioners, 6 A.L.T., 20. Bankers Books — "Bankers Books Evidence Act 1878."] — The " Bankers Boohs Evidence Act 1878," does not apply to books of a bank out of the jurisdiction of the Court. Bank of Australasia u. Pollard, 8 V.L.R. (L.,) 66 ; 3 A.L.T., 103, sub. nom , Bank of Australasia v. ■ Follard. (d) Against Whom. Solicitor of Assignor — Application of Assignee — Summary Jurisdiction.]— The Court has sum- "mary jurisdiction to order solicitors to produce documents for inspection of assignees of their clients, but the application must be made in privity with or upon notice to, or with consent of the assignors. B. and T., as soli- citors for G. and W., prepared and retained deeds relating to a Government contract, in which G. and W. were interested. G. and W. assigned all their interest to H. W. and C. There was a suit pending against H. W. and C. with reference to the contract. On motion made by H. "W. and C. for inspection by B. and T. the order was made after a verified consent to the application had been made by G. In re Bennett and Taylor, 2W.W.4 a'B. (B.,) 15. Solicitor of Party — Summary Jurisdiction.] — The Court has summary jurisdiction to order a solicitor claiming a lien on deeds to produce them. Jamieson v. Allen, 2 W. & W. (E.,) 47. S.C., see Solicitor — Costs— Lien for. II. Interrogatories. The plaintiff bank sued on a bill of exchange. The defendant, E., pleaded a release. The bank obtained an order to exhibit interroga- tories to the defendant whether the agreement for a release was made with B., late manager of the bank, who was now in England. Held, that B. might be regarded as the bank, he having been its manager, and the fact of his being in England, and no longer a servant, did not affect the question. Order for inter- rogatories rescinded. Colonial Bank of Austra- lasia v. Mtershank, 3 V.E. (L..) 30; 3 AJ.B. 34. What may he Asked—" Common Law Procedure Statute," Sec. 877.] — S. sued H. for the unpaid residue of purchase money for a station pro- perty. H. pleaded a deed of composition under the "Insolvency Statute 1865," Sees. 115, 117. There was no replication of fraud. The plain- tiff then took out a summons under Sec. 277 of the " Common Law Procedure Statute " for leave to adminster interrogatories. The Court struck out such of them as referred to such particulars as seemed to point towards impeach- ing the deed, e.g., instigation to execute the deed, and to obtain the assent of the creditors and other particulars. Stewart v. Hogg, 1 V.L.R. (L.,) 139. When Interrogatories Not Necessary — Contempt of Court.] — In re Thompson, ante column 181. Interrogatories as to Documents in Defendant's Possession — When Refused.] — Learmonthv.Bailey, 5 A.J.R., 93, post under Practice and Plead- ing — In Equity — Answer. Husband and Wife — Absence of Co-Plaintiff from Colony.] — An action was brought by a husband and wife as co-plaintiffs, and an order was made requiring them to answer interrogatories and staying proceedings until answered.,- ft appeared that the wife was absent from the colony, and the husband did not know where she lived and could not find her. Summons to set aside the order refused. Griffiths v. Vic- torian Permanent Building Society, 7 V.L.B- (L.,)177; 3A.L.T..7. 377 DISCOVERY. 378 Wife and Husband Co-Plaintiffs.] — In an action in -which the husband and wife were co-plain- tiffs, the defendant obtained an order calling upon the wife to answer certain interrogatories. Summons by husband to set aside the order on the ground that the wife could not be found. Held that the husband must show to the Court's satisfaction that he had exhausted all reason- able means within his power of ascertainnig where his wife was. Griffiths v. Victorian Per- manent Building Society, 9 V.L.E. (L.,)304. To What Discovery Plaintiff is Entitled.] — In an action for slander, Held that plaintiff might administer interrogatories to the defendant as to whether he uttered the words complained of, and as to whether he had been told by some person what he afterwards repeated ; but, per Stawell, C. J. (dissentiente Barry, J.,) he might not ask who that person was. The Daily Tele- graph Company v. Berry, 5 V.L.E. (L.,) 343, 346,348; 1AL.T., 51. Party Interrogating Having Means of Knowledge.] — Although the party may have the knowledge he seeks or means of knowledge, it is no longer a good objection, for the party may wish to have this information corroborated. Unless the interrogatories are scandalous, or the party interrogated is privileged, either party may administer any interrogotary which he could ask in examination in chief if that person were in the witness box, provided such questions do not relate exclusively to the case of the party .interrogated. Daily Telegraph Company v. Berry overruled. James v. Davies, 9 V.L.E. (L.,) 140; 5 A.L.T., 29. To What Discovery a Plaintiff is Entitled.] —Per Holroyd, J. (in Chambers.) A defendant is not compelled to answer interrogatories as regards admitted facts, since these are not matters in question in the cause, and are there- fore irrelevant. No doubt a plaintiff is entitled to discovery, not only of facts within the defen- dant's knowledge, or means of knowledge, which will support his own title or claim, but also of facts which will repel what he anticipates will be the case set up by the defendant. But his right does not extend to a discovery of the evidence upon which the anticipated case of the defendant is to be supported. Still less can he be allowed to extract evidence on which an argument might perhaps be founded, tending not to rebut a case, but to impugn the defen- dant's veracity. Wainman v. Hansen, 6 A.L.T., 67. An interrogatory for the discovery of docu- ments is not warranted by an order for inter- rogatories. Ibid. An interrogatory which is a mere cross- examination to impeach credit is not allowable. Ibid. For circumstances in which certain interro- gatories were allowed and others disallowed, see Ibid. Action for Libel.] — In an action against the ■niiWisTiornf a newsnanfir for damasres in resbect of a libellous letter, interrogatories asking the- defendant if he were not the writer of the- letter in question, if he knew the name and- address of the writer, will not be permitted. Smith v. Powell, 10 V.L.E. (L.,) 79 ; 5 A.L.T., 194. An objection to interrogatories that the- answer might criminate the person interro- gated will not be allowed, unless such person, makes an affidavit to that effect. Ibid. Per Higvribotham, J., (dissentientibus Stawell r C.J. and Holroyd, J.) Whichever of the specified grounds of objection might be taken by a witness, and however sincere his apprehension of conviction might seem to be, the Court should disallow the objection, and should en- force an answer to a penal, disgracing, or criminating question, if relevant and material, unless it should seem to the Court reasonably probable that the answer will lead to his pro- secution, or in the event of a prosecution being instituted, materially tend to his conviction. Ibid. Action for Libel — Answer.] — Per Holroyd, J. (in Chambers) — If, in an action for libel, interrogatories are delivered by the plaintiff as to the publication, &c.,'the defendant will not be permitted to insert in his answering affidavit matters which are intended as a justification for his conduct. Boperv. Williams r 6 A.L.T., 87; Practice — Affidavit — Act No. 274 (" Common Law Procedure Statute,") Sec. 278.] — An attorney's clerk is not an "agent" for a corporation within the meaning of Sec. 278 of Act 274, so- that an affidavit in support of a summons for interrogatories is not sufficient when made by a clerk of the plaintiff 's attorney, when such plaintiff is a corporation. Daily Telegraph Company v. Berry, 5 V.L.E. (L.,) 343, 346, 348; 1A.L.T., 51. Costs.] — Semble, per Stawell, C. J. — It is not in the power of a Judge in Chambers to award costs on a summons to administer interroga- tories. Ibid. Practice Under " Judicature Act 1883'' — "Sup- reme Court Rules 1884, " Order 31, Rule 1.] — A Judo-e on an application for leave to deliver interroga- tories, will not go into the form of them so as to allow of any objections being taken as to their nature. Meudell v. M'Lay, 6 A.L.T., 69, Order 30, Rules 1 & 2 of " Supreme Court Rules 1884" — Application for Leave to Deliver.] — Per Williams, J. — " In all cases where leave is sought to deliver interrogatories, if the plead- ings are before me, I shall be satisfied with a statement from counsel of the nature of the interrogatories, and shall not require their nature to be otherwise set out." Holt v. Henry, 6 A.L.T., 98. Leave to Deliver — Order 30, Rule 3— Order 31, Rules 1, 26.] — (Per Higinbotham, J.) If a» application for leave is made specially it should be made em varte. and coDiea of the -nrnrivsnfl 379 DISTRESS. 380 interrogatories need not be served; and the Judge should satisfy himself by inquiries as to the nature of the action, the issue involved, and the general scope of the interrogatories, and as to any offers made by the parties sought to be interrogated to deliver particulars, make admissions, or produce documents. An appli- cation for leave to deliver should be made under general summons for directions under Order 30, Eule 3. And where the applicant applied specially and by summons, he was made to pay the costs of the defendant's appearing on the summons. Nixon v. Milton, 6 A.L.T., 114. Summons for Further and Better Answer to Inter- rogatories.]— On a summons for further and better answer to interrogatories, the plaintiff gave notice that he intended on the hearing of the summons to use two affidavits filed on an application under Order 14, Eule 1, for leave to enter final judgment. Held, per Holroyd, J. (in Chambers,) that these affidavits ought not to be used, but that the Judge should only look at the pleadings to ascertain whether the interrogatories have been sufficiently answered. Wainman v. Hansen, 6 A.L.T., 67. DISMISSING SUIT OR ACTION. See PRACTICE. DISTRESS. 1. Who may Distrain, column 379. 2. What may be Taken. (a) ' Goods of Person Becoming Insolvent, column 381. (b) In other cases, column 382, 3. Effect of Distress and Proceedings thereon, column 382. Statutes. "Distress Act," 15 Vic, No. 4, repealed and re-enacted by " Landlord and Tenant Statute 1864," Part 4. "Landlord and Tenant Statute 18C4," No. 192, Part 4. 1. Who Mat Distrain. Agent Under Avowry Without Warrant — "Dis- tress Act," Sec. 1.] — An agent under avowry of a landlord mortgagee, proved a warrant to the bailiff to distrain for rent, but did not prove any warrant by the landlord to himself. Held that notwithstanding the negative words, of "The Distress Act," 15 Vic, No. 4, Sec. 1,' the seizure was valid and the ..avowry good. Harjcer v. Barwiclt, 1 W. W. & a'B. (L.,) 165. Some of Several Trustees.] -— Since one joint tenant is at liberty to distrain on behalf of the others, though he is accountable to the others, it is not necessary that trustees, being joint tenants, should all join in a distress. Trustees are not recognised at law, and a Court of Law can only deal with them as holders of the legal estate. Where, therefore, a distress warrant was signed by two out of three trustees, Held sufficient. Moore v. Lee, 2 V.E. (L.,) 4- 2 A.J.B.. 16. Mortgagees.] — See Moore v. Lee, 2 V.E. (L.,) 4; 2 A.J.K., 16, post under Mortgage— Eights and Liabilities of Mortgagees, &c. What Tenancy Will Sustain Distress.] — On 25th January, 1869, D. signed an agreement to lease an hotel to C. for five years, from 24th June, 1869, at i>700 a-year, the lease to contain the usual covenants. C. entered into possession, and a dispute occurred as to what were usual covenants, and an Equity suit was instituted for specific performance. On 3rd October, 1870, D. distrained for rent in arrear up to 30th September, 1870. The lease directed by the decree in Equity was dated November 15th, 1870, and demised the premises from June 24th, 1869, and contained a covenant to pay the rent from that date. It was contended that the lease dated subsequent to the distraint did not justify D. in distraining. Held that a tenancy sufficient to justify a distress might be proved by possession of the premises and actual payment of rent, or an admission that rent had been paid, and that C. having entered into possession and executed a deed by which he was estopped from saying that rent had not been paid, there was evidence of a tenancy to go to the jury, and that D. was justified in distraining. Coleman v. Dean, 2 V.E. (L.,) 87; 2 A.J.E., 60. "Landlord and Tenant Statute," No. 192, Sec. 81— Purchase by Landlord of Goods Distrained Within Five Days of Distress — Lien for Bent Still Good.] — M. held a bill of sale over certain chat- tels of his tenant, and seized them and bought them from the tenant. D. also held a bill of sale over the same chattels, and claimed them from M., but M. refused on the ground of his seizure under the bill of sale. At the trial, M. relied upon the seizure as a distress for rent due. Held, on appeal from County Court, that though the Act only allowed him to sell after five days, yet, as landlord, he had a right to keep the chattels until the rent due was ten- dered. Verdict for defendant M. Molloy v. Dolphin, 5 A. J.E., 84. Mesne Landlord Whose Term is Determined.] — A landlord leased land for a term to M., who sublet to E. After the determination of M.'s term, the landlord without any notice to M , the mesne landlord, granted a lease to E. Held that this, was a sufficient determination of M.'s tenure to disable him from distraining upon E., after the expiration of his (M.'s) lease, as upon a continuing tenancy at will, or on sufferance. Martin v. Elsasser, 4 V.L.B. (L.,) 481. 381 DISTRESS. 382 A married woman cannot demise land to her husband, and therefore cannot distrain upon him for rent in arrear. Begina v. Templeton, ex parte Allen, 4 A.J.K., 70. 2. What mat be taken. (a) Goods of Person becoming Insolvent. Distress — Abandonment of — "Insolvency Statute 1871," No. 879, See, 108— Trustees' Liability.]— "The provisions of Sec. 108, Act No. 379, do not apply to a case of two lessees as joint tenants where distress has been made on the goods of ' hoth, and one subsequently sequestrates his •estate. Quaere, whether goods of a tenant passing by a bill of sale are protected by Sec. 108 of Act 379, upon his subsequent insolvency. A. and B. were lessees of certain property as joint tenants, and on February 1st, 1875, owed .£115 for rent. O., a trustee, urged upon H., the other trustee, to distrain. H. delayed, and O., on February 9th, distrained the goods of both. H. prior to this took by assignment a hill of sale over goods of A. and B. for his own benefit. February 15th B. sequestrated his •estate, and O. abandoned the distress. Held that B.'s sequestration under Sec. 108, made the abandonment of distress necessary, but that beneficiaries were not on the pleadings and the frame of the suit entitled to an account for this rent as on the basis of wilful default, and that certain wheat having passed to H. to to be sold by him, and the proceeds to be -applied by him as part payment of the rent, H. was liable for these proceeds. Officer v. Haynes, 3 V.L.E. (E ,) 11.5. Goods Seized Under Bill of Sale — Distress for Sent— Insolvency — " Insolvency Statute 1871," Sec. 108.]— Sec. 108 of the "Insolvency Statute 1871," is for the protection of general creditors against the superior powers of landlords dis- training, and does not vary the rights of landlords and mortgagees. In re Sweeney, etc parte Diggins, 4 V.L.E. (I. P. & M.,) 1, 6. S., a tenant of O., gave M. a bill of sale over his goods, and M. seized them thereunder. D. subsequently distrained the same goods for rent due, and S. then voluntarily sequestrated his estate, and an arrangement was made by M. and the official assignee that the latter should sell the goods, and, after deducting his commission, should pay the surplus to M. The goods were then sold, and the assignee paid the amount of B.'s distress into a bank, under Sec. 89 of the "Insolvency Statute 1871," as money not claimed by him, and handed the surplus, less his commission, to M. Held that D. was entitled to proceed with his distress, as against M., and was entitled to be paid his rent in full out of the proceeds of the sale of the goods. Ibid. Distraint Before Sequestration — Selling Goods After— "Insolvency Statute 1871," Sec. 108.]— A landlord distrained a tenant's goods for rent, and the tenant then sequestrated his estate. The landlord proceeded to sell the goods under the distress. Held that, under Sec. 108 of the "Insolvency Statute 1871," he was prohibited from so doing, and should pay to the assignee the value of the goods and costs. In re Nichol and Payroux, 4 V.L.E. (I. P. & M.,) 81. .See also Davey v. Bank of New South Wales, 9 V.L.E. (L.) 252; 5 A.L.T., 85, post under Insolvency — Property of Insolvent, and Assignee's Title thereto — "What Property passes to Assignee. (o) In other cases. Cattle of Strangers on Demised Premises — " Land- lord and Tenant Act," Ho. 192, Sec. 55.]— Under the "Landlord and Tenant Act," No. 192, Sec. 55, the landlord may distrain the cattle of strangers on the premises demised, as well as those of his tenant. The first four lines of the Section, which are adapted from 11 Geo. II., Cap. 19, Sec. 8, have not been carefully em- bodied in the section, and must be deemed to be not a restriction of the common law right of a landlord to distrain the cattle of strangers on the premises demised, but an unnecessary declaration of that part of the common law of distress which, without any statutory autho- rity, entitles the landlord to destrain the stock of his tenant on the land demised. Heaney v. Harper, 3 W. W. & a'B. (L.,) 128. Seizure of Sheep as Distress for Bent.] — Plain- tiff had turned his sheep out into an unenclosed common, and they strayed from that into other land, also unenclosed, where the defendant, as agent for the owner of the land, seized them as a distress for rent. Held, that being dis- trained as distress for rent in arrear, they might be so seized at once, and it was not necessary for them to be on the ground levant and couchant, the plaintiff being to blame for having no one in charge of them. Maguire v. Dixon, 6 W. W. & a'B. (L.,) 227 ; N.C., 25. Money— So. 267, Sec. 118.]— M., being entitled to a portion of a sum of money, which was under E.'s control, had a distress warrant issued against him at the instance of E. When the constable came to levy, E. drew a cheque in favour of M., and pat the proceeds in a packet, marked with M.'s name, on his desk, and pointed it out as M.'s property to the constable, who levied on it. E. had no direc- tions from M. to cash the cheque. Held, that there had been no appropriation of the money in favor of M., and that the money could not be levied on under Sec. 118 of the " Justice of the Peace Statute 1865," No. 267. Reeves v. MeGuinness, 2 V.E. (L.,) 187; 2 A.J.E., 108. Crown Property.] — The property of the Crown is not subject to distress for arrears of rent due to the landlord of the premises on which that property is found. Begina v. Tucker, 1 W. W. & a'B. (L.,) 193. 3, Effect of Distress and Proceedings THEREON. Illegal Distress — Seizure of Growing Plants — Liability of Principal for Agent.] — S. was C.'s tenant, and the rent being in arrear, C. instructed his agent to distrain. The agent seized and sold some growing plants and 383 DISTBESS. 384 the whole of the nursery stock, and C. received the proceeds. S. sued C. for illegal distress and recovered a verdict. On rule nisi for a nonsuit, Held that the distress was illegal, and that there was evidence of C.'s receiving the proceeds of the sale, and of his being aware of his agent's acts, sufficient to justify the jury in arriving at the conclusion that C. ratified those acts. Sherwood v. Courtney, N.C., 68. Illegal Distress — Goods Seized Under — Bill of Sale Paramount to Faulty Distress.] — Regima o. Templeton, ex parte Allen, ante column 108. Illegal Distress— Liability of Husband for Distress by Wife — Agency.] — Douglas v. Lewis, 5 A. J.E., 22, post under Husband and Wife — Husband's rights, &c. — Liabilities for wife's acts. Distress Warrant — Signature by Agent,] — A warrant to distrain began — " I, B., of, &c, as the duly constituted agent of the — Bank of — , do hereby authorise you to distrain, &c.;" and was signed, "The — Bank of — , by its attorney, B." Held that the warrant was sufficient. Cowper v. Ninham, 2 A.J.E., 15. Illegal Distress — Tender of Amount Due Not Accepted] — Barry v. Dolan, 2 A.J.E., 114, post under Justice of the Pbace — Jurisdiction and Duty — In other cases. Excessive Distress — Damages.] — The measure of damages in an action for excessive distress is the loss sustained by the plaintiff by the deprival of the use of the goods. Where the plaintiff has not been deprived of the use of his goods, he can only have nominal damages. Roach v. Martin, 1 V.L.E. (L ,) 41. Excessive Distress — Action for Does Not Survive Against Executors.] — See Buchner v. Davis, 5 V.L.E. (L.,) 444, post under Executors and Administbators — Suits and Actions By and Against. Irregular Distress — When Landlord Liable — Plaintiff Not Tenant— Special Damage.] — Where the plaintiff in an action for irregular distress is not the defendant's tenant, in order to sus- tain the action he must prove special damage. Peek v. Smith, 4 V.L.E. (L.,) 16. Irregular Distress — When Landlord Liable.] — A landlord is not liable to a third person when in an irregular distress the goods of such third personhave, by the mistake of the agent selling, been sold, though they had not been seized, unless the landlord authorised such sale, or accepted the proceeds, with full knowledge of the circumstances. Ibid. Sale — Irregularity — Remedy — " Landlord and Tenant Statute 1864," Sec. 84.]— Where goods have been duly seized by the landlord under a distress for rent actually due, as sale by private contract instead of by public auction, is an irregularity only, and does not render the seizure void, or the landlord a trespasser ab initio, and the only remedy available by the tenant, or where the tenant has consented to the sale, of a third person whose goods have been so disposed of, is the remedy provided by Sec. 84 of the " Landlord and Tenant Statute 1864," i.e., a special action of trespass, or on the case at the plaintiff's election. Stewart v. Fishley, 6 V.L.E. (L.,) 3. Irregular Sale — Measure of Damages.] — A bank (lessor) distrained upon a tenant's goods for arrears of rent, and put up the goods seized for sale by auction, at which sale a clerk of the bank bought as agent for the bank. The tenant became insolvent, and the bank re-sold. On action of trover by the Official Assignee, Held, per Stawell, C. J., and Holroyd, J., (dis- sentiente, Higinbotham, J.) that the sale was void, as the auctioneer as agent for the bank sold to the clerk as agent for the bank, and that the measure of damages was the value of the goods, and not the amount realised by the wrongful sale. Davey v. Bank of New South Wales, 9 V.L.E. (L.,) 252; 5 A.L.T., 85. Excessive Distress — Tender — Refusal to Accept — Subsequent Demand not at once Complied with — Wil- lingness to Pay.] — D., a tenant, when his rent be- came due but before demand, tendered it to the landlord's agents, who declined to receive it on the ground that their authority was stopped. Three days later he again tendered the rent, which was again refused. A written demand was subsequently made upon D., who did not at once comply with it, being at the time very busy on his farm. A distraint was a few days afterwards made upon D.'s chattels, who ten- dered the rent to the agents, and served a notice on them to withdraw the distress. Later on D. paid the rent to the agents, but not the expenses, and would not accept a receipt for it on account of rent and expenses. The agent then offered D. his money again, but D. would not take it. After this the landlord's bailiff stopped D. getting in a part of his crop, and a few days later got in a part of it and sold it. In an action by D. for trespass and asportavit, and for excessive distress, Held that it was for the jury to determine whether there was a bona fide continued readiness and willingness on D.'s part to pay his rent, and that if they so found, D. was entitled to a verdict. Qumlivan v. Darcey, 6 V.L.E. (L.,) 370: 2 A.L.T., 67. Act No. 192, Sec. 73— Warrant— Signature— Ex- cessive Damages.] — A tenant being in arrears with his rent, the landlord distrained. The warrant of distress, in the body of which the- agent wrote the landlord's name, and which had no other signature, claimed rent and another sum as rent for furniture which the- landlord had purchased from the tenant and then sublet to him. The tenant, though the distress was excessive, was not deprived of th<* use of the furniture. Held that the signature- of the warrant was sufficient under Sec. 72 of Act No. 192, and the extra claim did not make- the warrant void ab initio and the landlord a trespasser, and that the tenant was only- entitled to nominal damages for the seizure in excess Nicol v. Brasher, 9 V.L.E. (L ,1 270:. 5A.LT..82. ; 385 DONATIO MORTIS CAUSA. 386 DISTRIBUTIONS, STATUTES OF. " Intestates Act," No. 280, Sec. 4 — Married Woman— Real Estate — Husband's Share.] — D., a ■widow, married G., a bachelor, and died intes- tate, seized of real estate, leaving no issue by G., but leaving children by her former mar- riage. Held that G. was entitled under Act 230, Sec. 4, to one-third only, and not one half of D.'s real estate. Sec. 4 should be construed sensibly and not literally, and in that way it would read— "A widower shall stand in the same position with respect to the distribution of such land of his deceased wife's, regard being had to her leaving or not leaving children, as she would have stood in with respect to the distribution of his personal estate, regard being had to his leaving or not leaving chil- dren." Martin v. Dalton, 1 V.L.E. (E.,) 69. "Administration Act," No. 437, Sec. 6— Death Intestate Before Act— Administrator ad Litem.] — W here an infant, T., died in 1864 or 1865, intest- ate and unmarried, entitled to an estate in fee, Held that the estate was in his heir, but would vest in his administrator under Sec. 6 of the Act. Real estate does not, under Sec. 6, vest in an administrator ad litem. M'Gregor v. M'Coy, 1 V.L.R. (E.,) 162, 173. 22 & 23 Car. II., Cap. 10, Sec. 6—1 Jac. II., Cap. 17, Sec. 6 — Grandfather and Grandmother — " Harried Women's Property Act " No. 384, Sec. 10.] — An infant died intestate leaving as next of kin a paternal grandfather, and paternal and maternal grandmothers. Held, by the Full Court, affirming Molesworth, J., that Sec. 10 of No. 384 vested the share of the paternal grandmother in her as separate property, and that by the "Statutes of Distributions" the next of kin were each entitled to one-third of the property, they being all next of kin to the infant in equal degrees. Skeeles v. Hughes, 3 V.L.E. (E.,) 161. And see case ante columns 11, 12. . DISTRINGAS. Writ of.] — See Pbactice and Pleading- Equity— Writs. •In DIVIDENDS. Apportionment of.]— See Shaw v. Wright, 2 W. & W. (E.,) 57, 71, post under Mining— Mining Company — Shares. DIVORCE. See HUSBAND AND WIFE. DOCUMENTS. Construction of Contemporaneous.] — Courts of Equity so regard documents given contem- poraneously, and in one transaction, that if one of them fixes a date, and thereby gives a right to a time for payment which the others do not give, the Court will give to the whole that meaning as to time which is given by the one document only. Murphy v. Martin, 1 W. W. & a'B. (E.,) 26, 30. DOGS. See ANIMALS. DOMICIL. Of Choice — How Acquired — Incarceration.] — Proof of a voluntary residence for a few months in Victoria, followed by incarceration there, will afford no presumption of a domicil in Victoria. Confinement in prison cannot give a domicil. Moffatt v. Moffatt, 3 W. W. & a'B. (I. E. & M.,) 87. In order to constitute a domicil, there must be a residence freely chosen, and not dictated or prescribed by any external necessity, such, as the duties of office, the demands of credi- tors, or the relief from illness ; and it must be a residence fixed not for a limited time, period, or particular purpose, but' general and indefi- nite in its future contemplation. Buisson v. Warburton, 4A.J.R., 119. Domicil — How Considered in Matrimonial Proceed- ings.] — See post under Husband and Wife — Practice, Procedure and Pleadings. DONATIO MORTIS CAUSA. Delivery of Cheque— Gift of Part of Thing..] — There cannot be a good donatio mortis causd, by the delivery of a cheque drawn by the donor; or by the gift of part of an entire thing. Edwards v. Graham, 3 W. W. & a'B. (E.,) 112. What is — Bank Deposit Eeceipt.] — Semble a gift of a bank deposit receipt proved only by the affidavit of the donee, is a good donatio mortis caus&. In the goods of Tully, 4 W. W. & a'B. (I. E. & M.,) 15. o 387 DURESS. 38S Deposit in Post, Office Savings' Bank,] — P. had a sum of money deposited in » post-office savings' bank, and shortly before her death gave K. her depositor's book, and an order for payment to K., and at the same time sent to the savings' bank a notice of withdrawal. K. pre- sented this order with the book, and also the Postmaster-General's warrant for payment, but F. died before payment was actually made. Held that P. having done all in her power to divest herself of the property in the deposit money, and to vest it in K., such a gift was a good donatio mortis causa. Per Stephen and Higinbotham, J. J., it was good as a gift inter vivos. Cm-ran v. Kavanagh, 7 V.L.E. (L.,) 21; 2 A.L.T., 119. Gift of Government Debentures — Delivery of — Certificates for Bank Shares ] — N. made a will providing for application of his estate to pro- vide medals as prizes in the Sydney and Mel- bourne Universities. After execution of his will, he delivered certificates of bank shares, and Government debentures issued under the "Railway Loan Act," 21 Vic, No. 36, to the defendant A. on February 19th, 1882, and died on 28th February, 1882. Suit by the the executors of the will against A. for delivery of the debentures and certificates of shares. Held that, as to the debentures, A. was entitled to them, as by the Act they were assignable by delivery, the Court not entering into the ques- tion whether they passed as a donatio mortis causa, or as a gift inter vivos ; and that as to the bank shades, the deed of settlement di- recting registration of the transfer,, they did not pass by manual delivery, and in them- selves were not such indicia of ownership that Courts of Equity would perfect an intention of transfer by ordering acts to complete it, and the delivery did not constitute a good donatio mortis causd. Clark v. Andrews, 9 V.L.E. (E.,) 18; 4 A.L.T., 139. Bank Deposit — Receipt.] — Where a person in expectation of death Had a deposit receipt for certain moneys in a bank drawn up in the joint names of himself and his housekeeper, and handed it to her, saying, "Put this under lock and key, child, keep it safe;" and she locked it up in his desk and kept the key for some time, but after his decease handed the key to his executors. Held a good donatio mortis causA, and that the giving up the key did not vary her rights. Semble, it could have been claimed as a gift inter vivos. Tierney v. Halfpenny, 9 V.L B. (E.,) 152. DRUNKENNESS. DOWER. See HUSBAND AND WIPE. Effect on Contract— Degree of Drunkenness at Law and in Equity.] — The degree of drunken- ness which should make an agreement bad in equity, is less than that which should avoid it at la,w, and equity should not interfere for either party in enforcing or resisting the agree- ment. Scates v. Kmg, 1 V.E. (E.,) 100; 1 A.J.E., 71. Effect on Contract.] — In a suit for specific performance of a contract to sell to plain- tiff certain land, the defence was that the defendant had signed the written agree- ment when in a state of incapacity through drink. Held, that the evidence of capacity on the day, 1st March, 1876, when contract was signed, greatly preponderating, and the defendant not proceeding with reason- able promptitude to repudiate it (October, 1877,) the defendant was bound by the con- tract. Howard v. Currie, 5 V.L.E. (E..) 87. Effect on Capacity of Testator.] — See m re Kerr, 2 A.L.T., 41, post under Will — Testa- mentary Capacity — Soundness of Mind. DRAINAGE. See HEALTH (PUBLIC)— MINING. DURESS. Setting Aside a Deed Obtained by — Conveyance Executed Under Fear of Prosecution of Embezzle- ment — When a. Deed Purporting to be Absolute is to Considered as Security Only.] — M , the plain- tiff, was for many years in the employment of the defendant, P. M. appropriated some of the defendant's moneys, and after being watched for some time was cross-questioned closely and admitted having received sums which he could not account for. Under fear of prosecution for embezzlement, the plaintiff by deed conveyed all his property to de- fendant for several unreal considerations set out in the deed, but really in consideration of a sum of j£150, and of being allowed to go to Sydney without anything further being said or done in the matter of his embezzlement. Bill by plaintiff to set aside deed as obtained under duress. Held, that if the defendant obtained from the plaintiff, under fear of pro- secution, property of greater value than amount owing, equity would relieve, or if the amount owing were capable of ascertainment, it would be referred to Master to ascertain it and make the property assigned stand as security only-; that from the evidence it did not appear that the property was of greater value than the debt, and as the method of dealing in the defendant's business had been very loose, there was no means of ascertaining the debt due ex- cept on plaintiff's evidence, which was not to be trusted ; that in order to make such an assign- ment illegal, as amounting to compounding a felony, there must be a distinct agreement to forbear prosecuting upon the assignment being 389 DUTIES ON THE ESTATES OP DECEASED PERSONS. 390 made ; and that, even if the assignment were so illegal, equity would not relieve the plaintiff. Bill dismissed, Hftniro v. Perry, 5 A.J.E., 20, 48. What Amounts to Action of Trespass.] — Amess v. Hanlon, 4 A.J.B., 90, post under Trespass — To goods. DUTIES ON THE ESTATES OF DECEASED PERSONS. 01 How Scale of Duty Fixed— Act No. 388, Sec. 24 — " Amending Act," No. 403 — Contingent Bequest — Remainder to More Distant Relative.] — H. by will left certain property to chil- dren of his son, to be paid on their attain- ing age of 25, if sons ; or on attaining age of 21, or marrying under that age, if daughters, with remainder over in failure, to testator's brother. Petition by trustees of will under " Statute of Trusts 1864," for advice of Court, whether this came within the exception •of Sec. 24 of No. 388, and Act No. 403. Held that the obvious policy of the Acts was to obtain payment at once of all duty with which estate might be chargeable, and that it did not deal with contingencies that might arise after many years; that the estate must pay the higher duty, the case not coming within the ■exceptions. In re Hamilton, 3 A.J.B., 95. Under Sec. 24, where an intestate leaves children but no widow, the full rate of duty must be paid. Graham v. Graham, post column 393. "Duties on the Estates of Deceased Persons Statute 1870," Sec. 24— Contingent Interest.] — Unless the whole interest in an estate be left to the widow and children, the estate is not ■exempt from the full payment of duty, under Sec. 24 of the "Duties on the Estate of De- ceased Persons Statute 1870," so that the full rate is payable if a contingent interest be left to other persons. In the will of Wilsmore, 2 V.L.E. (I. P. & M.,) 30. And the tax is upon the corpus of the estate. Ibid. How Scale of Duty Fixed— Act No. 388, Sec. 24 — Defeasibility of Gift to Children.] — Per Privy ■Council, overruling Molesworth, J. — Sec. 24 is not to be construed strictly against those who invoke its benefit, because it is an exception to a general rule. Where a testator devised and bequeathed the whole beneficial interest in his estate to a widow and children, with limitations in favour of grandchildren as the issue of such children, with a gift over to nephews and nieces, the defeasible character of the interests of the children only affecting children and grandchildren inter se, and not affecting the gift over, except in the event of a remote con- tingency, Held, j?er Privy Council, overruling Molesworth, J., that duty was chargeable at the lower rate under Sec. 24, notwithstanding that additional duty might be claimed if the gift over took effect. Armytage v. Wilkinson, 3 V.L.E. (I. P. & M.,> 41 ; L.E., 3 App. Ca., 355. How Scale of Duty Fixed — Widow — Child En Ventre — "Duties on Estates of Deceased Persons Statute 1870" Sees. 18, 24.] — A widow of an intestate, who has a child en ventre, may obtain a grant of letters of administration under See. 18 of the " Duties on the Estates of Deceased Per- sons Statute 1870," and thus become entitled to the issue of such letters upon payment of duty at one-half the full percentage, under Sec. 24, upon an affidavit verifying her pregnancy, and stating that the unborn child is the only next of kin of the intestate. In the estate of Ker- shaw, 4 V.L.E. (I. P. & M.,) 62. Partial Intestacy — Lost Will — ''Duties on the Estates of Deceased Persons Statute 1870," Sees. 8, 24.] — "Where the will of a testator could not be found, but two codicils, which disposed of part only of _ the estate, were forthcoming, and the testator thus died partially intestate, and left only a widow and collateral relatives, and by the first codicil he gave all his estate to his widow for life, and, subject thereto, directed that it should devolve according to the terms of the will, save that any provisions of such will in the wife's favour should lapse, and appointed her sole executrix, and by the second he confirmed the first and made provi- sion for his sister-in-law. Held that, under Sees. 8 and 24 of the " Duties on the Estates of Deceased Persons Statute 1870," duty was payable at one-half the full percentage upon the widow's life estate, and upon her moiety of the residue, and at the full percentage upon the other moiety. In the estate of Henty, 4 V.L.E. (I., P. & M.,) 54. How Duty Payable — Act No. 388 — Annuity.] — Upon petition by trustees for advice, Held that "annuity" (payable quarterly) means a series of legacies payable at quarterly intervals during life of annuitant, and that the duty payable under the Act should be deducted from such quarterly payments, and a similar deduction should be made from any funds appropriated to secure the annuities. In the will of John Hoffatt, 3 A.J.E., 99. Testator Dying Before Act No. 523 — Probate Granted Afterwards.] — B. died before the coming into operation of the Amending Act, No. 523, of the " Duties on the Estates of Deceased, Persons Statute 1870;" but probate was not granted of his will till after that Act had come into force. Held, per Molesworth, J., that the Act No. 523, was in some degree retrospective as to persons who died between its commence- ment and its passing, but that his estate was not subject to the increased duty imposed by that Act. On appeal, Held that the estate was subject to the increased duty. On appeal to the Privy Council, Held, reversing the Supreme Court, that the duty payable under the " Duties on the Estates of Deceased Persons Statute 1870," having been directed by Sec. 10 of that Act to be deemed a debt of the testator to Her 391 DUTIES ON THE ESTATES OF DECEASED PERSONS. 392"' Majesty, accrued due at the moment of his death, at the rate prescribed by that Act, though the amount of such duty might have to he ascertained at a subsequent time. In re Bell, 2 V.L.E. (I. P. & M.,) 71, 87; L. E., 2 App. Cas. 560, sub. nom. Bell v. The Master in Equity of the Supreme Court of Victoria. Held also, that the duty imposed by the "Duties on the Estates of Deceased Persons Statute 1870," is not the like English Probate Duty, a stamp duty payable upon the value of the property the subject of the probate when it is granted, but is more in the nature of a suc- cession duty, payable whether probate besought or not, on the value of an estate at the time of the] testator's death. Bell o. the Master in, Equity of the Supreme Court of Victoria, L. E., .2 App. Cas., 560. Act No. 388, Sec. 3— Death of Testator Before the Act.]— P. made his will dated February 1864, and died January 1868, before Act No. 388 came into force. Administration c.t.a. was in May, 1877, granted to his estate. Held, reversing Molesworth, J., that no duty was payable under the Act. In re Powell, 3 V.L.E. (I. P. & M.,) 117. Succession Duty — Effect of the " Administration Act 1872," and " Duties on the Estates of Deceased Persons Statute 1870."] — The " Administration Act 1872," has not a retrospective effect combined with the " Duties om the Estates of Deceased Persons Statute 1870," as to succession duty. In re Qumlan, 2 V.L.E. (I. P. & M.,) 17. Upon What Property Payable— Act No. 388, Sec. 7, Clause 2.]— Under Clause 2 of Sec. 7 of the Act No. 388, duty is not payable on real estate which the testator had not the power to devise at his discretion. In the estate of Mater, 4 A.J.B., 7. Upon What Property Payable— Act]No.|388, Sees. 7 (Sub-Sec. 2,) 8 — Purchase-Money of Station in N.S.W. Secured by Mortgage and Collaterally by Pro- missory Notes Payable in Melbourne — Testator Domiciled in Victoria.] — A testator domiciled in Victoria sold a station in N.S.W. to P., the balance of the purchase-money being secured by a mortgage of the station, and collaterally by promissory notes payable in Melbourne, and lodged in a bank there. Held that the purchase- money secured by the promissory notes was property in respect of which, under Sec. 7, Sub-Sec. 2, the testator's estate was liable to pay duty. Reginav. Williamson, 7 V.L.E. (L.,) 218; 3 A.L.T., 6. Upon What Property Payable — Act No. 388, Sec. 7, Sub-Sec. 2— Lex Domicilii — Lex Loci.] — Per Privy Council. — Although the lex domicilii governs the foreign personal assets of a testator for the purpose of succession and enjoyment, yet those assets are for the pur- pose of legal representation, of collection and of administration, as distinguished from distribution amongst the successors, governed by the law of their own locality and not by the lex domicilii. B. died domiciled in Vic- toria, and possessing real and personal property in New South Wales and New Zealand. Held, by the Privy Council overruling the Pull Court, that the statement to be made by the executor under Sub-Sec. 2 of Sec. 7, should be-" confined to the property which the probate entitles him to administer, i.e., what comes under his control by virtue of the Victorian. Probate, and that duty was payable only upon such property. Blackwood v. the Queen, 7 V.L.E. (L.,) 400 ; L.E. 8, App. Cas., 82. Upon What Property Payable— Domicil — Per- sonalty.] — B. was born in Ireland, but resided in Victoria for a considerable time acquiring- property there, but died in Ireland, having been domiciled there for the last fourteen years of| his life. It was sought to make B.'s estate pay duty upon .£45,000 worth of personal- property in Victoria. Held that his estate was not liable to pay such duty. In the will of' Bagot, 7 V.L.E. (I. P. & M.,) 106 ; 3 A.L.T., 54. Domicil— Master in Equity.] — The Master in Equity has power to and should decide questions of domicil on the materials brought before him. In the will of Phelps, 7 V.L.E. (LP. & M.,) 114. Upon What Property Payable — Act No. 388, Sees. 2, 7, 12, 13, 24— Victorian Personalty of Person Domiciled Abroad.] — M. died in England, and domiciled there leaving certain personalty in Victoria. Held, dubitante curid that the balance of the Victorian assets over the debts- is liable to duty under the Act No. 388. Hegina v. Smith, 9 V.L.E. (L.,) 404; 5 A.L.T.,. 124. Finality of Master's Certificate— Sees. 12, 13.] — The certificate of the master is not final against the Crown as to the amount of the duty, and. consequently cannot be final as to the balance upon which the duty is calculated, nor as to- the items of which that balance is made up. S.C., 9 V.L.E. (L.,) 416. Practice — Duty on Deceased Persons' Estates — Application to Sell — Act No. 427.] — Before the passing of the "Administration Act 1872," No. 427, which allows an executor to sell real estate of the testator in order to pay duty without an application to the Court, an appli- cation was before the Court for leave to sell, but was postponed, and after the passing of the Act an application for leave was made. Held- that the application was unnecessary. In the will of Howey, 4 A.J.E., 6. Insufficiency of Personal Estate to Pay Duty — Act No. 388, Sec. 10.]— The Court will not make an order for sale of the real estate under Sec. 10, in case of insufficiency of the personalty without notice to the persons beneficially interested in the real estate ; but if there is an affidavit that such persons are out of the juris- diction, an order will be made. In re Howie* 3 A.J.E., 127. - .393 EASEMENTS. 394 Power to Order Sale of Real Property — Act No. 388, Sees. 5, 9.]— Per Molesworth, J.— The Court las power, under Sec. 9, to order the sale of real property for the payment of duty, notwith- standing that an appeal to the Privy Council in respect of the amount of duty payable is pending. In re Bell, 3 V.L.E. (I. P. & M.,) 26. Notice — Rules of November, 1876.] — Per Full Court — The Eules of November, 1876, are ultra vires, because they do not fix the length -of notice after which an application should be made, under Sec. 9 of Act No. 388, and on this point an appeal against the above decision was allowed. Ibid. Act No. 388, Sees. 10, 13, S3, 24 — Intestate Leaving Children but No Widow — Additional Sum Found Due — Fund in Court — Whether Master in Flquity a Necessary Party.] — Intestate died before Act No. 403 (Amending Act,) butafter passing of Act No. 38S. The defendant, as widow, obtained administration, and paid duty, as in case of an intestate leaving a widow but no children, to wit, half duty on her half share, and full duty on the other half. Afterwards sons of the intestate appeared, and a suit for adminis- tration was instituted by them in 1872, in which it was declared that defendant was not intestate's widow. Motion on behalf of Attorney- General and Master in Equity for half duty on half the share claimed by the alleged widow ; there was in Court a sum of .£2000, sufficient for payment of this extra duty. Meld that under Sec. 24 of Act No. 388, the full rate was payable where intestate left children but no widow; that though under Sees. 10 and 13 the administrator or person paying duty is the person liable to pay the balance in case of too little being paid, yet Sec. 23 indicates that the •previous part of the Act gave a remedy m rem direct, and not merely in personam; that the Master in Equity was not a necessary party ; that this was virtually an application by a creditor to prove under a decree after a report -and final decree, and as such would only be granted upon payment of costs. Graham v. Graham, 5 A.J.E., 100. Practice — Act No. 388, Sec.",7 — Service on Crown.] — Upon an application to the Court for its ■opinion where the Registrar was doubtful as to the amount payable, service upon the Crown is necessary. In the estate of Rutherford and Aird, 1 V.L.E. (LP. & M.,j 19. Practice — Master Refusing Probate Without Order of Court.] — Where the Master refuses to .grant probate except upon payment of duty without an order of the Court, the proper practice is to take out a rule nisi calling upon him to show cause, the Crown being served. Jn the will of Bagot, 7 V.L.E. (LP. & M.,) 106; 3 A.L.T., 54. Mandamus to Master] — The Supreme Court of Victoria has power to make an order in the nature of a mandamus upon the Master in Equity in relation to the duties under Act No. 388, whether in his capacity as an officer •of the Court or as a revenue officer responsible to the Court. Armytage v. Wilkinson, L.E., 3 App. Cas„ 355. Eule Nisi Calling on Master to Issue Probate Without Payment of Duty — Fresh Evidence — Reference Back to Master.] — On a rule nisi calling on the Master in Equity to show cause why pro- bate should not be issued without paying duty on personalty of the deceased situated outside Victoria, on the ground that the domicil of the deceased was not Victoria, evidence was adduced before the Court which was not brought before the Master, and the Court thereupon ordered a reference back to the Master for reconsideration on such additional evidence as might be adduced on either side. In the will of Peters, 8 V.L.E. (LP. & M„) 30; 4 A.L.T.,64. EASEMENTS. In Respect of Adjoining Lands and Houses — Flow of Drainage — Nuisance.] — To a declaration in an action for trespass, among other pleas there was pleaded an agreement between former owner of plaintiff's land and former owner of defendant's la,nd, by which it was agreed that water from defendant's land should flow over plaintiff's land. A verdict was entered for defendant, but a rule nisi to enter a verdict for plaintiff was applied for on the ground that the pleas were not proved, as it appeared that houses from which water flowed were erected after the agreement. Held that the agreement was for water to flow from the houses as they then existed, and that did not entitle defendant to the flow of water from houses subsequently erected. Mitchell v. Bums, 3 A. J.E., 113. A license to work puddling mills does not, under Sec. 15 of the " Waterworks Statute," No. 288, confer an easement as regards flow of sludge over Crown lands. Begina v. M'Intyre, 5 W. W. & a'B. (L.,) 25, post under Wateb, Water Company, &c. By Express Agreement — Reversioner — Obstruction by Tenant — Merger.] — Action by administratrix of the lessor against the lessees for injury to the reversion by obstructing a right of way appurtenant to the demised premises. The lease was executed after the obstruction (a permanent one) was erected, and granted the land, "together with all ways, &c." Held that the plaintiff was entitled to maintain her action during the continuance of the lease; that the demise of the way negatived the presumption that landlord in granting a lease of a way on which the obstruction existed intended to grant a licence for its continuance ; that the fact of the unity of the defendants' title as owner of the servient tenement with their interest as owners of the dominant only suspended the easement during the lease quoad the defendants, and did not extinguish it; that the acceptance by a wrongdoer of a lease of property in respect of which the lessor had a previously existing cause of action at the time of the lease is not a release of that cause of action, and no bar to the Statute of Li- mitations, if pleaded. M'Carthy v. Cimnmgham. 3 V.L.E. (L.,) 59. 395 EDUCATION. 396. Ei t notion by Unity of Possession — Bevivor — Registration.]— An easement was created which was afterwards destroyed by unity of possession of the dominant and servient tenements. M., the owner of the two tenements, conveyed the dominant tenement to N., who, in turn, con- veyed to D. by a deed which described it as " bounded on the south by a right-of-way 12 feet wide reserved." Held that such reference to the right-of-way was a sufficient recognition of it in LVs favour so as to revive it and give D. a right to it. Semble, per Higimbotham, J., a registered memorial of the deed, follow- ing the deed in mentioning the right-of-way as a boundary, is sufficient registration. Cuvet v. Davis, 9 V.L.E. (L.,) 390. Where in a grant the land granted was described as " bounded on the west by another road and reserve to the Port Philip Bay," the grantee was held to have a right to insist against the grantor, that as between them the grant gave a right to the use of the road and reserve as a highway, whether it was so in fact or not. Webb v. Were, 2 V.L.E. (B.,) 28. Where in a grant the land granted was described as " bounded on the west by a public promenade extending in width to the high- water mark of Port Philip Bay," the grantor was held debarred from preventing the use by the grantee of the public promenade as a pro- menade. Ibid. A deed granting in general words " all ways, &c," belonging or appertaining to the land granted does not create a right-of-way. Blyth v. Parlon, 2 V.E. (E.,) Ill; 2 A.J.E., 75. •See S.C., ante column 352. Under Deed. Easements under the " Transfer of Land Statute."] — See cases post under Transfer of Land — Easements. Easements under Xeases under Sec. 45 of " Land Act 1869."] — The Governor has no power, under Sec. 45, to grant leases of Crown lands with an easement over adjoining Crown lands, whether covered or not with water in the course of a river, or with a right to take water from such river. Brooks v. The Queen, 10 V.L.E. (E„) 100,109; 5A.L.T., 199. Creation of Public Easement.] — There is no authority to show that a public easement other than a right-of-way can be created simply by the owner dedicating the land without deed, and the public accepting it. Webb v. Were, 2 V.L.E. (E.,) 28. For facts see S.C., post under Wat — Highway — General Principles. Eight-of-way Passing Under Will.] — J., a testator, was owner of a block of land, and devised to his son " the yard and premises, together with the buildings erected thereon, now in Ms possession and occupation abso- lutely;" and devised to his daughter for life " my land and premises in Percy-street, together with shop and iron store and other buildings erected thereon." There was evi- dence that the testator had used during his life a strip of land, being part of the portion in his son's occupation as a right-of-way to the- iron store. Held that under the will the daughter of necessity had the same right-of- way over the strip of land which the testator had exercised during his lifetime. Campbell, v. Jarrett, 7 V.L.E. (E.,) 137; 3 A.L.T., 49. EDUCATION. "Common Schools Act," No. 149, Sec. 10— -Regu- lation by Board of Education — Ultra Vires.] — Sec. 10 of the Act provides that " No new school,, not being an infant school, shall receive aid from the consolidated revenue which sha.11 be- established within two miles of a school already receiving aid," unless under certain circum- stances which did not happen in the case. The board framed a regulation — " The existence in any locality of a school not vested in the board shall not be regarded as a hindrance to the- establishment of a vested school in that locality, should such be applied for, although the grant- ing of aid by the board to such school should, according to Sec. 10 of Act No. 149 necessitate the withdrawal of aid from the non-vested school." Held that the regulation was entirely- opposed to the provisions of See. 10, and was- ultra vires. BourTce v. the Board of Education, . 3 V.E. (L.,) 148 ; • 3 A . J.E., 67. Dismissal of Teacher — Sanction of Board or Education — "Common Schools Act" (Act No. 149,) Sec. 14.] — The committee of a common school engaged a teacher to teach till his employment should be determined by one month's notice in writing. Atthefootof the agreementwaswritten. Sec. 14 of the " Common Schools Act," No. 149,. providing that no teacher should be dismissed without the sanction of the Board of Education. The committee gave the teacher a month's notice, but the Board refused to sanction his dismissal, and the committee disconnected the- school from the Board. Held that the contract was with the committee, and that the reference- to the section at the foot of the agreement formed no part of it, but only showed the relations of the committee with the Board, and that the teacher was only entitled to one month's notice,. or one month's salary on dismissal without notice. O'Dowd v. Dogherty, 4 A.J.E., 81. Non-attendance at School — Certificate of Teacher — Parentage of Child — " Education Act Amendment Act 1876," Sec. 8.]— A certificate under the- " Education Act Amendment Act 1876," No. 541, Sec. 8, of a head teacher, that a child has not been sent to school by its parents, is evidence only of what the Act requires it to- contain, not of the parentage of the child. Segina v. Learmonth, ex parte McKay, 4 V.L.E- (L.,) 162. Board of Education — Application of Funds- Mandamus — "Common Schools Act," No. 149, Sec. 6, iv.] — In re Board of Education, ex parte Stevenson, 4 W.W. & a'B. (L.,) 133, see post, under Mandamus. 397 EJECTMENT. 398 EJECTMENT. Venue.] — The venue in ejectment is local, notwithstanding Act 19 Vic, No. 19, Sees. 67 and 235. Fairbairn v. Monaghan, 2 W. & W. (L.,) 109. Demand of Possession — When Necessary.] — E. entered into possession of land under a contract with G. Subsequently G. mortgaged the land to a bank, who obtained a certificate of title to part, and had their mortgage registered. The bank, without giving notice to B., brought ejectment against him and succeeded. On rule nisi to enter a verdict for E., Held, that the bank was bound to give E. notice, both as to the land comprised in the certificate and that not comprised in it before they could succeed in ejectment, and a nonsuit entered. Colonial Bank v. Roache,! V.E. (L.,)165j 1 A.J.E., 136. Who May Maintain.] — H. and P. brought ejectment for certain lands against S. H. and P. claimed under a series of mortgages, the first from one G. to C, the second from G. and C. to H., who assigned it to P. Subsequently to the mortgages G. contracted to sell the land, to S., who took possession, and afterwards all his interest in the land was sold at a Sheriff's sale, under a fi. fa. to P. The mort- gage from G. to C. contained after the habendum the words " subject nevertheless to a certain indenture of mortgage," dated some years prior to the mortgage from G. to 0„ "and made between G. and G. G. of the one part, and E. of the other part, whereby a portion of the hereditaments hereinbefore described were con- veyed and assured to the said E. as security," &c. The mortgage to E. was not produced at the trial, and there was no proof whether the land included in it formed the subject of the action or not. It was submitted that the mortgage from G. to C, by referring to the mortgage to E., showed that the legal estate was outstand- ing in E., and that P. could not maintain the action. For P. it was submitted that the Sheriff's sale gave him a good title as against S., though it might not be good as against others. Held that P. was entitled to all the land not included in the mortgage to E. ; but, that there being no evidence of what land was so included, P. should be nonsuited on S. undertaking to give up the land not included in the mortgage to E. Haggetton v. Southern, 1 A.J.E., 165. By Heir-at-Law — "Administration Act," No. 427, Sec. 6.] — The plaintiff claimed, as heiress-at- law of an intestate who died in 1852, and administration of the estate had not been granted'. Held that, until administration is token out, the legal estate vests in the heir-at- law, subject to its being divested on grant of administration being made to another person. Larkin v. Drysdale, 1 V.L.E. (L.,) 164. By Married Woman Having Separate Estate — Husband Need Not be Joined — Land Acquired Since Act No. 384 — Marriage Before the Act.] — Somerville v. M'Donald, 1 V.L.E. (L.,) 206, post under Husband and Wife — Wife's Eights, &c. — Separate Estate — Actions, &c, in Eespect of. By Holder of Miners' Bights — Such Holder's Interest in Claim Not Sufficient to Support Eject- ment.] — Jennings v. Kinsella, 1 W. W. & a'B. (L.,) 47, post under Mining — Interests in Mines — Claim — Generally. Who May Maintain— Parties Entitled.]— On 31st August, 1866, an agreement was entered into by M., as agent for "the parties entitled" to let to B. and McD. a certain [property, "from the 1st of October next ensuing until the' parties entitled to the said premises, their attorney, or agent, shall require the said premises for the purpose of selling or attempting to sell the same," then followed a provision as to notice — "and such notice shall thereupon be a termi- nation of the tenancy created hereunder," and the notice was only to be given when the pre- mises were required for the purpose of selling or attempting to sell them ; but the notice when given was to be absolute. The lessees were to expend a certain sum in repairs, and to pay rent till they received notice to quit j and in case of notice being given during a quarter, a proportionate amount of the rent till the expiration of the tenancy. Notice was given during a quarter by persons describing themselves as the "parties entitled," and by M. The land was settled by will on the "parties entitled," and M. was receiver by order of the Supreme Court. At the trial a verdict was returned for the plaintiffs (par- ties entitled,) but a nonsuit was moved for on the grounds that notice to quit was not given by the "parties entitled;" that the notice should have been a six months' notice, ending with the period at which the tenancy com- menced, and that, after the expiration of the term, and before notice, an infant interested in the premises died, and the tenancy as to his share still existed, and no actual ouster was proved. Held that as the tenancy was a tenancy at will on the terms of the agreement, and the words, "the parties entitled," having been advisedly inserted instead of " landlord," the plaintiffs had practically proved their title, and rule for a nonsuit discharged. Bowman v. Carnaby, 1 A.J.E., 172. Who May Maintain — Administrator of Crown Grantee.] — An administrator appointed under the " Administration Act 1872," of a person who died before that Act, and in wiiose name a Crown grant has been issued after his death, cannot maintain ejectment in respect of the land comprised in the grant, since he took only such title as the intestate had, and in this case he had not the fee simple. Semble, that the legal estate was in the heir-at-law. Edmondso n v. Macan, 4 T.L.E. (L.,) 422. Title of Plaintiff— Certificate of Title— Transfer of Land Statute, Sec. 189.]— The title of a plaintiff in ejectment, which is based on a certificate of title to a lease under the " Amending Land Act 1865," is not affected as to its conclusive char- acter as evidence for the plaintiff, by Sec. 159 of the "Transfer of Land Statute ;" and a plaintiff relying on such certificate alone, without going into evidence prior to the title, cannot be nonsuited. Miller v. Moresey, 2 V.E. (L.,)193j 2 A.J.E., 115. 399 EJECTMENT. 400 1 Necessary Title to Maintain — Registered Proprietor under Transfer of Land Statute but Without Legal Estate.] — M., an uncertificated insolvent, became lessee of an allotment under part II. of the "Land Act 1865." His official assignee, was registered as proprietor under a Judge's order, made under Sec. llS of the " Transfer of Land Statute," but not under the " Land Act 1865." The assignee sold and transferred to the plaintiff, who obtained a certificate of title, and had the transfer registered under Sec. 22 of the " Land Act 1865." In ejectment by the plaintiffs against M., plaintiff put in his certifi- cate of title, and also the Judge' s order and lease, with endorsement of registration of transfer under the " Land Act." Held, that if plaintiff had rested his case merely on the certificate of title, he would have succeeded, but that since he had chosen to go further and produce evidence which showed that he had not the legal estate, but that it was in somebody else, he must be nonsuited. Ibid. Title — Proving Defendant's Possession.] — Where a defendant appeared to defend an action of ejectment, and the plaintiff gave as evidence of title a certificate of title under Act No. 301, Held that the plaintiff need not prove defen- dant's possession. Vallence v. Condon, 3 V.L.E. (L.,) 83. Title of Plaintiff— Certificate of Title Under Act Ho. 140.] — An owner of land, out of possession who receives a certificate of title under the Act No. 140, subject to rights subsisting under any adverse possession, receives evidence of a good title until those rights are proved. Murphy v. Michel, 4 W.W. & a'B. (L.,) 13. For facts see S.C., post under Limitations Statutes of — Lands, &c. Proof of Title.]— A duplicate copy of a certifi- cate of title under the " Transfer of Land Statute," No. 301, is admissible as prima facie evidence of title in ejectment. Wilkinson v. Brown, 1 V.E. (L„) 86; 1 A.J.E., 88. Statutory Title — Possession by Defendant as Care- taker.] — In ejectment where the plaintiff has a good conveyancing title, possession by the defendant for the statutory period as a mere caretaker will afford no defence. . M'Cracken v. Woods, 4 V.L.E. (L.,) 222. In County Court — Title of Plaintiff— Mortgagee.] — A mortgagee having an absolute transfer by a certificate of .title under the " Transfer of Land Statute," with a defeasance in a separate document, the two together constituting a mortgage, must, under Order 3, Eules 90 and 96 of the " County Court Rules," in suing for ejectment in the County Court, state his title in the plaint summons as mortgagee, and not as holder in fee. Delaney v. Sandhurst Build- ing Society. 4 V.L.E. (L.,) 270. Annuity Deed — Estate Conveyed.] — Eule nisi for a nonsuit discharged, where in an action for ejectment upon an annuity deed the defen- dant attempted to show that the deed, which contained covenants for payment which were broken, conveyed no estate to support the action. Gillardv. Watson, 3 A.J.E., 29. Title — How it may be Proved — Several Lines of Proof.] — Plaintiffs in ejectment, in support of their title, proved a Crown grant to "W., but no conveyance of any estate from W. to them. They also proved possession by one plaintiff, T., and assurances from T. to the other. Plaintiffs obtained a verdict, and defendant obtained a rule nisi for a nonsuit. Held, that inconsistency, not multiplicity, forms the test by which a plaintiff's several modes of proof may or may not be deemed admissible ; that the grant to W. was not inconsistent with the presumption of seisin arisingfromthepossession of one of the plaintiffs, and rule discharged. Thurlow v. Perks, 1W.W.4 a'B. (L.,) 142. Plaintiff's Title— Splitting Case.] — A plaintiff does not split his case by relying on his certifi- cate of title, and afterwards bringing forward evidence to rebut a case made by the defendant that the certificate is subject to the defendant's occupation by virtue of the provisions of the " Transfer of Land Statute," or of the " Mining Statute i865," since the plaintiff does not by his rebutting evidence attempt to improve the case he had made by the production of his certificate, but answers the case put forward by the defendant. Munro v. Sutherland, 4 A. J.E., 166. Adverse Possession — Interruption of such Pos- session.] — B. brought an action of ejectment, relying on a certificate under Act No. 301. H. set up as a defence adverse possession for more han fifteen years. It was proved that S., at tenant of B's., used the land fourteen years before action brought. B. recovered a verdict. On rule nisi for a new trial, held that S.'s use might be of right or a trespass, and it was open for jury to say in what light they regarded it. Eule refused. Bicknell v. Heymanson, 3 A. J.E., 22. Adverse Possession — Fence.] — To prove adverse possession, it must be shown that there has been a continuation of acts apparently of trespass, but with a desire and intention to complete the inchoate title, affording evidence that the plaintiff claiming under a docu- mentary title was not in possession. Plaintiff, in ejectment, launched his case on a certificate of title. Defendant proved occupation by a stranger more than twenty years ago, the erection of a fence by that person, the continuation of the fence until removed, and the erection of a new one in the same position; but then a long interval, during which no occupation was proved. Held that such fence, in the absence of occupation, was not evidence of continuous possession, and that defendant had not established adverse possession. Grave v. Wharton, 5 V.L.E. (L.,) 97. Inference to be Drawn from Fence Across Boundary —Misdirection.] — Plaintiffs held a certificate of title for an allotment of land, including the portion in dispute. Defendant's mother owned an adjoining allotment, which she had pur- chased a few years before. The dispute was as to the right to a small strip of ground on the boundaries of the two allotments, plaintiffs claiming the ground under the certificate of 401 ENGRAVINGS. 402 iitle, and defendant as under adverse pos- -session for more than fifteen years. A fence was proved to have been in existence within the fifteen years, over a portion of the property which marked the boundary between the two allotments. The County Court Judge told the jury that they might infer that it had been continued across the boundary between the two ■allotments, and the jury gave a verdict for the plaintiffs. On appeal, //eld that the direction was wrong, and appeal allowed. Hall v. War- lurton, 6 A.L.T., 12. For meaning of words " adverse possession," in Sec. 49 of Act No. 301, see cases under Transfer of Land (Statutory.) New Trial — When Granted.] — In an action of ejectment the defendants proved a conveyance for value from plaintiff's donor, and the plain- tiff was nonsuited. Upon the subsequent discovery that defendants' deeds did not cover the whole land, a new trial was granted. Hodgson v. Wellwood, 4 A.J.B., 82. Summary Procedure by 'Warrant of Justices — When Applicable.] — The summary procedure for ■ejectment by warrant of justices under Sees. 90 and 91 of the " Landlord and , Tenant Statute 1864," is applicable at the expiration .-of .a term of seven years, during the whole of which the tenant has occupied under a lease, which was void as being executed by an agent jiot authorised thereto in writing, for no notice to quit is necessary. Holmes v. North, 2 V.L.B. (L.,) 84. One Defendant not Appearing — "Common Law Procedure Statute," Sec. 160.] — In an action for •ejectment, one defendant appeared and de- fended, but the other defendant did not appear ; the plaintiff failed to prove his title. Held .'that plaintiff could not, under Sec. 160, enter a Tverdict as against the non-appearing defendant. . Welsh v. Haclcett, 3 V.L.B. (L.,) 155. Plaintiff in Ejectment put into Possession — Disseisin — Remedy.] — Where a plaintiff in eject- anent obtains judgment, and is put into pos- session by the Sheriff, and the defendant sub- sequently disseises him, the proper course for the plaintiff to pursue is to obtain a rule requiring the defendant to show cause why he should not restore the land, or, in default, be attached. ' M'Bride v. M' Crone, 3 A.L.T., 101. Action for — Writ — Several Parcels.]— Several parcels of land, held under distinct titles, may be joined in one writ of ejectment. Sec. 120 of the " Common Law Procedure Statute 1865," ■does not prohibit such, a joinder, but the joinder of other kinds of actions withthat. of ejectment, and the causes of action in eject- ment for two different pieces of land are not causes of action of a different kind. Stewart v. Bolton, 8 V.L.B. (L.,) 305 j 4 A.L.T., 79. Tenancy at Will, Defence of— How Set up.]— If, in an action of ejectment, the plaintiff relies on certificates of title, which he produces, and the defendant sets up as a defence a tenancy at will, and absence of any demand of pos- session, he must show distinctly that such tenancy at will has been created. Ibid. Amendment of Writ of Habere Nunc pro tune — Refused in Absence of Other Party.] — Neil v. Whelan, 5 A. J.E., 77, post under Practice at Law — Amendment. Forfeiture of Lease— Act No. 274, Sec. 181 — Action for Mesne Profits.] — After the determina- tion of a tenancy by forfeiture through breach of covenants, mesne profits may, under Sec. 181, be recovered in the action of ejectment. Hume v. Dodgshun, 9 V.L.B. (L.,) 83. ELECTION. Under Will and Other Instruments.]— See "WiLli. Of Members of Corporations — Of Parliament.] — See Corporation — Local Government — Election Law. ELECTION LAW. Election of Members of Parliament — Election Petition — Trial — Evidence of Qualification.] — On the trial of an election petition, the member who is sought to be unseated on the ground of an insufficient property qualification may give evidence to show that his property is of a higher value than that put upon it in the rate- books. Harbison v. Dobson, 2 A. J.B., 51. Penalty under " Electoral Act 1865," Sec. 133 — Who May Recover — Qui tarn Action.] — Regina v. Cope, ex parte Wilder, 4 V.L.B. (L.,) 397, post under Penalty. Personation — Offences Against Houses of Parlia- ment — Excepted from Jurisdiction of General Sessions.] — Regina v. Hynes, 6 V.L.B. (L.,) 292 ; 2 A.L.T., 45, post under Sessions — Jurisdic- tion, &c. EMBEZZLEMENT. See CBIMINAL LAW. ENGRAVINGS. See COPTEIGHT. 403 EQUITY. 404 ENTRIES. See EVIDENCE. EQUITABLE ASSIGNMENT. See ASSIGNMENT. EQUITY. 1. Jurisdiction. (a) Over Mining Matters, column 403. (6) Legal Matters, column 403. (c) Boroughs, column 404. {d) Insolvency, column 404. (e) Generally, column 405. 2. Practice and Pleading In. — See Practice and Pleading. 1. Jurisdiction. (a) Mining Matters. Allowance of Debts by Court of Mines in the Winding-Up of a Mining Company — No Appeal.] — Where the Judge of a district Court of Mines had allowed proof of debts by shareholders in the winding-up of a mining company, and there was no appeal from such decision, Held that a Court of Equity had no jurisdiction to review such allowance of jproof. Smith v. Seal, 3 A.J.E., 8. Courts of Mines— Injunction — Act No. 291, Sec. 101 — "Transfer of Land Statute" — Cancellation of Certificate of Title.]— The Supreme Court, in its equitable jurisdiction, has concurrent jurisdic- tion with the Courts of Mines, but will not readily interfere to restrain proceedings in the Courts of Mines unless it can grant the other relief prayed in the Bill, independently of the injunction. The Supreme Court, in its equi- table jurisdiction, has no jurisdiction to order certificates of title to be cancelled, the proper relief being to order the inequitable holders to transfer. Gunn v. Harvey, 1 V.L.E. (E.,) 111. For. facts, see Mining — Jurisdiction of Court of Mines. (o) Legal Matters. Illegal Execution Sale.] — Certain mining plant was sold under a distress warrant at great under- value, and, as alleged, made in collusion with the officer selling, after tender to him of the money recovered, and at the sale certain fixtures not properly saleable were sold. At the hearing the charge of collusion was dropped. Held that the remedy, if any, in respect of the illegality of the sale was at law and not in equity j that the fact of a sale of such plant in a locality where it could not be replaced with- out great expense and delay was no ground for equitable relief. Perkins v. Willcock, 2 T.E. (E.,) 222; 2 A.J.E., 127. Partnership — Fraudulent Misrepresentation — Deceit.] — Courts of Equity have concurrent jurisdiction with Courts of Common Law as to deceit, especially where measuring damages might involve complicated calculations. In a partnership where transactions were ter- minated by a sale by one partner to the other of his share therein, the partner purchasing filed a bill to have the sale set aside and the partnership revived on the ground that he was induced to enter into the purchase through the fraudulent misrepresentations of the other partner (defendant) as to value. On demurrer for want of equity, Held by the Full Court, affirming Molesworth, J., that there was equity to maintain the suit. Longstaff v. Keogh, 3 V.L.E. (E.,) 175. Costs in Ejectment Suit — Injunction — Variation of Decree.] — Where A., on obtaining a decree in an equity suit declaring B. a trustee for him, obtained, as incidental relief an injunction restraining proceedings under a judgment in ejectment obtained by B. for recovery of land, on motion to vary decree by inserting words in decree declaring that B. was not restrained in proceeding for his costs in ejectment, Held that the alteration was unnecessary, the ques- tion of costs being left to the Cotirt of Law by the form of the decree. Hunniford v. Horwood, 5 V.L.E. (E.,) 250; 1 A.L.T., 65. Administrator of Personalty — Rents of Sealty — Remedy at Law.] — A creditor, in 1865, took out administration to the personalty of an intestate, who died in 1858, and entered into possession of a portion of the real estate, receiving the rents therefrom. The intestate's heir-at-law, in 1 881, brought a suit for conveyance of real estate, and for an account of rents and profits, and also administration accounts of personalty. At the hearing the bill was amended by strik- ing out relief as to personalty, owing to a difficulty arising about want of parties, the other next of kin. Held that plaintiff claim- ing under a legal title, had a complete remedy at law, and in the absence of complication of accounts, a Court of Equity would not grant relief. Bill dismissed. M'Veav. Ait ken, 7 V.L.E. (E„) 178; 3A.L.T, 71. (c) Borouqhs. "Local Government Act 1874," No. 506, Sec. 519.] — Sec. 519 of the " Local Government Act 1874," which gives the minister of the Crown, as defined by the Act, power to settle disputes enumerated in that section, gives a concurrent remedy only, by reference to the minister, and does not oust the jurisdiction in equity. Attorney-General v. Shire of Wimmera, & V.L.E. (E.,) 24; 1 A.L.T., 125. ( 405 ESTOPPEL. 406 must show sufficient grounds for such abandon- ment before seeking relief in equity. Arthur v. Moore, 5 V.L.E. (E.,) 207; 1 A.L.T., 29. S.C., see Trust and Trustee — Eights, Powers, &c. Suit by Mortgagees for Sale of Mortgaged Lands, and Declaration that they might rank as Specialty Creditors of Intestate Mortgagor for Deficiency — Sequestration of Estate pending Suit by Administra- tion — Supreme Court in Equity not Deprived of Jurisdiction by 5 Vic, No. 17.] — .See Australian Trust Company v. Webster, 1 W. & W. (E.,) 148 ; F airnbawn v. Clarice, 1 W. & W. (E.,) 833, post under Insolvency — Effect of. Insolvent Estate— Overplus.]— The Court sitting in Equity has no jurisdiction to made an order dealing with the overplus of an insolvent's estate after the creditors have been paid in full. An application should be made to the Court of insolvency. Cohen v. Lmtn, 10 Y.L.B. (E.,) 222; 6 A.L.T., 63. (e) Generally. A single Judge sitting in Equity, ecclesias- tical jurisdiction and insolvency only, has no jurisdiction to made an order in a common law action. Farie v. Frost, 2 W. & W. (E.,) 56. A single Judge sitting in Equity has no jurisdiction to discharge a prisoner from custody under an attachment for contempt granted by the Eull Court m banco at law. In re Burton, 3 W.W. & a'B. (E.,) 8. A single Judge in Equity is not bound by a decision of the Court in banco on a matter of law. Dallvmore v. The Queen, 3 W.W. & a'B. (E.,) 18. Primary Judge.] — Semble, The Primary Judge in Equity has power to hear a motion to turn over a prisoner in the Sheriff's custody, on a Thursday, although the Equity Appeal Court be sitting. Sturgeon v. Murray, 8 V.L.E. (E„) 41. Primary Judge.] — Qucere, whether the Pri- mary Judge in Equity is bound by a prior decision of the Court in Banco at law. Per Higinboiham, J. (Primary Judge) — He is. But semble, per Molesworth, J. (Full Court) — He is not. Chun Goon v. Reform Gold Mining Com- pany, 8 V.L.E. (E.,) 128, 138, 139, 145; 3 A.L.T.,81. Power of Primary Judge to Rescind Order of Full Court.] — Although the Pull Court may have made an order on appeal, the Primary Judge has power to deal with subsequent proceedings and motions in the cause upon matters subse- quently arising, in a way not inconsistent with its orders ; and it is specially convenient that he should have such power, because the Pull Court sits at long intervals. Where, there- fore, in an interlocutory application in a cause the Pull Court sent issues of fact to a jury, and directed the impounding of the proceeds of certain mines, but mentioned no time for the determination of the order, the Primary Judge granted an application, on motion by the suc- cessful party, to rescind so much of the order as related to the impounding of proceeds. Lear- month v. Bailey, 2 V.L.E. (E.,) 85. Interpleader — Jurisdiction at Common Law under " Common Law Procedure Statute 1865," Ho. 374, Sec. 189.]— The established jurisdiction of the Court in Equity to make interpleader orders, is not ousted by a similar jurisdiction having been conferred upon the Court at common Law by the " Common Law Procedure Statute 1865," Sec. 189. Ham v. Benjamin,, 4 A. J.E., 184. Jurisdiction — Salvage Claims — Account.] — Where one of the co-owners of a derelict cargo recovered the greater part of it and sold it, and a suit was brought for an account deduct- ing costs and expenses, Held that such a case came within the equitable jurisdiction of the Court as one for arranging contributions as in cases of average. Melhuish v. Miller, 3 W.W. & a'B. (E.,) 61, 66. Por facts see S.C. under Shipping— Salvage- and Towage. Jurisdiction in Cases of Mistake.]— See Mis- take. Execution of Trusts— Estate Claimed by Adverse Possession.]— Per Molesworth, J., The Court will not in a suit for the execution of trusts, determine the validity of a claim to part of the- estate by adverse possession, but will leave the trustees of the will to proceed by ejectment. Tierney v. Halfpenny, 9 V.L.E. (E.,) 152, 157- And see the other titles throughout the work ESCAPE. See SHEEIPP. ESTOPPEL. 1. By matter of Record, column 406. 2. By Deed, column 409. 3. By Matter in Pais, column 412. 1. By Matter or Eecord. By Decree in Previous Suit.] — See Taylor v: Southwood, ante column 6. Minutes of Consent Decree.] — The K. Company sued the B. Company in a Court of Mines for- a piece of auriferous land, and to restrain registration thereof, and obtained an interim injunction. Pending the suit the Gt. Company sued both companies for the same land, and obtained an injunction against both. Pending, the second suit the two defendant companies ,407 ESTOPPEL. 408 appointee! deputies to make a compromise in the first suit. The deputies signed a document reciting their appointment and its object, and agreeing to end the suit, and that each com- pany should take half the land in manner to be pointed out and approved by their respective surveyors, the ratification of each company's right to the ground so divided to be confirmed by a decree of the Court of Mines. On this document the solicitors of the companies pre- pared a draft consent decree, and obtained a plan of the land from the Gr. Company. Both parties waived the employment of surveyors to mark the dividing line, and it was marked l>y the solicitors, with their approval, and in the presence of some of them, on the plan. On -the plan the land was bounded by two con- centric circles and two common radii thereof, cutting off common segments thereof ; and tie line of division was drawn midway between the other two. The K. Company subsequently Tepudiated the consent decree, alleging that •the plan upon which it was based was erroneous in a very material particular. At the hearing ■of the second suit, all parties signed a written consent that the Court of Mines, and in case of appeal, the Appeal Court, should first decide whether the B. and K. companies were bound by the proposed consent decree, and the plan referred to by it. The Court of Mines held that the contract would have been effectually carried out by the decree, which was binding, and must be confirmed. The K. Company .appealed. Held that the document in question was no more than minutes of a decree, subject to alteration by either party; that the .land was not equally divided between the parties by the arrangement actually made; and the minutes of decree not carrying out the contract, were not finally binding; and appeal allowed. Nicholas v. James, 1 W. & W. (L.,) 255. Certificate of Justices — Subsequent Proceedings in County Court— Act No. 267, Sec. 107.]— Where E. sued F. before Justices and they dismissed the case, B. subsequently sued F. in the •County Court. The certificate of dismissal was produced as a bar to the action, but the Judge overruled that objection, and heard the case. Held that he was right ; that by Sec. 107 of Act No. 267, a certificate of Justices is only a bar to Courts of co-ordinate jurisdiction, and not to Courts of superior jurisdiction. Bule nisi for a prohibition discharged. Regina v. Skmner, 4 W.W. & a'B. (L.,) 39. Certificate by Justices of Dismissal of Complaint — Act No. 267, Sec. 107.]— A complaint had been dismissed by justices, and a plaint was issued to a County County Judge to hear the same cause, and the Judge, on receiving the cer- tificate of dismissal, decided, that he could not Tiear the case. Held that under Sec. 107 of Act No. 267, such certificate of dismissal was •only a bar to a second proceeding in petty sessions for the same cause of complaint. Eule absolute for a. mandamus. ■ Regina v. Trench, ex parte Chambers. 9 V.L.E. (L„) 55; 4 A.L.T., 163. ' Administration Suit — Decree in Previous Probate Suit] — A decree for the plaintiff in a suit in the probate jurisdiction, seeking to set aside a rule to administer, and obtain one for himself, and in which his relationship is in issue, is con- clusive as to the plaintiff's right as against the same defendant in a suit in equity for a distri- butive share. Dryden u. Dryden, 2 V.L.B. (E.,) 74. Applicant for Rule to Administer — Affidavit that Lands Were a Part of Estate.] — Semble, that where a person, seeking to obtain a rule to administer, swears that certain lands belong to the estate, he is debarred from setting up a continuous possession in himself as beneficial owner. Ibid. But an inquiry was directed by the Full Court, on appeal, as to the ownership of the land. Ibid, p. 153. Per Molesworth, J., " I know of no authority for saying that if a person, acting by the direction of another or a corporation, commits a trespass on land, and the owner brings an action against him, which he defends under the advice and direction of his employer, and is beaten, that the employer should be estopped by the result as if made a defendant, although it should operate as very strong evidence." Parle Company v. South Hustler's Reserve Com- pany, 9 V.L.E. (M.,) 4; 4 A.L.T., 135. By Adjudication of Warden in Proceedings Between Other Parties — Res inter alios acta.] — Critchley v.- Graham, 2 W. & W. (L.,) 211, post under Mining — Interests in Mines — Claim — Effect of Forfeiture, &c. By Decree.] — Where M. and H. concluded an arrangement as to land selected by M. which the Court held to be a mortgage, and subsequently to this arrangement, M. being indebted to another person, all his interest was sold under a fi. fa. to B., and B. brought a suit, B. v. H., to redeem H., which was dismissed, and B. subse- quently assigned his interest to M., Held that the decision in the suit, B. v. H., was no bar to M.'s right to redeem, B. having subse- quently assigned to M. Murphy v. Mitchell, 5 V.L.E. (E.,) 194. And see cases post under Judgment — Con- clusiveness of and Estoppel by. Defendant Putting in Further Answer — Bound by First.] — A defendant mortgagee (a bank) by its answer in support of a plea, denied that a sale, impeached by the bill, was made by virtue of the power of sale in the mortgage. Upon argument of the plea, it was ultimately ordered that the benefit of the plea be saved to the hearing. Defendant put in a further answer, claiming that the sale should be deemed an execution of the power of sale in the mortgage. Held, at the hearing, that the defendant bank having disclaimed any such defence in its answer accompanying the plea, could not rely upon it. Brougham v. Melbourne Banking Corporation, 6 V.L.E. (E.,) 214, 226; 2 A.L.T., 81, 84. 409 ESTOPPEL. 410- Decree in Equity Suit in County Court — Dismiss- ing Plaint for Specific Performance.] — A decree in the County Court dismissing a plaint for spe- cific performance of a contract for the purchase of land, which plaint alleged the agreement for sale, payment of the purchase-money, deli- very of possession to, and expenditure of money on the land by the plaintiff, is an estoppel to the plaintiff's setting up such agreement, payment of money, delivery of possession and expenditure on the land, as a defence to a sub- sequent action against him for trespass to the land in question. Marks v. Aspinall, 8 V.L.E. (L.,) 116; 4 A.L.T., 2. Per Stawell, O.J. — All the reasons given for a judgment are not necessarily so much a part of the decision as to amount to an estoppel on the points referred to in those reasons. But, if the Judge finds that certain facts exist, every one of which separately maybe necessary to his decision, his decision may then operate as an estoppel on each of such facts. Ibid. Plea of— Admissibility of Evidence When Issue of Facts Taken.] — A judgment in the County Court, in a suit for specific performance of an alleged contract for the sale of land, was recorded simply as "suit dismissed." Such judgment was pleaded as an estoppel in another action to recover money alleged to have been paid under such contract, and issue of fact was taken on such plea. Held that evidence was admissible to show on what grounds the Judge of the County Court had dismissed the suit. Aspinall v. Marks ; Marks v. Aspinall, 8 V.L.E. (L.,) 217. 2. By Deed. N.G., E.G. and J.W., by deed, February, 1860, assigned all their property to trustees in trust for creditors. In this deed the parties were described as "N.G., E.G., and J. W„ car- rying on business at Geelong, in co-partnership under the style of N. and E.G. and Co., and the said N.G. and E.G., carrying on at Mel- bourne a separate business under the style of N. and E.G., of the first part." In the schedule to the deed there was a column headed " Estate ;" and in. t.Tiig column, opposite each creditor's name, was inserted either , N. and E.G. and Co., or N. and E.G. In a suit to administer the trusts of the deed, the Master certified, that in the business of a certain railway contract, N.G., E.G. and J.W. carried on such business at Geelong under the style of N. and E.G. and Co., and in Melbourne under the style of N. and E.G., and that certain debts set out in the first schedule of the report were respectively contracted in relation to the con- tract. Upon . exceptions, the most material being that the two firms of N. and E.G. and Co., and N. and E.G. were separate and dis- tinct firms, Held, by Molesworth, J., that the schedule did not operate by way of estoppel, so that it could not be contradicted as to the nature of the claims of the several creditors, but that the deed afforded strong evidence that the firms were distinct; that the evidence before the Master supported this view, and exception allowed. ' Held,', by the Pull Court, that no part of the deed bearing on the ques- tion was so clearly and distinctly the words of a person executing as to amount to an estoppel ; but that the deed afforded evidence of an admission which was more than out- weighed by the other evidence, and that as regarded the creditors generally, there was- only one firm. Appeal allowed, and exception overruled. Heape v. Hawthorne, 2 "W.W. & a'B. (B.,) 76. At law and in Equity — Effect of Recitals.] — Where a marriage settlement recited an agree- ment by the fathers to settle each .£500 on the marriage, and then recited the payment, which was not in fact made, in a suit by the trustees of the settlement against the executors of one of the fathers to recover his contribution, Held that, though the only evidence to satisfy the " Statute of Frauds " was the deed itself, and as it contained an assertion of the fulfil- ment of the agreement, its parts could not be separated at law, so as to insist upon the first and deny the second, coupling the Statute with the estoppel of the deed; yet that in equity relief could be granted, and that the trustees, by executing the deed, made themselves respon- sible to the certuis que trustent for the ,£1000 ; and that since the deceased would be guilty of a fraud if he did not indemnify them, his executors should pay the deceased's share out of his estate. Gordon v. Murphy, 4 W.W. & a'B. (E.,) 120. Eecital in Bond — Crown not Estopped by.] — The- Secretary of the Board of Agriculture being required to give a bond for the faithful dis- charge of his duties, gave one to the Queen, reciting that he had been appointed to a cer- tain office " in the service of the Government of Victoria." On a petition by the secretary against the Queen for a retiring allowance, under Sec. 40 of the " Civil Service Act," No- 160, Held that the Crown was not concluded by the recital in the bond, or by the fact that the security was given to the Crown instead of to the Board, the secretary's employer. Matson v. The Queen, 2 V.E. (L.,) 233 ; 3 A. J.E., 27. Surrendering Interest in Lease by Dissolution of Partnership.] — W., who was in possession of land under a lease, entered into partnership, and by the deed of partnership the land was declared to be partnership property. By the terms of dissolution of the partnership,which was dissolved during the currency of the lease, the assets devolved on a third partner, W. declar- ing to an incoming partner that he had no further interest in the partnership property. In an action for ejectment by W. against an assignee of his former partners, Held that the deed of partnership, the terms of the dissolu- tion, and the letter did not estop W. from claiming under the lease. Wood v. Hutchings, 2 A.J.E., 58. Eecital that Grantor was Seised in Fee Simple in a Conveyance Upon Trust.]— G., by a deed of January, 1857, conveyed land to S. in fee. By a deed of July, 1857, which recited that G. was seised in fee, and to which S. was an executing party, G.' conveyed to T.-upon trust for S'.'s" 411 ESTOPPEL. 412 wife for life, and by a deed of December, 1863, T. conveyed, with the consent of S.'s wife, to S. upon certain trusts, S. executing this deed also. In an action of ejectment as to the land, plaintiff claimed as a trustee in place of S., and the defendant claimed directly from S. as beneficial owner. The jury found a- verdict for defendant. Upon rule nisi to enter verdict for plaintiff, Held that S. and those claiming through him beneficially were not estopped by the recitals in the deeds of July, 1857, and December, 1863, as to G.'s being seised in fee ; that such recitals might be sufficient to satisfy the "Statute of Frauds" in establishing a -trust in S., but that they were proved to be untrue, and that plaintiff had not established .a, trust. Eule discharged. Moore v. Hart, 5 A.J.E., 177. Creditor's Deed— 5 Vic, No. 9, Sees. 33, 34, 36— Eeoital — Schedule — Execution by a Creditor.] — A. •executed a deed of assignment in favour of ■creditors under 5 Vic, No. 9. The deed recited that A. was indebted to creditors in sums specified in the schedule opposite their names, and contained a release as to such debts. B., a creditor opposite to whose name in the schedule a sum of JB834 appeared, executed this deed with other creditors below the schedule. B. filed a bill for payment of a dividend on a larger sum of .£1300, which the bill alleged to be due to him at the date of the deed. Held that B. was estopped by lis execution of the deed from claiming a divi- dend on such larger sum, and that nothing in the Act 5 Vic, No. 9, affected such estoppel. Hermann v. French, 5 V.L.E. (E.,) 15. Creditors' Deed — " Insolvency Statute 1865 " — Trustees not Estopped by Execution of an Invalid Deed from Paying Dividend to Creditor.] — In re Upton and Bowes, 2 V.E. (E.,) 117; 2 A.J.E., ■68, post under Insolvency — Composition Deeds. Grant by Person Having no Estate — Subsequent Acquisition of Fee — Conveyance in the Meantime by Grantee.] — Where a person, who has no actual ■estate in land, purports to grant it by deed, and subsequently obtains the fee, though an •estate may pass by way of estoppel, the sub- sequent acquisition, though feeding the estoppel, does not vest the estate in the grantee by relation, as from the date of the execution ■of such deed, so as to vest, as a matter of course, the estate in a person to whom the grantee has conveyed the property between the dates of the deed and of vesting the fee in the grantor. McVea v. Pasquan, 8 V.L.E. (L.,) 347, 361, 362; 4 A.L.T., 101. Mining Lease — Provision in ultra vires — Lessee Executing Estopped from Objecting.] — Matt v. Feel, 2 V.E. (M.,) 27; 2 A.J.E., 133, post under Minino — Interests in Mines — Leases; but see contra, Barwick v. Duchess of Edinburgh Company, 8 V.L.E. (E.,) 70; 3 A.L.T., 68, 121, post ibid. Eecital as to Consideration.] — A mortgagee of land and a life policy pompromised with an insu- rance company, selling the land to the company for .£1170, and receiving £1293 as for the policy. The transfer of the land (an instrument under Act No. 301) stated the consideration to be £2463 — the total amount received from the company. Held that it was not unusual in conveyances to state the whole payment as the consideration for each conveyance, notwith- standing that the parcels in each may have been separately valued, and that at most the mistake as to the consideration put upon the party making it, the burden of showing clearly what the real consideration was, and that the statement of consideration in the instrument was not conclusive. Walpole v. Colonial Bank, 10 V.L.E. (E„) 315, 331 ; 6 A.L.T., 147. 3. By Matter in Pais. Admission of Eight of Person to Goods Stored.] — C. and W. stored goods with J. C. and "W. sold some of the goods to P., but the goods were not to be delivered until the price was paid. P. sold fraudulently to B., and left Victoria without paying C. and W. J. had acknowledged C. and W.'s right, and on the sale to P. signed a memorandum to the follow- ing effect : — " Eeceived for storage from P." The goods had not been set apart, and could not be identified. B. brought an action of trover against J., and obtained a verdict. On rule nisi for a nonsuit, Held that an estoppel can only be used by the person in favour of whom the matter of estoppel arises, and that J.'s admission in P.'s favour could only be used by P. alone and not by B., to whom P. had fraudulently sold. Eule absolute. Beckx v. Jones, 2 W. & W. (L.,) 313. Between an Incorporated Company and an Indi- vidual.] — As between individuals the principle of estoppel is equitable in results, but as between a company and an individual, to say that members having assented to and acted upon a rule, not binding the company and all its members because illegal or beyond its powers of law-making, should be estopped would be most unjust, as absentees and mino- rities themselves being free, might enforce liabilities and obligations to which majorities voting for such rule would be bound. Nolan v. Annabella Company, 6 W.W. & a'B. (M.,) 38; N.C., 19. For facts, see S.C., ante column 153. Director of Company — Assent as Director — Private Capacity.]— Semble, that a director of a company who has, qua director, knowingly assented to the company's giving a mortgage is, in bis private capacity, precluded from raising objections as to the validity of such mortgage. Commercial Bank v. MDonald, 2 V.E. (L.,) 211 ; 2 A. J.E., 120. Director of Company — After Ceasing to Act as Such not Estopped from Getting Possession of Com- pany's Mining Claim Through Information Receive* Whilst Acting as Manager.]— Lennox v. Golden Fleece and Heales United Company, 4 A.J.E., 154, post under Mining— Interest in Mines- Claim— Effect of Forfeiture, &c. 413 EVIDENCE. 414 Acting on a Document as a Final Certificate.] — "Where it was provided in a contract for the performance of certain pnblio works that nothing should he deemed due to the contractor from the Board of Land and "Works till the ZEngineer-in-Chief had presented his final cer- tificate that the works were properly com- pleted, and the Engineer, on the request of the •contractor, sent him a document purporting to tie a final certificate, but which was a mere return, and the contractor, in good faith, acted on such document, Held that the Engineer, as a servant of the Board, having at the con- tractor's request forwarded him a document purporting to he a final certificate, and the contractor having acted upon it, the Board were ■estopped from denying that it was a final ■certificate. O'Keefe v. Board of Land and Works, 1, A.J.E., 145. Allowing Informal Affidavit to be Used.] — A person who has had an opportunity of objecting to an affidavit on the ground that there was an -erasure in the jurat, but who does not take such objection and allows the affidavit to be used, cannot afterwards set aside a proceeding founded on the affidavit, on the ground of the •defective jurat. Ex parte Usher, 2 V.E. (I.E. &M.,)3; 2 A.J.E., 37. Bill of Exchange — Acceptor Estopped from Objecting to Capacity of Drawer.] — See Coombs v. M'Dougall, ante column 92. Promissory Note — Forging of Signature — Eatifi- eation.] — See Kernan v. London Discount and Mortgage Bank, ante column 102. Order for Payment of Money — Person Giving "When Estopped from Revoking.] — Grice v. Johnson, 2 A.J.E., 61, post under Neootiable Instru- ments — Other Documents. Party Suing to Rescind His Own Act.] — A person is not allowed, as plaintiff in a Court of Law, to rescind his own act on the ground that such -act was a fraud on some other person, whether the party seeking to do this has sued in his own name only, or jointly with such other person. Nichol v. London Chartered Bank of Australia, 4 V.L.E. (L.,) 324, 329. For facts, see S.C., ante column 83. Person Taking Up Part of a Street as a Claim — Not Estopped from Setting Up Want of Jurisdiction in Warden to Adjudicate Thereupon as to Forfeiture.] — Schonfeldt v. Beel, 1 V.L.E. (M.,) 1, post under Mining — Interests in Mines — Claim — Generally. Depriving Person of Estate on Ground of Estoppel — What the Conduct of the Person Must be.] — Atkinson v. Slack, 2 V.L.E. (E.,) 128, post under Waiver. Acts and Words.] — Per Williams and Eolroyd, J.J., A person may, by his acts and words, i.e., by electing to take advantage of the contract, so conduct himself as to estop him from saying that a written contract is not a sufficient memorandum within the " Statute of Frauds." Ford v. Young, 8 V.L.E. (E.,) 93, 105, 107; 3 A.L.T., 128. Vendor Answering Requisitions and Producing Title.]— The production of the title to land, and answering "without prejudice" requisitions on the title, does not estop the vendor from after- wards disputing the validity of the contract of sale. Per Molesworth, J. Hoss v. Victorian Permanent Building Society, 8 V.L.E. (E.,) 254, 264; 4A.L.T., 17. Trespass — Defendant Estopped by Admission from Disputing Plaintiff's Title.] — See Byrne v. Bate- man, 5 A.J.E., 78, post under Trespass — To Lands and Houses. Lease Under Seal to A. — Written Agreement to Accept B. as New Tenant, and Acceptance of Bent from B. — Lessor Estopped from Enforcing Covenants Against A.]— Sabelberg v. Scott, 5 V.L.E. (L.,) 414 ; 1 A.L.T., 101, post under Landlord and Tenant — Termination of Contract — Surrender. General Principles.] — Per Full Court. A per- son is bound to disclose his rights if he knows that another will be injuriously misled by their concealment. But the duty of making dis- closures is particular not general. A man is not bound to disclose his rights to all the world, lest somebody should he injured by ignorance of them, nor liable if anybody is injured by such ignorance without his know- ledge. J. was owner of certain property and allowed his son, who had the same name, to possess himself of the title deeds of this property. The son mortgaged this land, representing himself as owner, to Z. and C, and J. after- wards confirmed the mortgage. The son, still representing himself to be the owner, mort- gaged the property by way of second mortgage to E., which J. refused to confirm. Held, affirming Molesworth, J., in a suit by E. against Z. and 0. seeking to redeem them, that the son had really nothing to mortgage, and that E. was not really a mortgagee, and that J. was not estopped from setting up his title against E. Ettershank v. Zeal, 8 V.L.E. (E.,) 333, 343; 4A.L.T., 90. EVIDENCE. 1. Admissions, Declarations, and Entries Against Interest. (a) Admissions, column 415. (6) Declarations, column 416. (c) Entries Against Interest, column 416. 2. Presumptions, column 417. 3. Witnesses. (a) Competency, column 417. (b) Practice delating to. (1) Oaths and Declarations, column 418. (2) Refusal to Answer, column 418. (3) Cross-Examination, column 418 ; and see also New Trial. (4) In other cases, column 419. 4. Commission for Examination of Witnesses, column 419. 415 EVIDENCE. 41ft 5. Affidavits and Depositions, column 422. 6. Judicial, Official, and other Documents, column 422. 1. Admission of Extrinsic Evidence. (a) To Explain, Sfc, Documents, column 424. (6) In other cases, column.425. . 8. Costs and Expenses of Witnesses and (a) Of Witnesses, column 426. (6) Of Evidence, column 427. 9. Generally, column 427. 1. Admissions, Declarations, and Enteies Against Intebest. (a) Admissions. Of Agent — "Without Prejudice."] — Evidence cannot be excluded on the ground that the person, who was the mere conduit -pipe in the offer of compromise, has afterwards become involved in a transaction not then existing. An agent may qud agent guard himself against all contingencies by making an offer of com- promise "without prejudice, not only to this suit, but to all future transactions ;" but where an agent makes a communication pending an action with a view to compromise, and other proceedings not then contemplated are after- wards instituted, such a communication ought not to be excluded simply because it is made "without prejudice;" that reservation of "without prejudice" being made, not with respect to the agent personally, but to the person whose interest was then affected. Goodman v. Hughes, 1 W. & W. (E.,) 202, 221, 222. Admissions of a defendant may be used as evidence of a case made by the bill, though not put in issue. Bruce v. Ligar, 6 W.W. & a'B. (E.,) 240. Admissions in Sworn Answer.] — See Allen v. Lane, 2 W. W. & a'B. (E.,) 1, 8 ; and Cunnmg- ham v. Piatt, 8 V.L.E. (E.,) 55, 67; 3 A.L.T., 126, post under Pbactice and Pleading — In Equity — A nswer. Of Person Since Dead —Testimony in Person's Own Favour.] — Courts are disinclined to act upon the testimony of parties in their own favour deposing to transactions between them- selves and deceased persons. In a suit to establish a resulting trust in land purchased with plaintiff's money, but conveyed in trust for his wife and children without his consent, an admission by the wife that she had received the purchase-money for the land from her hus- band held inadmissible after her death. Mason v. Sawyers, 2 V.E. (E.,) 36; 2 A.J.E., 12. By Leaving Letter Unanswered.] — "Whe^e a per- son is addressed by letter on a subject that does not concern him, he is not under any legal obli- gation to answer any statement in that letter, and his silence is not to he taken as an ad- mission by him against himself of the truth of the matter, stated. . On the. .other hand, if the . matter do concern him, it is his duty to reply, and if he abstain from so doing, his silence affords strong evidence to go to a jury of an admission by him that he had no excuse to make, and no defence to offer to the charges. Newcomen v. O'Grady, 2 V.B. (L.,) 214; 2 A.J.B., 123. O. , a contractor for the formation of a rail- way, had a letter addressed to him as follows r — " I have been instructed by ST. to inform you that your men have removed the fence- from his ground, and his horses and cattle are straying about the country. Unless they are replaced he will hold you responsible for their- loss, and will proceed against you for the tres- pass." O. did not answer this letter, as regards the injuries complained of. Held that since any injury done to the fence mentioned in the letter, by whomsoever committed, could not concern O., unless done by his authority or subsequent confirmation, O.'s silence did not amount to an admission against him that he was liable for the trespass complained of. Ibid. As to Age.] — Admissions made by a plaintiff" as to his age are inadmissible against him, when his own evidence as to his age is inad- missible for him. In re Peebles, Hall v. Nelson*. 2 V.E. (I. E. & M.,) 52; 2 A.J.B., 38. Voluntary Settlement— 37 Eliz., Cap. 4.]— The act of executing a conveyance for value is only evidence of an admission that the settlor has parted with property under the Statute 27" Eliz., Cap. 4; and then it is only evidence^ against a person who, but for the voluntary settlement, would be owner of the settled pro- perty ; and is not evidence against beneficiaries where the settlor has after insolvency conveyed for value. Sugden v. Reilly, 5 A. J.E., 36. . By Executors.] — Executors have power to> make admissions respecting the liability of their testator binding on them as executors- Morrison v. Sellar, 4 A.L.T., 49. Admission in Equity Suit — Ejectment at Law.] — An unqualified admission in the answer in an equity suit, in which the answer was read, that the person through whom the plaintiff:' claimed the land the subject of the suit, was seized in fee of such land at a certain date, is- binding on the defendant, and concludes him,. as a matter of fact and of law, in a subsequent action of ejectment in respect of the same land by the same plaintiff against him. McVea v. Pasauan, 8 V.L.E. (L.,) 347, 363 ; 4 A.L.T., 101. (b) Declarations. "Where a person in possession of land as caretaker for the owner states to a third per- son his intention of holding the land on his-, own account, such statement is not against his interest, and is not therefore admissible as evidence after his death. M'Crackenv. Woods. ' 5 V.L.E. (L.,) 23. (c) Entries Against Interest. Of a. Testator.]— In an action by executors for goods, &c, supplied by testator, a book. of. - accounts was produced showing an account 417 EVIDENCE. 418 between the testator and defendant, showing credit and debit entries. Held, that such evi- dence was admissible. Per Fellows, J., objec- tions against evidence should be taken at the trial. Williamson v. Langley, 3 V.L.E. (L.j) 52. Of a Deceased Trustee.]— Documents signed by a deceased trustee, comprising accounts tendered to a cestui gtte trust of interest re- ceived upon mortgages effected by such trustee with trust moneys in his own name, are admissible in evidence against persons claim- ing from such trustee after his death. Chomley v. Firebrace, 5 V.L.E. (E.,) 57. 2. Pbbstjmptions. As to Letters.] — A letter properly addressed and posted will be presumed to have reached the person to whom it is addressed in the ordinary course of post, unless evidence to the contrary can; be produced. M'Kenisie v. Shire of Swan Mill, 4 V.L.E. (L.,) 299. See also Begina v. Turner, ante column 292. Arrival of Letter at its Destination.] — Per Full Court — The presumption that a letter properly addressed, stamped, and posted, and which is not returned to the writer, arrived at its desti- nation, is conclusive if not denied, and so strong that mere non-recollection of its receipt would be insufficient to outweigh it. Gushing v. Lady Barlcly Gold Mining Company, 9 V.L.E. (E.,) 108, 122 ; 5 A.L.T., 98. Presumption of Death.] — See Death, ante column 342. Presumption of Marriage Ceremony Duly Per- formed.] — See Kegina v. Young, and Begina v. Griffin, ante columm 287. 3. Witnesses. (a) Competency. Proof of — Lunatic Witness.] — Where an inmate of a lunatic asylum is tendered as a witness it is for the person producing him to satisfy the tribunal that his evidence is receivable. White v. Boddle, 6 V.L.E. (E.,) 82, 9i ; 1 A.L.T., 193. Interested .Persons.] — Although the law now allows interested persons to give testimony, not much weight should be attached to their evidence. Basher v. Summers, 10 V.L.E. (E.,) 204, 208. Uncorroborated Evidence of Interested Person.] — Per Molesworth, J. The evidence of a wit- ness, deeply interested for himself as to transactions with a person since dead, should be regarded with strong distrust, but should not be rejected altogether. Dryden v. Dryden, 4 V.L.E. (E.,) 148, 154. The Court is always reluctant to act upon the evidence of interested parties as to con- versations between them and deceased persons. Bennett v. Tucker, 8 V.L.E. (E.,) 20; 3 A.L.T., 108, 111. (b) Practice Belating to. (1) Oath and Declaration. Chinese — How May be Sworn.] — A Chinese witness, though not a Christian, may be sworn on the Bible, since the form of administering the oath is immaterial; the substance of the oath, the bringing of himself under a solemn obligation to tell the truth, by the witness only is essential. If a witness declare that a special form is binding on his conscience, the Court is obliged to accept it. Begina v. Mcllree, 3 W.W. & a'B. (L.,) 32. (2) Refusal to Answer. When Answer May Criminate — Decision of Judge.] — Per Holroyd, J. (in Chambers) — The Judge must, when an objectionis taken that to answer an interrogatory would tend to criminate the person answering, decide whether in his opinion the question may have such a tendency. Boper v. Williams, 6 A.L.T., 65. Question that May Tend to Criminate — Objection on Oath.] — Per Biginbotham, J., (in Chambers.) Where a party objects to answer an interroga- tory on the ground that it may tend to^ criminate him, he must take the objection on oath. Paterson v. Luke, 6 A.L.T., 8t>. (3) Cross-examination. Evidence Given by or for One Defendant Against a Co-defendant.] — Beld, per Molesworth, J., that persons are in no way affected by the evidence called by other parties, but that the case as between plaintiff and each defendant should be rested upon the evidence which they have each respectively offered, but the Court allowed the co-defendant's counsel to examine a defendant, G., who was giving evidence, which it was objected was not admissible against the co- defendant. G-. was then cross-examined by plaintiff's counsel, but not by counsel for co- defendant. Beld by the Full Court that a defendant may cross-examine a co-defendant as he may any other witness, and that this right is necessarily based upon the assumption that the testimony of a witness (and therefore of a co-defendant) is admissible against the party desiring to cross-examine. Meadway v. Garlick, 4 W.W. & a'B. (E.,) 157. Practice Dpon Taking Evidence — Limits of Re- examination.] — Where in cross-examination evidence is allowed to be given which might have been successfully objected to, the right to re-examine upon it depends upon circum- stances. If the evidence is wholly immaterial in any shape or form no explanation of it can be given; if it is material, then it may be explained ; and much depends upon the inten- tion with which the question in re-examination is asked. Ireland v. Chapman, 3 V.L.E. (L.,) 242. If a plaintiff's witness in cross-examination makes a statement material to the issue in the case, evidence may be adduced to contradict such statement, if by such contradiction a material fact is proved, even though it has the effect of impeaching the credit of such witness. Litton v. Thornton, 7 V.L.E. (L.,) 4. 119 EVIDENCE. 420 (4) In other cases. Evidence of Witness Ordered Ont of Court and Refusing to Go.] — The evidence of a witness who remains in Court after an order that all wit- nesses should leave the Court, cannot he rejected ; but the witness may be punished for his disobedience. JZegina v. Outhridge and Brennan, ex parte Campbell, 4 V.L.E. (L.,) 77. 4. Commission pok Examination op Witnesses. ■ When Granted or Refused.] — An application for a commission to examine witnesses should be regarded almost as of right if made bond fide; but when one of the parties makes an application for his own examination, the ques- tion of bona fides requires close attention. Where the defendant, who was in the jurisdic- tion when bill was filed, and put in an answer and then left for England, after express notice that an application to take his evidence by commission in England would be opposed, Meld, by Molesworth, J., and affirmed, that such defendant was not entitled to a commis- sion to examine him in England as a witness on his own behalf. Bruce v. Ligar, 6 W.W. & a'B. (E„) 240, 253, 263. When Granted Or Refused — Judge's Discretion.] — The Court will not interfere with the discre- tion of a Judge in granting a commission to examine witnesses. Hartley v. Worthington, 2 V.E. (L.,)92; 2A.J.E., 63. When Granted or Refused — Discretion of Judge in Refusing.] —An application in Chambers by the defendant for a commission to examine wit- nesses in Prance, the place of his birth, in support of a plea of infancy, was refused. Held, per Stawell, C J , and Stephen, J., that such a defence was not dishonest in the absence of fraud, and it is the duty of the Judge and the Court to consider what is -conducive to the due administration of justice; per Stawell, C.J., that in the absence of questions of incon- venience of whether the application was made bona fide or for the purpose of delay, the ap- plicant is almost as of right entitled to a com- mission; per curiam that the Judge has a discretion in refusing » commission, but that the Court may review such discretion. Rule absolute for a commission. Di Saxe v. Schle- singer, 7 V.L.E. (L.,) 127; 3 AL.T., 1. Whan Granted or Refused — Discretion of Judge — " Statute of Kvidence 1864," Sec. 4.] — The issue of a commission under Sec. 4 of the "Statute of Evidence 1864," is a matter within the discretion of the Court, or the Judge to whom the application for the commission is made. Ordinarily, where the application is made bond fide, and where no other means exist by which material evi- dence might have been or can be procured, the application is readily granted ; but the grant of a commission under the Statute is not a matter of right; still less is it a matter of course. Merry v. the Queen, 10 V.L.E. (E.,) 135. ' See also S.C., Appeal, ante columns 39, 40. When Granted or Refused.] — Higinbotham, J. (in Chambers,) made an order on behalf of the plaintiff for the examination of an impor- tant witness on the day of his departure from the colony, the plaintiff paying the costs. Forrest v.Eisert, 2.A.L.T., 136. Witness Within Jurisdiction — " Statute of Evidence 1864" (No. 197,) Sec. 4.] — Where a commission issued to examine a witness within the juris- diction, Held that evidence given under it was admissible, inasmuch as the commission was based on an order which sufficiently complied with Sec. 4 of Act No. 197. Hatt v. Hatt, 3 V.L.E. (E„) 227. Form of Order.] — Where the order provided that signatures of witnesses should be attached, which was not done, Held that such a provision was merely directory, and that the proper time for taking such an objection was at the taking of evidence, and not at the hearing. Ibid. Appointment of Commissioner.] — The Act No. 112, Sec. 87, authorises the appointment as commissioner of one of two persons named in the alternative in the commission. In re BrooTcfield, 1 W. & W. (E.,) 110. Duty of. Commissioner.] — It is the duty of a commissioner to use his own discretion as to the competency of witnesses examined by him, and to certify to the Court his opinion. White v. Hoddle, 6 V.L.E. (E.,) at p. 87. Return of Commission — Validity.] — Upon the return of a commission for the examination of a witness abroad, it appeared that wit- nesses were first examined as to his sanity, and the witness, an inmate of a lunatic asylum, was then tendered, but objected to as incompe- tent, and his examination on the voir dire desired. By consent he was examined, without prejudice to objections as to his competency. Upon the hearing, objections were taken that the commission was not receivable, that the lunatic was not a competent witness, and that his evidence was inadmissible. Held, that as the examination had proceeded subject to all proper objections as to the competency of the witness, but not to the objection that the com- missioner did not take the proper course to examine the witness, and that as the witness had stood examination and cross-examination satis- factorily, and the commissioner had furnished the Court with all the necessary materials to enable it to form an opinion of the witness's competency, the objections should be overruled and the commission held receivable. White v. Hoddle, 6 V.L.E. (E ,) S2 ; 1 A.L.T., 193. Rules in Taking Evidence Under.] — Per Moles- worth, J. The rules as to the examination of witnesses under a commission should be the same as in taking evidence before the Court. Bell v. Clarke, 10 V.L.E. (E.,) 283, 292. Semble, that the proper time for striking inadmissible evidence out of a commission is at the hearing and not on an application to a Judge in Chambers before the hearing. Ibid, 421 EVIDENCE. 422 Admissibility at Hearing of Objections not Noticed by Commissioners.] — Where evidence has been taken before a commissioner, and objections not noticed by the commissioner were urged at the hearing, Held, following an English authority, but without any definite ruling on the subject, that such objections might be heard at the; hearing. 'Graham v. Graham, 3 A.J.E., 55, 56. Objections[as to Reception of Evidence — Notice to Produce.] — Where copies of letters were put in before a commissioner, the originals having been called for by notice to produce but not produced, and the notice itself was not put in or proved, Held ■ that the objection as to the evidence was taken too late, and that it should have been taken at the time the copies were admitted as evidence. Hatt v. Satt, 3 V.L E. (E.,) 227. Evidence Taken Under— Who May Use.] — Where in an inquiry before the master as to next of kin, evidence had been taken under com- missions in support of the claims of certain persons, and another claimant coming in to prove subsequently thereto sought to use such evidence in support of her claim also, which was refused by the master, upon application to the Court, Held that such evidence could be used only by consent of the other claimants, the Court having no jurisdiction to make an order in invitum to that effect against them. Attorney-General v. Huon, 4 V.L.E. (E.,) 216. An order was subsequently made as moved for upon terms of payment by applicant of a share of the costs and expenses of the com- mission. -Ibid. Costs.] — Certain evidence taken on com- mission related mainly to the matters on which a plaintiff succeeded. Held that the Protho- notary was right in allowing the plaintiff his costs of the commission, and disallowing those cf defendant. Urqwhart v. Macpherson, 3 V.L.E. (L.,) 159. Abortive Commission — Injunction — " Statute of Evidence 1864," No. 197, Sec. 8— Costs.] — A com- mission to examine witnesses in Hamburg had failed, owing to the law of the country not allowing private persons to receive oaths, the oaths being only administered by the Court. The plaintiff had obtained an interim injunc- tion. Upon application "by summons for a fresh commission directed to the British Consul, the Primary Jtidge refused it, except upon terms of dissolving the injunction. Upon appeal, the order was made upon terms of the plaintiff paying the costs of the abortive com- mission, and giving an undertaking to answer damages to defendant if the injunction were dissolved at the hearing. Wolfe v. Hart, 5 V.L.E. (E.,) 52. Agent's Charges — Commissioner's Fees — Taking Evidence on Commission.] — Per Higinbotham, J. (in Chambers) — A London agent (solicitor,) who has received instructions to take evidence on commission, is entitled to his charges on the commission, it being his duty to proceed with the commission until instructions have been sent to settle the claim unconditionally; and his charges after the time for the return of commission has expired are also to be allowed, as he has a right to assume that steps will be taken to extend the time. Commissioner's fees allowed tinder similar circumstances. Anderson v. Berridge, 3 A.L.T., 35. Costs and Expenses — Commission not Proceeded With— Preliminary Expenses.] — It will not be laid down as a general rule that a party who has joined a commission is not justified in making preparations to take part in fulfilling the object of the commission, and in incurring costs payable between party and party, until he has received notice through the commis- sioner of an appointment for the examination of witnesses. And where the London agents of a party to a suit, who had joined in a com- mission, the moment the commission arrived took the necessary and proper steps to support his case before the commissioners, and the commission was not proceeded with, Held, per Higinbotham, J. (in Chambers,) that the agents were justified in not delaying to take such steps. Austin v. Mackinnon, 6 A.L.T., 19. 5. Affidavits and Depositions. And see also Affidavit. Deposition in Court of Insolvency— Use of in Suit in Equity.] — Depositions made by a person in the Court of Insolvency, subsequently a defendant in equity, are admissible in evidence in a suit to set aside a voluntary settlement made by the insolvent in favour of such person, and may be sufficient to establish the plaintiff's case. The whole of such deposition will be con- sidered as in evidence, and the Court will attach such weight as it thinks fit to the different parts of it. Davey v. Bailey, 10 V.L.E. (E.,) 240. 6. Judicial, Official and other Docu- ments. Press Copies— Act No. 197, Sec. 29.] — The "Evidence Act,'' No. 197, makes a press copy evidence without comparison and without any notice to produce the original, but does hot make it primary evidence, except as to dis- pensing with notice to produce. Harrison v. Smith, 6 W.W. & a'B. (E.,) 182. Press Copy of Letter.] — At atrial for uttering a cheque, a book was produced containing what purported to be a press copy of a letter addressed to the prisoner in due course of business by a clerk then in the employ of the drawer of the cheque. Evidence was given of the death of the clerk, and a witness, on seeing the document, said, " That's deceased's handwriting." Held that the copy was admis- sible under Sec. 29 of the " Evidence Statute.''' Regina v. Ryan, 1 A.J.E., 27. Inadmissibility of Press Copy of Letter.] — A witness as to transactions between himself, a deceased plaintiff, and the defendant, pro- duced in corroboration thereof a press copy of a letter, in which reference was made to such 423 EVIDENCE. 42:4 transaction. The witnesses proved that it had been written and posted to the defen- dant, and had never been returned. Held, inadmissible, being detached, unsought, and unexpected. Atkinson v. Lansell, 4 V.L.E. (E.,) 236. Plan— Unnecessary Eeference to in Deed.] — Where an unnecessary reference is made in a deed to a plan, not part of the deed, and the parcels are sufficiently described without the reference, the Court is not justified in looking at the plan merely on account of such reference. Lee v. Melbourne and Suburban Railway Company, 1 W. & W. (L.,) 34. Similar Flan to a Lost One Admitted to Prove the Latter.] — To prove the lost plan of a reservoir, which had been deposited in obtain- ing the Act, as required by the Standing Orders, in the office of the Board of Land and Works, the Court admitted as secondary evidence, a similar plan lodged with the clerk of the Legislative Assembly. Connolly v. The Shire of Beechworth, 2 V.L.E. (E.,) 1. Proof by Secondary Evidence— Lost Deed.] — Where a deed is shown to be probably in the hands of a person out of jurisdiction, that dis- penses with necessity for further inquiry as to loss, and secondary evidence of its contents is admissible. Hunniford v. Horwood, 5 V.L.E. (E.,) 250. Documents Verified by Affidavit.] — Such docu- ments must be marked by the commissioner before whom the oath is sworn, and are not sufficiently identified otherwise, though re- ferred to in the affidavit and inseparably annexed to it. Rossiter v. O'Shanassy, 2 W. & W. (L.,) 121. Judicial Proceedings — What are — " Evidence Act," No. 100, Sec. 37.] — Proceedings before justices in New Zealand, sitting merely to commit for trial and not to hear and determine, acting ministerially in fact, and not judicially, are within the meaning of Sec. 37 of the "Evidence Act," Wo. 100, and may be proved in Victorian Courts in the manner prescribed by the Act. Eastwood v. Bullock, 1 W.W. & a'B. (L.,) 92. Extract from a Marriage Register of a Parish in Middlesex, England— 52 Geo. III., Cap. 146— Inde- pendent Evidence of the Existence or Place of Book from which Extract is Taken.] — Where the only evidence of the existence of a marriage register from which an extract was taken which was put in evidence, was an English Statute 52 Geo. III., Cap. 146, by which the existence of parish registers was enacted, such extract was admitted, though hesitatingly, as evidence. Graham v. Graham, 3 A. J.E., 55, 56. Pound-Keeper's Book — Act No. 197, Sec. 25— "Pounds Act," No. 478, Sec. 21.]— Under Sec. 21 of the Act No. 478, the pound-keeper is a public official required to keep a book for special purposes, and to insert in it certain specified particulars in which the public are interested ; and such book is accessible to the public, and cannot be removed from his resi- dence without inconvenience to the public. Such a book is therefore within Sec. 25 of the "Evidence Statute," No. 197, and entries in it may be proved by a certified extract, giving information necessary to support an action for wrongful impounding. Jones u. Falvey, 5 V.L.E.. (L.,) 230 ; 1 A.L.T., 23. Banker's Books.] — See ante column 76. Proof of Bank Charter — Copy of Supplemental Charter.] — Begina v. Dickson, ante column 299. Exhibits — Notice to Admit.] — A deed admitted by the defendant's solicitor, on the usual notice to admit, if put in and marked as an exhibit, is in evidence, even if the admission itself is not put in. Glass v. Simson, 2 W. W. & a'B, (E.,) 67, 74. Using.] — An exhibit put in by the plaintiffs for one purpose may be used by the defendants for all purposes. St. George and Band of Hope Company v. Band of Hope and Albion Consols, 2 V.E. (E.,) 206; 2 A.J.E., 81. Exhibits— Custody of in Master's Office.] —The rule of Court (Eule 15 of Cap. 6,) requiring exhibits to be lodged in, and retained by, the Master's office, is only intended to preserve such exhibits until the hearing ; and when that purpose is served, the custody should terminate. Selwood v. Burstall, 1 W. W. & a'B. (E..) 96. Return of Exhibits— Certificate of Title.] — In a suit to rectify certificates of title, these certi- ficates of title were deposited as exhibits. Held that as Court had no power to correct the certificates themselves, and as the suit was concluded, these exhibits must be returned. Campbell v. Jarrett, 7 V.L E. (E„) 137. Exhibit — Application for Delivery Out of.] — Deeds were exhibited in a redemption suit by a defendant. After decree, a Bank claiming a lien on the deeds (alleged to have been lent to the defendant for another purpose, viz. , bring- ing the land under Act No. 301, on an under- taking to return them) moved, on notice to the parties to the suit, for delivery out to the bank of the deeds. Held that the matter could not be dealt with on a summary application, and motion refused with costs without prejudice to the institution of a suit. Jamieson v. Johnson, 1 V.E. (E.,) 102. 7. Admission op Extrinsic Evidence. (a) To Explain, $$c, Documents. To Contradict Statement of Consideration in a Deed.]— Parol -evidence to contradict the state- ment of consideration in a deed is always ad- missible both at law and in equity, to sustain an allegation or to rebut a charge of fraud. Gladstone v. Ball, 1 W. & W. (E.,) 277, 287. Voluntary Settlement.]— In a suit to support a settlement as against a subsequent conveyance, evidence was held admissible to show conside- ration for the settlement other than that expressed in the deed. Ronalds v. Duncan 2 V.E. (E.,) 65, 80 ; 2 A.J.E., 30, 45. 425 EVIDENCE. 426 To Explain Latent Ambiguity in Policy of Marine Insurance.] — Wright v. Imperial Marine Insu- rance Company, 6 V.L.E. (L.,) 334 ; 2 A.L.T., 65, post under Insurance — Marine — Construc- tion of Policy. To Explain Latent Ambiguity in a Covenant.] — Henderson v. Woodburn, ante column 281. To Correct Mistake as to Name of Vendor in a Contract for Sale.] — Parol evidence is inad- missible to prove the name of a vendor in a contract for sale of land where the name is wrongly stated. Ford v. Young, 8 V.L.E., (E.,) S3; 3 A.L.T., 85, 128. For facts, see S.C., post under Vendok and Purchaser — The Contract — Statute of Frauds. Plan Unnecessarily Referred to in Deed — When Court Will Not Look At.] — Lee v. Melbourne and Suburban Railway Company, ante column 423. To Explain What Passed Under a Grant — Reference to Plan Showing Width of Streets.] — Davis v. the Queen, post under Grant. Parol Evidence to Explain Intention of Settlor, to Explain Parcels.] — .See Cunningham -v. Plat t, ante column 354. Mining — Inconsistent Plan— Surveyor's Evidence Inadmissible] — Where two mining companies were hound by an agreement to which was attached a plan showing boundaries, and this plan was inconsistent with itself as to course of boundary lines in reference to certain land- marks, a surveyor's evidence to explain the discrepancy was held inadmissible in determin- ing the true construction of the agreement and plan in a suit for an injunction to restrain an encroachment. Semble, it would be admissible in a suit to rectify agreement according to the intention of the parties. The Band and Albion Company v. St. George United Company, 3 A.J.E., 20. (6) In Other Cases. Against Heir-at-Law of Equitable Mortgagor.] — Where there has been a written memorandum . accompanying a deposit of deeds as security by a person since deceased, parol evidence of the relative position of the parties and of the surrounding circumstances is admissible as against the heir-at-law, but not so if such verbal evidence amounts only to a promise or admission by the deceased. Brent v. Jones, 1 V.E. (E.,) 76, 82; 1 A.J.E., 2, 51. To Limit Reduction of Money Payable under a Contract.] — Where under a contract between C. and B. and the Queen, the Crown put in evidence to show that a large sum of money should be deducted from that claimed by C. and B. on account of non-performance within a certain time specified, Held that evidence by C. and B. to show that the completion was delayed by the action of the Crown was ad- missible. Bruce v. The Queen, 2 W.W. & a'B. 457 FISH AND FISHERY. 458 his former estate, and B. became a trustee for him, and that any defence B. might have on the ground of his right to be reimbursed the various charges detailed in the bill should be made by answer. Semble, where the curator is warranted in conveying he may become a registered proprietor in order to convey, but he must show why he should acquire this power conclusively protected against the felon's lights. Mitchell v. M'Dougal, 9 V.L.B. (E.,) 13; 4A.L.T., 114. Compounding a Felony — Assignment by Deed Through Fear of Being Prosecuted for Felony.] — See Munro v. Perry, ante columns 388, 389. Defence of Forfeiture for Felony — How Pleaded.] — MCraev. Isaacs, 1 V.E. (L.,) 27 ; 1 A.J.E. 36, post under Pbactice and Pleading — Pleadings at Law — Plea. What the Crown May Forfeit on Conviction of Felony — Only What is Tangible, Not a Mere Bight to Set Aside a Sale of Equity of Redemption.] — Johnston v. Kelly, 7 V.L.E. (E.,) 97; 3 A.L.T., 41, ante column 323. Imperial Act, 33 and 34 Vic, Cap. 23 — Aboli- tion of Forfeiture for Felony.] — Quaere, per Williams, J., whether the Imperial Act, 33 and 34 Vic, Cap. 23, applies to the colonies. Ibid. FENCES. Eeplication to Plea of Breach of Agreement to .Fence — When Bad — Agreement to Fence under -" Fences Statute 1874" — Circuity of Action.] — A replication to a plea of damage feasant in an action for seizing sheep, stated that the plain- tiff and the defendant were adjoining owners, that they had agreed, under the "Fences Statute 1874," that each should fence half the ■common boundary, that the plaintiff had done so, but not the defendant, and that three months had not expired from the time of the agreement, but that a reasonable time had, ;at the time of the trespass. Held bad, since it did not show that the defendant was in fault, since he had three months in which to fence under the "Fences Statute 1874," and there could therefore be no circuity of action to be avoided. O'Shea v. D'Arcy, 6 V.L.B. ro tanto, that the Court had no power to make an order to protect the plaintiffs against persons having a subsequent lien on the surplus, which could only be done by as application under first insolvency to vary plan of distribution. Order for plaintiffs to be at liberty to hand over surplus to J. on receiving consents of all concerned and a sufficient indemnity. Goodman v. Boulton, 3 V.B. (E.,) 20 ; 3 A. J.K., 2. Voluntary Settlement— Evidence.]— K, a trader, and being in debt, made a voluntary settle- ment of all his property upon trust for his wife and children. After K.'s insolvency the official assignee brought a suit to set aside the 469 FRAUDULENT CONVEYANCE AND SETTLEMENTS. 470 settlement as being fraudulent and void, the bill alleging that K. was " indebted to other persons, and that many of the debts were unpaid and still owing." Held, reversing Molesworih, J., that a conversation which K. had had with a proposed trustee some time before the settlement, showing a fraudulent intention, was admissible, even although it was in respect of an intended settlement somewhat different in its character, and although this evidence was not put directly in issue by the bill ; also that under the allegation in the bill evidence of general indebtedness was admis- sible to show the fraudulent intent. Goodman v. Boulton, 5W.W.4 a'B. (E.,) 86, 90, 95. Under 18 Eiz., Cap. 5 — Release by Official Assignee — Debts Due at Time of Settlement Remaining Owing at Time of Insolvency.]— D., on 4th March, 1863, purchased by one entire contract station and freehold property from C. and B., and mortgaged same to C. and B. to secure purchase money. D. subsequently in 1864 mortgaged other lands not in sale to C. and B. C. and B. sub-mortgaged to de- fendant bank. Shortly before 1st October, 1870, C. and B. had brought an action against D. on the covenant for payment, and on that date D. (married in 1840) executed a post- nuptial voluntary settlement by which he granted equity of redemption in all his lands to a defendant in trust for appointee of wife, and in default of appointment upon certain trusts in favour of his wife and children. On 1st June, 1871, D.'s estate was sequestrated, and Goodman was appointed assignee. At time of sequestration certain debts other than mortgage debts due at time of settlement were still owing. C. and B. assigned all their interest to bank, and Goodman released his right to the 'equity of redemption to bank, but release did not comprise certain lands set out in the bill. On 22nd March, 1874, D.'s estate was released from sequestration. Held, in a redemption suit by beneficiaries under settle- ment, that under the circumstances the settle- ment was void against bank as to land com- prised in Goodman's release by virtue of 13 Eliz., Cap. 5. Sec. 70 of " Insolvency Statute 1871," is not retrospective. Dallvmore ■ v. Oriental Bank Corporation, 1 V.L.E. (E„) 13. Under 13 Eliz., Cap. 5 — Post-Nuptial Settlement in Pursuance of Ante-Nuptial Agreement.]— A bill by a creditor impeached a post-nuptial settle- ment by a father upon his daughter and her husband as voluntary, and the answer alleged that it was executed in pursuance of an ante- nuptial agreement to settle the property in consideration of the marriage, and the bill was not amended so as to attack the ante-nuptial agreement. It appeared that the father was heavily indebted at the date of the settlement (April, 1880,) but that neither the daughter nor her husband knew of his position. The post-nuptial settlement was dated 1 1th January, 1881, and the father became insolvent March, 1881. In a suit by a creditor to set the settle- ment aside, Held that it was not enough that there should be a scheme against creditors by the insolvent alone ; it should be shown that there was such a scheme between the father, daughter, and her husband : that the ante- nuptial settlement was good as against cre- ditors. Smnott v. J/oclcm, 8 V.L.B. (E„) 205; 4 A.L.T., 10. Mortgage by Wife to Husband of Wife's Separate Property— 13 Eliz., Cap. 5.] — A wife had money as her separate property, which she lent to her- husband. The husband had promised in wri- ting to mortgage his land as a security for- tius, and afterwards executed a legal mortgage not strictly in compliance with the promise,, but bond fide with the intention of carrying it out. Held that such a mortgage might be for valuable consideration, and not void as against, creditors under Cap. 5 of 13 Eliz. Smith v. Hope, 9 V.L.B. (L.,) 217; 5 A.L.T., 75. What is a Voluntary Deed — Consideration — When* Void under 27 Eliz., Cap. 4.] — B., in August, 1852, by a post-nuptial settlement in considera- tion of "natural love and affection," conveyed land to trustees upon trust for his wife and children. Afterwards in February, 1855, being pressed by creditors, G. and Co., he sent a, letter in which his signature appeared on the- second page, and on the third page was a, schedule, unsigned, of his property (including the settled property) which B. proposed to mortgage to G. and C. This -agreement was carried out, except that the settled property was excluded, and the plaintiffs (G. and Co.) realised on the property, and there being a balance of .£8000 due to them brought a suit to set aside the settlement as void against them Under 27 Eliz., Cap. 4. Evidence was tendered that B. had received money from his wife's father on the understanding that B. was- te make a settlement in favour of his wife and children. Held (1) that the evidence was admissible, but not sufficient to made good consideration; (2) that the "Statute of Frauds " was satisfied as to the agreement to mortgage ; (3) that the deed of settlement as voluntary was void as against the plaintiffs, under 27 Eliz., Cap. 4. Gladstone v. Ball, 1 W. & "W. (E.,) 277. Who is a Purchaser Within 27 Eliz., Cap. 4.] — A creditor holding an equitable mortgage is a. purchaser within the 27 Eliz., Cap. 4. Ibid. Two Voluntary Conveyances — Conveyance by Grantee under Second Voluntary Deed to a Pur- chaser—Application of 27 Eliz., Cap. 4.]— If there are two voluntary conveyances, and the grantee- under the second conveys to a purchaser for value, such purchaser has the benefit of 27" Eliz., Cap. 4, against the first volunteer. Moorhouse v. Bolfe, 4 A.J.B., 159, 160. Voluntary — Subsequent Marriage When Con- sideration for a Deed.]— In order to set up a. voluntary settlement by reason of the subse- quent marriage of a feme cestui que trust, it; must be shown that her beneficial interest under the settlement was the inducement for such marriage. Gladstone v. Ball, 1 W. &. "W- (E.,) 277, 290. 471 FRAUDULENT CONVEYANCE AND SETTLEMENTS. 472 Family Arrangement — Reciprocal Gifts— 27 Eliz., Cap. 4.] — A.E. died intestate, entitled to the •equity of redemption in certain land and personal property. His heir-at-law agreed to settle the land equally between the widow and the children, and it was so settled, he taking "the personal property and paying debts. After- wards the heir purported to convey his share in the settlement to a purchaser for value, but really conveyed all the land under the settle- ment. On a suit by the beneficiaries under the deed other than the heir to set aside the purchase, Meld by Molesworth, J., that the settlement was voluntary, the consideration being mere reciprocal gifts, and as such void as against a purchaser for value. Semble, by the Pull Court, that the bill might be main- tained on the ground of the settlement being for value, and good as against a purchaser. Ronalds v. Dimcan, 2 V.E. (E.,) 65, 71, 80; 2 A. J.E., 30, 45. [Note. — The purchase was set aside on the ,ground of fraud in the purchase.] Voluntary Settlement.]— C, in June, 1872, reco- vered a judgment against P.P. for J3229 14s. 6d., including costs. On the 23rd November, 1871, while the action was pending, P.P. settled land in trust for his wife W.P., the considera- tion for the settlement being stated to be .natural love and affection. On the 20th May, 1872, P.P. and W.P. conveyed the property to J.P., brother to P.P., the consideration being stated as ,£250, for which- a receipt was pro- fessed to be given. P.P.'s estate was seques- trated on the 1st of August, 1872. The trustee • of P.P.'s estate instituted a suit to have the settlement and conveyance set aside. There ■was no evidence that J. P. had paid the .£250 alleged to have been paid. Held that the set- tlement was void, and the conveyance frau- dulent, and land ordered to be given up to the trustee ; also an account of the rents received 1>y J.P., and of expenses incurred by him was directed. Bibby v. Prendergast, 4 A.J.E., 12. 27 Eliz., Cap. 4, See. 2— Sale by Settlor After ^Insolvency, with Concurrence of Assignee.] — In ■order to set aside a prior voluntary settlement in favour of a subsequent sale for value, it is necessary that the settlor must be the same person who conveys for value, and that he must stand in such a relation to the land that -if all previous voluntary settlements were out of the way, he would be the owner of the land he sells for value. Where, therefore, S. settled lands in 1856 voluntarily upon trustees for his wife and family, became insolvent in 1860, and ^afterwards the assignee, with S.'s concurrence, conveyed the land for value, Held that the beneficiaries under the settlement were entitled as against the purchaser, S. being not in the position of owner of the land, even if the set- tlement were obliterated since in that case the land would be in his assignee. Sugden v. Beilly, 5 A.J.B., 36. Voluntary Settlement — 27 Eliz., Cap. 4 — "Insol- vency Statute," No. 379, Sees. 129, 131—?' Transfer •of Land Statute," No. 301, Sees. 3, 49. 139.]— "W., in August, 1874, voluntarily transferred to A. and B. certain lands under Act No. 301, and by an indenture of even date A. and B. declared they held as trustees. February, 1875, W. became insolvent, but obtained his certificate of discharge in August, 1875. W., in January, 1876, being indebted to M., and requiring further advances, he executed a deed reciting that transfer of August, 1874, was voluntary, and falsely reciting that "W. had agreed to sell to M. for a sum of .£1700, comprising the debt due and the further advances. W. then exe- cuted a transfer of the land to M., which the registrar refused to register. On bill by M. against W. and beneficiaries and trustees under settlement, Held that, under 27 Eliz., Cap. 4, though a purchaser or mortgagee could set aside a settlement truly setting out a real bargain, the settlor himself could not set it aside, nor plan a scheme for another to to do so ; that by Act. No. 379, Sees. 129 and 131, W. having obtained his discharge, was in the same position to defeat the settlement as if no insolvency had occurred; that Court would not act upon false recitals in deed of January, 1876, but as .there was then a real debt then due, the transfer of August, 1874, was void as against M. to the extent of that debt under 27 Eliz., Cap. 4; but having regard to Sec. 139 of Act 301, Court would not make M. proprietor, but directed the trustee, who was the registered proprietor, to execute a mortgage under the Statute to M. Moss v. Williamson, 3 V.L.E. (E.,) 221. Voluntary — 27 Eliz., Cap. 4 — Volunteer Holding a Certificate under " Transfer of Land Statute," No. 301 — Specific Performance by a Purchaser.] — A. was owner of land, and brought it under No. 301 the certificate of title being issued to his son B. Nine months afterwards A. contracted to sell it to C. C. filed a bill for specific perform- ance, and to have issue of certificate to B. declared void as against him. Held, that transaction was void as against C. under 27 Eliz., Cap. 4, and that it was not protected under Sees. 49 and 50, the protection afforded under those sections being intended for real purchasers under the Act, and persons dealing with them, not to sons taking presents from their fathers. Specific performance decreed. Coleehin v. Wa&e, 3 V.L.E. (E.,) 266. Voluntary Settlement— Mortgage of Settled Pro- perty by Settlor — Eeconveyance in Settlor's Name — Effect of.] — M. voluntarily settled property upon his wife and family, and subsequently mortgaged such property, and when pay- ing off the mortgage obtained the recon- veyance from the mortgagee in his own name; but M. did not attempt to disturb the possession of his wife and family. It was contended that M. acquired an interest adverse to the settlement under 27 Eliz. in the settled property to the extent of the mortgage. Per Molesworth, J. — " If he takes a reconveyance to himself and leaves those entitled under the settlement in undisturbed possession, J. think he could not afterwards disturb them in his character of assignee of the mortgage." In re McDonald, 2 V.E. ( I.E. &M.,) 12; 2A.J.E., 131. 473 FRAUDULENT CONVEYANCE AND SETTLEMENTS. 474 Voluntary Settlement — Subsequent Mortgage De- feating it pro tanto.] — A settlor by a voluntary settlement settled certain real estate, subse- quently mortgaged it with other property, and died. Held that the mortgage only defeated the settlement pro tanto. Johnston v. Brophy, 4 V.L.E. (E.,) 77, 89. Voluntary Settlement— 27 Eliz., Cap. 4— Subse- quent Mortgage.] — D. voluntarily settled land on his wife ; she died, and D. took out administra- tion to her estate, and subsequently mortgaged land to defendant bank. Held, per Stephen, J., in Court of Appeal, that the mortgage pro tanto extinguished the settlement under 27 Eliz., Cap. 4, but when such a defence i.e. of •the statute is raised it should be put forward on the pleadings distinctly. Droop v. Colonial Bank, 7 V.L.E. (E.,) 71, 77. Under 27 Eliz., Cap. 4— Voluntary Settlement- Consideration — Release of Dower.] — H. married C. in 1853. By deed, May, 1868, H. conveyed certain land to trustees upon trusts in favour of H. and C, in consideration of C. releasing her dower out of land of which H. then was or might be seized. H. at no time had any land save that in the settlement. H. in 1881 sold the land to A. after C.'s death, and A. applied to bring it under the Statute. Suit by C.'s heir to restrain registration and for declaration of trusts. Held that the release of the dower was not a valuable consideration for the settlement, and that sale to A. was protected under 27 Eliz., Cap. 4. ConoZe v. Horigan, 8 V.L.E. (E.,) 239; 4 A.L.T., 22. Voluntary Settlement— 5 Viet. No. 17, Sec. 7.]— H. moved, under 5 Vict., No. 17, Sec. 7, to set aside a settlement by C. on his wife and chil- dren, so far as H. was thereby prevented from receiving the full amount of his debt, on the ground that the settlement was executed by C. after he had contracted the debt, or the cause thereof had arisen, and within twelve months preceding the insolvency, and without valuable consideration. The debt claimed by H. was due for a sum covenanted to be paid for rent of a hotel. Part of this rent had accrued before and part after the settlement. Held that rent accrued due is a debt within the meaning of the words, " whose debt was con- tracted," of the section, and the existence of the remedy of distress does not prevent the operation of the Statute j but that the rent of a current quarter not actually accrued due at the date of a voluntary settlement, does not come within the words, " or the cause of whose debt had arisen," so as to be a ground for setting aside a settlement "in so far as such creditor would thereby be prevented from receiving the full amount of his said debt." The words, "The cause of whose debt had arisen," have no other meaning than " cause pf action ;" and Semble, per Chapman, J., that they are even narrowed to such causes of action as result in a debt. In re Coates, 1 W. & W. (I. E. & M.,j 122. Assignment for Benefit of Creditors — Sequestra- tion—Acts 5 Vic, No. 9, and 5 Vic, No. 17, Sees. 5, 6, 8.]— See Goodman v. 'M'Callum, 1W.4W. (E.,) 135, post under Insolvency — Fraudulent Preferences and Protected Transactions. 5 Vic, No. 17, Sec. — Payment of Pre-existing, Debt.] — An alienation which is pro tanto a dis- charge of a pre-existing debt is not a fraudulent alienation "without valuable consideration,"' within the meaning of 5 Vic , No. 17, Sec. 6, E. and Co., who had consigned goods to D.. and Co., sent out to H. a power of attorney to> take possession of the goods consigned. H. not only took the goods but also all the pro- perty of D. himself, leaving him " without a. sixpence in the world." D. was largely indebted to E. and Co., and the transfer thus operated in payment pro tanto of his debt.. Held, not a "fraudulent alienation without valuable consideration." Downie v. Graham, L W. &. W. (L.,) 195. Compare Sec. 70 of Act No. 379. Settlement — " Insolvency Statute 1865," No. 278,. Sec. 30.] — Sec. 30 of the Act is not retrospective^ Eule nisi to set aside a voluntary post-nuptial settlement executed by an insolvent within, twelve months of his insolvency discharged, the insolvency being under Acts 5 Vic, No. 17,. and 7 Vic, No. 19. In re Mahony, 4 W. W. &aB. (I. E. &M.,)5. Voluntary Settlement, No. 379, Sec. 70—13 Eliz.,. Cap. 5. — Subsequent Mortgage of Part of Settled Lands — Investment of Mortgage Moneys — Bight or Assignee to Follow.] — K. made a voluntary settlement of lands on his wife and children, appointing S. and T. trustees on June 19th, 1871. In July, 1872, a sum of .£1000 was raised by mortgage of part of settled lands,, settlement being treated as voluntary and void against mortgagee. K. alone executed mortgage. The trustees received the JU000, and applied it under K.'s directions in the purchase of a part interest in a ship. On September 26th,- 1873, K.'s estate was sequestrated, and plaintiff appointed assignee. In a suit by plaintiff against T., as defendant, Held that settlement was void as against plaintiff under Sec. 70 of" Act No. 379, and under 13 Eliz., Cap. 5, and that assignee could follow mortgage moneys invested in part purchase of ship as being- proceeds of the settled property which he could indentify and which were subject to the- same liability as the settled property itself. Halfey v. Tait, 1 V.L.E. (Eq.,) 8, " Insolvency Statute," No. 379, Sec. 70— Volun- tary Settlements — Jurisdiction of Judge of a District. Court.] — D. on 4th March, 1863, purchased sta- tion and freehold property and mortgaged it to vendors to secure purchase money. On October 1st, 1870, D. executed a voluntary post nuptial settlement by which he granted the equity of redemption to a defendant as trustee in favour of his wife and children. On June 1st, 1871, D.'s estate was sequestrated, and an order was made by Judge of District Court of Insolvency that settlement was void as against official assignee. Held, that Judge- 475 FRAUDULENT CONVEYANCE AND SETTLEMENTS. 476 of District Court had no jurisdiction under .Sec. 70 to declare settlement void, and that See. 70 is hot retrospective. Dallimore v. ■Oriental Bank Corporation, 1 V.L.E. (fi.,) 13. See S.C., ante column 469. Voluntary Gift to a Married Woman — " Insolvency Statute 1871," No. 879, Sec. 70.]— M., in 1870, ;agreed to execute when requested a transfer •of land to his daughter, a married woman, in .return for her services in washing, cooking, &c. The land was transferred, May 26, 1877, and in August, 1878, M. became insolvent. Held that the agreement being void for uncertainty, and there being nothing but the • land to pay debts, the transfer was void as against official .assignee under Sec. 70 of Act No. 379. Shiels v. Drysdale, 6 V.L.E. CE.,) 126; 2 A.L.T., 14. 13 jFJiz., Cap. 5— Act No. 379, Sec. 70.] — A smarried woman received small sums of money from her relatives, saved money out of money .allowed her for household expenses and from boarders' payments. Her husband, about eight months before insolvency, invested the money .saved by the wife in land, which was mortgaged to a building society, the equity of redemption being reserved to the wife. Held that as the money was not the wife's separate estate, the •conveyance reserving the equity of redemption was fraudulent and void under 13 Eliz. and Act No. 379, See. 70, and that the trustee in insolvency was entitled to redeem. Smith v. Smith, 3 V.L.E. (L.,) 2. Settlement on Wife — Management of Property by Husband — Land Purchased in Name of Wife with -Profits.] — S., in 1862, settled real estate on his wife to her separate use without power of anticipation, remainder to himself. This settlement had never been acted on so far as the public could see, for S. gave leases of the land and received the rents, and generally treated it as his own, keeping a banking account in his ewn name, which he paid incomings into and outgoings out of, but, as the wife alleged, as her agent. In November, 1882, it was brought under the " Transfer of Land Statute," .and the wife then for the first time dealt with it, conveying it for no consideration to a nephew, who leased it to S. Out of the profits of this land S. bought other land in the name -of the wife in October, 1883, and a little more than two months afterwards became insolvent, and his assignee brought a suit to have her ■declared a trustee for the assignee of the allotments purchased in 1883. Held that the wife's acquiescence in her husband's dealing with the property settled in 1862 as his own disentitled her from claiming the profits as .against her husband's estate, and that the trustee was entitled to the land bought with such profits. Hasher v. Summers, 10 V.L.E. , 2 A. J.E., 17. Conveyance to Defeat a Judgment Creditor.] — T. was sued in an action at law by O. and M.. and on July 24th they recovered a verdict, and the land was shortly afterwards sold to the plaintiff at a sheriff's sale under a writ of ft. fa. On July 23rd T. purported to convey the land for value to his brother, which conveyance was registered July 26th. On bill by plaintiff to set aside the conveyance, Held, upon the evidence, that the conveyance was a sham, and that T.'s brother was a trustee for the plaintiff, who had acquired a valid interest under the sheriff's sale. Angove v. Tregonning, 1 A.J.B. 80. 2. Setting Aside. How Set Aside— 5 Vic, No. 17, Sec. 7.]— A voluntary settlement made by an insolvent within twelve months' of his insolvency on his wife and infant children, may be set aside as against a creditor by a rule nisi under 5 Vic, No. 17, Sec. 7, served on the trustees and father, and without a suit instituted for the purpose. The section is quite independent of the solvency of the settlor at the time of executing the settlement. In re Rogers, 1 W. & W. (I. E. & M.,) 98. Voluntary Settlement — Summary Remedy under 5 Vic, No. 17, Sec. 7.]— Sec. 7 of Act No. 17 gives to a creditor who is entitled under it a summary remedy, and not merely a declaration of right which it would require a bill in equity to make available. In the case of a voluntary settlement executed within twelve months of insolvency, the Commissioner of Insolvent Estates was ordered to sell as much as was necessary for payment of creditor's debt ; the official assignee, the trustees of the settle- ment, and the insolvent, were ordered to join in conveyance, and the trustees to stand in creditor's place with respect to any dividend he would be entitled to. Ex parte Wright, in re Mahoney, 2 W. & W. (I. E. & M.,) 1. Who May Maintain Suit.]— A judgment creditor before he sues out execution at law has no locus standi to set aside a conveyance made by the judgment debtor as fraudulent under 13 Eliz., Cap. 5, even although upon the 477 FRIENDLY SOCIETY. 478 ■evidence it appears that the conveyance was fraudulent as against creditors. Yandell v. Hector, 1W.W.4 VB. (E„) 1. Who May Maintain Suit — Trustees of a Creditor's Seed under the "Insolvency Statute 1866."] — Held, reversing Molesworth, J., trustees of a ■creditor's deed under the " Insolvency Statute 1865," executed by a majority, but not by four- fifths of the creditors, may maintain a suit to ■set aside, under 13 Eliz., Cap. 5, a voluntary settlement executed by the debtor at a time when he was indebted to a creditor, who con- tinued such at the date of the creditor's deed. Toohey v. Steains,l V.B. (E.,) 49; 1 A.J.E., SI. ■ Defrauding Creditors under 13 Eliz., Cap. 5 — Who May Sue to Set Aside.] — An execution ■creditor, whose judgment is unregistered, though he has not a lien upon the lands of his -debtor, may, as on behalf of himself and the other creditors, maintain a suit (as an assignee in insolvency may) to set aside dealings with .such lands, as being intended to defraud the .general body of creditors, the true aspect of the suit not being whether judgment creditors have a lien upon the land, but that it seeks redress for an execution creditor frustrated by fraudulent conveyance of the property, the same as if the property were chattels personal. Colonial Sank of Australasia v. Pie, 6 V.L.B. 4E.,)38; 1 A.L.T., 156. Parties to Suit to Set Aside.] — Am equitable mort- gage of. a transferee with notice of such lands is not a necessary party to such suit. Ibid. Voluntary Settlement — Setting Aside — Who May ■Sue — Assignee — Creditor.] — Suit by a creditor on behalf of himself and all other creditors to have -a conveyance and two transfers of land declared void, both under 13 Eliz., Cap. 5, and under the " Insolvency Statute 1871." The assignee had been requested to take proceedings, but had refused. Held, per Molesworth, J., that the suit could not be maintained by a creditor, that the assignee was the only person entitled to sue, and that the bill could not be amended by adding the assignee as co-plaintiff. Bill dis- missed without costs. Douglas v. M'Intyre, 10 V.L.B. (E.,) 249; 6 A.L.T., 90. Voluntary Settlement — Suit to Set Aside — Parties.] — In a suit by thejtrustee in insolvency of a deceased person whose life was insured, against the trustee and cestuique trust of the settlement, seeking to set aside a settlement of the policy as being voluntary, the personal representative of the deceased need not be a rjarty, but, per Molesworth, J., the next-of-kin must be parties. On appeal, affirmed by the majority of the Full Court (Higinbotham, WUUams, and Holroyd.J. J.) sed per HoVroyd, J., that since the assurers did not raise any objec- tions to the suit for want of parties, the Court -should not consider the objection, when raised by the trustee defendant. Davey v. Fein, 10 V.L.B. (E.,) 306; 6 A.L.T., 131. "Insolvency Statute 1871," No. 379, Sec. 70— Burden of Proof.] — In a suit to set aside a settle- ment as voluntary under Sec. 70 of Act 379, the onus of proof of valuable consideration lies on those who claim under such settlement. Gray v. Faram, 5 V.L.B. (E„) 270. Costs of Setting Aside a Voluntary Settlement Under Sec. 7 of Ho. 17.] — Though there has been some conflict as to the power of the Court to give costs in cases where voluntary settle- ments are sought to be set aside under Sec. 7 of 5 Vic, No. 17, the precedent of M'Donogh's Case should be followed, and costs be given to the creditor. The clause should be so con- strued that the creditor should be paid his debt in full, which would not be the case if he were deprived of his costs. The trustees of the settlement should, where infants are con- cerned, have their costs in priority out of the estate. In re Sogers, 1 "W. & W. (I. E. & M.,) 98. Voluntary Conveyance in Fraud of Creditors — Costs of Suit and Conveyance.] — M. , in December, 1873, conveyed the equity of redemption in a mortgage to S. as in consideration for ,£500, but it did not appear that any consideration was in fact paid, and in February, 1874, M. became insolvent. Suit by M.'s official assignee to set aside conveyance and for recon- veyance. S. did not resist the demand, but claimed the costs of conveyance. Conveyance set aside, defendant to abide his own costs of the conveyance, and to pay plaintiff's costs. Jacomb v. Stephens, 5 A.J.B.,96. Property Apparently Husband's — Evidence in Sup- port of Wife's Claim — Costs.] — As to cases made by wives as to the apparent property of their hus- bands' money in bank to their credit, or crops upon land apparently farmed by them, the wives should, to prevent distrust, supply accurate evidence besides their own to obtain credence. Where the Court thought that there was a possibility of- its having misconceived the wife's rights, and of her being disabled by poverty from bringing forward witnesses to support them, the Court did not award costs against her. Hasher v. Summers, 10 V.L.B. (E.,) 204 ; 6 A.L.T., 80. FREIGHT. See SHIPPING. FRIENDLY SOCIETY. STATUTES. ' Friendly Societies' Act 1865," No. 254._ 'Friendly Societiei' Act 1877," No. 590. 479 FRIENDLY SOCIETY. 480* "Friendly Societies' Act," No. 254, Sec. 36— Liability of Officers.] — A., the secretary of a society, made default in Ms accounts, and afterwards became insolvent. Under Sec. 36 of Act No. 254, an order was made by justices for double the amount. Rule nisi for a prohi- bition. The Court expressed a strong opinion that the society had a double remedy, one against the insolvent for double the amount, and the other a, preferent claim from the official assignee. Held, there was no such want of jurisdiction on part of magistrates as to justify a prohibition. Regvna v. Call, 4 W.W. & a'B. (L„) 225. "Friendly Societies' Act," Ho. 254, Sec. 36— Sus- pension of Lodge.] — A certain lodge (No. 3) of Odd Fellows was suspended by the committee of the grand lodge for violating certain, rules, &c, of the grand lodge; and the trustees of the lodge No. 3 were summoned by a summons reciting that fact, and that a demand had been made for payment of money belonging to lodge No. 3 in their possession. Held, affirming the justices, that Sec. 36 was a penal one relating to misapplication of money, which defendants were not doing, but only holding as trustees under directions from the lodge that appointed them, and that case did not come within Sec. 36. Barton v. Knight, 6 W. W. & a'B., (L.) 106. Suspension of Member — Dispute How Decided.] — Any dispute between a member of a friendly society, who has been merely suspended and not expelled, and the officers of the society in respect of such suspension, must be decided in the manner provided by the rules of the society; and there is no jurisdiction on the part of justices to hear such complaint unless in default or disobedience of the decision under the rules, as provided by Sec. 31 of the "Friendly Societies' Statute 1865," No. 254. Hunter v. Barnes, 5 W.W. & a'B. (L.,) 120. Proof that Business is Conducted in Furtherance of Objects of Registration — Certificate of Registra- tion.] — The certificate of registration of a Friendly Society under the " Friendly Societies Statute," No. 254, is merely a certificate of the registration, and is not proof of the fact that the society has conducted and continued all its operations in furtherance of the objects for which it was registered. McEwan v, Blair, 1 V.B. (L.,) 178; 1 A.J.E., 141. Society not Conducting Business as a Friendly Society— Liability of Shareholders.] — A society registered for one object under the provisions of the " Friendly Societies Statute," No. 254, but conducting its business for another object, not being one of those mentioned in the Act, is not afforded any protection by the Act, and its shareholders may be held personally liable as co-partners. Ibid. Person Holding Himself Out a Member — Liability Where Company is Illegally Trading.] — A Friendly Society was conducting business in pursuance of objects different from those mentioned in its certificate of registration, such objects being none of those mentioned in the "Friendly Societies Statute," No. 254. A defendant sued as a member had been appointed and acted as trustee, and was a member of the first direc- tory. He drew one or more cheques, interfered in the business, and attempted at a public meeting of the society to move the adoption of" the first report. Held that there was evidence- that he held himself out to third persons as a. member, and that such persons were at liberty to infer that as regarded his liability to them he was to be deemed a member, and that he- was personally liable as a co-partner. Ibid. Trustee Executing a Creditor's Deed — Officer — No. 254, Sees. 24, 27, 36.]— Sec. 36 of the- " Friendly Societies Statute," No. 254, shows that a trustee of the society is an "officer" within the meaning of Sec. 24 of the Act, and may thus receive moneys of the society.. Where, therefore, a trustee of a Friendly Society, in July, received money on behalf of the society, and in November executed a deed of assignment for creditors, and in February- following the trustees of the society demanded the money from the trustees of the creditor's deed, Held that since it was not to be presumed that the trustee had been guilty of embezzle- ment he must be taken to have still had the- 800161/8 money when he executed the deed of assignment, and that the trustees of the deed,, as his assignees, must under Sec. 27 pay it over to the society. Eastwood v. Scott, 2 V.E. (L.J 101 ; 2 A.J.E., 64. " Friendly Societies Statute," No. 854, Sees. 24, 36— Construction.]— Sec. 36 of the Act No~ 254, shows that a trustee is an "officer" within the meaning of Sec. 24. Ibid. Action by Friendly Society on a Promissory Note — What Declaration Must State.] — In an action, by the trustees Of a Friendly Society on a pro- missory note, the declaration must state that the note is the property of the society. WUhie: v. Wright, 4 A. J.E., 75. Action by Friendly Society on a Promissory Note- — Who May Sue.]— The trustees of a Friendly Society may sue on a promissory note payable- to the treasurer, which has been delivered to the society without endorsement by the trea- surer, since by Sec. 16 of the "Friendly/ Societies Statute 1865," all the property, real and personal, of the society is vested in the- trustees. Ibid., p. 117. Meetings — Duly Convened Special Meeting.] — The rules of a Friendly Society provided that the master of a lodge could call a special meeting ; that it was the secretary's duty to- prepare and sign all notices, &c, required by the rules; and that the trustees might be removed at a specially summoned meeting" duly convened for that purpose. A meeting was called by a notice which had no reference to the master or the secretary, was signed by nobody, and which did not indicate who gave- the order. Held not a duly convened special meeting. King v. Fulton, 2 V.L.E. (E.,) 100. 481 GAMING AND WAGERING. 482 Appointment of Trustees— Evidence of.] — A copy of resolutions appointing trustees of a society, and registered under the " Friendly Societies Statute 1865,' ' See. 16, is prima facie, but not conclusive evidence of the appointment. Ibid. Power^ and Liability— Registered under Act No. 254, and Subsequently Incorporated under Act, No. 498.] — A Friendly Society registered under the "Friendly Societies Statute 1865," received deposits from persons nob members, and borrowed money, and before repaying such moneys was incorporated under the " Building Societies Act 1874." Upon action by a bank which had lent some of the money borrowed by the society, Held that the limit placed upon the powers of building societies by Sec. 25 of the " Building Societies Act 1874," could not apply to societies before that Act, and that the society had power to borrow ; that Sec. 16 of the " Friendly Societies Statute 1865," by allowing the trustees to sue and be sued did not take away the common law right to sue the members of the society, and that the members were liable for the moneys borrowed. Colonial Bank of Australasia v. Curtain, 4 V.L.E. (L„) 38. S.P., see Bank of Australasia v. Pie, 4 V.L.E. (L.,) 527. Building Society Registered as a Friendly Society Power to Borrow — "Friendly Societies Statute," No. 254, Sees. 4 (Sub-sec. 7,) 16— Liability of Mem- bers.] — The plaintiff bank lent money to abuild- ing society registered as a Friendly Society, and sued on the common counts for money lent to an individual member and for moneys lent to the society. Held that such a society had under Act No. 254 power to borrow money with proper limitations, but that a person who wishes to rely upon the fact that the proper limitations have been exceeded must specially plead that fact, and although Sec. 16 makes the trustees the persons to borrow, and there- fore to be sued, yet the trustees borrow on behalf of the society, and every individual member of the society is interested in such loan, and is answerable for the debts of the society, and may be sued therefor. Colonial Bank of Australasia v. Draper, 4 V.L E. (X.,) 527. Act No. 590, Sec. 15, Sub-sec. 8— Illegal Detention of Books by Secretary.]— Sec. 15, Sub-sec. 8, of the Act enables the trustees of a society to recover from " any person " the society's pro- perty in his possession ; such " person" includes a person claiming to be a secretary to the society as well as a stranger. Jones v. Milne, 7 V.L.E. (L„) 3; 2 A.L.T., 117. Action Against Officer for Withholding Property of Society — How Case Launched — " Friendly Societies Act 1877," Sec. 15, Sub-sec. 8 ] — On a complaint against an officer of a friendly society, under Sec. 15, Sub-sec. 8, of the "Friendly Societies Act, 1877," for with- holding property of the society, Held, per Stawell, C.J., and Higinbotham, J., that to ■ bring the case within the section, it was suffi- cient to prove that the officer had become possessed of the property, and had declined to give it up when required, and that it then became necessary for the officer to prove that he had a lawful reason for so withholding the property, or was unable to give it up. Per Williams, J. (dissenting) — The case is not launched without evidence of something in the nature of fraud, mala fides, or some kind of wilful misconduct. Francis v. McDonald, 8 V.L.E. (L.J 237; 4 A.L.T., 42. FUGITIVE OFFENDERS. See EXTEADITTON OF CEIMINALS. GAME. Trespassing in Pursuit of Game — "Police Offences Statute 1865," Sec. 17, Sub-sec. 6.]— An entry upon land to "seek" game is not within the protection of Sec. 17, Sub-sec. 6, of the "Police Offences Statuie 1865," as to the entry upon land in "pursuit " of game. Flier v. Trumble, 4 A.J.B., 26. GAMING AND WAGERING. Betting on the Result — What is.] — M. contri- buted a sum towards some stakes for which two pedestrians were to compete, and deposited it with defendant. A custom was proved that the persons who found the money for a com- petitor, in the event of his winning, received the whole stakes on each side, but that they might make a present to the man they backed. The race resulted in a draw, and the stakes were divided between the competitors. Plaintiff sued the stakeholder for his deposit. Held that the contribution by the plaintiff amounted to betting on the result, and was therefore a contract by way of wagering within Sec. 51 of the "Police Offences Statute," and void. Miller v. Harris, i V.E. (L.,) 142; 1 A.J.E., 127. Recovery of Deposit from Stakehold r — "Police Offences Statute," No. 265, Sec 51— Game Un- finished and Stakes Unpaid — Locus Penitentiae.] — M. had lodged a sum of money with P. to abide the event of a wager on a game of "Yankee grab." The game was unfinished, and the stake was not paid over. Held that M. was at liberty to demand back the money from the stakeholder before it was paid over. Melville v. Pendreigh, 5 A.J.E., 84. Bill of Exchange — Arrangement to Pay Legal Debt — Consideration Not Severable.] — S. lost money to C. in January, and gave him bills for the amount, which he was unable to pay when » 483 GIFTS.. 484 due. S. then arranged with C. that C. should pay off a legal debt for which S.'s creditors were pressing, and that S. should give C. bills for an amount less than that of the original bills. This was done, and one of the last mentioned bills was for an amount not greater than that of the debt paid off by C. Held that the whole transaction was one and could not be separated, nor could the consideration be severed, and that C. could not recover on the last mentioned bill. Collin v. Stewart, 4 V.L.E. (L.,) 211. Contract Divisible — Security Not.] — If part of a contract arises upon a good consideration and part of it upon a bad one it is divisible. But it is otherwise as to the security ; that being entire is bad for the whole. Ibid. Cheques Given in Payment of a Gambling Debt.] — In an action by the holders of a, cheque against the drawer it was proved that the defendant had signed the cheque, and it was admitted that it was given to the original payee in payment of a gambling debt. Held that the cheque having been given for an illegal consideration it was for the plaintiff to prove that he had given value for the cheque, not for the defendant to prove that he had not. Carey v. Stewart, 3 A.L.T., 105. Money Lent for Purpose of Gambling — Action for Money Lent Will Not Lie.]— Ritchie v. Eckroyd, 5 "W. W. & a'B. (L.,) 98, see post under Monet Claims — Money Lent. Gaming and Wagering as an Offence under "Police Offences Statutes."] — See post under Offences (Statutory.) GARNISHEE. See ATTACHMENT. G-AZETTE. Under Sec. 15 of " Land Act 1865," and Sec. 26 of the "Evidence Statute 1864," the notice in the Gazette of forfeiture under the "Land Act " is only prima facie evidence of forfeiture. WBowall v. Myles, 6 W. W. & a'B. (L.,) 16. But Sec. 101 of " Land Act 1869," makes the notice conclusive evidence so that as regards the public the land so gazetted as forfeited is open for selection. Thorium v. Buchanan, 2 V.E. (L.,) 169; 2 A.J.E., 109. Followed in Regina v. Rothery, ex parte Moaa. 4 V.L.E. (L.,) 33. Where a license under the Act of 1869 is not produced the notice in the Gazette is inadmis- sible. Bloomfield v. Macan, 5 A.J 11 , 73. For general remarks upon meaning of Sec. 101 and its effect upon a lease granted under the Act of 1865, see Ettershanh v. The Queen, 4A.J.E., 11, 55, 132; L.E., 6 P.O., 354, post under Land Acts— Leases. Application of Crown Lands to Public Purposes as a Eoad Within No. 32, Sec. 4— Whether Advertise- ment in " Gazette " Necessary.] — United Sir William Don Company v. Koh-i-noor Company, ante column 329. Notice of Forfeiture of Mining Claim.] Publication of notice of forfeiture in the Gazette of a mining claim dates from the time of its being fully printed. Clarence United Company v. Goldsmith, 8 V.L.E. (M.,) 14; 3 A.L.T., 147. .See post under Mining — Interest in Mines — Claim — Forfeiture. Under Sec. 14 of the " Mining Statute 1865," No. 291, the publication in the Gazette of a reservation of Crown lands from mining is*a sufficient determination of the interest of a holder of a residence area. Regina v. Dowling, ex parte M'Lean, 2 V.E. (L.,) 61; 2A.J.E..56. See S.P., Mayor of Sandhurst v. Graham, 3 V.E. (L.,) 191; 3 A.J.E., 79, post under Mining — Eesidence area. Forfeiture of Mining Lease.] — The proclamation in the Gazette of forfeiture of a mining lease does not per se avoid the lease without the Crown doing some definite act to determine the tenancy. Barwich v. Duchess of Edinburgh Company, 8 V.L.E. (E.,) 70, 85, 92. Proof of Registration of Building Society.]— The notification in the Gazette is sufficient proof of the registration and incorporation of a Building Society under Sec. 8 of Act 493. Sandhurst Building Society v. Delaney, 3 V.L.E. (L.,) 234. GIFT. Imperfect — Death of Donor Before Perfecting.] — Gr. requested B. to break up his establishment and remove to Melbourne. B. consented, and G. requested him to select a suitable house at a price not exceeding .£1000. B. selected a house subject to a mortgage, on which .£540 was due, the purchaser having the option of buy- ing, subject to the mortgage, for £309 16s. 6d., or discharged from the mortgage for £850. B. informed G-. of the offer, who instructed him to buy for £850, and signed and gave to him a blank cheque, and told B. that he wished to make a gift of the house to his sister, who was B.'s wife. At the same time he handed a deposit receipt for £1000 to his brother, one of the defendants, and told him to transfer the amount of the deposit to his current account to meet the cheque which he had given B. to fill up. B., thinking it was advantageous 485 GRANT. 486 to do so, bought subject to the mortgage, and took a conveyance in his own name. He told G., who said, " "Why did you not buy out and out? I intended the house for Annie (B.'s wife.) The house is Annie's, and we can settle the matter when we come to Melbourne." G., B., and his wife came to Melbourne, lived in the house which G. referred to as his sister's, and gave her money from time to time to meet the instalments falling due on the mortgage. After G.'s death a friendly suit was brought, to determine whether the executors of his will were bound to effectuate his intention of com- pleting the purchase of the house. Held that, as a gift, the transaction was incomplete, and that, as a business arrangement, the evidence did not support it, and that the executors were not bound to carry out the intention of G. Blair v. Grant, 1 V.E. (E ,) 130 j 1 A.J.K., 121. •See also cases, ante columns 386, 387, under Donatio Mortis Causa. S., a father, occupied land as caretaker for his son J., the owner. On J.'s leaving the colony he said to S. : "If I never come back you are to keep it," but there was no delivery of possession. J. did not come back. Held that this did not amount to a gift, and did not create a tenancy at will. M' Cracken v. Woods, 5 V.L.E. (L.,) 23. Gifts from Husband to Wife.] — See under In- solvency — Property of Insolvent, and ante column 475. GOODS. Assigning.] — See Assignment and Bill of Sale. Detaining.] — See Detinue and Offences (Statutory.) Selling.] — See Sale. Converting.]— See Trover. . GOVERN OR-IN COUNCIL. Proclamation of.]— Qucere, whether a procla- mation speaks from the date of making it or from the time of its publication in the Gazette, Molesworth, J., inclining to the opinion that it speaks from its date. Kennedy v. The Queen, 1 W. W. & A'B. (E.,) 145. Under Sec. 46 of "Land Act 1862," the Governor-in-Council has power to withdraw land from selection " on account of improve- ments." Ibid. As to powers of Governor-in-Council gene- rally under the "Land Acts" see post under Land Acts. Power to Grant Easement.]— Brooks v. The Queen, ante column 395. Powers of Governor-in-Council to Grant and to Forfeit Mining Leases under the Act No. 291.] —See cases post Mining — Interests in Mines — Power of Governor-in-Council in Adjusting Boun- daries of Shires and Road Districts under Act No. 176, Sec. 384] — Shire of Bunvnyong v. Berry, 5 W. W. & a'B. (L.,) 175, post under Local Government. GRANT. Crown Grant — Construction.] — In a Crown grant the land sold was described by the acreage, and by measured boundaries, and was also described as being bounded on the south by a road one chain wide. No starting point for the measurements was given in the des- cription of the parcels, but on the ground itself the angle of the road, and the south- eastern point of the land, were marked by a peg put in by the Government surveyor. According to the position of the peg and boun- dary, the land was some acres less than the quantity mentioned in the grant, and the eastern boundary was one chain shorter than the grant asserted it to be. The Judge at the 1 trial rejected evidence which was tendered by the plaintiff to show that by measuring from the starting point of an allotment north of the allotment in question, the plaintiff could only obtain the proper quantity by including the road, and directed the jury that the land con- veyed was not that mentioned in the grant, but the portion actually marked out by the Government surveyor, and that this could not be controlled by the measurements in the grant. On motion for a rule for a new trial, Held that the question was one for the jury; that the direction to them was right ; and rule refused. Scott v. the Shires of Eltham and Heidelberg, 2 V.L.K. (L.,) 98. Crown Grant— By Presumption of Law— Bight to Road ad medium viae filum.] — D. was Crown grantee of land purchased by him from the Crown in 1853, and described in the grant as inter alia, "bounded on the south by Wel- lington-street." In a plan exhibited at the time of the sale, Wellington- street was shown to be a street five chains wide. In 1868 the Crown advertised for sale land in the centre of Wellington-street, leaving a carriage way on either side 72 feet wide. On a petition to the Crown and bill against the Board of Land and Works by D., seeking an injunction against the Board of Land and Works selling the land, Htld by the Full Court, reversing Molesworth, J., that by presumption of law, the land forming the highway ad medium filum viae passed under the grant to the grantee; and to ascertain the grantee's right, the plan showing the width of the street might be B 2 487 GUARANTEE OR INDEMNITY. 488 referred to, not to vary or explain the deed, but to show what land passed thereby, i.e., what the words, "Wellington-street," meant. And interlocutory injunction granted, limited to the land forming the street extending for the frontage of the allotment granted, and from that frontage to the centre of the street, its width being deemed to be that shown in the plan exhibited at the time of sale. Davis v. The Queen, 6 W.W. & a'B. (E.,) 106. The doctrine of Davis v. The Queen as to the right ad medium filum nioe has been followed in the following cases turning upon cases of mining under a street: — Western Freehold Company v. Great Western Company, 4 W. W. & a'B. (E.,) 44; Victoria United Mining Com- pany v. Prince of Wales Company, 5 V.L.E. (E.,) 93 ; Extended Hustlers' Freehold Company v. Moore's Hustlers' Company, 5 A.J.E., 116 ; Band of Hope Company v. Williams' Freehold Company, 5 V.L.E. (E.,) 257. Crown Grant — Ownershp of Road ad medium filum viae.] — C. was owner of land by Crown grant, abutting on a street, such land being described by metes and bounds as " bounded by" the street. The defendants were mining under the half of the street adjoining C.'s land, and C. sued them in trespass. Held, dissen- tiente Stephen, J., on rule nisi to enter a verdict for defendants that the doctrine of Davis v. The Queen applied, nothing in the Act 360 controvert- ing this doctrine, and that the soil ad medium filum viae passed to the plaintiff, and that the enclosure and plantation of part of the land by the Town Council did not decrease its width as at law. Eule discharged. Carvalho v. Black Hill South Extended Company, 1 V.L.E. (L.,) 225. Injunction to Restrain Sale of Street Fronting Land.] — See Pike v. The Queen, ante column 323. Ownership of Road ad medium filum viae.] — Per Higmbotham and Williams, J.J. Property in the soil in a public street, road or highway in Victoria cannot be and never has been created by virtue merely of a grant by the Crown of land adjoining such street, road, or highway. Davis v. The Queen overruled. Holroyd, J., concurred in thinking that Davis v. The Queen was wrongly decided. Garibaldi Company v. Craven's New Chum Company, 10 V.L.E. (L.,) 233. Crown Grant — Issued in Name of Purchaser After Death — Legal Estate.] — The legal estate in Crown lands comprised in a grant issued in the name of a purchaser who died before the " Administration Act 1872," after his death is not in the purchaser's administrator appointed under the Act, and semble that the legal estate is in his heir-at-law. Edmondson v. Macan, 4 V.L.E, (L.,) 422. Crown Grant — Proof of.] — Enrolment of Crown grants in this colony has no existence. The grant may be proved by production of the grant with a memorial of registration. Ibid. Crown Grant — Detinue for — Who May Maintain.] — See Rumphray v. Humphray, ante column 373. Crown Grant — Mistake in Issuing — How Pleaded.] — Where concealment or mistake in the grant or present disposition to act is alleged in plead- ing, it should have reference to the mind of the Governor himself, and not to his subor- dinate agents, and he personally should be described as deceived or mistaken, under which averment evidence of the facts as to those through whom he acts as agents having been deceived may be given ; but it would be more convenient, as preparatory to evidence, that the real actors should appear, and the fact of His Excellency having acted by their advice only be stated. Attorney-General v. Sanderson, 1 V.E. (E.,) 18; 1 A.J.E., 21, 24. Crown Grant — Incorrect Description.] — A de- scription in a Crown grant setting out and purporting to describe parcels, but which description is obviously and by demonstration incorrect, as not enclosing a space, should be rejected as wholly inoperative and incorrect. Stephen v. the Shire of Belfast, 1 V.E. (L„) 59; 1A.J.E., 118. Crown Grant — Bight or Interest of Grantee — Act No. 301, Sec. 49.] — Alma Consols Gold Mining Company v. Alma Extended Company, 4 A.J.E., 190, post under Transfer of Land (Statutory) — The Certificate — Conclusive Effect of. Crown Grant — Under 5 and 6 Vic. Cap. 36 — Does not Transfer Gold and Silver to Grantee.] — See Woolley v. Ironstone Company, ante column 322. GUARANTEE OR INDEMNITY. I. Operation of Statute of Frauds. (1) What Agreements withm the Statute, column 488. (2) Consideration, column 489. II. Construction of Contract, column 489. III. Discharge and Eights of Surety, column 491 . IV. Other Points, column 491. I. Operation of Statute of Frauds, (1) What Agreements Within the Statute. Guarantee on Separate Paper — Construction of Guarantee.]— S. borrowed on hire certain goods from D., the payment of which McE. guaran- teed. McE. took the account, and wrote on a separate paper — "We hereby guarantee the goods had from you on hire, £133, and if returned, hire, £24," and signed it.' The jury found that the guarantee was attached to the account by " folding the corners of both papers several times." Held that this annexure of the two documents made an instrument fulfil- ling the requirements of the Statute; and 489 GUARANTEE OR INDEMNITY. 490 that the guarantee was an alternative guaran- tee to pay for such goods as were not returned, but if all the goods were returned, then to pay for the hire ; and that, as all the goods were not returned, the latter condition of the guarantee was not performed, and no liability attached in respect of it, and the guarantor had only to pay for goods not returned. McEwan v. Dynon, 3 V.L.R. (L.,) 271. (2) Consideration. Another Guarantee Executed at Same Meeting.] — N. gave a guarantee to McE., "in conside- ration of your having executed a guarantee to" a certain bank. There was conflicting evidence as to which guarantee was signed first, but they were both signed at same interview, and M'E.'s guarantee had not been parted with when N. signed his. Held that the circum- stances showed that the whole was substan- tially one transaction, and that the conside- ration for N.'s guarantee was not a past consideration. McEwan v. Newman, 5 A. J.R., 167. II. Const ruction oe Contract. Guarantee Against Losses Caused by Neglect of a Bank Manager.] — It was the duty of a manager of a branch bank to inspect weekly the accounts of the clerks under him. The manager neglected to do so, and in consequence the embezzlements of a clerk extending over a year were undis- covered, and the bank suffered loss thereby. Held, that the loss was covered by a guarantee policy against losses, "by reason or in conse- quence of the wilful default or culpable neglect" of the manager " in or arising out of his em- ployment" in the bank. Colonial Bank of Australasia v. European Insurance and Gua- rantee Society, 1 W.W. & A. B. (L„) 15. Guarantee Against Misconduct of a Bank Official.] — The A. company issued a guarantee policy to a bank which provided th at the company should reimburse, Sec, " the full amount of any loss whatsoever," that " the funds of the company for the time being should be liable to make good any loss," &c, no member thereof being liable beyond his liability in respect of such funds, and that "immediately upon discovery the assured must forward a written notice of all particulars thereof to the board, and the policy should be void if for thirty days after such discovery such statement should not be sent." ; The policy was signed by B. and Gr. as " directors," Nov. 20, 1862. The deed of con- stitution was made July 1, 1862, executed by B. Jan. 1863, and by &. in Dec. 1862. A clerk's defalcations were first discovered May 11, and owing to his immediately absconding a bare statement was Bent in on May 29 claiming ,£747. After some correspondence, details of the defalcations, and a claim for J5765 were sent in Dec. 5. The jury awarded 43747 damages. On rule nisi for a non-suit or new trial, Held, that the word " immediately" might embrace a period of twenty-nine days, and that the offers of compromise contained in the correspondence afforded evidence to go to a jury as to the per- formance of the conditions as to time and par- ticulars of claim j that the deed reciting that Q. and B. were parties was evidence that they were members, although they had not executed the deed at the time of the issue of the policy; and that the " funds for the time being" did not mean the balance after deducting existing liabilities, and that evidence as to such liabili- ties was properly rejected. National Bank of Australasia v. Brock, 1W.W.4 VB. (L.,) 2,08. Guarantee for Fidelity— New Appointment.] — A guarantee was given for the due and faith- ful performance by a bank clerk of the duties of his situation as clerk of a branch at Mel- bourne, " or of any office or other situation to which he may be appointed in the service of the said corporation at the said branch bank or elsewhere." The clerk was without the guarantor's knowledge or consent appointed manager of a branch bank at Ballarat, and while acting as such embezzled moneys of the bank. Held that the fact of his having been promoted to the situation of manager did not discharge the guarantor since he had under- taken to guarantee the clerk's fidelity in what- ever capacity he was engaged. London Char- tered Bank v. Sutherland, % A.J.R., 17. Guarantee of Fidelity— Undertaking by Insured to Prosecute.] — In a contract of guarantee of the fidelity of a clerk the insured undertook to use due diligence in prosecuting the clerk for criminal defalcations. The clerk having be- come a defaulter escaped from and was captured while out of the jurisdiction. Held that the insured was not bound to incur the expense of bringing him back. Dougharty v. London Guarantee and Accident Company, 6 V.L.R. (L ,) 376 ; 2 A.L.T., 79. Guarantee of Fidelity — Fraud Committed During Currency of Policy, but Discovered After its Ter- mination.] — A policy of guarantee against losses by the frauds of an employe' committed and discovered during the continuance of the policy, was' subject to conditions endorsed thereon as conditions precedent, to the effect that on the discovery of any fraud the em- ployer should give the company immediate notice thereof, and any claim made in respect thereof should be made in writing within three months of the discovery, and that the company should be entitled to call for parti- culars and proof of the correctness of such claim; also that the policy should extend to cover only such losses as might have been incurred within the period of twelve months previous to the date of claim that might be made under it. The company terminated the policy at the end of the first year, and a fraud was committed within that year, but was not discovered till after its expiration. Held that the company were not liable in respect of such, fraud. Fanning v. London Guarantee and Accident Company, 10 V.L.R. (L.,) 8; 5 A.L.T., 169. Continuing.] — F. wrote a letter of guarantee to G., an incumbent of a church, to the effect that, " In consideration that you will engage a curate for the parish of C, I undertake that he shall be paid at least .£300 a -year, &c. P.S. This will bind executors." , Held that 491 HABEAS CORPUS. 492 such guarantee was a continuing one, and was not limited to the appointment of the first curate, and that such guarantee was bind- ng on ¥.'b executors, and that they were not at liberty to revoke the guarantee upon giving reasonable notice, unless such notice was given during a vacancy, and before a new appoint- ment had been made by the incumbent. Crummess v. Bote, 5 V.L.R. (L.,) 381 ; 1 A.L.T., 57. Alteration After Execution — Immaterial Clause.] — A contract of guarantee was executed on a common printed form, and contained a clause with unfilled blanks, which clause was irrelevant and inoperative. After execution the party to whom the guarantee was given struck out the clause. Held that the contract was not thereby avoided, since the operation of the instrument was not thereby avoided. Colonial Bank of Australasia v. Moodie, 6 V.L.E. (L.,) 354; 2 A.L.T., 61. Per Stawell, C.J. The question is really whether the altered instrument would operate differently from the original, whether to the prejudice of the other party or not. Ibid. III. Discharge and Eights op Surett — See Principal and Surety. IV. Other Points. Specific Performance of Contract to Give Letter of Guarantee.]— See Forbes v. Clarion, 4 V.L.E. (E.,) 22, post under Specific Performance — When granted or refused' — In other cases. Illegal Guarantee—" Land Act 1869," Sec. 21.] — Commercial Bank v. Carson, 6 V.L.E. (L.,) 310; 2 A.L.T., 62, post under Land Acts— Illegal Agreements. GUARDIAN. Of Children.]] — See Infant — Husband and Wife— Will. Of Lunatics.] — See Lunatic Appointment of Guardian ad litem.] — See Prac- tice and Pleading— In Equity. Incapacity of Guardian ad litem to Purchase Part of Trust Estate — Fiduciary Position.] — Lar- nachv.Alleyne, 1 W. & W. (E.,) 342; 2 W. W. & a'B. (E.,) 39, post under Trust and Trustee — Powers and Eights of. GUNPOWDER. Storage— «' Gunpowder Statute 1864," Sec. 18. -Sec. 18 of the "Gunpowder Statute 1864,' which prohibits the keeping of more than 2cwt. of gunpowder upon any premises does not apply to manufacturers, so that they are not liable to summary proceedings under the Act, unless in respect of imported powder on their premises. Barclay v. Mollison, 4 A.J.E.. 171. Manufacturer— Keeping More than the Prescribed Quantity — "Gunpowder Statute 1864," Sec. 18.] — Although there is no restriction upon a manu- facturer as to the quantity of gunpowder he may keep at his own manufactory, he may not keep more than the prescribed quantity at any other place. Dobson v. Lyons, 2 V.L.E. (L.,) 232, HABEAS CORPUS. Where Granted or Refused.] — The Supreme Court will not interfere by habeas corpus if the person charged be properly before a Court of competent jurisdiction. Where, therefore, a prisoner was properly before the Court of General Sessions, and was convicted by a jury of whom nine had not been sworn, Held, that though this might be good ground on which a Court of Error could proceed, the Court had no power to interfere by habeas corpus. Segina v. Cleary, 5 W. W. & a'B. (L.,) 85. Prisoner Wrongly Designated.] — Where a war- rant for commitment designated a prisoner under a different name from that which he had borne in the prior proceedings, the prisoner was discharged. In re Slocombe, see ante column 348. Motion for — Affidavit that Committing Justices had no Jurisdiction.] — On motion for habeas corpus ad subjiciendum to discharge a prisoner from custody, the Court has power to go behind the warrant of conviction, although it be ad- mitted to be good, and to inquire into the ques- tion of the jurisdiction of the committing jus- tices on affidavits of the prisoner that they had none. In re Oornillox, 1 W. & W. (L.,) 193. Where the warrant shows a sufficient order to justify the detention of the prisoner, the Court will not look at affidavits stating facts impugn- ing the recitals in the warrant. In re Devaney, ante column 348. Commitment by Insolvency Court for Contempt — Supreme Court will on habeas corpus Examine the Evidence upon which Insolvent was Com- mitted.]— See in re Gray, 2 V.L.R. (L.,) 241, post under Insolvency— Insolvent, his rights, &c. Return to Writ.] — A return to a writ may be on paper, and need not be on parchment. In re Rowley, 3 V.L.R. (L.,) 8. Return to the Writ.]— On motion for habeas corpus, the Court will not take into considera- 493 HARBOUR TRUST. 494 tion any arrangement between the prisoner and the Executive as to a special return on the writ, but will assume that the officer in whose cus- tody the prisoner is will make a usual and proper return. In re Millar, 3 W.W. & a'B. (L.,) 41. Return to Writ — What Objections May Not be Taken.] — A prisoner will not be allowed to show, on the return to a writ of habeas corpus, that the warrant set out in the return was based on a conviction made without jurisdic- tion. In re Oawne, 2 A.L.T., 45. Where the return to the writ did not show any adjudication of the period of imprisonment named in the warrant, the prisoner was dis- charged. In re Williams, 5 A.J.R., 160, ante column 349. Where Discharge Granted.] — Per Williams, J. Where a prisoner is before the Court on habeas corpus, though the writ was granted for another purpose, if the Court think the sentence of im- prisonment illegal, it will discharge the pri- soner. In re Thompson, 1 W. & W. (L.,) 24. On a Writ of " habeas corpus" the Supreme Court has no Power to Review a Record of the Court of General Sessions.] — Ee Armstrong and Stewart, 4 V.L.R. (L.,) 101. — See S.C. post under Sessions — Appeal from to Supreme Court. Person Committed for Trial at General Sessions — Remand by Chairman to next Court of Assize.] — Set In re Marshall, 7 V.L.R. (L.,) 427 ; 3 A.L.T., 57, post under Sessions — Jurisdiction of. HACKNEY CARRIAGE. Stage Carriage.]— K. held a license for a "stage carriage" carrying seven passengers, and plying between Buninyong and Dowling Forest. He took passengers from Ballarat to Dowling Forest, and was summoned for plying for hire in a hackney carriage not being licensed under the by-laws. Held that upon the evi- dence K. had not used his carriage as a hackney carriage. Appeal allowed. Kane v. M'Cullagh, 3 A. J.R., 39. HARBOUR TRUST. "Melbourne Harbour Trust Act 1876," Sec. 46— Notice of Action — Person.] — The Melbourne Harbour Trust commissioners are a "person" within the meaning of Sec. 46 of "The Mel- bourne Harbour Trust Act 1876," so as to be entitled to the one month's notice of action prescribed by that section before the commence- ment of an action against them for anything purporting to be done in pursuance of the Act. Affirmed on appeW to the Privy Council. Union Steam Shipping Oompany of New Zealand v. Melbourne Harbour Trust Commissioners, 8 V.L.R. (L.,) 167 ; 4 A.L.T., 28; L.R., 9 Ap. Ca. 365. Appointment of Commissioners — " Melbourne Harbour Trust Act," No. 552, Sec. 16.]— The Melbourne City Council, under the powers given it by the Act, proceeded to appoint two commissioners for the first time. At such election only one commissioner was appointed by the requisite majority, and there were two candidates, M. and S., for the other post ; the council falling on the day appointed for the first election, left it to the Governor, as under Sec. 16, to make the appointment, and he ap- pointed M. Held, by Stawell, G.J. and Fellows, J. (dissentiente Molesworth, J.,) that Sec. 16 did not apply to such a case, and that the appoint- ment was invalid. Segina v. M'llwraith, ex parte Smith, 3 V.L.R. (L.,) 166. Election of Commissioner — Act No. 652, Sec. 6.] — A borough council empowered to elect a com- missioner elected one by ballot. Held, that such election might be by ballot ; and the cir- cumstances excluding the possibility of fraud, the fact that no means had been provided for a scrutiny did not invalidate it. In re Dowman and Melbourne Harbour Trust, ex parte dark, 3 V.L.R. (L.,) 287. Act No. 552, Sec. 108, Sub-sees. x. and xxiii. — Licenses for Ballast Lighters — Regulations 214, 215.] — L. was convicted before justices for being in charge of a ballast lighter without a license. It appeared that L. had never been refused a license without payment of a fee, but that he had never applied for one. Held that though Regulations 214, 215, providing for the necessity of a license and the mode of issue, provided that a license should be issued "upon payment of the fee fixed by the regulations," and no fee was so fixed by any regulation, yet the convic- tion was good under the circumstances, not- withstanding that a license might have been granted without payment of a fee. Regina v. Leigh, ex parte Lumsden, 5 V.L.R. (L.,) 282; 1 A.L.T., 42. Harbour Regulations at the Port of Melbourne — Act No. 255, Sec. 40-Act No. 552, Sec. 107.]— A master of » steamer was summoned and convicted for obstructing a custom-house officer in the execution of his duties, in breach of a regulation made under Act No. 255; the defendant contended that these regulations were repealed by the regulations made under Act No. 552, and therefore he could not be possibly prosecuted under the former. Held that the jurisdiction of the Harbour Trust Commissioners was not exclusive within the limits of the Trust in matters relating to the general government as well as in nautical matters ; and that Sec. 107 of Act No. 552 did not repeal regulations made under Act No. 255, which were not inconsistent with No. 552. Con- viction affirmed. Beaver v. Justices of Williams- town ex parte Hammond, 9 V.L.R. (L.,) 454. 5 A.L.T., 130. 495 HEALTH (PUBLIC). 496 HAWKERS AND PEDLERS. Who is a Hawker— Act No. 281.]— A fruit grower who sells his fruit wholesale to a retail dealer is not a ' ' hawker " within the meaning of Act No. 281 (" Hawkers and Pedlars Statute. 1865"); and the mere fact that he solicited one dealer to buy, after a refusal by a prior dealer, does not constitute him such, or render him liable for hawking without a certificate. Hanson v. Tweedah, 1 V.R. (L.,) 30; 1 A.J.R. 36. HEALTH (PUBLIC). 1. Powers and Jurisdiction of Local Boards. (a) Streets and Roads, column 495. (ft) Drainage, column 497. 2. Talcing Lands and Compensation, column 497. 3. Proceedings by and against Local Boards, column 498. 4. Offences against Public Health Statute, column 498. I. Powers and Jurisdiction op Local Boards. (a) Streets and Roads. Borough Council Acting as Local Board — Public Health Statute (No. 310), Sees. 15, 47, Act No. 184, Sec. 138 — Forming Private lane.] — It is not necessary that a special meeting of a Borough Council acting as a Board of Health, should be called to consider resolutions as to the forming of a private lane, since Sec. 138 of the "Muni- cipal Corporations Act (No. 184) does not apply, and no special meeting is provided for by sec. 15 of the " Public Health Statute" (No. 310). It is sufficient if such resolution be agreed to at an ordinary meeting. It is not necessary, in order to enforce payment from an adjoining owner for the forming of a private lane, that the lane was in existence at the passing of the "Public Health Statute "; it is sufficient if it be in existence at the time of dissatisfaction expressed by such owner, for the Act is not limited to lanes in existence at the time of its passing. It is for the Board to consider what propor- tion should be paid for the forming of a private lane by an adjoining or abutting owner ; and a private owner cannot refuse to pay his proportion of the charges for outlet works which were necessary to the lane in question, on the ground only that his pro- perty abutted on the lane, and not on any part of the outlet-works. Gurner v. Municipal Coun- cil of St. Kilda, 1 A.J.R., 102. Order to Form Street — What it should state.] — An order under Sec. 47 of the "Public Health Amendment Act " (No. 310), by a Local Board of Health, requiring the owner of premises to "form, pave, level, drain, or make good " any street, lane, or right-of-way, should specify the manner in, and the levels at which the required works are to be executed. Woolcott v. Richmond Local Board of Health, 2 V.R., (L.,) 153 ; 2A.J.R., 97. Street on Private Property— Act No. 310, Sees. 47, 52 — Evidence.] — Where a Local Board of Health institutes proceedings to enforce com- pliance under sec. 47, with an order requiring a street to be formed on private property, it is necessary for the Board to prove that the street was set out upon private property. Semble, per Fellows, J.,) Sec. 47 does not give the Board power to proceed for a penalty. Regina v. Woods, ex parte Emmott, 1 V.L.R. (L.,) 101. Where the order nisi was addressed to the mayor, councillors, and burgesses, as the parties interested in maintaining the conviction, and the Local Board was the Council only of the Borough (Sec. 15), an objection against the order was overruled. Ibid. Expenses of Lane set out on Private Property — Service of Notice— Subsequent Owner— Act No. 310, Sees. 47, 57, 59.]— A notice was served upon G. reciting that notice had been served upon M. (the then owner,) requiring her to execute certain works ; that she had not executed them, and requiring G. to pay a proportionate part of the expenses incurred by the Board in execut- ing them. G. was proceeded against, and ordered to pay the amount. Held that sec. 59 only applies where ownership changes dur- ing the execution of the works, and that the effect of the Act was that the charge was personal, and only affected the land in the event of the owner at the time being unknown,' or not to be found, and that G. becoming the owner of the land after the work was executed, was not liable. Regina v. Clarke, ex parte Cunst, 5 V.L.R. (L.,) 412; 1 A.L.T., 101. Formation of Private Streets — Apportionment of Expense.] — Under Sec. 47 of the "Health Amend- ment Act" (No. 310,) a Local Board of Health, when forming two communicating private streets, may apportion the whole expense amongst all owners in both streets, and is not bound to charge the expense of forming each street exclusively upon the owners in that street. Harding v. Local Board of Health of Oeelong West, 8 V.L.R. (L.,) 6. Expenses of Formation — Demand of Payment.] — Where the Local Board of Health of any place is constituted of the Borough Council of the place, a demand of payment of the expenses of forming a private street by that body is suffi- cient. Ibid. Act No. 782, Sec. 131— Formation of Street upon Private Property.] — After giving notice requir- ing C. to pave a street, the Local Board has power to sue for the penalty, even although it has elected to execute the work, provided that the works have not been executed at the time the complaint is made. Regina v. Alley, ex parte Clauscen,6A.L.T.,150. Act No. 310, Sees. 47, 62, 63— Ownership of Property.]— A Local Board of Health served P. with notice under Sec. 47, requiring him to form a private lane adjoining his property. A complaint was brought against H. under Sees. 62, 63, for non-compliance, but the justices held they could not go into the question of ownership. Held that the notice under Sec. 497 HEALTH (PUBLIC). 498 47 was not conclusive, and the justices should have received evidence as to ownership. Regina v. Templeton, ex parte Peck, 1 V.L.R. (L.,)21. Act No. 310, Sees. 47, 62.]— D. was, informed against under Sec. 62, for an offence under Sec. 47, in not obeying the notice served upon him as owner of the land. D. objected that a non- compliance with the notice was not an offence for which a penalty could be imposed under Sec. 62, and the justices thereupon dismissed the information. On rule nisi, held that a double remedy was not intended, that sec. 47 specially provided for the punishment of an offence under its terms within the meaning of the words "not otherwise specially provided for" in Sec. 62, and that the justices were right. In re Day, ex parte Kingston, 3 V.L.R. (L.,)289. Act No. 310, sees. 47, 62 — Disobedience of Notice to Pave a Lane.] — Held {dissentiente Higin- botham, J.,) following In re Day, that neglect of a notice to pave and level a lane is not an offence within sec. 62 of Act 310. Per Higinbotham, J. It is not necessary that the notice under See. 47 should set forth the particulars of the levels and specifications ; it is sufficient if it state that they have been prepared and are open for inspection at a certain place and hour. Fitzroy Local Board of Health v. Howell ; Regina v. St. KUda Local Board, exparte Lambom, 7 V.L.R. (L.,)47;2A.L.T., 125. (b) Drainage. Act No. 310, Sec. 38 — Order to Raise Surface of land.] — A Local Board of Health had ordered the relator to " raise the surface of the land . . to such height as will cause the surface-water off the land to flow away into S. or B. streets." And the rela'tor was fined for non-compliance. Held on or.der nisi for prohibition, that the order was bad as being in the alternative, it should have told the relator definitely into which street the water was to flow. Order absolute. Regina v. Lloyd, ex parte Qodfrcy, 1 V.L.R. (L.,) 300. (2) Taking Lands and Compensation. "Public Health Amendment Act" (No. 310), Sec. 48 — Power of General Sessions — Act No. 267, Sec. 143 — Jurisdiction as to Costs.] — The Borough Council, acting as a Local Board of' Health, ap- pealed to the General Sessions under No. 310, Sec. 4§, to fix the amount of compensation to be awarded to occupiers of land they wished to take for the purpose of making a drain. The justices took evidence upon the necessity of the drain, made an order stating the appeal was dismissed with costs, "subject to special case,," No special case being stated a rule nisi was ob- tained for a certiorari to quash the order. Held that the order was invalid ; that this was not an appeal in the proper acceptation of the term, therefore the justices were not authorised to give costs under Sec. 143 of No. 267 ; that the General Sessions, as arbitrators, could not in- quire into the necessity for the work, but only into the amount of compensation: Rule abso- lute. Regina v. Pohlman, 6 W.W. & a'B. (L.,) 109. Semite, that the payment of the money is a condition precedent to going on the land. Ibid, I (3) Proceedings for and against Local Boards. Summons for Causing a Nuisance, in What Name— No. 310, Sec. 32.]— A summons, under Sec. 32ofthe " Public Health Statute" (No. 310), taken out for causing a nuisance, being in the nature of a criminal proceeding for a penalty, may be taken out in anybody's name, and need not necessarily be in the name of the Local Board of Health; but at the hearing proof must be given that the complaint was laid at the instance of the Local Board of Health. Gruikihank v. Kitchen, 1 V.R. (L.,) 29 ; 1 A.J.R., 37. (4) Offences against Public Health Statute . Selling Improper Food— " Public Health Statute" (No. 264), Sec. 39 — Coffee Adulterated with Chicory.] — Selling a compound of coffee and chicory under the name of " coffee" is a breach of Sec. 39 of the "Public Health Statute" (No. 264). Fullerton v. Bergin, 1 V.R. (L.,)8; 1 A.J.R. 25. Selling Improper Food— Act No. 264, Sees. 38, 39, 40— "Bakers Statute" (No. 243) Sees. 3, 4.]— A charge -was brought against W. under Sees. 38 and 39 of No. 264 for selling bread in which large quantities of alum had been used. Held that the charge was properly brought, and that the previous passing of an Act applicable to bakers (Act No. 243) did not take them out of the general enactment in No. 264 ; that Sec. 40 disposes of the difficulty as to sec. 39 ap- parently applying only to manufacturers ; that the omission of the word "knowingly" from Act No. 264 throws upon the seller the onus of proving ignorance of the adulteration, whereas by Sees. 3 and 4 of Act No. 243 it must be proved that seller had knowledge of the adul- teration. Fullerton v. Weedow, 3 V.R. (L.,) 15; 3A.J.R., 30. "Public Health Statute"— Bye-law under— Night-soil.] — A bye-law under the "Public Health Statute" (No. 310) forbade the deposit of "night-soil, blood, offal, or other offensive matter" on any land or garden. Held that a person who poured drainage matter from a pig- stye on his garden had not offended against the bye-law. Regina v. Templeton, ex parte Mow Sang, 1 V.L.R. (L.,) 55. Act No. 310— Information under Sec. 62 for Offences under Sec. 47 — No Penalty can be inflicted under Sec. 62 for such offence.]— See In re Day, ex parte Kingston, ante column 497. Neglect of Notice to Pave and Level a Lane is not an offence within Sec. 62 of Act No. 310.)— See Fitzroy Local Board of Health v. Howell, and Regina v. St. Kilda Local Board, ex parte Lambom, ante column 497. Creating a Nuisance— Jurisdiction of Justices — Adjournment of Case — "Public Health Act," Sec. 32.] — Where the hearing of a complaint under Sec. 32 of the "Public Health Act" (No. 310), for creating a nuisance, has been adjourned in order to allow an opportunity of abating the nuisance, the case, when it comes up on the adjourned hearing) must, under Sec. 12 of the "Justices of 499 HUSBAND AND WIFE. 500 the Peace Statute 1865," be adjudicated*upon by two justices who were present throughout the whole of the proceedings. Begina v. Marsden, ex parte Corbett, 4 VX.R. (L.,) 30. HIGHWAY. See LOCAL GOVERNMENT— WAY. HIRING. See MASTER AND SERVANT. HOLIDAY. See PRACTICE AND PLEADING- TIME. HOSPITAL. Act No. 220— Sees. 5, 6, 10— Liability for Con- tracts. ] — The contracts and liabilities of an old institution (i.e., a hospital managed by a com- mittee prior to 1872) do not, upon its incorpora- tion in 1872 under Act No. 220, devolve upon the new corporation under sec. 10, which merely enacts that real and personal property held in trust shall be vested in the incorporated in- stitution. Where G. was appointed surgeon to a hospital and continued to act in that capacity till December 1871, being paid all his salary up to that time, and the hospital was incorporated early in 1872 and dismissed G. in April 1872, Held that the committee of the corporation was not liable for breach of contract or for salary up to 11th March, when the new com- mittee was formed. Gummow v. Swan Hill District Hospital, 3 V.R. (L.,) 251; 3 A.J.R., 123. Election to Committee — Act No. 220, Sec. 11— Term of Office.]— It is not necessarily to be implied from sec. 11 of the "Hospitals and Charitable Institutions Act 1864" (No. 220) that elections to committees of hospitals Under that Act should be for three years. They might be for two years or other times, and the office terminates by mere effluxion of time, without applying the provisions of the section. Logan v. Hocking, 10 V.L.R. (E.,) 120, 126. Although no qualification is imposed by the Act No. 220 on a candidate at a general election to a hospital committee, yet a bye-law of the hospital which imposes a qualification similar to that which the Act imposes on candidates to fill a temporary vacancy is not ultra vires, since the qualification is reasonable and within the power of the committee. Ibid. Secretary.] — For all that appears to the con- trary, the secretary of a hospital incorporated under the Act No. 220 is a mere servant of the committee, holding his place at their will, and bound to obey their commands. As such he is not a proper party to a bill impeaching the validity of an election of members of the com- mittee. Ibid. HOTEL. See INNKEEPER— LICENSING ACTS. HUSBAND AND WIPE. I. Marriage. (1) Validity and Proof of, column 501. (2) Suits for Nullity, column 502. (3) Obtaining Declaration of Legitimacy of Children, column 503. (4) Bigamous — See Criminal Law. II. Marriage Settlements. (1) Agreements to Settle, and matters relating thereto, column 503. (2) Consideration for and Validity of, column 504. (3) Varying or Altering on Decree for Divorce or Judicial Separation, column 504. (4) Setting aside — See Fraudulent Convey- ances — Settlements. III. Judicial Separation and Divorce. (1) When Obtainable and Jurisdiction ofGowrt, column 505. (2) Procedure Practice and Pleadings. (a) Pleadings and Citation and service thereof, column 513. (6) Trial and Practice thereon, column 517. (c) Costs, column 521. (3) Evidence, column 523. (4) Intervention of Crown Law Ojjicer, column 527. (5) Damages, column 527. (6) Decree and its Effect, column 527. (7) Appeal, column 528. (8) Alimony and Maintenance, column 528. (9) Custody of and Access to Children, column 531. (10) Altering Marriage Settlements — See Mar- riage Settlements. IV. Maintenance and Protection Orders, column 531. V. Husband's Rights and Liabilities. (1) Husband's Rights, column 535. (2) Liability for Wife's Debts contracted during Coverture, column 535. (3) Liability for Wife's Acts, column 537. VI. Deeds of Separation, column 538. 501 HUSBAND AND WIFE. 502 VII. Wife's Rights, Property and Liabili- ties. (1) Dower, column 538. (2) Separate Estate and Rights and Liabilities connected therewith. (ft) What is and How Created, column 539. (6) Restraint on Anticipation, column 543. (c) Dealings with, column 543. (d) Liabilities for Debts, &c, and Remedies Against in respect thereof, column 545. (e) Actions and Remedies of Married Women in respect thereof, column 548 if) General Rights and Powers Created thereby, column 548. (3) Disabilities of Married Women Generally, column 548. (4) Wife's Property other than Separate Estate. (a) Sales, Charges, and Mortgages of Wife's Property, column 549. (b) Acknowledgments to Bar Wife's Interest, column 550. I. Marriage. (1) Validity and Proof of. Proof of— Registration— Acts Mo. 70, Sec. 17 and 16 Vict., No. 26, Sec. 20.]— Where under See. 20 of 16 Vict., No. 26, only one original regis- tration form of a marriage had been filled up, instead of duplicate originals, and only a copy of the original, instead of one of the duplicate originals, had been registered, Held that under Sec. 17 of No. 70, the irregularly regis- tered copy of the original and a copy of that copy, were sufficient proof of the marriage. Crowl v. Flynn, 1 W. W. & a'B. (L.,) 62. Marriage within Three Months after a Decree dissolving Prior Marriage — Act No. 125, Sec. 39.]— M. and E. M., his wife, sued W. for money due for goods sold and delivered to him by E. M., while carrying on business as a feme sole under a, protection order, and under her former name of E. F. Before trial admissions were made that E. M. — then E. P. — on 13th October, 1862, presented a petition praying that her marriage with R. F. might be dissolved, and that a decree was made as prayed, 18th Decem- ber, 1862 : and that the plaintiffs (M. and E. F.) were "duly married "28th February, 1863. At the County Court an objection was taken that the marriage was invalid, as it took place before the expiration of the three months given for appeal by Act No. 125, Sec. 39, and the Judge allowed this and granted a nonsuit. Held on appeal affirming the Judge, that the words "duly married," in the admissions were controlled by the dates and by the legal results of a premature marriage under See. 39, and that the nonsuit was right. Moore v. Widdicombe, 4 W. W. & a'B. (L.,) 109. Marriage of Minor without Consent— Act No. 268, Sec. 14.] — The " Marriage and Matrimonial Causes Statute 1864" amounts to this: — The marriage of a minor should not take place without the consent specified in Sec. 14; but, if it does take place without it, it is valid. Regina v. Griffin, 3 V.L.R. (L.,) 278. Marriage of Minor without Consent.] — Semble, that a marriage of a female minor, whose hus- band was aware of her age, without the consent of her parents or guardians is valid. Gullifer v. Gullifer, 6 V.L.R. (I. P. & M.,) 109. Marriage Contract when One Party a Lunatic — Lucid Interval.] — In the estate of Doull, 7 V.L.R. (I. P. & M.,) 70, post under Lunatic— Property, Powers and Contracts. Minister Ordinarily Officiating as such— Pastor — Act No. 70, Sec. 3 .]- -The person who celebrated a marriage was described as pastor of a church meeting at the old Temperance Hall, Russell- street, and called "Christian Disciples." On a trial for bigamy, Held that this description brought him within the words " some minister of religion ordinarily officiating as such," in Sec. 3 of the Act No. 70, and that the marriage, which was the first, was valid. Regina v. Benson, 4 V.L.R. (L.,) 21. (2) Suits for Nullity. What is a Suit for Nullity— Jurisdiction of Single Judge.] — A suit by a husband to set aside a marriage with his deceased wife's sister is a suit for nullity, and not for dissolution ; and a single Judge has jurisdiction to annul such a marriage. Wade v. Baker, 5 W. W. & a'B. (I. E. & M.,) 63. Appeal.] — And an appeal on the ground of want of jurisdiction of the single Judge will lie. Ibid. Evidence of Affinity.] — The relationship of the reputed wife with the deceased wife may be proved by the evidence of repute among friends and relatives, and of the manner in which both wives were treated and received by their re- puted parents; and the evidence of the husband as to the latter point is also admissible. Ibid. When Sustainable — Mistaken Identity.] — Mar- riage is a contract, and to constitute a contract both parties must know what they are entering into — no mistake of identity must exist. M., the respondent, had been convicted of a crime, and afterwards followed an industrious course of life ; he was introduced to the petitioner A. (falsely called G.) as Mr. G., and represented himself as belonging to a very respectable family G., in Scotland, well known to the petitioner. The petitioner was married to him believing him to be G., and swore that had she known his proper name she would not have married him. Held that it was not merely a mistake of name, but of identity, and decree of nullity pronounced, the fraud having been unquestion- ably and distinctly proved. Allardyce v. Mitchell, 6 W. W. & a'B. (I. E. & M.,) 45. Act No. 268, sec. 84.]— The Court has juris- diction to order a suit for a decree of nullity of marriage to be tried as to questions of fact before a jury. Bishop v. Bishop, 5 A. J.R., 43. Delay — Inspection.] — A woman delayed in in- stituting a suit for nullity of marriage on the ground of her husband's incompetence. The delay was explained by her ignorance of any means of redress, and that she had no intimate friends at hand with whom to consult. There was evidence that the parties had cohabited for nearly twenty years, and that the petitioner 503 HUSBAND AND WIFE. 504 was virgo intacta. The Court excused the delay, made a decree, and, under the circum- stances, dispensed with a medical inspection of the respondent, who had left the colony. id. Boyce, 3 V.L R. (LP. & M.,) 69. Practice— Coats of Petitioner.]— In a case where the judge was not satisfied that the means of a petitioner's wife were sufficient, he (Higin- botham, J.) made an order in Chambers for payment of the petitioner's costs de die in diem by the husband. Hunt alias Sennit v. Rennie, 3 A.L.T., 19. Bigamy — No Conviction.] — The Court has juris- diction to declare a marriage null and void on the ground of bigamy, although there has been no prosecution or conviction for the bigamy. Armstrong v. Batty, 9 V.L.R. (LP. & M.,) 55. (3) Obtaining Declaration of Legitimacy of Children. Irregular Marriage in Scotland — Evidence of Witnesses who Knew that Husband and Wife lived Together in Same Place and were Received as Husband and Wife — Such Evidence not Going Back to Date of Plaintiff's Birth — Baptismal Cer- tificates.] — Suit as to right to administer real estate of an intestate, T. D. E. T>., a, nephew of the intestate, had administered the personal estate of the intestate, and, hearing of claims of the plaintiff and his sisters, as next-of-kin, had sent a power of attorney to them in England appointing a person here to receive their share, which was paid to such person. Plaintiff then came to Victoria to inquire after his interests in intestate's real estate, and the defendant (E. D. ) required proof of his identity. The plaintiff then brought the suit, and, in the bill, alleged that he was a nephew of the intestate, which the answer denied. E. D. was a son of J. D., a brother of the intestate's, and the plaintiff and his sisters claimed to be children of W. D. , another brother. It appeared that plaintiffs father (W. D.) contracted in Scotland an irre- gular but legal marriage, and there was the evidence of witnesses who knew and spoke of the father and mother as living for a long time in the same place, and being received as man and wife, but such evidence did not go back as far as plaintiff's birth. Baptismal certificates were produced showing plaintiff and his sisters to be children of W. D. and his wife. Held that the legitimacy of the plaintiff was suffi- ciently established from such evidence, and order made declaring plaintiff to be one of the next-of-kin of T. D. Dry den v. Dry den, 5 A.J.R., 27. (4) Bigamous— See Bigamy. II. Marriage Settlements. (1) Agreements to Settle and Matters Belating Thereto. Agreement by Husband's Father — Statute of Frauds.] — A marriage settlement was executed on the marriage of 0. to C. It recited an agree- ment by the fathers of 0. and C. to settle £500 each, and then proceeded to settle the £1000. The money was not paid into the bank, as recited, but the deed was executed by the par- ties, their fathers and the trustees. O.'s father died without paying the £500, and the trustees of the settlement brought a bill against his exe- cutors to obtain that sum out of his estate. Held, that though the only writing to satisfy the "Statute of Frauds" was the deed, which recited that the sum had been paid, its parts could not be separated, and it would amount to an estoppel at law, but not in equity; that the trustees, in executing the settlement, made themselves liable for £1000, and the deceased would be guilty of fraud if he did not indemnify them. Decree made for payment. Qucere, whether if a contract is partly in consideration of marriage, and partly of some other act to be done, the "Statute of Frauds" is applicable. Gordon v. Murphy, 4 W. W. & a'B. (E.,) 120. (2) Consideration for and Validity of. Impotence of Husband — Decree of Nullity.]— Suit by B. against F., the trustee of a mar- riage settlement of date 24th March, 1864, by which certain property was assigned to S. upon trust for B. until solemnisation of marriage, and then in trust for P. for life; remainder in trust for children of marriage, and remainder in trust for B., his executors, administrators, and as- signs. B. and F. were married 30th March, 1864. On 31st July, 1873, a decree was made that mar- riage between B. and F. was a nullity on ground of B.'s impotence. The bill sought to establish plaintiff's rights to settled property, and for a transfer. Held, 'per Molesiuorth, J. , and the Full Court, that such a marriage is voidable only,, and not void, and that there is in such a void- able marriage sufficient consideration upon its solemnisation to bring into operation the trusts in favour of wife, and that plaintiff could not enforce the prior trust in the settlement, that is in favour of himself until solemnisation of the marriage. Bishop v. Smith, 1 V.L.R. (E.,) 313. (3) Varying or Altering on Decree for Divorce or Judicial Separation. Restraint on Anticipation — " Marriage and Matrimonial Causes Statute," Sec. 54.]- By in- denture of settlement, executed in anticipation of a marriage, real and personal property of the wife's was settled upon trust, during the joint lives of herself and husband, for her separate use, without power of anticipation. The wife subsequently obtained a decree for judicial separation, and instituted a suit against the trustees of the settlement praying a declaration that she was absolutely entitled, as a feme sole, to the trust property, and for a conveyance to her of such property. Held that the property was not acqxiired, and had not come to or de- volved upon her since the decree within the meaning of Sec. 54 of the Act No. 268; that though a woman entitled to property, with a clause against anticipation, &c, may, whilst still unmarried, require it to be discharged of such restriction; yet a woman judicially sepa- rated is not, for all purposes, to be deemed unmarried. Suit dismissed with costs. Mack- intosh v. Clarke, 3 W. W. & a'B. (E.,) 77; affirmed on appeal, ibid, p. 123. Practice — Notice to Wife.] — When a divorce has been granted against a wife who has not appeared, and a motion is made for variation of 505 HUSBAND AND WIFE. 506 the settlement, she should have notice thereof. Hickling v. Hickling and Bromfield, 10 V.L R. (I. P. & M.,) 44. Variation of Settlement where Divorce Obtained at Suit of Husband.] — -Where the wife's settled property brought in an income of about £980 per annum, and there were five children of the marriage, of whom one was living with the wife and four with the husband, the husband's salary being £700 per annum, the Court, after a divorce had been obtained at the suit of the husband on the ground of the wife's adultery, ordered that the trustees should pay £250 per annum to the wife for her own benefit, and £50 per annum for the maintenance and education of the child living with her, and should pay the balance of the income to the husband for the benefit of himself and the four children living with him. Ibid. III. Judicial Separation and Divorce. (1) When Obtainable. Conduct Conducing to Adultery.]— In a. suit against a wife for divorce on the ground of adultery, the adultery was proved. It was also proved that before the adultery the conduct of the wife had not been what it ought to have been, and that upon the husband remonstrating with her she expressed her intention to persist in that conduct, and said that if not allowed to ' continue visiting the places her husband disap- proved of, she would not stay with him. He replied that she might " suit herself ;" and, thereupon, she left him. The petitioner being asked what he thought his wife would have to do after she left him, at first said he had not thought about it, but on being further ques- tioned, added, " No, I never thought she would misconduct herself ; I never thought she would do that." Held that the husband had not been " guilty of such wilful neglect or misconduct as had conduced to the adultery" of the wife ; and had not disentitled himself to the relief he sought. Myles v. Myles, 1 W. & W. (I. E. & M.) 204. See also Roulston v. Roulston, ibid p. 206. Husband's Conduct Conducing to Wife's Adultery.] — Absence in the pursuit of a proper avocation should not always tell against a petitioner. A husband is not bound to be suspi- cious ; but he ought not to put his wife in a position of temptation : and if he is aware that she has fallen into such a position and is medi- tating to do wrong, he is bound to take steps to prevent her from carrying out such intention, and to remove her from that position. Where a miner left his home and was for some time absent on the gold-fields, and, though hearing that his wife had opened a boarding-house and was placed in a position of temptation, made no effort to see her or to remove her from the danger ; his petition for dissolution on ground of wife's adultery refused, decree for judicial separation made. Bathgate v. Bathgate, 2 W. & W. (I. E. & M.,) 129. Misconduct Conducing to Adultery.]— With reference to a charge of having by his conduct conduced to his wife's adultery, it is right that the whole conduct of a husband petitioning for divorce, from the contract of marriage to the commencement of the suit, should be considered — his conduct in reference to his marital duties alone, the Court not having the power to look at any other offence of omission or commission by him. Terry v. Terry, 1 W. W. & a'B. (I. E. &M.,)78. Misconduct Conducing to Adultery.] — In a suit by a husband for divorce on the ground of adultery, the evidence showed that several acts of adultery had been committed by the wife, of which all but the last had been condoned, with- out reference to any penitence on the part of the wife. It also appealed that, being fully aware of the wife's tendency, the husband, when she left his house, took no measures to ascertain whither she had gone, or what she was doing ; and that the act of adultery on which the petition was based, took place during such absence. .ffeMthat the husband had been guilty of misconduct conducing to the adultery. Ibid. Adultery — What Conduces to or does not.] — A wife having obtained a decree for judicial separation against her husband on the ground of cruelty, subsequently committed adultery, and her husband filed a petition for divorce. Held that the decree for judicial separation had not conduced to her adultery, and divorce granted. Bailey v. Bailey, 3 W. W. & a'B. (I. E. & M.,) 89. Adultery of Wife — Husband's Conduct — Marriage not Consummated.] — A husband and wife agreed before marriage that after celebration of the rite, the marriage should not be consum- mated for twelve months, the husband going to Adelaide to earn money to enable him to support her, and remitting her sums of money from time to time. The wife lived with her parents, and committed adultery, and the husband petitioned for a divorce before the marriage was con- summated. Held that the husband's conduct had not conduced to her adultery, so as to disentitle him to a decree for dissolution of marriage, and that the reserved judgment of a Court of three Judges may be delivered by one of such Judges sitting alone. Osborne v. Osborne, 5 V.L.R. (I. P. &M.) 112. Conduct Conducing to Adultery — "Marriage and Matrimonial Causes Statute 1864," Sec. 70.]— A wife, who was extremely jealous of her husband, but who had not misconducted herself and had received some harsh treatment, requested her husband not to go on a theatrical tour with, amongst others, a woman of whom she was jealous, threatening that if he did so, she would leave him and not return. The husband, how- ever, went, leaving his wife with some funds and the furniture of the house. As soon as possible after her husband had left, she sold everything, and departed to live elsewhere, and would not return to her husband, though he endeavoured to persuade her. Nearly a year after this she committed adultery. Held that the husband's conduct had not led to her adultery, though there was very little doubt that she would not have committed it, had she lived with her hus- band, and that the husband's conduct was not the neglect or misconduct contemplated by 507 HUSBAND AND WIFE. 508 Sec. 70 of the " Marriage and Matrimonial Causes Statute 1864." Maxwell v. Maxwell, 6 V.L.E.. (I. P. & M.,) 117. Cruelty — How Considered.] — Although the acts of alleged cruelty are some of them very remote, and separated by considerable intervals, it is not so much the practice of the Court to dwell on such acts as detached charges, resting on independent grounds, as to endeavour to discover whether they are recurring instances of unjustifiable and inexcusable behaviour on the part of the husband, forming parts of a regular series of annoyances. The domestic life of each party must be examined together as a continuous whole, and the general conduct of the respondent inquired into, in order to see what light is thereby thrown on the particular transactions. Casey v. Casey, 1 W. & W. (I. E. & M.,) 34, 45. Cruelty — What is Sufficient. ] — Not only actual personal violence, but everything that tends to bodily hurt or peril, is a, ground for judicial interposition ; and a reasonable apprehension of personal violence is enough. Words of menace accompanied with threatening attitudes, and an ability to inflict injury, do amount to legal cruelty, and the wife must be protected from the peril of bodily injury, as well as from actual injury itself. What must be the extent of the injury, or what will reasonably excite the apprehension, must be deduced from various circumstances, while the complexion of indi- vidual acts may almost change their very essence in consequence of the circumstances by which they are attended, but the causes must be grave and weighty, and must be such as show an absolute impossibility that the duties of the married life can be discharged. Ibid p. 46. Cruelty — What is and how Inferred.] — Mere words of abuse taken alone are not a sufficient ground for a judicial separation onVhe score of cruelty, but when the Court is examining a series of allegations, including direct acts of cruelty, it is entitled to look into all the cir- cumstances, and into the whole cluster of events so to speak, which have occurred during a series of months, or perhaps of years, includ- ing those threats and expressions of abuse, whether intervening between or accompanying the different acts of violence. Again, tyranni- cal conduct alone, on the part of the husband, is not a ground for pronouncing a decree of judicial separation ; but if it be of such a nature as to endanger the health of the wife, then separation may be granted. Where words are used not amounting to threats, but which are exceedingly abusive, and are coupled with violent and threatening demeanour, the Court will infer threats from them ; and in all eases where there is direct testimony of violence, threats and abusive language may be taken into consideration to enable theCourt to test whether there is likely to be a recurrence of the violence. A single act of violence alone may not be enough to found a decree for judicial separation; but where preceded by such conduct as to give a colour of cruelty to the act, that has been held sufficient. There must be some well- founded apprehension of injury ; not neces- sarily danger to life or limb. On the prin- ciple obsta principiis, the Court steps in to prevent the future carrying out of threats already made a fortiori where there have been previous assaults. Mackintosh v. Mackintosh. 1 W. &W. (I. E. &M.,)70. Insults to the wife's relatives can form no ground for a judicial separation on the ground of cruelty. Ibid. Cruelty— Provocation.]— Great provocation on the part of the wife may prevent violence on the part of the husband prevailing as a ground for separation ; but slight provocation on her part is no justification for the infliction of violent in- juries by the husband. Ibid. Cruelty — How Considered — Provocation.] — In considering evidence of cruelty, it is all-import- ant to view the facts charged in relation to all their surrounding circumstances, and not to look merely at those facts isolated. Individual circumstances, which in themselves seem trivial, or even comic, may, when taken in con- nection with others which interpret and perhaps increase their effect, become important in proof of real cruelty. The position of the two parties must be regarded. If a wife, exhibiting an utter contempt for her husband on account of his dissolute behaviour, and a determination to get rid of him, thinks herself justified in treat- ing him in a contemptuous manner, she provokes very strong acts on his part in retaliation ; and though she might deem herself morally justified in the conduct she pursued towards him, yet she is not entitled to divorce for acts which she herself, by such conduct, has to a great extent provoked. Beck v. Beck, 1 W. & W. (I.E. & M,) 199. Cruelty.]— Eor remarks upon the character of cruelty amounting to sceHtia. see Trestrail v. Trestrail, 3 W. W. & a'B. (I. E. & M.,) 90. Cruelty.]— Where, in a suit by a wife for divorce on the ground of adultery and cruelty, the husband had, once only, used actual violence to the wife, but had frequently used insulting language to her before her children and the servants, and threatened her with violence; and after the institution of the suit the husband departed to San Francisco, taking another woman with him, with two children by her and three of his children by his wife (taking the latter without his wife's consent and forcibly), and leaving the wife totally unprovided for, Held that, though the one act of violence, taken by itself, would not have been sufficient to justify a decree, yet such act taken in connec- tion with the husband's previous and subsequent heartless conduct, afforded sufficient grounds for a decree on the grounds of adultery and cruelty. Campbell v. Campbell, 5 W. W. & a'B. (I. E. &M.,)59. Cruelty — What is.]— Mere threats or an isolated act of passion do not constitute cruelty sufficient to support a decree for a judicial separation ; there must be reasonable apprehen- sion of bodily harm. Nor will cruelty to the children be taken into consideration unless done under circumstances which amount to cruelty to the mother. Cruelty to the children should 509 HUSBAND AND WIFE. 510 not, except under the circumstances mentioned, be taken into consideration in a suit between husband and wife ; but should, where a decree has been pronounced on other grounds for separation, be considered with reference to the question whether husband or wife should have the custody of the children. Kennedy v. Ken- nedy, 4 A.J.R., 106. Wife's Petition — Cruelty — Evidence of.] — A wife petitioned for dissolution on ground of husband's cruelty and adultery. It was proved that the husband had been guilty of habitual drunkenness, had frequently used abusive language to his wife, and had occasionally been violent towards her, but not so as to endanger her health or safety. Held that cruelty must consist of some ill-treatment which endangers the life, the person, or the health, or renders cohabitation unsafe, and that there was no evidence of such in this case. Petition dis- missed. Macartney v. Macartney, 3 V.L.R. (I. P. & M.,) 81. Evidence that the husband has been bouud over to keep the peace towards the wife is admissible in such cases. Ibid. Cruelty of Wife— What is Cruelty— Act No. 268, s. 50 — Costs.] — A husband petitioned for a decree of judicial separation on the ground of his wife's cruelty. Held that if the wife becomes the assailant and uses such violence as is likely to incite the husband to retaliate and to use violence in self-defence, that is sufficient cruelty. Decree made as prayed upon terms as to allowance to wife. Petitioner to pay costs. Terry v. Terry, 5 A.J.R., 50. " Marriage and Matrimonial Causes Statute" (Bo. 268,) Sec. 70 — Discretion of Court to Refuse Divorce when Petitioner has been Guilty of Cruelty.] — In a petition for a divorce where the wife's adultery was proved, but it appearing that the petitioner had been guilty of acts of cruelty to his wife, even where such cruelty did not, in the opinion of the Court, amount to cruelty conducing to the adultery, the Court exercised its discretion given by Sec. 70 and refused a divorce, but granted judicial separation. Bythellv. Byihell, 3 A.J.R., 68. Wife's Petition — Adultery and Desertion — Proof of Adultery — Venereal Disease.] — A wife petitioned for dissolution of marriage, on the ground of husband's adultery and desertion. The desertion was proved, the only evidence of the adultery was that the wife, being perfectly chaste herself, was infected with venereal dis- ease shortly after intercourse with her husband. Held, that was not sufficient proof of the hus- band's adultery, and the petitioner was allowed the option of taking a decree for judicial sepa- ration or of adducing additional proof of the adultery. Deanv. Dean, 5 V.L.R. (I. P. & M.,) 116. Adultery and Cruelty — Venereal Disease.]— Proof by the wife that the husband was affected with venereal disease, that he knew it, and, while so affected, had sexual intercourse with her, and that she then became similarly affected, was held sufficient to entitle her to a decree for divorce on the ground of adultery and cruelty. Davis v, Davis, 6 V.L.R. (I. P. & M.,) 105. The Court, for its own greater satisfaction, obtained from the petitioner a denial of any unchastity, though her chastity was not im- peached on the pleadings. Ibid. Desertion — What is.] — The meaning of deser- tion is that the husband leaves the wife contrary to her wish ; it is a misconception to speak of desertion in a case where both parties separate by mutual consent. Beck v. Beck, 1 W. & W. (I. B. & M.,) 199. Desertion.] — Where a husband resides away from his wife against her wish, the mere giving to the wife support which might be deemed suffi- cient alimony is not inconsistent with desertion. Desertion is the depriving either the husband or the wife of the society of the other by such other. Where, therefore, a husband resided away from his wife against her wish, but allowed her a sufficient sum for maintenance, she was held entitled on proof of his adultery to a decree for divorce. Sayers v. Sayers, 1 V.R. (I, E. & M. ) 33; 1 A.J.R., 138. Petition by Wife — Adultery and Desertion. ] — There was no doubt about the husband's adultery, and the husband had left the wife for three years, during which time he sent her com- paratively large sums of money ; the petitioner refused to live with him unless he, prepared a homej Held that the wife was entitled to more than mere support; she was entitled to her husband's society, and the support must be such as would enable them to live together; that there was sufficient desertion. Decree for divorce. Nimmo v. Nimmo, 3 A. J.R. 132. Separation and Neglect of Husband.]— On » petition for divorce where the adultery was proved, but the petitioner had deserted his wife (the respondent) in London shortly after the marriage, the Court refused a decree for divorce, but granted a judicial separation. Schaefer v. Schaefer, 3 A. J.R. 132. Desertion — Imprisonment during the Two Yeara.] — The fact that a husband who has left his wife with the intention of permanently deserting her has been imprisoned before the " desertion for two years" has been completed, and has continued in prison till the commence- ment of the suit by the wife for a, divorce, does not prevent the period from running. Drwmmond v. Drummond, 2 V.L.R. (LP. &M.,) 78. Desertion — Agreement to Separate a Con- clusive Answer.] — An agreement to separate, unless it be procured by fraud, is a conclusive answer to a charge of desertion where the only evidence of desertion consists of the fact that the husband and wife are living apart, and their separation is in consequence of their express voluntary agreement to live apart. Hayle v. Hayle and Henry, 10 V.L.R. (LP. &M.,) 59, 63. Condonation — "When Applicable.] — Condona- tion is only possible where both parties are aware of the acts condoned ; and is not absolute. 511 HUSBAND AND WIFE. 512 but is granted upon the implied condition that the same injury be not repeated or any other inflicted. Casey v. Casey, 1 W. & W. (I. E. &M.,)34, 48. Condonation— How Effect of Destroyed.]— A subsequent act of cruelty after condonation of a, previous one, though it be insufficient to found a legal sentence, may yet suffice to destroy the effect of condonation and to revive the right of complaint, and to entitle the injured party to connect the acts condoned but revived by the fresh injuries with the subsequent acts which are uncondoned. Ibid. Condonation.] — For adultery there is only one mode of condonation — cohabitation must be re- newed; whereas for cruelty, lapse of time, acts by the wife, living in the same house, may all amount to evidence of condonation of the cruelty, although these facts would not afford evidence of condonation in case of adultery. Sutherland v. Sutherland, 8 V.L.R. (I. P. &M.,) 49; 3 A.L.T., 133. Evidence of Condonation — How Considered.] — See Casey v. Casey, post under sub-heading Evidence. Adultery on Fart of Petitioner and Respondent — Condonation by Sespondent — Discretion of Court. ] — Where both petitioner and respondent had been guilty of adultery, but the wife had condoned the petitioner's adultery, the Court, having regard to the conduct of the petitioner towards his wife, refused, in the exercise of its discretion, to grant a divorce. Hayle v. Hayle and Henry, 10 V.L.R. (I. P. & M.,) 59. Adultery of Husband— Condonation by Wife — Duty and Discretion of Court.] — If the husband has committed adultery, and this is raised as a counter-charge, though the wife has condoned it, such condonation does not bind the-Court or relieve it from the duty of inquiry, and the exercise of the judicial discretion which is im- posed upon it by law. Ibid, p. 63. Collusion — What Is or Is Not.] — In a suit for divorce, the mere fact that the respondent is not adverse is not sufficient to constitute collu- sion with the petitioner. Treacy v. Treacy, 3 W. W. & a'B. (I. E. & M.,) 85. Collusion.] — -Where a suit for divorce was partly heard and adjourned, and, pending the adjournment, the wife abandoned her defence, and wrote a letter to that effect, the Court ordered a copy of it to be sent to the Attorney- General, considering that it was not for the Court to investigate it, and adjourned the case to allow the Attorney-General time for investi- gation. Dunn v. Dunn, 1 A. J.R. 41. Connivance.] — Where the evidence did not show that the husband desired, intended, con- templated, or winked at his wife's offence, Held that a charge of connivance was not estab- lished. Terry v. Terry, 1 W. W. & a'B. (I. E. & M.,) 78. Connivance — What is.] — Connivance implies consent, active or passive, and an intention on the part of the person charged with conniving that guilt shall ensue. Hnyle v. Hayle and Henry, 10 V.L.R. (I. P. & M.,) 59, 62. Objections on the Ground of Neglect, Conniv- ance, or Condonation — How Raised.] — The Court may itself take cognisance of objections to a petition for divorce by the husband on the ground of neglect, connivance or condonation if they appear upon the evidence; but such objec- tions cannot be made by the respondent unless they appear upon the pleadings. Terry v. Terry, 1 W. W. & a'B. (I. E. & M.,) 78. Delay.] — Where a husband proved unfaithful to the wife's knowledge in 1856, and he again left her in 1858, and refused to live with her, and the wife sued for divorce in 1869, the Court refused a decree for dissolution, but granted a decree for judicial separation. Stone v. Stone, N.C., 24. Where a, husband ceased cohabiting with his wife on account of her adultery in 1861, and was unable through poverty to institute pro- ceedings for divorce until 1869, the Court under those circumstances made a decree for dissolu- tion of marriage. Young v. Young, N.C., 24. Delay by Husband — Extenuating Circum- stances.] — Where a husband petitioned for a divorce in 1872, the adultery having taken place in 1854. In 1861, when the Court had jurisdic- tion in divorce matters, the petitioner lost his eyesight, and was unable to work, and in very poor circumstances in consequence. Shortly before petition brought the petitioner re- covered his eyesight, and was able to work. Held that his delay, under the circumstances, was no bar to his obtaining a decree for divorce. Daniel v. Daniel, 3 A. J.B., 132. Petition by lunatic's Committee.] — The Court has no jurisdiction to decree dissolution of marriage on petition by committee of a lunatic husband, although it will grant judicial separa- tion on such a petition. Millar v. Annand, 2 W. & W. (I. E. &M.,)137. Case must be Proved to Satisfaction of Court.] — Before a decree for dissolution of marriage can be granted, it is necessary that the Court, as well as the jury, should be satisfied that the petitioner has proved his case. Fisher v. Fisher, 2V.LR. (I. P. &M.,)102. Jurisdiction of Court — Marriage of Minor with- out Consent.]— The Court will exercise juris- diction to dissolve a marriage on the ground of the wife's adultery, although the marriage was celebrated when the wife was a minor to the husband's knowledge, but without the knowledge or consent of her parents, and upon a false declaration. Gullifer v. Qullifer, 6 V.L.R. (I. P. & M.,) 109. Jurisdiction— Husband Respondent Domiciled Abroad.] —The Court has jurisdiction under Sees. 61, 62, and 87 of the " Marriage and Matri- monial Causes Statute 1864" to dissolve a marriage, on the petition of the wife, celebrated in "Victoria between a woman domiciled there and a foreigner who has not abandoned his 513 HUSBAND AND WIFE. 514 domioil of origin, though such foreigner be resi- dent and domiciled in his domioil of origin at the commencement of and duration of the suit. Ho-ah-Mie v. Ho-ah-Mie, 6 V.L.R. (I.P. & M.,) 113; 2A.L.T, 93. Per Higinbotham, J. — The jurisdiction con- ferred by these sections (Sees. 61, 62, and 87 of the " Mairiage and Matrimonial Causes Statute 1864,") is practically unlimited. But it does not follow that the Court will in all cases exercise the jurisdiction it possesses .... The petitioner is entitled to insist on the rule that where a Court has power conferred on it to do a judicial act, and the object of the power is to effectuate a legal right, it is imperative on the Court to exercise that authority at the instance of a party interested and having the right to make the application. Ibid. Jurisdiction — Domicil.] — A husband and wife were married in England, and shortly after- wards came to Victoria, where they acquired a domicil, and while there the wife eloped with the co-respondent. The husband, not finding employment in Victoria, returned to England. Afterwards he came again to Victoria to bring his suit for dissolution of marriage, and stated he would remain in Victoria if he could get employment. There was proof of due service upon, but no appearance for respondent or co- respondent, held by Stawell, C.J., and Fellows, J. (dubitante, Molesworth, J.), that the service of the citation did not confer jurisdic- tion; that the husband had acquired no new domicil in Victoria after his return to England so as to give the Court a jurisdiction, and that these facts must be considered, even in the absence of appearance by the wife and co- respondent. Petition dismissed. Duggan v. Duggan, 3 V.L.R. (I. P. & M.,)71. Jurisdiction of Court — Domicil of Husband (Respondent).] — The Court has no jurisdiction in a suit by a wife for dissolution of marriage where the husband has never been in the colony and the wife has only come to the colony since the marriage. Kretzschmar v. Kretzschmar, 4 A.J.R., 131. (2) Procedure, Practice and Pleadings. (a) Pleadings, Citation and Service thereof. Petition — Supplemental Petition — Matters of Pleading — Divorce Rule 58 — Equity Rule 11.] — The petition ought not to state acts of adultery with any person not made a co-respondent unless the Court has dispensed with his being made a co-respondeut. Where a respondent has com- mitted, after service of the petition, adultery with another person not a co-respondent, the petitioner may obtain leave to file a fresh petition, in the nature of a supplemental pe- tition, setting forth the acts of adultery and making such other person a co-respondent. Smith v. Smith, 3 V.L.R. (1. P. & M.,) 122. Granting Judicial Separation at Request of Re- spondent in Suit for Divorce.]— On trial of the issues in a suit for divorce, the jury found that the allegations of adultery against the respon- dent and co-respondent had not been proved, but that counter allegations by the respondent against the petitioner of adultery and cruelty were proved. The respondent thereupon re- quested leave to amend her answer, by inserting a prayer for judicial separation and permanent alimony. Held that the Court had no power, even if the answer prayed it, to grant the request of the respondent in the same suit. Smith v. Smith, 4A.J.R..129. Costs.] — The Court, however, dismissed the petition with costs. Ibid. Petition — Omission of Co-respondent's Name from Title — Amendment — New Citation.] — Where the name of the co-respondent has been omitted from the title of the petition, but is mentioned in the body of the petition, there is no occasion to amend the petition, but a new citation must be issued and served. Fisher v. Fisher, 2 V.L.R. (I. P. them by A. was a valid execution of the rights reserved by her, as regarded the two sums of £6000 and £8000 then in their hands, and in the absence of fraud gave the bankers a lien on those sums for any future overdraft that might be made in accordance with the terms of such letter. The dictum of Lord Justice Turner in the case of Johnson v. Gallagher (3 D. F. & J. 494) as to the liabilty of the separate estate of a married woman for debts contracted with reference to such estate, approved and adopted. The case of Shattock v. Shatlock (L.B,. 2 Eq. 182) dissented from. The London Chartered Bank of Australia v. Lempriere, 1 V.R. (E. ,) 191 ; 1 A.J.B,., 175. Appeal, L.R. 4 P.O., 572, 590, 596. Woman living Apart from her Husband and Having Separate Estate.] — C, a married woman living apart from her husband, and having sepa- rate estate, was sued for rent before justices, who made an order for payment. Held, on ap. peal, that the contract having been entered into after the "Married Women's Property Act 1870" (No. 384), it was immaterial when C. was 547 HUSBAND AND WIFE. 548 married, and that the Court would not interfere with the decision of the justices as to the suffi- ciency of the evidence. Counsel v. Love, 3 A.J.R., 34. "Married Women's Porperty Act" (No. 384), Sec. 18 — Liability for Contracts.] — C, a woman, was married in August, 1867, and previous to marriage a deed of settlement containing a clause restraining anticipation was executed by the husband by which certain lands were vested in trustees to secure £5000 in trust for C. Some portions of the lands were sold under a power to that effect, and with the proceeds some shares in a gold mining company were purchased. C. and her husband were sued on a bill of exchange accepted by them jointly. The creditor obtained judgment, and obtained an order under Sec. 208 of the Act No. 274 to attach the shares standing in the name of the trustees. On a rule nisi to set aside the order, Held that Sec. 18 of the Act allowing married women to sue and be sued as femmes soles in civil proceedings, did not impair the position of a woman married before the Act, not being retrospective, and did not apply to the present case, and that the property vested in the trustees could not be attached under Sec. 208 of the " Common Law Procedure Statute" (No. 274), even although the contract on the bill arose after the Act No. 384 was passed. Hutch- ings v. Cunningham, 3 A. J.R., 64. Husband Acting as Agent for Wife with Sepa- rate Property.] — A husband purchased goods on credit for his wife, who had separate property, without disclosing whether he was buying for himself or as agent. Held, that the vendors might, on proving that the wife was the prin- cipal in the matter, maintain an action against her for the price of the goods. M'Intosh v. Tonkin, 4 V.L.R. (L.,) 127. Contract with Husband — Act No. 384, Sec. 18.] — Where a husband agrees to transfer to wife certain property, she undertaking to manage, pay his debts, and send him small weekly payments, and the wife has no separate estate at time of the contract, this is not a con- tract enforceable by him against her, under Sec. 18 of "Married Women's Property Act 1864." Bryant v. Patten, 3 V.L.R. (E.,) 86. Liability of Married Woman having Separate Estate to be made Insolvent.] — In re Isaacs, 1 V.L.R. (LP. &M.,) 1, post under Insolvency, column 592. As to Evidence of Separate Property on making a Married Woman Insolvent.] — See Jn re Dickson, 5 W.W. & a'B. (I. E. & M.,) 4 ; In re Willison, 4 V.L.R. (I. P. & M.,) 67 ; In re Cunningham, 5 V.L.R. (I. P. & M.,) 60; and/» re Nelson, 2 A.L.T. 27, post under Insolvency, column 617. Replevin — "Married Women's Property Act," Sec. 18.]— By virtue of Sec. 18 of the "Married Women's Property Act" a, married woman hav- ing separate property is liable to an action for replevin, where the warrant of distress was signed by her daughter in her presence, and by her authority, but was not attested before a justice or attorney under Sec. 73 of the " Land lord and Tenant Statute 1864." Field v. Hew- lett, 4 A.J.R., 152. (e) Actions by and Remedies of Married Woman in Respect of. Act No. 384, Sees. 2, 3, 4, 18.— Ejectment.]— A married woman may maintain ejectment in her own name and without joining her husband as a co-plaintiff, in respect of land which has been acquired since the Act, even though she was married before the Act. Somerville v M' Donald, 1 V.L.R. (L.,) 206. Suit by Married Woman to Eecover Separate Estate Seized by Husband's Assignee in Insol- vency — "Insolvency Statute 1871," Sec. 17.]— In re Summers, ex parte Hasher, 10 V.L.R. (I. P. & M.,) 78 ; see under Insolvency, column 650. Married Woman Presenting Petition for Seques- tration — It Must Appear on Face of Petition that Married Woman has Separate Property.] — Inre Ritchie, 8 V.L.R. (I. P. & M.,) 1 ;3 A.L.T., 88; post under Insolvency, column 584. Act No. 384, Sec. 18— Action for Negligence by Wife Alone.]— The effect of Sec. 18 is to make a married woman to whom it applies (i.e., a married woman having separate property) a feme sole to all intents and purposes as regards torts and injuries as well as property, and such a married woman may sue alone inrespect of injuries occasioned by negligence. Spencer v. Board of Landand Works,! V.L.R. (L.,)448; 3 A.L.T.,61. (/) General Rights and Powers Created thereby. Power to Hold Publican's License — " Married Women's Property Act" (No. 384), Sec. 18.]— A woman even having separate estate is not quali- fied to hold a publican's license. Regina v. Nicholson, ex parte Minogue, 10 V.L.R. (L.,) 255; 6 A.L.T, 102— post under Licensing Acts — Licenses generally. Capacity of Wife to Make a Will.]— Si post under Will — Testamentary capacity, and what instruments entitled to probate. Power to bring Suit for Administration.]— A married woman who has obtained administra- tion, but having no other separate estate except the subject matter of the suit, cannot bring a suit with reference to the real estate of an intestate of which she is administratrix without making her husband a party. Howe v. Crisp, 7 V.L.R. (E.,) 24. Woman having no Separate Estate other than that left by Will — Inability to Obtain Probate without Husband's Consent.] — In the Will of Swalling, 9 V.L.R. (I. P. & M.,) 24; 4 A.L.T., 168 ; and see other cases under Will — Probate and Letters of Administration — To whom granted. (3) Disabilities of Married Women generally- Liability for Contribution on Winding up of Com- pany — Coverture when Pleaded.] — In re Aw- 549 HUSBAND AND WIPE— ILLEGAL ASSOCIATION. 550 tralian Submarine Working Coy. ex parte Long- ley, ante column 173. Inability of Married Woman to give Evidence for or against ber Husband.] — See Jtegina v. Neddy Monkey, ante column 311. Wife a Trustee cannot Devise Trust Premises to her Husband.] — Regina v. Templeton, ex parte Allen, 4 A.J.R., 70. Post under Landlord and Tenant — Parties. Presenting a Petition de lunatico inquirendo — Wife cannot do so without next Friend.] — In re Fulker, 3 V.L.R. (E.,) 233 ; tn re Feehan, 6 V.L.R. (E.,) 237. Post tinder Lunatic— Prac- tice — Commission de lunatico inquirendo. Inability of Married Woman to Obtain Pro- bate without Husband's Consent.] — See cases post under Will — Probate and Letters of Ad- ministration — To whom granted. Inability of Married Woman to hold Miner's Eights or to Occupy Residence Area.] — Foley v. Norton, 4 V.L.R. (M.,) 13. Post under Mining — Interests in Mines — Miners' Rights and Resi- dence Area. A Married Woman cannot be Appointed Guardian of an Infant.] — In re Eonayne, 6 A.L.T., 33. (4) Wife's Property other than Separate Estate. (a) Sale, Charges, and Mortgages of Wife's Property. Mortgage — Seed Ineffectual as a Convey- ance — Action on Covenant to Pay.] — An action may be maintained against a married woman upon a covenant to pay contained in a mort- gage deed, although the deed not having been acknowledged by her in the manner prescribed by sec. 61 of the " Transfer of Land Statute," and the " Seal Property Statute 1864," sec. 71, before a commissioner, is inoperative to convey the mortgaged premises. The intention of the Legislature was not, that the prescribed formalities being omitted should render the deed void as » deed, but should render it in- effectual as a conveyance. Trewhella v. Willi- son, 4 V.L.R. (L.,) 122. Mortgage by Married Woman — Acknowledg- ments to Bar Interest.] — Where a married woman seised in fee mortgages her real estate, such mortgage does not change its ownership further than investment indicates. A. , a married woman so seised in fee, mortgaged part of it to B., and afterwards married C. A. and C. then mort- gaged other part to D. B. and C. were paid off and conveyed to such uses as she should appoint. A. and C. then mortgaged (September 1865) the whole of the estate to E., by deed duly acknowledged by her, subject to redemption by them, or either of them, and subject to a proviso for reconveyance to her in fee, or as she or they should direct. In 1866 A. made a will referring to this deed, leaving the land to her husband, C. , and appointing executors. September, 1873, E., by deed, conveyed to such uses as she should appoint, and in default to her in fee. Held that although she never by deed acknowledged subjected her estate to a disposal which would be invalid by her as a married woman, yet the intention to bar her interest need not be shown by recitals in the deed, but might be shown by extraneous evidence, and that deed of September 1, 1865, and the will afforded such evidence ; and that devise to husband was effectual. Dodgson v. Clare, 5 V.L.R. (E.,) 137. Consent of Husband — lunatic and Living Apart —"Real Property Statute 1864," Sec. 78.]— The Court will dispense with the concurrence of a lunatic husband living apart from his wife in a conveyance by her of real estate. In re Willcox, 6 V.L.R. (E.,) 120. (b) Acknowledgments to Bar Wife's Interest. Evidence of Execution of the Deed — General Commissioners — Act No. 112, Sec. 87.] — A special commission is necessary to take the acknow- ledgment of a married woman under Sec. 87 of the Act No. 112, in a place where there is a perpetual commissioner of the Court; for the power of appointing general commissioners does not extend to such a case. In re Sargood, I W.W. & A'B. (E.,) 48. "Real Property Statute 1864," Sec. 14— Two Married Women.] — On an application for a com- mission to take the acknowledgment of two married women to a, deed, the Court will not include them in one order, but will make separate orders for each. In re Tennent and Ritchie, 4 V.L.R. (E.,) 60. ILLEGALITY. Setting Aside Transactions For.] — See Con- tract — Gaming and Wagering — Land Acts. ILLEGAL ASSOCIATION. What is Not — Association for Returning Mem- bers to Parliament.] — The Victorian Association, as stated by its prospectus, was established for the purpose of seeking out and promoting by all lawful means in its power the return to Parlia- ment of men of liberal and enlarged views, who,byexperience,education,and character, were calculated to command the respect and enjoy the confidence of their fellow-colonists ; and who would, in their political career, be guided by a tenacious regard for the public welfare rather than by a desire to obtain the temporary appro- bation of any section of the community. The treasurers of the society sued a member upon the latter's undertaking to subscribe to the funds of the society. Upon special case, Held that the mere probability that illegal means would be used to carry out the objects stated did not render the association illegal ; that the member's undertaking was not void ; and judg- ment for the plaintiffs. Ryan v. Stephens, 1 W.W. & a'B. (L.,) 102. t2 551 INFANT. 552 IMPRISONMENT. Tor Debts.]— See Debtors Act. Action for raise.]— See Malicious Arrest- Tbespass. INDEMNITY. See GUARANTEE. INEBRIATES. Committal to Asylum—" Inebriates Act 1872," g ec , 4.] — A judge of the Supreme Court will not order the release of a person who has been com- mitted to an asylum under Sec. 4 of the "In- ebriates Act 1872," before the period of his detention has elapsed, on the mere ground that the inebriate has changed his mind, and con- siders that he would be better elsewhere. If the inebriate seeks to attack the order of com- mittal, or the means by which it was obtained, he must proceed by habeas corpus. Ex parte Burt, 4 A.L.T., 112. INFANT. Protectipn, Custody, and Education, columnZtA. Maintenance and Advancement, column 554. Contracts and Torts, Liability for. (a) Contracts, column 556. (6) Ratification, column 556. (c) Torts, column 556. Guardians, column 556. Mights and Powers in Other Cases, column 558. Neglected and Criminal Children, column 560. Suits by and against Infants — See Practice and Pleading — In Equity — Infant — Next Friend. (1) Protection, Custody, and Education. Wards of Court — Withdrawal from Jurisdic- tion.] — Permission to take wards of Court out of the jurisdiction will not be granted without sufficient reason. Black v. Black, 4 A.J.B., 166. Costs of Travelling.]— Travelling expenses of infant wards of Court will not be granted out of their estate where there is no necessity for their travelling out of the jurisdiction. Ibid. Ward of Court — Elopement out of Jurisdiction — Marriage— Contempt — Attachment — Mainten- ance.] — Motion by the guardians of a ward of Court to bring under the notice of the Court the circumstances of her clandestine marriage with B., and her elopement with him from Vic- toria to New Zealand, and for an order to secure attendance of B. and protection of infant, and seeking directions as to marriage and the settlement and disposal of infant's property and income thereof, and for her maintenance and guardianship. Held that Court could not en- tertain questions as to validity of marriage, as parties were not present, or as to the settlement; but Court directed an attachment against B. for contempt, to be executed by the solicitors of the guardians when practicable, and that no further payments should be made out of funds in or towards the maintenance, clothing, or education of the infant, who had eloped from the control of a person sanctioned by the Court. Ware v. Ware, 1 V.L.R. (E.,) 233. Removal of Infant Ward out of Jurisdiction.]— For circumstances in which an application by the mother of an infant ward, with the approval of the other guardian, to remove the infant out of the jurisdiction was referred to the Master, see Cattanach v. M'Koume, 4 V.L.R. (E.,) 213. Custody of an Illegitimate Infant.] — An infant, H. Ah Kee, was the illegitimate child of Ah Kee and E. W., and had been placed by its mother in the custody of H. Habeas corpus for the delivery up of the infant to E. W. Held that the Court will not interfere in trans- ferring a child from the hands of a person with whom the applicant has deliberately placed it, unless satisfied that it would be for the child's benefit, and that the applicant is a person of good moral character. The Court thinking that the applicant's character was very doubtful upon the evidence, refused to inter- fere. In re Ah Kee, Ex parte Walker, 3 V.R. (L.,) 38; 3 A.J.B.. 33. Custody of Infant — Mother a Drunkard.]— When a mother of infant children was an habitual drunkard, the Court removed them from her custody and ordered a reference to Master to appoint a guardian. Phair v. Powell, 5 V.L.R, (E.,)264. Custody — After Father's Death — Mother.]— After the death of an infant's father the claim of the paternal grandfather to the custody of the infant is not superior to that of the mother, though the infant has been left in the custody of the grandfather for six years before the death of the father, leaving the infant in such custody not being an abandonment of the child. Re Sanders, 6 V.L.R. (L.,) 10. Custody of Children on Divorce or Judicial Sepa^ ration.] — See Husband and Wife — Judicial Separation and Divorce. Sending Out of Jurisdiction for Eduqation.]— The Maste'r's report stated that it was de- sirable that W., a ward of Court, should be sent to England to one of five or six enumerated schools, for education. Held that the Court is loth to send its wards out of the jurisdiction; but that circumstances may induce it to do so, and it appearing that W. had a fortune of only £10,000, and that there were no special cir- cumstances to induce it to break through its 553 INFANT. 554 general rule, application refused. Ware, 3 A. J.R. 11. Ware v. Religious Education.] — In dealing with an infant's religion Courts of Equity regard the father's more than the mother's, but in case of an adopted infant they would not inter- fere with the adopted father's preference, and if the adopted father furnished the means of support would prefer his discretion to wife's. The Court will regard the views of an infant of the age of 14 upon religious matters if definitely formed, but she should be placed for some time in a position where she will be free to exercise her own judgment, and free from intrusive conversations upon religious subjects, and the Master will examine her to ascertain what her views are. In re Pennington, 1 V.L.R. (Eq.,) 97. Eeligious Education.]— When an infant states that she has a conscientious objection to attend any but a Roman Catholic establishment the Court will not yield to such an inclination on her part, if there is no strong reason, from the religion of her parents by nature or adoption, for the Courts preferring that religion to any other. Also, if trustees have a voice in the marriage of an infant they ought to have some influence as to the child's forming acquaintances during infancy. In re Pennington, 1 V.L.R. (Eq.,) 343. Per the Full Court. If the religious impres- sions produced on an infant's mind are so strong as to make it dangerous to attempt to interfere with them, she should not be in any way coerced, or even persuaded, to alter them. The religion of a sole guardian should be cwteris paribus that in which the infant is to be brought up. In re Pennington, 2 V.L.R. (E.,) 49. On reference to the Master to inquire as to a guardian, and a scheme for the education and maintenance of an infant, he — in deference to what he believed to be an expression of opinion by the Court, and contrary to his own judgment — reported in favour of a sole guardian and schoolmistress, both of whom were of a different religion from that in which the infant had for some years been brought up. A person at whose school the child was, and who had for some years educated her in her own religion excepted to the report, on the ground that the child was attached to her, had strong religious convic- tions, and had formed friendships at the school. The exceptions were overruled. On appeal to the Full Court against the scheme, but not against the guardian, Held under the special circumstances of the case that the order should be reversed, the report already made set aside, and the question remitted to the Master, to be dealt with under the original order. Ibid. Religion— How Dealt With.] — The conduct or misconduct of those who have had the custody of an infant should in no way influence the Master or the Court in determining what is to be done for the infant's spiritual welfare. Ibid. Education — Discretion of Trustees — Interference by Court.] — A testator by will directed the trustees to apply certain income for the main- tenance of an infant son " at their discretion." The trustees wished the infant to be sent to a certain school, but the infant, aged 18, wished to go to another. Motion to refer to Master to settle a scheme of education refused, the Court ■ refusing to' interfere with trustees' discretion. Mannagan v. Flannagan, 5 V.L.R. (E.,) 272. (2) Maintenance and Advancement. Past and Future.] — On motion for maintenance where mother, who had been appointed guardian and her second husband had maintained an infant, and it appeared that the mother had no separate property and her second husband was a carpenter earning £150 a year, and that the infant's fortune consisted of certain debentures, of which the annual dividends were £14, and a sum of £69 had accumulated from the dividends, ordered, that the arrears of interest be paid to the mother for past maintenance, and accruing dividends be paid for future maintenance till further order. In re Hamilton, 4 W. W. & a'B. (E.,)95. Fast Maintenance not Allowed out of Corpus where Funds under Control of Court. ] — Mitchell v. Tuchett, 5 V.L.R. (E.,) 31 ; post under Trust and Trustee — Powers and rights of trustees. Out of Corpus] — A testatrix by will left all her real and personal property to trustees upon trust for three infant children, the property to be converted and the proceeds paid to the children when the youngest came of age, and she directed the trustees until conversion to pay the whole of the net income towards the main- tenance of the children. The will contained no advancement clause. On motion for liberty for trustees to pay out of corpus a sum in aid of maintenance and a sum of £50 as an apprentice fee for one of the infants, it appearing that the realty was producing a rental of £1 per week, and that each infant's share in the personalty amounted to £250, motion refused. In re Neeson, 6W.W. & a'B. (E.,)319. Out of Corpus — To what Age Poor Children Allowed Maintenance.] — Five infants were entitled to £300 each, the income from which was insufficient to maintain them. On motion for allowance from corpus for past and future maintenance, Held that the Court would not in this motion allow the mother anything as for past maintenance out of capital; ordered, that such portion of the capital be allowed for future maintenance until the infants reached the age of eighteen as, with the income from each share, would make up £20 a year to each infant. In re Moylan, 5 A.J.R., 67. When Estate under Management of Curator.]— Where the estate in which an infant is interested is under the management of the Curator, the Court will make an order for maintenance, and for appointment of a guardian. In re Nimmo, 5 A.J.R., 79. When not Allowed out of Corpus.] — Where the share to which an infant was entitled under an intestacy was only £159 lis. 9d., the Court 555 INFANT. 556 refused to break in on the corpus to provide for maintenance. In re Hunt, 10 V.L.R. (E.,) 224; 6 A.L.T., 84. •Will— Accumulation till Children came of Age — No Provision for Maintenance.]— Motion for order for trustees to apply income of certain property towards the maintenance of infants. This property was left by will on trust for children on attaining majority, with a direction for accumulation of income during infancy, but with no provision for maintenance. Order made for application of income from personalty for maintenance. In re Gardiner, 5 A. J.R., 153. Where a testator by his will gave to his widow a life interest in certain property pro- ducing a rental of £150 per annum, and in' £2000 worth of debentures, and directed the widow to maintain and educate an infant, the Court refused" to allow any sum by way of maintenance to the widow. In re Folk's Will, 6 W.W. & a'B. (E.,) 171. Where not Directed in Will— Accounts.] — In a Will no maintenance was directed, but property was left in an ambiguous manner, which the Court construed as giving income in equal shares to wife and children, and the corpus to the child- ren in equal shares after wife's death. A., the wife, had been maintaining infants, and had advanced portions out of corpus to those who attained majority, keeping accounts of expendi- ture and receipts, which had never been objected to by children who were all of age at time of suit. Held that A. was liable to restore the portions of the corpus she had appropriated. Accounts directed as to what each was entitled to, and of what had been expended in mainten- ance of each. Stevenson v. M'Intyre, 5 V.L.R. (E.,) 142. And see cases post under Will — Incidents of Devises and Bequests. Increased Allowance — Reference.] — Where, upon reference, the Master finds an annual allowance for infants, wards of Court, for a, definite period, and after that time a larger sum than that fixed upon, was suspended with- out order, the Court, even though the income had, owing to unexpected circumstances, largely increased, refused to sanction the increased ex- penditure ; but made a further reference to the Master to report as to future allowances. In re M'Whae, 6 V.L.R. (E.,) 100; 2 A.L.T. 1. Who may Apply Income to.] — The administra- tor of an intestate, dying since the passing of the "Statute of Trusts 1864" (No. 234), is not a trustee within the meaning of Sec. 77, and, therefore, has no power by virtue thereof to apply income to the maintenance of infants. In re Boivman's Trusts, 6 V.L.R. (E.,) 124; 2 A.L.T., 13. Discretion of Trustees.] — The Court will not interfere with the discretion of trustees as to amount of maintenance when such discretion is vested in them by the will. Grant v. Grant, 5 V.L.B.. (E.,) 314. In the Will of M'Lean, ibid p. 319; post under Trust and Trustee— Rights and Powers of Trustees. Duties of Trustees as to — Maintenance not to be Applied to Payment of Past Debts.]— Green v. Sutherland, 3 A. J.R., 3; post under Trust and Trustee— Rights and Powers of Trustees. Decree Allowing Maintenance for Certain Period — Variation Allowed by Extending Period for Maintenance.]— See Kearney v. Lowry, 1 A.J.R. 95, post under Practice and Pleading — In Equity. Decree and Order. Allowance for a Trousseau.]— Upon an impend- ing marriage of a female ward of Court, whose fortune was worth £12,000, the Court referred it to the Master to inquire whether it would be proper to allow any and what sum not exceed- ing £250 for the purchase of a trousseau. Ware v. Ware, 6 W. W. & a'B. (E.,) 326. Where a will directed the widow to maintain and educate infants, and contained a power of advancement during minority, the Court re- fused without evidence of special circumstances to sanction an advancement of £100 for a wedding outfit out of a daughter's share. Sichel v. O'bhannassy, 3 V.L.R. (E.,)208. Contingent Interest — Breaking into Capital- Practice.]— Where infants are entitled to con- tingent interests only under a will, the Court will not make an order authorising executor to break into capital, unless notice has been given and all persons interested consent; such consents should be given in open Court, a consent filed and verified by affidavit will not do. In re Hyland, 7 V.L.R. (E.,) 169. (4) Contracts and Torts, Liability for. (a) Contracts. Agreement to Serve under "Military and Naval Discipline Act 1870," Sec. 2.]— An infant may, under Sec. 2 of the " Military and Naval Dis- cipline Act 1870," even without his parents' con- sent, enter into an agreement to serve. In re Hayes, 4 A.J.R. 34. See S.C., ante columns 56, 57. (6) Ratification. What Contracts Capable of.]— An engagement by an infant to serve on board a man-of-war under the " Military and Naval Discipline Act 1870," is a contract for the benefit of the infant, and capable of ratification. In re Hayes, 4 A.J.R., 77. See S.C. ante columns 56, 57. (c) Torts. Trespass by Infant— Liability of Parent.]— A father is not legally responsible for his son's tres- pass, unless the relation of principal and agent exists between them. Maudoit v. Ross, 10 V.L.R. (L.,) 264, 266 ; 6 A.L.T., 104. (5) Guardians. Who has Better Eight to be.]— In a contest between the paternal and maternal uncles of an infant for her guardianship, her property being derived from the maternal side, Held that the maternal uncle had the better right. In re Johnson, 8 V.L.R. (E.,) 211. 557 INFANT. 558 The jurisdiction of Courts of Equity in the appointment of guardians, arises entirely from property. Ibid. Who may he — married Woman.] — Per Moles- worth, J., in Chambers.— A married woman cannot be appointed guardian of an infant. lie Bonayne, 6 A.L.T., 33. Appointment of.] — On an order of the Court referring to the Master to appoint a guardian, the guardian is sufficiently appointed by the Master's report being confirmed. The order of reference to the Master should also embrace the costs of the application and reference. In re Talbot, 1 W. & W. (E.,) 86. Appointment of, Without Suit.] — Guardian for infant appointed without suit, where infant's property consisted of real estate in "Victoria of the value of £400, and a legacy of about £3000, the guardianship being limited to the real estate. In re Mackay, I V.R. (E.,) 17. Motion for Appointment of Guardian of Person — Guardian "ad litem."] — Where a motion is made by trustees of an infant's property for ap- pointing a guardian of herperson, and is opposed, a guardian ad litem is necessary to represent the infant, and the Court will make an order for that purpose instanter. In re Penninqton, 1 V.L.R. (E.,) 97. Appointment.] — An orphan child was adopted by P., who, by his will, left property for her, with a trust for her maintenance during infancy. After the death of P. the child was taken pos- session of by C, a stranger, and retained against the will of the trustees. Motion by C. to be appointed guardian refused. Held that an infant above age of twelve years has no right to choose a guardian, nor to supersede the dis- cretion of the trustees of her property derived under the will of her adoptive father. Ibid. Guardian of Illegitimate Child.] — Guardian of an illegitimate child, nominated by the father's will, appointed guardian of person and estate by the Court without reference, and allowed commission on receipt of rent. Nixon v. Oold- ' h, 1 V.R. (E.,) 92; 1 A.J.R., 56. Infant's Estate in the Hands of Curator.] — Order made on motion appointing mother guardian of infant whose estate was in the hands of the Curator. In re Davey, 3 V.L.R. (E.,) 71. Will Directing Trustees to Apply to Court, if necessary, to be Appointed Guardians — Appoint- ment of Mother.]— Where a will purported to appoint trustees as guardians and directed them to apply to Court, if necessary, to be appointed, the Court made on motion an order, with the consent of the trustees, appointing mother as guardian. In re Will of M'Lean, 5 V.L.R. (E.,) 319. Removal of Mother for Neglect — Increased Al- lowance of Infant to Support Mother who had made away^ with her Allowance.] — Motion for re- moval of mother and to appoint a guardian in her place. An infant under his father's will was allowed £100 a year. It was proved that the mother had been unable to control him or to keep him attending school, and that the infant was ignorant, though thirteen years of age. The mother had an allowance of £200 a year, but she had spent it, and was dependent on what she could get out of the boy's allow- ance. Order made referring it to Master to approve of a proper person to be appointed guardian in the mother's place, and to inquire and report whether any and what increased allowance should be made to the infant, and having regard to the means of support of the mother, to inquire into the causes of her desti- tution, and to report whether any and what addition to the allowance for the infant should be made for the relief of the mother. Punch v. Lane, 3A.J.R. 115. Appointment of Guardian ad litem] — See cases post under Peacticb and Pleading — In Equity — Infants. (6) Bights and Powers hi other cases. Lease of Property — Act 11 Geo. IV. and 1 Will. IV., cap. 65.]— The policy of the 11 Geo. IV. and 1 Will. IV., cap. 65, Sec. 17, is to encourage long building leases to tenants who will im- prove the infant's property, and at a fixed defi- nite rent covering the entire period of the tenancy. And therefore a lease for five years, made on the following terms, viz., that the guardians should, out of the infant's estate, lay out a sum of money in improvements, and that until such improvements were made, a rent of £80, and after completion of improvements a rent of £160 should be reserved, is not within I the policy or design of the Act. In re Dight, 1 W. & W. (E.,) 131. The words "or other purposes," contained in the clause, ought to be construed, if not as to the powers of the Act, yet in the discretion of the Court, on the principle of ejusdem generis with the antecedents. Ibid. Petition under Act 11 Geo. IV. and 1 Wil. IV., cap. 65, for Liberty to Lease.] — The meaning of 11 Geo. IV. and I Will. IV.,c. 65, sec. 17, enabling the Court to authorise leases of infants' land "at the best rent that can be obtained, "is that the Court v shall exercise a discretion as to the amount of rent, and not delegate the discretion to arbitration. In re Dight, 2 W. & W. (E..) 139. Receiver has Power to Grant Leases of Infant's Property.]— Brock v. M'Phail, 1 W. & W. (E)., 12. Post Receiver — Powers, &c. And see generally under Receiver. i Partition of Infant's Estate.]— Partition of the share of an infant tenant-in-common should be by commission, and not by a reference to the Master. Beitk v. Beilh, 2 V.R. (E.,) 110. Leave to Bid for Desirable Property in which Infant was Interested.] — An infant had a half- interest in some property which was advertised for sale, and which was desirable property. On motion for leave for the infant to bid at the 559 INFANT. 560 sale, Held that the Court had no power to convert his uninvested personalty, which was sufficient for the purposes of the purchase into freehold, and motion refused. Ware v. Ware, 5 A.J.R. 4. Release to Trustee— Infant Examining Accounts and Expressing Satisfaction Therewith.] — A tes- tator devised property to a trustee on trust for an infant, directing him to apply part of the rents, &c, in maintenance and education of an infant, and accumulate and invest the residue upon trust for infant on attaining age. The codicil directed that in case M., the trustee, should take reasonable care of the property, and pay off a mortgage on the property, he should not be liable for back rents or otherwise. M. kept down interest on the mortgage, paid for education and maintenance, but did not pay off the mortgage. Shortly before the infant became of age, M. went through some ac- counts he had kept roughly and the in- fant expressed satisfaction with them. Two days after the infant came of age he released M. from all liability by a deed which recited the accounts, and a balance found, and by which the property was conveyed to infant. On a suit to set the release aside, Held that the infant was not, under the circumstances, a free agent, though there was no evidence of his being cheated or coerced ; that the recitals in the deed as to accounting were stronger than the facts warranted ; that the bargain was indistinct, and was actually made before he came of age. Release set aside, and accounts of rents and expenditure ordered. O'Leary v. Mahoney, 5A.J.R., 41. Release of Trustee by Cestuisque Trustent on the day of or shortly after Attaining Majority.] — Westwood v. Kidney, 5 A.J.R., 25. Bennett v. Tucker, 8 V.L.R. (E.,) 20 ; '3 A.L.T., 108. See post under Trust and Trustee — Rights and Powers of Trustees. Purchase of Infant's Estate by Next Friend Set Aside.] — Larnach v. Alleyne, 1 W. & W. (E.,) 342 ; post under Trust and Trustee— Rights and Powers of Trustees. Accumulation of Income — Discretion of Trus- tees as to Disposition — Motion for Payment of Accumulation on Attaining Majority.] — A tes- tator left real and personal property to trustees on trust for his son, an infant, for life, with remainder to his children ; the will directing application of the income to the maintenance of his son during minority, and accumulation of so much as was not needed, and investment with- out prejudice to the right of the trustees to apply the accumulations in the same way as if it had been just accrued due. Motion on be- half of infant son on attaining majority for pay- ment of accumulations to him, some of the trustees only consenting, refused on the ground that all the trustees had not agreed as to dis- cretion and as to the motion, and that the plaintiff was only contingently entitled. Green v. Nicholson, 5 A.J.R., 131. Compromises — Next Friend.] — An infant's next friend has no authority to compromise an action brought by the infant by such next friend. The authority of the next friend is limited to prosecuting the action. Glassford v. Murphy, 4 V.L.R. (L.,) 123. Taking Lands of Infant — Special Guardian must he Appointed — " Lands Compensation Statute 1869,'' Sec. 6.] — A special guardian must be appointed to treat for and convey the lands of an infant. A receiver has no power to sell or convey under See. 6 of the Act. Hunter v. Hunter, 4 A.J.R., 24, 65. Land Taken under " The Lands Compensation Statute 1869" (No. 344), Sec. 6— No. 392 (Amend- ing No. 344), Sec. 4 — Special Guardian— Costs.]— Where land of an infant ward of Court is compulsorily taken for the construction of a Government Railway, the Court will appoint a special guardian to treat with the Board of Land and Works in respect of the land so taken ; but will not in the same order provide for the costs to be incurred. A separate appli- cation with reference thereto, must be made after the receipt of the purchase money. Smith v. Smith, 4 V.L.R. (E.,) 233. Sale of Infants' Property by the Court.]— An administrator of his wife's land, beneficially entitled to one-third thereof, and holding the other two-thirds for his children, mortgaged the whole property to a bank, and expended the money borrowed in improving the property. The bank advanced the money and took the mortgage with notice of the infants' claims. Upon suit by the children for redemption of two-thirds of the property, Held that under such circumstances, although it might be ad- visable to sell the property, the Court had no power to order a sale against the children's wishes. Droop v. Colonial Bank of Australasia, 8 V.L.R. (E.,) 7. Appearing before Justices — Next Friend — Costs.] — An infant may appear before justices, and may obtain a Rule to prohibit the proceed- ings, without, in either case, the appointment ' of a next friend, but in such a case the Court will not allow him the costs of the Rule to prohibit, though it be made absolute. Eegina v. Little, ex parte Reynolds, 8 V.L.R. (L.,) 124; 4 A.L.T., 4. An infant cannot be a relator to an informa- tion. Attorney -General v. Scholes, 5 W.W, & a'B. (E.,) 164, 173. (7) Neglected and Criminal Children. " Neglected and Criminal Children's Act 1864" (No. 216), Sec. 16— Evidence of Age.]— A child was charged before a, magistrate in October, 1865, as a "neglected child," under the Act No. 216. No evidence was given of her age; but the magistrate being of ' ' opinion" that she was under fifteen years of age, convicted her and sentenced her to six hours' imprisonment, and in addition directed her to be sent to the Sunbury Reformatory School. She escaped from the Reformatory, was captured, convicted in July, 1866, of the escape, and sentenced to further detention. In September, 1866, cer- tiorari was applied for to quash the proceedings, on the ground that she was over fifteen in 561 INJUNCTION. 562 October, 1865, when she was first convicted, and that " no evidence whatsoever" of her age was taken at the first conviction. Held that the application was too late as to the first convic- tion, more than twelve months having elapsed ; and of no avail as to the second, which could not be upset till after the upsetting of the first. In re Brazenall, 3 W.W. & a'B. (L.,) 76. "Neglected and Criminal Children's Act 1864," Sec. 12 — Evidence of Age.]— Under the Act No. 216, Sec. 12, the magistrate is not bound to take any evidence" at all of the -child's age, and he may form his "opinion" of the age of the child where there is no evidence at all — the words "unsatisfactory evidence" including in their scope "no evidence at all." Ibid. " Neglected and Criminal Children's Act 1864," Sec. 27 — Who may Proceed under— Clerk of Petty Sessions.] — The Clerk of Petty Sessions is a proper person to proceed under Sec. 27 of the "Neglected and Criminal Children's Act 1864" to recover arrears in respect of an order made on the complaint of a constable or school super- intendent under Sec. 24. Regina v. Justices at Richmond, ex parte Edlin, 10 V.L.R. (L.,) 87. "Marriage and Matrimonial Causes Statute" (No. 268), Sec. 30.]— If a child is withheld from a father who is competent and willing to receive and support it, the father is not liable to have an order for maintenance under Sec. 30 made against him. M'Farland v. M'Farland, 1 V.L.R. (L.,) 303. INFORMATION. Criminal.] — See Criminal Information — Defamation— Nuisance. ' Bill and Information.] — See Practice and Pleading — In Equity. INJUNCTION. I. General Principles, column 561. II. In what Cases Granted. (1) Restraining Proceedings in other Courts. (a) At Law, column 564. (b) Insolvency, column 565. (2) Covenants and Agreements, column 566. (3) Trespass, column 566. (4) In Other Cases, column 566. III. Practice Relating to, column 569. I. General Principles. Consent Order— No Provision for Sealed Writ.] — An order of Court purporting as by consent at once to restrain defendant from an act, and not providing that a writ of injunction under seal shall issue, is an injunction in itself ; and to base a contempt on it, no writ under seal need issue. Lane v. Hannah, 1 W. & W. (E.,) 66, 71. Liability of Principals.] — The object of the in- sertion in an injunction of the words " servants, agents, and workmen" is to make those persons personally liable to the Court, and the omission of those words will not diminish the responsi- bility of the principals for the acts of their servants, agents, and workmen. Ibid, p. 72. Persons consenting to an order of Court that they shall not do an act, will not be allowed to get and retain the profit of such act when done by their servants, and yet escape liability to the Court on the plea that they gave no express directions to do the act. Ibid. Injunction Against Trustees and Others — Trustees not Chargeable with Wrong Com- plained of.] — A bill was filed against trustees and others alleging that some of the defendants not trustees had made certain fraudulent misrepresentations by which plaintiffs had been induced to assign to another defendant all their interest in the profits of a certain railway contract, and seeking to set assign- ment aside, and plaintiffs had obtained an ex parte injunction restraining defendants from receiving any more moneys payable under contract. On motion to dissolve ex parte injunction, Held, that if representations were fraudulent as alleged, there was no ground for injunction against trustees, who were neither directly nor indirectly chargeable with the re- presentations, and injunction dissolved. Evans v. Guthridge, 2 W. & W. (E.,) 2, 35. Against Person having no Interest in Subject Matter of Suit.] — Where it appeared by an affidavit of a defendant, sought to be enjoined, that he had parted before suit with all his interest in the land in question in the suit, which assertion was not denied by the plaintiffs ; motion for injunction dismissed. Newington Freehold 6. M. Coy. v. Harris, 3 W.W. & a'B. (E.,) 174. Interpretation of.] — An injunction is not to be interpreted retrospectively; unless its terms clearly require it. Mulcahy v. Walhalla Q.M. Cay, 5 W.W. & a'B. (E.,) 103, 110.' Injunctions are not granted with reference to accomplished injuries. Bonshaw Freehold O.M. Coy. v. Prince of Wales Coy., 5 W.W. & a'B. (El,) 140, 154. land Reserved for Public Purposes — leased to Private Person — No title in Defendants.] — Certain land was, under the " Land Act 1869," reserved for public baths and the convenience of the people of Sandhurst. After being used by the municipal Corporation for such purposes for some time it was leased to M. for building pur- poses for his own private profit. On an infor- mation by the Attorney-General at the relation of a citizen of Sandhurst, seeking to restrain- the Council and M. from permitting the land to be used for any other purpose than those for which it had been reserved, Held, on demurrer, that the information did not give any colour of 563 INJUNCTION. 564 title in the defendants to the land, so as to render such a suit necessary, the legal estate remaining in the Crown and the Council being only its tenants at will. Qucere, whether if a case of irreparable mischief had been made out, an information would not lie, if it were shown that such mischief could not be remedied by the Crown resuming possession. Attorney General v. Mayor of Sandhurst, 2 V.R. (E.,) 136; 2 A.J.R., 100. Interlocutory Injunctions — Question of Title — Although the Court will not decide upon the validity of Crown grants for lands sold during a temporary reservation of lands for sale for public purposes upon an application for an inter- - locutory injunction in a mining suit, yet it will not grant an injunction at suit of a holder of a mining claim on the lands to restrain the grantees from mining on the land. Parade G.M. Coy. v. Victorian United G.M, Coy., 3 V.L.R. (E.,) 24. It does not follow, from a party having a legal right, that he may enforce it by injunction. His conduct may in many ways bar him of it, especially where the obtaining of an exparte in- junction is stopped without having been heard. Courts of Equity are anxious to require a full disclosure of facts which may become material, and discharge with costs orders improperly ob- tained, although ultimately the facts disclosed may not be material. It is a question of the general policy of the Court and not of the merits between the parties. A subject upon which Courts are specially anxious for informa- tion is the precise time at which plaintiff or his agents became aware of threatened injury. Where the defendant had chartered from plaintiff a ship for use within special limits, and had concluded special negotiations with the plaintiff's agent for a special charter to another place, and the agent, the day before the pro- posed commencement of the special charter, broke off the negotiations, and obtained an exparte injunction by means of a bill and affidavit setting out the original charter, but omitting to set out negotiations, on motion exparte injunction dissolved with costs. A de- laide Steamship Coy. v. Martin, 5 V.L.R. (E.,) 45. Delay.] — Where bill was filed in December, 1878, answer delivered 1st February, 1879, and motion for injunction brought in July, 1879, injunction refused on the ground of delay in bringing the motion. Chinn v. Thomas, 5 V.L.R. (E.,) 188 ; 1 A.L.T., 26. _ Acquiescence.] — Plaintiffs sought an injunc- tion restraining defendants from allowing water from their drive to pass into and flood that of plaintiff's. Held that having regard to the plaintiffs' long acquiescence in defendants' works, against which they did not seem to have remonstrated during much of their progress, and the defendants' outlay, such injunction would not be granted. Broadbent v. Marshall, 2W. &W. (E.,)115, 121. laches — Acquiescence — Delay. ] — Neva Stearine Coy. v. Howling, 9 V.L.R. (E.,) 98 ; 5 A.L.T., 9. Post under Trade Mark. The Court will not disregard, in considering a motion for injunction, a plaintiffs rights because the infringement is small, nor will it consider the public benefit that would accrue from the act sought to be restrained as of paramount importance. Brooks v. The Queen. 10 V.L.R. (E.,) 100, 110 ; 5 A.L.T., 199. II. In what Cases Granted. (1) Restraining Proceedings in other Courts. (a) At Law. Voluntary Settlement — Insolvency — Action at Law by Trustees.] — X. executed a voluntary settlement of his property upon trustees in favour of certain beneficiaries. In about two years after this his estate was sequestrated and S. appointed official assignee. The trustees brought an action to recover certain dividends received by the assignee from mining shares, part of the insolvent's property. A bill was filed by S. against trustees, to set aside the settlement as fraudulent, and to restrain the action. On motion for injunction, injunction ordered, it appearing that the value of the shares was small in comparison with the rest of the settled property. Note. — A consent decree was afterwards made, setting aside the settle- ment. Shaw v. Patterson, 6 W.W. & a'B. (E.,) 161. Conflicting Evidence.] — Where, on a motion for an injunction to restrain proceedings at law upon a guarantee, the plaintiff alleged that the guarantee had been obtained by fraud, and the defendant denied any fraud, and the conflict of evidence was such, that even if the suit in equity were proceeded with, the main question would have had to be sent for trial to a jury, and the question could as well be tried in the common law action in the first instance, the in- junction was refused. Clarence v. The London and Australian Agency Corporation, 1 A. J.R., 4. Mortgage — Sale of Equity of Redemption — Action for Balance of Mortgage Money.]— S. mortgaged to a Mrs. Sawyers certain land, and sold the equity of redemption to H. Shortly afterwards Mrs. Sawyers renewed the mortgage. It was not paid off, and the property was sold by the trustees of Mrs. Sawyers' will for less than the mortgage debt. The trustees brought an action at law against S. to recover the amount of arrears. On a bill for an injunction to restrain the action at law, interim injunction granted. Skinner v. Gilmour, 3 A.J.R., 15. To Stay Ejectment by Mortgagee after Death of Mortgagor — Mortgagor having Conveyed to Plaintiff in Trust for Himself for Life, Remainder in Trust for X.]— C. conveyed land to D. in trust for himself for life, remainder in trust for X. Six years afterwards C. mortgaged to the defendant bank. C. died intestate, owing a. large sum for principal and interest. The bank served notice of sale on X., but not on D. The bank sold to T. and obtained judgment against X. in an action of ejectment. D. brought a bill to restrain execution of this judgment, alleging that the sale was collusive, T. being the bank's agent. The bank denied T. 's agency, 565 INJUNCTION. 566 and that the sale was collusive ; and the Court believing it, refused a motion for injunction. Daley v. The Land Mortgage Bank, 3 A. J.R. Ejectment — Judgment On — Execution for Costs.] — A., the defendant in an action for ejectment, not having the legal estate, defended the action, and the plaintiff (B.) obtained a judgment against him. On injunction motion by A. against B. , seeking to restrain execution for costs of action, and to restrain B. from tak- ing possession under his judgment, Held that A. not having the legal estate was not bound to defend the action, and the injunction was refused as to the former part, but injunction granted as to latter on A. giving security for the mesne rents from the date of the judgment in ejectment. Foley v. Samuels, 3 V.L.R. (E.,) 72. To Restrain Ejectment.] — Murphy v. Wadich. See post column 566. Cross Injunction — In Equity and at Law.] — Plaintiffs since the filing of their bill had ob- tained an injunction to stay execution in an action of ejectment brought against them by the defendant. Defendant then brought an action against them in respect of trespass. An equit- able plea, put in by the plaintiffs, was struck out, and the defendant obtained, an interim injunction restraining the plaintiffs from mining pending the action. The plaintiffs then applied for an injunction to restrain the defendant from proceeding with his action of trespass. The Court granted the injunction, so far as to res- train the defendant (plaintiftat-law) from pro- ceeding to trial of his action at law until further notice, without prejudice to his enjoying the injunction he had obtained at law, as 3 the order of the Court of Equity had not been made. Australasian G. M. Coy. v. M'Culloch, 4 A.J.R., 32. To Restrain Execution — Execution Against Company where all the Directors had not Con- sented to Judgment.] — Several of the directors of a company commenced an action against it to recover certain moneys. The writ was issued on the 10th of June, and on the same day some of the directors consented to judgment being signed against the company for the amount claimed by them. There was a meeting of directors on 10th of June, but nothing was said about the issuing of the writ or signing of judg- ment to the other director, who was pre- sent. Upon this being brought to his know- ledge he moved for an injunction to restrain execution, alleging that he was ignorant of the action being commenced, was no party to sign- ing judgment, that the debt was less than the amount claimed, and the company's assets now exceeded its liabilities, and that the action was collusive, and a fraud on the shareholders. In- junction to restrain execution granted. Robin- son v. The Melbourne Newspaper Company, 4 A.J.R., 66. (6) Insolvency. To Restrain Compulsory Sequestration.] — Although it might be disreputable to seques- trate a person's estate in order to prevent him urging his claims,' there is nothing to justify the- interference of a Court of Equity. — Per Moles- worth, J. Merry v. Hawthorn, N.C., 40. (2) Covenants and Agreements. In Aid of Specific Performance^] — M. pur- chased from H. , a tenant of defendant, the short, unexpired term of his tenancy of a public-house, relying upon a verbal agreement between M„ and defendant that defendant would grant M. a lease of the premises for five years from the expiration of the old lease. M. entered into* possession and paid rent as under the old lease, and during the currency of the old lease, submitted for four days to- the inconvenience of allowing defendant's, workmen to enter and effect repairs. At the expiration of the old lease, defendant de- manded possession, and being refused, served a. notice of his intention to proceed to recover possession under sect. 90 of the " Land- lord and Tenant Statute 1864." M. thereupon filed his bill for specific performance of the alleged agreement, and for an injunction to re- strain the proceedings for the recovery of posses- sion. Upon motion the injunction was granted, upon an undertaking by M. to observe the terms, and covenants of the existing lease, to keep up the license, and to assign if ordered by the Court. Rents to be paid without prejudice to- rights, and receipt of rents not to create a. tenancy from year to year. Murphy v. Wadkk,. 4 V.L.R. (E.,)224. Injunction to Restrain Lessor from Granting a Second Lease Inconsistent with an Existing Lease.] — City of Melbourne G. M. Coy. v. The Queen, ante column 325, and post under Landlord and Tenant — Lease. (3) Trespass. Removal of Bricis from Infant's Land — Digging for Clay.] — Motion for injunction to restrain removal of bricks from infant's land and to restrain digging for clay. A writ of ejectment had been served on the defendant at the plaintiff's suit. Held that the Court will, not grant an injunction to prevent removal of bricks already made, or those in course of being; made, the clay for which had been severed before notice of the motion, as the bill did not allege "any insolvency; but as to digging for clay, as the application was made to protect property pending litigation, and was not properly for protection against waste or tres- pass, an injunction would be granted to restrain digging for clay. Sutliff v. Jones, 2 W.W. & a'B. (E.,) 32. (4) In'Other Cases. To Prevent Consequential Damages.]— Con- sequential damages do not constitute a case for- the interference of a Court of Equity. Fisher v. Jacomb, 1 W.W. & a'B'. (E.,) 91. To Restrain Sale of Goods Seized.]— A bill is. not sustainable for an injunction to restrain an official assignee from selling goods seized, he- alleging them to be the property of the insol- vent. Ibid. -567 INJUNCTION. 568 Interim Injunction for Protecting Property Pending Action — Digging for Clay.] — Where a writ of ejectment had been served on behalf of an infant, and the infant brought a suit to restrain digging for clay on his land for the purpose of making bricks, the Court granted an injunction to protect the property pending the ejectment action. Sutliffv. Jones, 2 W.W. & a'B. (E.,) 32. See S.C. ante column 566. Interlocutory Injunction — Covenant to Ac- count. ] — If there is no allegation of the defend- ant's insolvency the Court will not in a suit where the question between the parties is one of account, interfere by way of interlocutory in- junction. Aarons v. Lewis, 3 V.L R. (E.,) 79. To Restrain Trustees of a Creditor's Deed from Disposing of Property Pending an Action — Suit by Non-Executing Creditors.] — Per MoleswoHh, J.: — "There is no equity for a person having a ■demand against another and bringing an action in respect of it to prevent during the pendency of the action the proper disposal of the property in order that something may be left to levy upon at the close of the action." Lord v. Hewitt, 2 W. & W. (E.,) 108. For facts see S.C. under Practice — In Equity — Demurrer. Excavating for Brickmaking — Erection of a Fence.] — An obstruction of astreetby excavating for brickmaking was proved as to a part of the street over which the plaintiff was held not entitled to a right-of-way, but an obstruction by a fence was proved as to a part of the same street over which the plaintiff was held entitled to a right- of-way. Held that excavation was a proper subject for injunction, but that obstructing by a fence was not, and bill to restrain excavation and obstruction in the whole of the street dis- missed with costs. Blyth v. Parian, 2 V.R. (E.,) Ill; 2 A.J.B., 75. Owners of Property Restraining Removal of Machinery by Occupant.] — On a motion for in- junction by owners of property to restrain the removal of machinery, it appeared that T. & •Co. were occupiers, and on their becoming in- .solvent their assignee transferred their interest to defendant. Held that it was doubtful whether plaintiffs could complain of removal of machinery, and if they eould they must avail themselves of their remedy at law. Injunction refused. ■ Diclcson v. Cane, 3 A.J.R., 114. In Action at Law after Refusal in Equity.] — An injunction had been refused in the equity side of the Court, and the plaintiff had .appealed to the Pull Court. While the appeal was still pending plaintiffs brought an action for "trespass against the defendants, and applied to the Court in its common law jurisdiction for an injunction to restrain the defendants from mining on the land. The Court granted the in- junction, pending the appeal in the Equity suit, the injunction to be dissolved in the event of the appeal being dismissed. Alma Consols Coy. i). Alma Extended Coy., 4 A.J.R., 163. Mining underStreets — Damage not clearly shown -to be caused by.] — Where defendants had been carrying on mining operations under the streets of a municipality, and the surface of those streets had subsided, and application had been made to the defendants by the municipal sur- veyor to be permitted to inspect the workings, which they had refused, on bill by the munici- pality for an injunction and inspection, Held that the facts not clearly showing that the sub- sidence was due to the mining operations of de- fendants the plaintiffs were not entitled to an injunction, but order for inspection made. Mayor, die., of Ballarat East v. Victoria United Q. AT. Coy., 4 V.L.R. (E.,) 10. Irreparable Injury.] — Damage of undefined extent to public streets, imposing an unlimited liability for repairs, will constitute irreparable injury, to restrain which an injunction may be granted. Ibid ; and see under Mining. Injunction — Sale of Ale — Misrepresentation.] — Where from evidence upon affidavits in support of motion for injunction it appeared that defen- dant habitually sold at the bar of his public- house ale of an inferior quality to that of plaintiff's manufacture but as plaintiff's ale, but did nothing to invite customers by an- nouncements that he sold plaintiff's ale, or by labels or marks described his ale as plaintiff's ale, an interim injunction ordered. But upon the hearing, no other evidence having been adduced, bill dismissed, the Court being unable to say whether such sales were habitual or were directed by defendant, but thinking that defendant had not been sufficiently careful in preventing mistakes. Degraves v. Whiteman, 5 V.L.R. (E.,) 304 ; 1 A.L.T., 18, 90. Partnership.] — Defendants had improperly excluded the plaintiff from participating in winding up a partnership, and had issued a circular stating the dissolution and that they intended to carry on the business, and the plaintiff moved for an injunction to restrain them. Injunction granted, but owing to a compromise being contemplated, no special order was made as to the date when it should issue. Boyle v. Willis, 1 A.L.T., 189. And see S.C. under Partnership. To Restrain Claiming Exclusive Right to a Picture, the Joint Property of Two.] — The plain- tiff contributed information and notes, by aid of which the defendant was enabled to- paint a picture, in which they were to have a joint pro- perty. The defendant claimed the picture as his own, and exhibited it as such. Injunction granted to restrain him. Semble, the specific per- formance of such an agreement would not have been decreed. Mitchell v. Brown, 6 V.L.R. (E.,) 168; 2A.L.T., 67. Restraining Nuisances.]— See Nuisance. Infringement of Patent.] — See Patent. Infringement of Copyright.] — See Copyright. Infringement of Trade Marks.]— See Trade Marks. In Partnership Matters.] — See Partnership. 569 INJUNCTION. 570 To Restrain Waste.]— See Waste. To Restrain Mining on Private and Other Pro- perty.] — See Mining. To Restrain Bringing Land under the " Transfer of Land Statute."]— See Transfer or Land (Statutory). III. Practice Relating to. Cause Directed to Stand Over — Nuisance — Steam Hammer — Conflicting Evidence.] — On a bill for an injunction to restrain an alleged nuisance caused by defendant's steam hammer, the evidence being very conflicting, the Court at the hearing directed the cause to stand over for six months, with liberty to bring an action at law. Lockhead v. Nolle, 3 V.L.R. (Eq.,) 131. See S.P. Cooper v. Danoerfield, 10 V.L.R. (E.,) 29, post under Nuisance— Injunction. Motion for Injunction — Pendency of a Demurrer by some of Defendants — Position of Non-Demurr- ing Defendants.] — Motion for injunction re- straining the transfer of shares in a company by certain non-demurring defendants during the pendency of an appeal on a demurrer, an objection was taken. Held that this motion was an independent motion against the non- demurring defendants only and could not affect the demurring defendants, and vice versa, the allowance of demurrer of the demurring defen- dants would not affect plaintiff's rights, as against these non -demurring defendants. Ob- jection overruled. Learmonth v. Bailey, 1 V.L.R. (E.,) 122. For facts see S.C. Principal and Agent. Motion for "After Decree.]— After decree, the Court refused to entertain a motion, in the same suit by defendants, for an injunction to restrain the plaintiffs (assignees of an insolvent), from selling the real estate recovered by them in the suit, before realising all the personal assets of the insolvent. Goodman v. Boulton, 5 W.W. & a'B. (E.,) 86, 101. Service of Notice of Motion.]— Service at de- fendant's residence before answer of notice of motion for an injunction is sufficient, and such service need not be personal. White v. Mavor, 4 W.W. & a'B. (E.,) 43. When Service of Notice of Motion for should he Made.] — Service of a notice of motion for in- junction before service of the bill is irregular. Injunction on such service of notice granted ex parte and plaintiff ordered to pay costs of motion for motion on notice as an abandoned motion. Lumsden v. Dullard, 2 V.R. (E.,) 108. Where an injunction is moved for upon notice, the Court will not grant a postponement on application of the defendant except when special reasons are alleged, as injury to the defendants or the like. Victoria United Mining Coy. v. Prince of Wales Coy., 5 V.L.R. (E.,) 92. Cross-Injunction — When Granted. — In granting an interlocutory injunction to restrain the de- fendants from mining on ground in dispute, the Full Court reversing Molesworth, J., and thinking that the circumstances required it, granted a cross-iujunction against the plaintiffs, though their title might have been endangered by not working. Mulcahy v. The Walhalla Qold Mining Coy., 5 W!W. & a'B. (E.,) 103. Ex parte Injunction.] — A bill by certain share- , holders of a company against the managing body of the company, praying an injunction to restrain the company from carrying out an agreement which the bill alleged to be repug- nant to the rules of the company, and ultra vires, and invalid and prejudicial to the share- holders of the company, was answered; but the answer did not meet the allegation that the agreement was ultra vires and prejudicial, and an ex parte injunction was granted. Held, that this was sufficient to sustain the injunction till the hearing, provided no objection as to misjoinder, want of parties, or other insuperable irregularity lay in the way. Lee v. Robertson, 1 W. & W. (E.,) 374, 386. Answering Defendants Moving for Dissolution of ex parte Injunction before All have Answered] An objection that defendants who have answered cannot move to dissolve an ex parte injunction as against themselves till all the other defend- ants have answered will not be entertained as a preliminary objection to a motion for dissolution by the defendants who have answered ; but the Court will consider upon the merits whether the injunction can with justice be dissolved as to some of the defendants until the others have answered. Evans v. Guthridge, 2 W. & W. (E. , ) 2,28. Ex parte Injunction — Motion to Continue.] — Per Molesworth, J.: — Although the Court will on motion to dissolve ex parte injunctions punish want of candour in obtaining them, it will not so punish persons having obtained injunction for a time determined when applying, on notice, for a continuance of such injunctions. Broad- bent v. Marshall, 2 W. & W. (E.,) 115, 121. Ex parte Injunctions — Motion for Obtaining.] — Per Molesworth, J.: — The rule that all material facts must be brought forward on obtaining an ex parte injunction is a useful one ; but care must be taken not to carry it too far, by which publicity would be produced. Lavczzolo v. The Mayor, &c, of Daylesford, I W.W. & A'B. (E.,) 113, 118. Interpleader Suit — Service of Bill.] — Before an ex parte injunction will be granted in an inter- pleader suit service of the bill must be effected on the plaintiff at law whose action is sought to- be restrained. Spence v. Coker, 1 V.L.R. (E.,) 33. Practice — Application to Dissolve an Injunction- Questions of Pact and Law to be Tried — " Transfer of Laud Statute."] — W., the manager and a director of the A. G.M. Coy. sued it for a debt not due, fraudulently prevented any defence to the action, and obtained judgment. The pro- perty of the company was sold under execution at a sheriffs sale, at which W. became the pur- chaser. This property comprised, inter alia, a 571 INJUNCTION. 572 mining lease registered under the provisions of Act No. 301 (" Transfer of Land Statute"). W. and others were subsequently convicted of a fraudulent conspiracy to defraud the company. The lease was transferred to W. on the 20th September, 1871, and W. on the same day transferred it to I. D., one of the shareholders in the company, on behalf of himself and other .shareholders, brought a bill against W., I., and other defendants, charging that I. paid no con- sideration for the transfer, and that he pur- chased with notice of W. 's fraud, and seeking -to set aside the sale and I.'s title. An injunc- tion was granted restraining I. from transfer- Ting or dealing with the lease. On motion to dissolve, Held that there was a question of fact to be tried in the suit as to the extent of I.'s knowledge of W.'s dealings, and questions of law as to meaning of word " fraud" in Sec. 50 of Act No. 301, and further whether dealings com- pleted with a person before he becomes proprie- tor under the Act can be protected by the machinery of the Act as to his vendee by mak- ing him a proprietor, and at the same instant a transferor ; and that the immense power the Act gives to a proprietor of completely barring •clear equities presents a reason for Courts of Equity readily interfering by injunction. Motion refused. Davis v. Wehey, 3 V.R. (E.,) 1; 3 A.J.R., 1. Notice of Motion to Dissolve an Injunction.] — A notice of motion to dissolve an injunction should be directed not only against the writ of injunction, but also against the order of the •Court under which the writ was issued. Murphy v. Martin, 1 W.W. & a'B. (E.,) 26, 29. Exparte Injunction — Discharge — Irreparable Injury not Proved.] — In a common law action, if an exparte injunction be obtained under Sec. 242 of the " Common Law Procedure Statute 1865," without a full and correct statement of facts, which show a probability of irreparable •damage, such injunction will be set aside. Kidd v. Chilmall, 4 V.L.R. (L.,) 488. Effect of Full Court Granting an Interlocutory Injunction.] — Where the Full Court has over- ruled a demurrer, and granted an interlocutory injunction in accordance with the relief sought, the Primary Judge has only to do perpetually what the Full Court has done temporarily. Perpetual injunction granted. Davis v. The ■Queen, 1 V.R. (E.,) 33; 1 A.J.R., 18, 22. Parties.] — Parties named in an injunction, but not served with the notice of motion to attach for contempt by breach, are not entitled to appear to say that they have not been served. Lane v. Hannah, 1 W. & W. (E.,) 66, 73. Contempt — Motion to Commit — Amendment.] — On contempt of an order by consent to restrain the defendant from an act, and not providing that a writ of injunction under seal shall issue, •a motion to commit "for breach of the injunction issued in this case under the seal of this honourable Court" is wrong in form ; but may be amended by substituting for the words "in- junction issued in this cause, under the seal of this honourable Court," the words " Order of this Court." Ibid. Attachment for Breach of Injunction.] — An injunction was granted restraining defendants from mining " under the land comprised in the plaintiffs license." The parcels described the boundary of the land in one direction as "the southern line of the Glenlyon road" and gave metes and bounds, which were inaccurate. On motion for attachment for going beyond the road as actually fenced, Held per Moles- worth, J. , that any defect in the licensor's title might have been shown on motion for injunc- tion, but not in this motion ; that the road meant the road as actually made, and not as on the plans, and that they were liable although the road as fenced was not in accordance with the Government plan, and did not coincide with the measurements, and attachment granted. Held by Full Court, that the plaintiffs were bound to give the best and most accurate description of the land as to which they sought an injunction ; that if an injunction order admitted of two constructions the defendants might very pro- perly assume the responsibility of putting their own construction on it. Attachment order set aside. Semble, where an attachment order directs certain sums to be paid within fourteen days, and orders writ to lie in office for fourteen days, it should be read in the alternative. Astley United G. M. Coy. v. Cosmopolitan G.M. Coy., 4 W.W. & a'B. (E.,) 96, 105, 117. Breach of Injunction — Inconvenience no Excuse for.] — The fact that a complete and literal com- pliance with an injunction wottld altogether stop the defendants from working, is not an excuse from such compliance ; a grave incon- venience of such a kind is a proper ground for moving the Court to modify such injunction ; and such a motion may be made by a defendant in contempt for disobedience. Bonshaw Freehold G.M. Coy. v. Prince of Wales Coy., 5 W.W. & A'B. (E.,) 140. Breach— How Punished.] —Upon an injunction restraining a company from discharging drain- age over plaintiffs' land, a bona ^de^ttempt by defendants to carry such drainage over the land under a bargain with plaintiff's tenant of land, by means of wooden channel constructed upon it, so as to do no injury to the soil, though a breach of the injunction, was not visited by the Court with sequestration of the defendants property, but with the costs of an application for such sequestration. Ibid. Liability to Attachment for Breach — To Whom it Passes.] — Where an injunction is granted against one person and his servants, and that person's interest passes to another, the liability to attachment for breach of the injunction does not pass to that other until he is made a party to the bill, and a, new injunction is issued against him. Attorney-General v. Eogers, 1 V.R. (E.,)132, 138; 1 A.J.R., 120, 149. Appeal from Interim Injunction — When Granted.] — Under ordinary circumstances the Full Court will decline to interfere with an interim injunction granted by the Primary Judge, his Court being the proper tribunal to determine whether the subject matter of the trial should be protected till the hearing. But 573 INJUNCTION— INNKEEPER. 574 where the bill is demurrable, the appeal will be allowed. Band of Hope and Albion Consols v. St. George and Band of Hope United Coy., 1 V.R. (E.,) 183 ; 1 A. J.R., 174'; 2 A.J.R., 127. Injunction Granted Pending Demurrer — Ap- peal. ] — An injunction ought not to be granted pending the reservation of the decision of the Court upon a demurrer, putting in issue the right of the plaintiff to relief, because such reservation casts a doubt upon the plaintiffs, equity. If an injunction be granted in such circumstances by the Primary Judge, the Full Court will entertain an appeal from such Court, even after the injunction has been dissolved by a judgment on the demurrer. Attorney-General v. Scholes, 5 W.W. & a'B. (E.,) 164. Order Protecting Appellant.] — Upon an appeal by a defendant from an interlocutory injunc- tion the Full Court will not make an order, if the appeal is dismissed, protecting the appellant from any loss to which he would be subjected should the plaintiff not ultimately succeed in the suit. Wolfe v. Hart, 4 V.L.R. (E.,) 125, 137. Delay.] — Where, in a trespass action, an in- junction had been granted on 6th August, and no steps had since been taken the Court on 9th December dissolved the injunction. Camp- bell v. AhChong, N.C., 68. Act No. 274, Sees. 240, 242— Claim for on Writ of Summons.] — An order had been made for an injunction, and the affidavit supporting the application did not state that a claim for an injunction was, under the provisions of Act No. 274, sec. 240, endorsed on the writ of sum- mons. Rule absolute to discharge the order. Fowler v. Mackenzie, 9 V.LR. (L.,) 231. Costs — Of Injunction motion made Costs in the Cause.] — Costs of an injunction motion were reserved by the Primary Judge. On appeal such costs were made costs in the cause, on the ground that the interval between the sittings of the Appeal Court was too long for that Court to deal with them, and such Court ought not to depute to the Primary Judge the carrying out of its opinion. Band of Hope and Albion Consols Coy. v. All Saints Coy., 2 V.R. (E.,) 83, 87 ; 2 A.J.R., 37, 49. Costs — Injunction Restraining Action of Eject- ment — Answer Admitting Case.] — A bill alleged the grant of a. lease of certain premises to defendant, a partnership between plaintiff and defendant, which was dissolved on the terms of plaintiff taking over the assets, including the lease, and that an action of ejectment was brought by defendant against plaintiff as to the premises, and the bill prayed for an injunction restraining the action of ejectment. Defendant, in his answer, admitted that the action was commenced under a misapprehension. Perpetual injunction granted, and defendant ordered to pay costs of suit, it appearing that suit had been defended solely on a question of costs. Miller v. Wood, 3 A.J.R., 13. Costs — Defendants doing Act Sought to be Unjoined — Motion Dismissed on Technical Objec- tion.] — In a motion for an order restraining defendant from taking an infant plaintiff out of jurisdiction, where the defendant had during the pendency of the motion taken the infant plaintiff to New Zealand, and there was a, fatal technical objection to the motion, the motion was dismissed, but without costs on account of the defendant's conduct. Smith v. Blacker, 3 V.L.R. (E.,) 1. Costs —Apportioning.] — Where a plaintiff, seeking a twofold injunction, is clearly wrong as to part of the relief sought, but entitled to the other part, he must pay the costs of the in- junction motion, costs not being in such a case apportioned. Foley v. Samuels, 3 V.L.R. (E.,) 72. Costs — Of Injunction Dissolved in Part — Sub seqjiently Made in Full.] — Where an injunction had been dissolved in part, upon the ground of suppression of material facts, and the costs were reserved, and upon the hearing the parties consented to the injunction in full, the Court left all parties to abide their own costs of the motion to dissolve. Attorney-General v. Shire of Wimmera, 6 V.L.R. (E.,) 162; 1 A.L.T., 125. Under Judicature Act — Order 1. Rule 6 — Undertaking as to Damages.] — An action was brought to recover damages for trespass, the defendant being a tenant to a banking company of a piece of land on which was erected a hoard- ing. After the determination of the tenancy the place was let to the plaintiff, who posted bills on the hoarding. Application to restrain defendant from pulling down plaintiffs posters granted, the plaintiff undertaking to pay any damages under subsequent order of the Court. Nicholson v. Bof, 6 A.L.T., 97. INNKEEPER. Lien — Property not Belonging to Guest — Waiver of Lien. — M., a solicitor, being in- debted to an innkeeper for entertainment, left his luggage with the innkeeper including a deed, the property of the plaintiffs. A demand was ' made by the plaintiff, but the innkeeper G. de- manded M.'s authority, and subsequently a demand was made for the whole of the luggage with M.s' authority, when G. set up certain claims on M. for promissory notes to be collected. Held that G. had a lien on the plaintiffs deed enclosed in M.'s luggage, and that the lien had not been waived by the claims set up by G. as a distinct demand was not made for plaintiff's property on the second occasion. Goodyear v.Klemm, 5 A.J.R., 136. Lien — When Defeated.] — H. resided at an hotel for six weeks, being supplied with board and lodging during that time. He made an agreement with the hotel-keeper to pay him at the rate of £2 per week, and paid for two weeks, but at the end of the sixth week the landlord refused to supply H. any further. There was then a sum of £8 due to the hotel-keeper, who claimed a lien on H.'s goods. The Court held that there was evidence that H. was not a guest at the hotel, but merely a lodger, and that the hotel-keeper had therefore no lien. Beginav. Hinton, Ex parte M'Manus, 6 A.L.T., 12. 575 INSOLVENCY. 576 INSOLVENCY. I. Jurisdiction and Powers. (1) Generally, column SIT. (2) Of Chief Commissioner, column 579. (3) Of Trustee and Official Assignee, — See under sub-heading XL II. Who may be Made Insolvent, column 580. III. The Debtor's Summons. (1) Who May Obtain and How Obtained, column 580. (2) Form and Requisites of, column 581. (3) Proceedings upon, column 582. (4) Act of Insolvency, on Failure to Pay, Secure, or Compound for Debt, column 583. IV. The Petitioning Creditor and his Debt. (1) Who May Petition, column 584. (2) The Debt, Its Nature and Amount, column 584. (3) Meetings and Resolutions of Creditors — See -post under Meetings of Creditors — Liquidation — Composition with Creditors — And Discharge and Release. V. The Act of Insolvency. (1) What Constitutes, column 586. (a) Conveyance of Property for Benefit of Creditors, column 586. (b) Conveyance to Defeat or Delay Creditors, column 588. (c) Departing from Victoria or Absenting Himself, column 588. (d) Filing Declaration of Inability to Pay Debts, column 589. (e) Execution and not Satisfying, column .589. (f) Failure to Satisfy Debtor's Summons, column 594. (g) Consent and Failure to Sequestrate Volun- tarily, column 594. (h) Fraudulent Preference, column 595. (2) Who May Take Advantage of, column 596. VI. The Sequestration. (A) Voluntary Sequestration, column 597. (B) Compulsory Sequestration, column 597. (1) When and How Made, column 597. (2) Joint and Separate, and of Estate of Firm, column 599. (3) The Petition, Orders, Practice, Evidence and Costs, column 600. (a) Form and Requisites of Petition Orders, Summonses, and Affidavits, column 600. (b) Service and Enlargement of Order nisi, column 609. (c) Notice of Intention to Oppose Petition, column 614. (d) Evidence, column 616. (e) Costs, column 617. (/) Other Points of Practice, column 619. (4) Reviving Sequestration, column 620. (5) Setting Aside Sequestration, column 621. VII. Composition Deeds and Deeds of Assignment, column 622. VIII. Fraudulent Conveyances, column 629. IX. Fraudulent Preferences and Protected Transactions. (1) Protected Transactions, column .629. (2) Fraudulent Preferences, column 629. X. Property of Insolvent and Assignee or Trustee's Title Thereto. (1) What Property Passes to Assignee and subject to what he takes — Generally, column 635. (2) Particular Kinds of Property. (a) Bills of Exchange, column 637. (6) Chases in Action, column 637. (c) Gifts from Husband to Wife, column 637. (d) Other Kinds of Properly, column 637. (3) Property in the Order and Disposition of Insolvent, column 638. (4) Properly Assigned by Bill of Sale, column 638. XL Trustees and Official Assignees and Their Rights, Powers, Duties and Liabilities. (1) Their Appointment, Election, Removal, and Discharge, column 638. (2) Their Rights and Pmvers, column 641. (3) Tlieir Duties and Liabilities, column 644. XII. Distribution of the Estate, column 648. XIII. Summary Jurisdiction to Try Right of Chattels Taken by the Assignee, column 649. XIV. The Insolvent, His Rights and Lia- bilities, column 650. XV. Effect of Insolvency and Liquidation. (1) On Suits and Actions, column 653. (2) On Contracts, column 657. (3) In Other Cases, column 658. XVI. Proof of Debts. (1) Practice on Proof, column 660. (2) Proof by and Against Particular Persons, column 663. (3) Debts Provable and Proof of Particular Debts, column 665. XVII. Mutctal Credit and Set-off, column 668. XVIII. Offences by the Insolvent, column 669. XIX. Discharge and Release from Seques- tration. (1) The Certificate of Discharge. (a) When Granted, Refused, or Suspended, column 673. (J) Practice on Applications for, column 691 (i.) Dispensing with Conditions of Pay ment of Dividend, column 691. (ii. ) Other Points of Practice, column G94, (2) Release from Sequestration by Creditors. column 703. (3) Effect of Release or Discharge, column 708 XX. Examination of Insolvent and Wit nesses, column 709. XXL Liquidation by Arrangement, column 710. XXII. Composition with Creditors. (1) Proceedings under, column 710. (2) Release of Estate from Sequestration, column 711. XXIII. Meetings of Creditors, column 712. XXIV. Appeal. (1) From Courts of Insolvency and Chief Com- missioners, column 713. (2) From Primary Judge, column 717. 577 INSOLVENCY. 578 J STATUTES. 5 Vic, No. 9, Sees. 33—37. Repealed and Re-enacted by " Insolvency Statute 1865" (No. 273.) 6 Vic, No. 17. Repealed and Re-enacted by "Insolvency Statute 1865" (No. 273.) 7 Vic, No. 19, and its Amending Acts, 8 Vic, Nos. 6 & 15, and 10 Vic, Nos. 7 & 14. Repealed by "Insolvency Statute 1865" (No. 273.) " Insolvency Statute 1865 " (No. 273.) and its Amending Act (No. 300.) Repealed by " Insol- vency Statute 1871 " (No. 379.) "Insolvency Statute 1871" (No. 379.) "Amend- ment Act 1871" (No. 411.) The effect of the " Judicature Act 1883 " (No. 761) upon the practice in Insolvency is that appeals from the Insolvent Court are to be heard by the Full Court (Sec. 10) and not by the Primary Judge. I. Jurisdiction. (1) Generally. Insolvency— Primary Judge.] — The jurisdiction of the Primary Judge in Insolvency is not ousted during the sittings of the Appellate Court. In re McManomonie, 1 W.W. & a'B. (LB. & M.,) 53. Appeal from Refusal of Certificate.] — The In- solvent Court has no jurisdiction, outside that conferred upon it by Statute, to entertain an appeal from the refusal ot an insolvent's certificate by the Commissioner. In. re Bateman, 1 W.W. & a'B. (I.E. & M.,) 35. Insolvency— 13 Eliz., Cap. 5 — No. 379, Sees. 6, 7.] —Under Sees. 6 and 7 of the "Insolvency Statute 1871," the Judge of a Court of Insol- vency has no power to set aside a settlement as fraudulent under 13 Eliz., Cap. 5. In re Sealey, 2 V.R. (I.E. & M.,) 34 j 2 A.J.R., 132. Dallimore v. Oriental Bank, 5 A.J.R., 38. Insolvency — Setting Aside Settlements — "Insol- vency Statute 1871," Sec. 70.]— It is doubtful whether a Court of Insolvency has, under the "Insolvency Statute 1871," any jurisdiction to set aside a settlement as void under Sec. 70 of that Act; but if it have such jurisdiction, it must be exercised in a quasi suit to which the beneficiaries under the settlement are parties. In re Healey, 2 V.R. (I.E. & M.,) 34 ; 2 A. J.R., 132, and Dallimore v. Oriental Sank, 1 V.L.R., (E.,) 13, 28. To Hake Order for Substituted Service of Order Nisi.]— In re Oppenheimer, see post under Sequestration. To Decide Whether a Deed of Assignment Under Act No. 273 is a Good Defence to Proceedings for Sequestration under Act No. 379.]— The question whether a deed of assignment executed under section 115 of the Act No. 273 is a good defence to proceedings under the Act No. 379, to seques- trate the estate of a debtor for not satisfying a udgment, is a question cognisable only by the Supreme Court, and it is not to be transferred to the Insolvent Court so as to give the Insol- vency Judge jurisdiction to deal with a sum- mons to dismiss a debtor's summons. In re M'Donald, 4 A. J.R., 184. Affirmed on appeal, 5 A.J.R., 42. Issuing Fi. Pa.]— Under Act No. 379, Sec. 18, and the "Equity Practice Statute," No. 242, Sec. 7, the Court of Insolvency has jurisdiction to issue a writ of fi. fa. Slack v. Winder, 5 A.J.R., 72. Jurisdiction of Court under See. 128 to Commit for Contempt by Disobeying an Order under that Section.]— In re Gray, 2 V.L.R. (L.,) 241. In re Rowley, 3 V.L.R. (LP. & M.,) 12 j post under sub-heading Insolvent, his Rights, &c. Contempt of Court — Warrant of Commitment.] — The mode provided for enforcing orders by the Court of Insolvency for contempt is the same as that possessed by the Supreme Court. It is unnecessary, therefore, that a warrant of the Court of Insolven6y committing for contempt should prescribe any term of imprisonment, for if it did the powers of the Court would be inter- fered with. In re Slack, 2 V.R. (L.,) 64, 135. Insolvency — Transfer of Proceedings — " Insol- vency Statute 1871," Sec. 10 — Costs.] — A Judge of an Insolvent Court made an order under Sec. 10 of the "Insolvency Statute 1871," at the request of a majority of creditors, trans- ferring the proceedings to another district. Subsequently he made an ex parte order, at the request of the assignee, directing that no further action should be taken on his former order. On appeal from the second order, Held bad, on the ground that the Judge bad first superseded his jurisdiction, and then had assumed jurisdiction on the second order ; and order reversed, with costs against the assignee In re Cotton, 6 V.L.R. (LP. & M.,) 1 A.L.T., 129. Jurisdiction of Judge as to Reviewing Order Erroneously Made Under See. 10 of Act No. 379.] — Where an order under Sec. 10 has been erroneously made, it is open to review by, the Judge who made it. In re Clarton, 5 V.L.R. (LP. & M.,) 47. Jurisdiction of Court to Set Aside Sequestration.] —In re Stampe, 1 W. & W. (I.E. & M.,) 10; and in, re Rowley, 2 V.L.R. (LP. & M.,) 50. post under sub-heading Sequestration — Set- ting aside. Refusal of Certificate in One District— Transfer of Proceedings — Aet No. 379, Sec. 10.] — In re Hinnelerg, 8 V.L.R,, (LP. & M.,) 7; 3 A.L.T. 133, post under sub-heading Certificate of Dis- charge — Other points of practice. Summary Jurisdiction of Court Under Sec. 17 of Act No. 879.] — See cases, post under sub- heading, Summary jurisdiction of Court as to chattels, &c. 579 INSOLVENCY, 580 Act No. 379, Sec. 36— Jurisdiction of Judge of District Courts.] — The assignment of a district limits'the general jurisdiction previously given to him. He has therefore jurisdiction only -within the limits assigned to him, and a petition presented to a' wrong Judge is there- fore coram non judice. No clerk of another Court can have the jurisdiction specially con- ferred by Sec. 36. Regma o. Poole, 3 V.R. (L,) 181 j 3A.J.K., 79. Act No. 379, Sees. 9, 88 — Jurisdiction of Judge of District Court as to Debtor's Summons.] — Per Noel, J. Under Sec. 9 the Judge of a District Court has no jurisdiction to issue a debtor's summons outside the limits of his district. Sec. 9 limits the exercise of the general jurisdiction to the district in which he is appointed. Bank of Australasia v. Portch, 2 A.L.T., 148. 2. Of Chief Commissioners. Discretion as to Plan of Distribution — Act No. 17.] — The plan of distribution does not come before the Commissioner -under the Act judici- ally, and he cannot exercise any discretion as to the propriety of its items. Ex parte Bank of Australasia, in re Rutledge, 2 W. & W. (I. E. & M.,) 6. " Insolvent Act," 18 Vic, No. 11 — Appointment of Commissioner Not Gazetted.] — F. was appointed Commissioner of Insolvent Estates in succes- sion to W., but before his appointment had been .notified in the Gazette he admitted a proof of debt. Held by Molesworth, J., and affirmed on appeal, that according to Act No. 11 F.'s appointment as soon as he was ap- pointed vested in him full power to admit the proof, even though his appointment was not gazetted. Ex parte Bolfe 8; Bailey, iw re Rut- ledge, 2 W. & W. (LB. & M.,) 16. Test of Jurisdiction— 18 Vic. No. 11, Sec. 2.]— Section 2 of the Act gives exclusive jurisdiction to the Geelong Commissioner in cases within his district. Held, that the test of jurisdiction was the residence of the insolvent. On a motion to transfer sequestration from Chief Commissioner's Court to Geelong on ground of convenience, the creditors residing- there and the insolvent's property being there, Held, that the circumstances would not give jurisdic- tion to remove the sequestration from the place of actual residence. In re Calhoun, 2 W. & W. (I.E. & M.,) 81. Compare Act No. 379, Sec. 5. Chief Commissioner — Discretion as to Indul- gence—Appeal.] — The Chief Commissioner is not such an executive officer of the Court, in respect of what degree of delay and indulgence should be allowed to persons appearing before him, that his discretion may be reviewed in the same way that the discretion of the Master in Equity perhaps might. The Commissioner has judicial functions, in the exercise of which he is independent to a certain extent ; and if he decides erroneously, because too hastily, an appeal is the proper remedy. Where, therefore, the commissioner received proof of a debt under circumstances amounting to a sur- prise upon the official assignee, admitted the debt as proved, and refused to re-open the matter, a petition by the official assignee, praying that the proof might be expunged,, and a re-hearing directed, was dismissed with costs. In re Bradley, 1 W.W. & a'B. (I.E. & M.,) 11. Jurisdiction in Assessment of Assignees' Compen- sation.] — Ex parte Bank of Australasia, in re Rutledge, post under sub-heading Official Assignees, &c. — Bights and Powers. 18 Vic, No. 11—" Insolvency Statute 1865"— "Supreme Court Rules," Cap. 10, Rule 26.]— An estate of an insolvent at Ballarat was seques- trated after the passing of the " Insolvency Statute 1865," No. 273, and the Geelong Com- missioner and official assignee were named in the order for sequestration. At the date of IS Vic, No. 11, giving jurisdiction to the special Commissioner for the " Geelong Circuit District," Ballarat formed part of that dis- trict. Between this date and the passing of the " Insolvency Statute 1865," Ballarat had been withdrawn from the district by proclama- tion, though the Geelong Commissioner retained his jurisdiction under 18 Vic, No. 11. Held that the "Insolvency Statute 1865," where it refers to the district " forming and being the Geelong Circuit District," must be understood as referring to that district as it existed at the date of that Statute; that the Geelong Commissioner had, therefore, no jurisdiction at Ballarat ; and that the order of sequestra- tion was void, and could not be amended under Rule 26 of " Supreme Court Rules," Cap. 10, that rule being confined to cases having par- ties, and not extending to proceedings in rem. In re Barclay, 3W.W.4 a'B. (I.E. & M.,) 23. II. Who mat be an Insolvent. Harried Woman Having Separate Property— Act No. 384, Sec. 21.] — See in re Isaacs, post sub- heading Sequestbation — Evidence. Uncertificated Insolvent.]— .See in re Love, post column 5984 Lunatic] — It would appear from In re BayU don, 2 V.L.B. (I. P. & M.,) 85, that a lunatic may be made an insolvent. III. The Debtor's Summons. (1) Who May Obtain and How Obtained. Secured Creditor— Act No. 379, Sec. 38.]— The words in Sec. 88 " sufficient to support a peti- tion for adjudication" are understood to apply to the amount of the debt, irrespective of the securities held by the creditor applying for the summons, and it is not necessary for a secured creditor, in order to obtain a debtor's summons, either to realise or value his securities, or to offer to give them up, or to have them valued. In re Portch, 7 V.L.B. (LP. & M.,1 126, 145; 3 A.L.T., 50. Judge in Chambers— Waiver of Irregularity— » No. 379, Sec. 88.]— Under Sec 38 [oi the "In- solvency Statute 1871," which provides for the 581 INSOLVENCY. 582 granting by the Court of a debtor's summons, a Judge in Chambers has no power to grant such a summons, but if a summons be granted in Chambers it is not a nullity but irregular only, and the irregularity may be waived, and a debtor who had after notice of such an irregvi- Ilarity proceeded with an application to dismiss the summons was held to' have waived the irregularity. In reJRsfcer, 2 V.B. (I. E. & M.,) 26 ; 2 A. J.E., 130. Note. — As to the present jurisdiction of a Judge in Chambers, see Act No. 411. (Insolv- ency Amendment,) Sec. 4. 2. form and Requisites. "Insolvency Statute 1871," Ho. 379, Sec. 38— Affidavit of Debt] — Per Judge Noel. The words in Sec. 38 referring to debtor'3 summons do not mean that a creditor should prove a debt by his own personal evidence. An objection that the affidavit verifying the particulars was made by a manager of the firm of creditors whilst the creditor himself had only r made an affidavit as to the truth of the debt overruled. M'Domld v. Lloyd, 3 A.J.B.', 43. Service.] — Service of a summons for debt was made at a house alleged to be the last known place of abode of the defendant; but it ap- peared that the complainant, who served the summons, knew that the defendant was not then living at the house, but was in gaol. Meld, insufficient service. Regina v. Foster, 1 W.W. & a'B. (L.,) 8. -What is Sufficient Service.] — Service of a com- pared copy of a duplicate debtor's summons is sufficient service upon which to found a rule for sequestration. Re Lyon, 4 A.J.B., 13. Service.] — No precise rule can be laid down Jor the service of a debtor's summons. If it be effected by service of a copy the person who is served should be afforded a reasonable time to read the copy and demand to see the original. In re Clarton, 4 V.L.B. (I. P. & M.,) 84. Service.] — A debtor's summons was served upon a debtor by delivering a copy and show- ing the original, the person servingkeeping the original summons in his possession, and not lodging it according to Insolvency Eules, Eule 14. Held that this was no answer to the order nisi for sequestration for not paying, &c, and that such service was good. In re Crisp, 6 V.L.B. (I. P. & M.,) 1. Act No. 379, Sees. 37, Sab-sec. 6, 47 — Evi- dence of Service of Debtor's Summons.] — Upon an order nisi for sequestration based upon neglecting to pay a debtor's summons, the only evidence of service of the summons was an order of a District Court Judge refusing an application by the debtor to dismiss the sum- mons, and the debtor's affidavit filed and used on the occasion. Held that this was not suffi- cient evidence of service within the Act.. In te Graham, 4 A.L.T., 168. Remedy in Sespect of Grievance in Connection With Service.] — Where a person is aggrieved with a decision of the Judge of the Court of Insolvency as to the service of a copy of a debtor's summons being sufficient, his remedy is by appeal and not prohibition. Ex parte M. J. Levy, 1 V.L.B. (L.,) 271. (3) Proceedings Upon. Staying Proceedings — When Security Required — " Insolvency Statute, 1871," Sec. 38.] — A motion was made to dismiss a debtor's summons on the ground that no debt was owing, because the alleged debtor was a partner in Mauritius of a firm, which had become insolvent, of which the alleged creditor was aware, and had re- ceived a dividend on tiie estate. The Court • (Noel, J.,) held that the question was one which should be sent to the Supreme Court for trial, and directed proceedings on the summons to be stayed under Sec. 38 of the "Insolvency Statute 1871," on the debtor giving security holding that, as the probability of the debtor's succeeding did not seem so great as that of the creditors' succeeding, it was a proper case for security. X>e Beer v. Desmaxures, 1 A.L.T., 120. Action Fending — How Far a Bar to Proceedings.] — Per Noel, J. — An action pending between the insolvent as plaintiff and the summoning creditor is no ground for setting aside a debtor's summons. There is no irregularity in issuing -a. summons to an alleged debtor whose defence would not avail to stay proceed- ings or to lead to a dismissal. Bank of Austral- asia v. Portch, 2 A.L.T., 148. Time Within Which Application to Dismiss Should be Made.] — Per Noel, J. — The time within which a debtor may avail himself of the provision of Sec. 38 of the " Insolvency Statute 1871," en- abling him to apply to the Court to dismiss a debtor's summons, is fourteen days from the service thereof. Be Counihan, 4 A.L.T., 83. Grounds for Setting Aside Summons.] — W., a solicitor, had taken out a debtor's summons against F. for money owing on a judgment for costs. F. moved to set aside the summons on the ground that during the progress of the suit in which the costs were incurred moneys had come to W. with which he neglected, to credit F. Held that the Court could not' go behind the judgment, and application refused. Woolcott v. Farrell, 3 A.J.B., 63. Motion to Set Aside.] — A motion to set aside a debtor's summons will not be allowed where the only questions are as to the sufficiency of the facts upon which it was issued, and as to service being or not being effected upon the debtor. Re Lyon, 4 A.J.B., 13. No objection can be taken that the materials on which the Judge acted were insufficient. Ibid. Grounds for Setting Aside.] — It is a matter entirely for the discretion of the Judge of the Insolvent Court who granted the summons to say whether efforts had been made to obtain payment of the debt. Having done that and issued the summons the Judge is so far functus 583 INSOLVENCY. 584 officii, and aa the summons itself is a preliminary to further inquiries, the absence of reasonable efforts is not a ground for setting it aside. Ibid. Followed in re Clarton, 5 V.L.E. (LP. & M.,) 47. Application to Dismiss — Dismissal of Application — Jurisdiction.] — On an application to dismiss a debtor's summons, an order was made by the Insolvent Court directing the debtor to give security; and, if such security were given, directing a stay of proceedings on the sum- mons ; but no provision was made in the event of no security being given, nor were further directions or costs reserved. No security was given within the time limited, and the creditor, on notice to the debtor, obtained an order dismissing the application to dismiss. On appeal by the debtor, Held that, though it would have been well if some provision had been made for the event of no security being given, and if further directions or costs had been reserved, yet the Court had jurisdiction to make the order for dismissal, and appeal dismissed. In re Fisher, 2 V.E. (I.E. & M.,) 26; 2A.J.E., 130. Jurisdiction of District Court Judge.] — A Dis- trict Court Judge has no jurisdiction to issue a debtor's summons out of his own* district. Bank of Australasia v. Portch. See ante column 579. No Original Summons Lodged in Insolvent Court.] — A debtor's summons was set aside by a Judge of an Insolvent Court, on an applica- tion of the debtor, made more than fourteen days after the summons was procured, on the ground that no original summons had been lodged in the Court of Insolvency according to the rules. On appeal, Held that it was rightly dismissed. Semble, that the summons was voidable only, not void. In re Lawler, 4 V.L.E. (LP. & M.,) 8. S.P., see In re Crisp, 5 V.L.E. (LP. & M.,) 1. What Hay be Considered on Hearing of Debtor's Summons.] — The only inquiry open is the existence of the debt ; whether the sufficiency of the debt is an act of insolvency or not is to be heard at the hearing of the order nisi. In re M'Donald, 4 A.J.E., 184; 5 A.J.E., 42. (4) Act of Insolvency on Failure to Fay Secure or Compound for Debt. Act No. 379, Sees. 5, 37, Sub-sec. 6—" Insol- vency Bules," 157, 158— Computation of Time — Onus of Proof.] — Eule 158 does not apply to the computation of time prescribed in Sec. 37, Sub-sec. 6, and therefore where an order nisi or sequestration was obtained more than fourteen days after the service of summons, but less than fourteen days, excluding two Sundays and three holidays, which occurred in the interval, the order nisi was made absolute. The onus of proving payment, security or composition for the debt lies on the insolvent ; the petitioner has not to prove a negative. In re Crisp, 5 V.L.E. (LP. & M„) 1. And see in re Rangan, post column 586. As to Deed of Assignment in Favour of Creditors. Being a Defence for not Satisfying Debt on a Debtor's Summons, under Sec. 115 of Act No. 873.] — In re M'Donald, 5 A.J.E., 45, see post sub-heading - Composition Deeds. IV. TflE Petitioning Creditor and His Debt. (1) Who May Petition. Corporation Petitioning — Affidavit of Truth of Debt — "Insolvency Statute 1865," Sees. 14, 15, and 16.] — An incorporated banking company petitioning for sequestration of the estate of a debtor presented an affidavit made by the assistant manager of the bank of the truth of their debt. Held, per Molesworth, J., that an incorporated company being unable literally to comply with Sees. 14, 15, and 16 of the "Insolvency Statute 1865," which require an affidavit by the petitioning creditor of the truth of his debt, could not be a petitioning creditor for compulsory sequestration, and that there is. nothing in the Act otherwise showing an in- tention that corporations should be petitioning creditors. Held, on appeal, that the sections of the Act in this respect were directory only; that the Judge might exercise his discretion as to whether he should accept the affidavit or not, and that having exercised his discretion the Full Court would not disturb such exercise. In re Lecky, 3W.W.4 a'B. (I.E. & M.,) 42. Note.— Sec. 22 of Act No. 379, authorises the acts of an agent of any creditor whether corporate or not. Who May Present Petition — Married Woman.] — Quaere whether a married woman, who is not alleged on the face of the proceedings to have any separate property, can petition for the sequestration of an estate. In re Ritchie, 8 V.L.E. (LP. & M.,) 1 ; 3 A.L.T., 88. Who May Present Petition — Secured Creditor.]— A secured creditor, who denies that he is secured, cannot petition for sequestration. Before petitioning, a secured creditor must give up his security at the price he puts upon it. Be M'Namara, 10 V.L.E. (LP. & M,) 84; 6 A.L.T., 112. And see cases post under Act of Insol- vency — Who May Take Advantage of. (2) The Debt— Its Nature and Amount. Act No. 879, Sec. 37.]— A debt due at the time (i.e., of the act of insolvency} might be assigned afterwards to petitioning creditors, bo : as to form a good petitioning creditor's debt. In re H. S. Smith, 3 A. J.E., 18. As to Debt on Reviving Order of Sequestration.] — See Ex parte White, and in re Butchart, post under Sequestration — Eeviving. Debt of Firm.]— A debt of a firm (i.e., an acceptance given by the firm to a creditor) is a good petitioning creditor's debt as against the separate estate of a partner. In re Gardiner r 4 A.J.E., 6. 585 INSOLVENCY. 586 Partnership as to Goods to be Remitted by Insol- vent Abroad to Other Partner.]— Adolphe 0. was a partner in a firm, who was resident in Paris, and sent goods to Melbourne to be sold by the the other member, Adolphus 0., resident in Melbourne. Adolphus had purchased goods in Melbourne which were not paid for, and this •debt was the debt on which the creditors peti- tioned. Held, by Molesuttrt h, X, that by the 'deed of partnership AdoVphus was limited only to selling goods purchased by Adolphe, and that he had no power to purchase the goods, •and sequestration refused. Held, on appeal, that there was evidence of Adolphe having ratified Adolphus' acts, as shewn by H., the attorney sent out by Adolphe to wind up the business, accepting these goods, and that there was a good creditor's debt. In re Adolphe •Oppenheimer, 3 A.J.E., 114, 131. Partnership — Absent Partner Complaining of Dealings Outside Scope of Authority, but Accepting Accounts Based on Them.] —Where Adolphe had complained of the dealings of Adolphus with respect to_ dealings in goods purchased by Adolphus in Victoria, but accepted what was •done so far as to allow the accounts to be settled on the purchases of goods here, and treated the stock purchased as partnership stock, taking the profits of any transaction, Held that a debt incurred in such dealings was as against the firm a good petitioning creditor's debt. In re Oppenheimer and Co., 3 A.J.B., 128. Interest on —Judgment Debt — Act No. 379, Sec. 37.] — Interest may be included in the debt, and where a Supreme Court judgment debt was at one time less than .£50, but the accumulations of interest brought it above that value, it was held to be a good petitioning creditor's debt. In re Wilson, 3 V.L.E. (LP. & M.,) 95. County Court Judgmont] — If a judgment in the County Court, although originally not for debt but only for damages, has been sued upon in the Supreme Court and execution issued, it is a good debt within Sec. 37 ; but a proceeding to obtain execution on a judgment recovered in the County Court on a proceeding for tres- pass, such judgment having been transferred to the Supreme Court under Sec. 93 of Act No. 345, is not a good debt within Sec. 37. In re KellacJcy, ibid., p. 96. Loan to Partner.] — Money lent to a partner under the " Partnership Act," No. 179, does not constitute agoodpetitioningcreditor'sdebt. In re Butchart, 2W.W.& a'B. (I.E. & M.,) 8. Payment by Sureties.] — A., with two others, became sureties to an insolvent in a joint and several bond, and before the bond was enforced received as security a second mortgage over insolvent's real estate already over mortgaged. A. was sued upon the bond, and paid j£2uo, and valued the security at nothing, and offered to give it up. Held that he was entitled so to value it, and that payment made by him constituted a good petitioning creditor's debt within Sec. 37. In re Inglis, 3 V.L.E. (LP. & M.,) 100. Guarantee to Pay a Bill of Costs— No Signed Bill — "Common Law Procedure Statute 1866," Sec. 387.] — A guarantee to pay a third person's bill of costs for over £50 is a good petitioning creditor's debt, although no signed bill has been delivered in accordance with Sec. 387 of the " Common Law Procedure Statute 1865." In re Lawler, 4 V.L.E. (LP. & M.,) 8. Act No. 379, Sees. 37, 75, 118— Judgment Debt- Creditor Eecovering Judgment] — A creditor peti- tioned in respect of a judgment debt recovered in an action at law. Held, reversing Moles- worth, J., that a judgment creditor is a creditor within Sec. 37, no matter what the cause of action may be, the instant he obtains a judg- ment, and he is a creditor on a judgment debt then due and owing to him, which would con- stitute a sufficient petitioning creditor's debt; that it is immaterial whether such judgment is recovered on contract or in tort; that the creditor recovering the judgment must be the same person as the person instituting the pro- ceedings upon which it is recovered. In re Allen, 5 V.L.E. (LP. & M.,) 25. Assignment of Debt — Non-joinder of Cestuisque trust.] — Upon an order nisi for sequestration, the act of insolvency alleged was failing to satisfy a judgment obtained by a petitioning creditor. It appeared that the petitioning creditor had assigned the judgment to a bank at a valuation to be agreed upon. Held, that the petitioning creditor had a beneficial in- terest, being entitled to payment of the valua- tion sufficient to constitute the judgment a good petitioning creditor's debt, and that it was not necessary to join the bank as beneficial owner with the creditor as trustee for it. In re Dwyer, 5 V.L.E. (LP. & M.,) 98; 1 A.L.T., 92. Endorsee of Bill of Exchange Obtaining Judgment on it.] — A creditor who is the holder and endorsee of an overdue bill of exchange at the time of a meeting of creditors at which an act of insolvency is committed, and who subse- quently signs judgment in an action on the bill may present a petition. In re John Smith, 7 V.L.E. (LP. & M.,) 4; 2 A.L.T., 116. Act No. 379, Sec. 37, Sub-sec. 6— Defendant's Costs — Petitioning Creditor's Debt.]— An insolvent had brought an action in the Supreme Court against the petitioning creditor in which a verdict was returned for the defendant. Held, that the defendant's costs constituted a good petitioning creditor's debt, and the failure to satisfy the debtor's summons founded on that debt was an act of insolvency within Sec. 37, Sub-sec. 6. In re Rangan, 7 V.L.E. (LP. & M.,) 124. V. The Act oj? Insolvency. (1) What constitutes. (a) Conveyance of Property for Benefit of Creditors. Act No. 379, Sec. 37, Sub-sec. 1— Bill of Sale which Debtor was Fraudulently Induced to Execute.] — B. requested L. to advance him money wherewith to pay debts that he owed, and 587 INSOLVENCY. 588- agreed to give him a bill of sale over his stock- in-trade. L. consulted his solicitor, who advised him not to make the advance, owing to rumours of B.'s insolvency. L. then consulted a cre- ditor of B., and in consequence of what passed between them, L. induced B. to execute the bill of sale, but did not advance any money, and had no intention of doing so. The creditor then petitioned the Court to sequestrate B.'s estate upon the ground that he had assigned all his property to L. Meld, that B. having been fraudulently induced to sign the bill of sale, that it was a nullity, and the order for sequestration was discharged, although B. had intended to commit an act of insolvency. Re Bankier, 4 A.J.E., 90. Act No. 879, Sec. 87, Sub-sec. 1.]— It is neces- sary, in order to constitute an assignment by deed of an insolvent's property upon trust for creditors an act of insolvency, that it should be for the benefit of the creditors generally, and not merely for benefit of scheduled cre- ditors. In re Derham, 1 V.L.E. (LP. & M„) 2. Sec. 37, Sub-sees. 1 & 10.] — And even where the intention was. to include all creditors, but some were alleged to have been omitted from the schedule by mistake, held not to constitute an act of insolvency under Sec. 37, Sub-sec. 1, though it might under Sub-sec. 10. In re Maslam, 3 Y.L.E. (LP. & M.,) 10. And see Port v. London Chartered Bank, 1 V.E. (L.,) 162, post under sub-heading Com- position Deeds, as to when a deed is for the benefit of creditors. Act No. 379, Sec. 37, Sub-sees. 1, 2, and 10, Sec. 71 — Assignment for Benefit of Scheduled Creditors and Those of Whom Trustee Approved.] — An assignment in trust for scheduled creditors, and for those whose claims the trustees approved of is not an act of insolvency under Sec. 37, Sub-sec. 1. Such a deed is unfair to creditors, but is not prima facie an act of insolvency under the combined effects of Sec. 37, Sub- Sec. 2 and 10, and Sec. 71. To constitute it such some evidence in addition to the mere contents of the deed is necessary; the insol- vent is not to be held as having the view of doing the necessary results of his acts, for it is not necessary that the trustees' discretion should defeat or prefer any creditor. In re Wiedeman, 5 V.L.E. (I. P. & M.,) 32. Deed of Assignment for the Benefit of Creditors Generally—" Insolvency Statute 1871," Sec. 37, Sub-sec. 1.] — A deed of assignment which would enable the trustees to prefer some creditors who might thus absorb all the. assets is not a deed for the benefit of creditors generally within the meaning of Sub-sec. 1 of Sec. 37 of the " Insolvency Stutute 1871," and signing such a deed does not constitute an act of insolvency. In re fiitchie, 8 V.L.E. (I. P. & M.,)lj 3A.L.T., 88. When Creditor Estopped from Taking Advantage of Act of Insolvency under Sub-sec. 1 by Assenting to Deed of Assignment.]— See in re Vail, and in re Wiedeman, post column 596. Act No. 379, Sec.37,Sub.-sec. 1 — Partners — Deed of Assignment — Sec. 41.]— Per Full Court, affirm- ing Molesworth, J. A petition will lie for the- sequestration of the estate of joint debtors whether in partnership or not, under Sec. 37j, for an act of insolvency under that section as well as under Sec. 41. Sec. 41 provides for proceedings against single members of partner- ships for their acts of insolvency, and has a restriction as to those acts whereby creditors, may be delayed or defeated. A firm of partners conveyed to trustees all their joint and separate property (separate furniture and clothing being excepted) upon trust to pay " so far as trustees shall think fit," all rent,, wages, and preferential claims, and then to pay the debts of creditors whose names appeared in the schedule, with a proviso that the trustees- might upon satisfactory evidence admit as creditors persons having reasonable claims whose names were not in the schedule upon taking the advice thereon of a meeting of" creditors. Held, and affirmed on appeal, that though the deed was an assignment of all the- property it was not for the benefit of creditors generally, and therefore did not fall within Sec. 37, Sub-sec. 1. In re Thomas and Cowie, 9 V.L.E. (I. P. & M.,; 2; 5 A.L.T., 95. (6) Conveyance to Defeat or Delay Creditors. What Is— No. 273, Sec. 13— Construction.]— Tha- removal of property secretly by a debtor,, strongly pressed by his principal creditor, to ■ the houses of friends, addressed to other cre- ditors, is not a " delivery " within the meaning - of Sec. 13 of the' " Insolvency Statute 1865," No. 273, which will constitute an act of insol- vency. The other words ("alienation, trans- fer," &c.) with which " delivery " is classed, regard transactions purporting to pass pro- perty, and the word "delivery" should be similarly restricted in its meaning. In re Johnston, 5 W.W. & a'B. (I.E. & M.,) 10. [Note. — The corresponding Sec. of Act No. 379 is Sec. 37, Sub-sec. 2.] .See in re Wiedeman, ante column 587, and. in re Richards, post column 589. Assignment of Part of Property — Intent to Defeat Creditors.] — Masher v. Moorhead, see post column 596. A bill of sale given by a debtor bona fide over all his stock, in order to obtain assistance in difficulty to secure a past debt, and for- further advances, is not per se an act of insol- vency under Sec. 37, Sub-sec. 2, although such . an assignment to secure a past debt only would be an act of insolvency. Jacomb v. Ross, 4- A.J.E., 97. (c) Departing from Victoria or Absenting Himself. One of a Firm of Partners.] — "Where CM.,, one of a firm of partners, consisting of C. and J.M., departed from his dwelling-house and evaded service, &c, the Court, upon an order • nisi for sequestration of the estate of the firm, 589 INSOLVENCY. 590 sequestrated the firm's estate upon the one partner's acts of insolvency. In re Martin, 4 W. W. & a'B. (I.E., & M.,) 4. Act No. 5 Tie., No. 17, Sec. S — Person Out of Jurisdiction.] — A person out of the colony, who remains out of the colony for the purpose of defeating his creditors, commits an act of insolvency within the meaning of Sec. 5 of 5 Vic, No. 17. In re Fox, 2 W. & W. (I.E. & M.,) 35. In re Smith, 1 W.W. & a'B. (I.E. & M ,) 1. [Sec. 37. Suh-sec. 3, of Act No. 379 follows Sec. 5 of 5 Vic, No. 17.] "Where a foreign member of a partnership firm, who had purchased the assets and liabi- lities of the partnership, had visited Victoria and left the colony for South Australia in a surreptitious manner, under fear of persons appointed to watch him by creditors, through fear of his absconding, Held, to be an act of insolvency. In re Oppenhevmer and Company, 3 A.J.R., 128. Single Creditor — Act No. 379, Sec. 37, Sub-sees. 2, 3 — " Interpretation Act," No. 22.]— Under the Act No. 22, the word "creditors" in No. 379, Sec. 37, Sub-sees. 2, 3, includes a single cre- ditor; where, therefore, an insolvent leaves Victoria with the intent to hinder, &c, a single creditor, it is an act of insolvency. In re Rickards, 5 A.J.E., 103. Departure More Than Twelve Months Before Order Nisi — "Insolvency Statute 1871," Sec. 37, Sub-sec. 3.] — A debtor left Victoria more than twelve months before the order nisi, and con- tinued to remain out of Victoria, with intent to defeat and delay his creditors. Held that this constituted an act of insolvency under Sec. 37, Sub-sec 3, of the " Insolvency Statute 1871." In re Fyson, 6 V.L.E., (I.P. & M.,) 19 j 1 A.L.T., 124. Act No. 379, Sec. 37, Sub-sec. 3.]— Where an insolvent came to Melbourne to see his creditors and try to arrange for a composition, but could not be afterwards found, Held that a man is not bound to let his attorney know where he is to be found, and that what he had done was not an act of insolvency. In re Bocke, 1 A.L.T., 112. (i) Filing Declaration of Inability to Pay Delta. Act No. 379, Sec. 37, Sub-sec. 4— Petition for Liquidation.] — A petition for liquidation fol- lowed by a confirmation passed by a statutory majority of creditors, that the affairs of the embarrassed person should be wound up by liquidation and not by insolvency, is not an act of insolvency within Sec. 37, Sub-sec. 4. In re H. 8. Smith, 3 A.J.K., 17, 18, 19. (e) Execution and Not Satisfying. 5 Vic, No. 17, See. S.J— A judgment debtor in order to avoid committing an act of insolvency within the meaning of 5 Vic, No. 17, Sec 5, Tnnst. wIicti salted ™t»ati +r\ aatiafg **"» AoM. ™- point out property to satisfy it, either make such satisfaction or point outproperty within the circuit district of the Sheriff to whom the writ of execution is addressed. Ex parte Staughton, 1 W. W. & a'B. (I. E. & M.J 15. [The corresponding Sec. of Act No. 379 is Sec 37,.Sub-sec 8.] 5 Vie., No. 17, Sec 5— Pointing Out Disposable Property.] — The mere assertion by a judgment debtor required under 5 Vic, No. 17, Sec 5, to " point out disposable property," that he has property, is not a sufficient pointing out; and the person relying upon such an assertion, must not merely prove that such an assertion was made, but must afford evidence of the truth of the assertion itself. Ex parte White, 1 W.W. & a'B. (I.E. & M.,) 24. [The corresponding Sec. of Act No. 379 is Sec. 37, Sub-sec. 8.] 5 Vic, No. 17, Sec. 5 — Claim of Interest in Writ of Fi. Fa. — Not Pointing Out Goods to Satisfy.] — Where upon a judgment recovered a fi. fa. had been issued in which a blank was left for interest from date of writ until execution, and the writ was returned endorsed nulla bona, and the writ and endorsement were subsequently set aside on the ground that there was no power to ask for interest, Held, that sheriff had demanded more than he was entitled to, and the request to point out goods to satisfy the judgment was invalid. Order nisi for sequestration discharged. In re Morgan, 2 W.W. & a'B. (I.E. & M„) 2. [The corresponding Sec of No. 379 is Sec. 37, Sub-sec. 8.] Not Pointing Out Property in Satisfaction of Debt— Joint Debt— 28 Vic. No. 273, Sec. 13.] — Where execution is issued against several persons for a joint debt, and one of them is called upon to " point out sufficient disposable property" in satisfaction of the debt, on the construction of the " Insolvency Statute 1865," the property pointed out should be limited to the property of the person who is called upon to point out such " disposable property," and is not to be extended to that of the other joint debtors. In re Drysdale, 3 W.W. & a'B. (I.E. & M.,) 30. [The corresponding Sec. of No. 379 is Sec 37, Sub-sec. 8.] Not Pointing Out Disposable Property — What is a Pointing Out] — D. was called upon to point out property in satisfaction of a joint execution against himself and his two partners. D. replied that he had no property except a mining lease and certain mining shares, of which he handed a list to the officer. The sheriff made a return of nulla bona, and this return was held good since the Act No. 273 limits the pro- perty to that of the person upon whom the demand is made; and " semble, that if it were shown on order nisi for sequestration that the mining shares and lease, if. put up for sale by thp sbpriff with such facilities as D. could 591 INSOLVENCY. 592 hare given to mate a title to the purchaser, would have satisfied the execution, the pointing out would be sufficient. Ibid. Failure to Point out Property — Who Hay Execute the Writ— Special Bailiff— IS Tie., No. 10.]— Where the act of insolvency relied on was a failure to point out property to satisfy an execution there was no order for the appoint- ment of a special bailiff who executed the writ of fi. fa. The writ was directed to the Sheriff of B., who by a warrant under his hand directed to " I., my bailiff, and P., projiac vice," authorising either of them to execute the writ. In the return to the writ P., who had attempted to execute it, described himself as a special bailiff. He Id that the clause of 15 Vic, No. 10, " Supreme Court Act," for the appointment of special bailiffs only refers to cases where writs are specially directed to them, and not to the Sheriff, and that the Sheriff may appoint' any one to execute the writs addressed to him. In re Knowles, 1 A. J.E., 105. Tramway— Land Held under " Land Act 1869," for Building Tramways Upon.] — C. being requested to point out sufficient disposable property to satisfy an execution pointed out a tramway and some land held under the " Land Act 1869," under lease for the purpose of building a tram- way thereon. The tramway could not be transferred without the consent of C. and of the Board of Land and Works, and C. had commenced proceedings in the Supreme Court to recover it, after the sale under the County Court execution, C. alleging that he had not consented to the sale. Held that whether the tramway could or could not originally be made available to satisfy an execution, C. had by his own act in taking proceedings for its recovery placed it in such a position that it could not be immediately available for that purpose, and order for sequestration made absolute against C. In re Clark, 1 A.J.B., 164. Failing; to Satisfy Execution — Seed of Assign- ment—Ho. 278, Part 13, Sec. 13— No. 379, Sec. 2.]— M. executed a deed of assignment under Part 13 of the " Insolvency Statute 1865," No. 273, and after the coming into operation of the " Insolvency Statute 1871," No. 379, failed to satisfy a judgment against him, giving to the officer who was charged with its execution, as his reason for not satisfying it, that he had executed the deed in question. On an order nisi for compulsory sequestration for not satisfying the judgment. Held, per Molesworth, J., that the deed afforded no answer, and rule made absolute. On appeal, Held that the protection afforded by Sec. 13 of No. 273 to a debtor executing such a deed was continued by Sec. 2 of No. 379, and that M. was therefore pro- tected, and order discharged. In re McDonald, 2 V.B. (I.E. & M.,) 12 ; 2 A. J.E., 85, 124. Deed of Assignment Under No. 278, Sec. 116.]— A deed of assignment under No. 273, Sec. 115, is a defence to proceedings under Act No. 379 to sequestrate the estate of a debtor for not satisfying a judgment obtained against him. In, re, McDonald, 4 A.J.B., 184. Affirmed on appeal, 5 A. J.B., 42. Act Ho. 370, Sec. 37, Sub-sec. 8— Demand May be Made wherever Debtor May be Found — Waiver.] — B., an attorney, had recovered a judgment for costs against W. Execution was issued, but no demand was made, the parties understanding that a demand could not be made elsewhere than at insolvent's house. Afterwards a con- versation as to a negotiation took place between the sheriff's officer and the insolvent. Held that a demand may be made wherever debtor might ■ be found ; that there was no demand made so as to constitute the- refusal to pay an act of insolvency, such demand having been subsequently waived. In re Whitesides, 3 A.J.E., 115. Hot Satisfying Judgment— Act Ho. 879, Sec. 87, Sub-sec. 8— Demand.] — Where, on a demand by sheriff's officer, the insolvent said that the transfer of some property would be completed in a day or two, and she would point out that, and the officer left her without having made a definitive demand, i.e., he had not made a direct intimation that insolvency proceedings would be the consequence Of not immediately satisfying the judgment. Order nisi for seques- tration discharged. In re Frances Hodgson, 5 A. J.E., 49. Act No. 379, Sec. 37, Sub-sec. 8— Demand by Sheriff's Officer — Seasonable Time for Satisfying Judgment.] — When a sheriffs officer meets a debtor in the street and demands satisfaction, and receives an answer implying that the debtor has no means, he may make his return immediately ; but, if the debtor, state that he has means and will pay, the officer is not justi- fied in making a return of nulla bona without affording him a reasonable time for doing so. A debtor was met in the street by the officer, who demanded payment at 10 a.m„ and she requested him to meet her at noon, but he declined to go. She went to the sheriff's officer, accompanied by a person who it was alleged had the money, but no tender was made. The return of nulla bona was made 24 hours after the demand. Held, that the duty of satisfying the judgment within a reasonable time was cast upon her, and that she had a reasonable time in which to satisfy it, affirming Moles- worth, J. Order made absolute for sequestra* tion. In re Hodgson, 5 A.J.B., 80, 133. Married Woman— Act No. 384, Sec. 21.]— A married woman, having separate property, was indebted on a judgment recovered by a creditor, and a writ of fi. fa. was issued against the real and personal property of husband and wife, "or either of them* which was returned wholly unsatisfied. Order absolute for seques- tration. In re Clarissa Isaacs, 1 V.L.B. (LP* &M,)1. Aot Ho. 879, See. 87, Sub-sec. 8— Hot Satisfying Judgment — No Evidence of Demand.] — On a petition for sequestration for not satisfying a judgment it did not appear from tie evidence that there had been a distinct demand for pay- ment by the Sheriff's officer, which had been refused hy the debtor. Held that the oraer nisi should be discharged with costs. In re Willison, 4 V.L.E. (I. V. & M.,) 67. 593 INSOLVENCY. 594 Act No. 379, Sec. 87, Sub-sec. 8— Demand.]— Where a sheriff's officer made a demand, and then allowed time upon an indefinite promise to pay, and did not renew the demand, Held that there was no demand so as to constitute it an «ct of insolvency. In. re Fermer, 1 V.L.E. (LP. & M.,) 13 j 2 A.L.T., 145. "Insolvency Statute 1871," Sec. 37, Sub-see! 8.] — The non-satisfaction of an execution on a Judgment for the defendant's costs of a nonsuit is not an act of insolvency under Sec. 37, Sub- sec. 8, of the "Insolvency Statute 1871." A person entitled to the costs of a nonsuit is in a, different position from a trade creditor, and has aot the same remedies. In re Hollowood, 6 V.L.E. (I. P. & M.,) 78; 2 A.L.T., 56. " Insolvency Statute 1871." Sec 87, Sub-sec. 8— Amount of Judgment]— It is not necessary in •order to constitute an act of insolvency under Sec. 37, Sub-sec. 8, of the "Insolvency Statute 1871," that the judgment which the debtor has not satisfied should be for JS50 or over that amount. In re Drouhet, 10 V.L.E. (I. P. & M.,)4; 5A.L.T., 203. Act No. .879, Sec. 37, Sub-sec. 8 — Execution in Supreme Court on County Court Judgment.] — A failure to satisfy an execution issued by the Supreme Court on a County Court judgment is an act of insolvency within Sub-sec. 8 of Sec. 37. In re M'Namara, 10 V.L.E., (LP. & KL.) 84. "Where a judgment has been signed on a promissory note, and the failure to satisfy the judgment is relied upon as an act of insol- vency, it is too late at the hearing of the order nisi to object to the judgment as having been procured by fraud, or that there was no consi- deration given for the note. In re Lee, 7 V.L.E. (LP. & M.J 117. Status of Judgment Creditor.]— The creditor -whose judgment is returned unsatisfied must "be identical with the person who instituted the proceedings: In re Allen, 5 V.L.E. (I. P. & M.,) 25, see S.C., ante column 586. . Beturnto Writ.]— The return to the writ need jiot specify that the insolvent was called upon to satisfy the writ, under Sec. 37, Sub-sec. 8; the officer's affidavit shows that. In re M'ConvilU, 7 V.L.E. (LP. & M.,) 17. Eeturn to Writ.]— See vnre White, i» re Cahill, post column 602. Eeturn to Writ, Sec. 37, Sub-sec. 8.] — To a writ of /. fa. the return was that the defendant had no personal property in the Bailiwick that could be levied upon, but that the defendant had an interest in certain real •estate in the Bailiwick, which the Sheriff accordingly advertised for sale, but was unable to sell because of a rule of Court to return the writ before the day advertised for the sale. Held that this was not a return of the writ ■unsatisfied in whole or in part, and would not support an act of insolvency under the "Insolvency Statute 1871," Sec. Z7, Sub-sec. 8. In re Macpherson, 10 V.L.E. (LP. & M.,) 1 ; 5 A.L.T., 156. As to What the Affidavit or Petition Must Specify.] — See in re Gibb, in re Chambers, m re Fisher, m re Cahill, in re Allen, in re Murray, in re White, in re Synnot, in re Symons, and m re Wolter, post columns 600, 601, 602. Act No. 879, Sees. 37 (Sub-sees. 2, 3, 8,) 41 — Partnership.] — A firm of M. & Co. consisted of two members, M. resident in Victoria, M'C. resident in London. A judgment was recovered against both partners, and the sheriff called upon M. to satisfy it, which he failed to do. Held, that under Sec. 41 an intent to defeat and delay creditors is essential, and that a mere omission to satisfy a judgment under Sub-sec. 8 is not sufficient ground, unless it was done to defeat and defraud creditors, for an order under Sec. 41. In re Martin, 5 V.L.E. (LP. & M.,) 13. (/) Failure to Satisfy Debtor's Summons. See under "Debtor's Summons," ante column 583. (g) Consent and Failure to Sequestrate Voluntarily. Refusal to Sequestrate Estate — " Insolvency Statute 1871," Sec. 37, Sub-sec. 9.]— All creditors, secured as well as unsecured, have a right to notice of, and to be present and take part in the proceedings at, a meeting called for the purpose of considering what shall be done with the estate of a debtor in insolvent cir- cumstances. But though, the exclusion of a secured creditor might render the meeting informal, if such exclusion be effected by an agent of the debtor, the debtor will not be allowed to take advantage of this objection to prejudice the right of other creditors to have the estate sequestrated for an act of insolvency, in refusing, at the request of the meeting, to voluntarily sequestrate his estate. In re Clemes and Leach, 2 V.L.E. (LP. & M.,) 37, Act No. 379, Sec. 87, Sub-sec. 9.]— A number of creditors met at the debtor's house, asked him to furnish a list of his creditors and their debts, and he did so, mentioning those present and one other not present. The meeting then, proceeded with the appointment of a chair- man, and passed resolutions, &c, indicating to the debtor the drift of the proceedings for the purposes of the Act, the debtor not objecting. Held to be a good meeting within Sub-sec. 9 of Sec. 37. Order absolute. In re Inglis, 3 V.L.E. (LP. & M.,) 100. Meeting of Creditors — Proxies — Act No. 879, Sec. 87, Sub-sec. 9] — The majority of creditors men- tioned in Sub-sec. 9 is a majority in number and not in value. A majority of creditors in number passed a resolution that insolvent should put his estate in the Insolvent Court immediately, and the debtor refused to seques- trate. After such resolution and refusal some 595 INSOLVENCY. 59$ of the creditors went away, and a majority of the remainder preferred an assignment, which was carried into effect. Held that the resolu- tion could not be neutralised by the change of opinion. Semble, proxies cannot be used at such a meeting, but if they can they must be properly proved. In re Southey, 5 Y.L.E. (LP. & M.,) 4. Act No. 379, Sec. 37, Sub-sec. 9.]— In order to maintain an act of insolvency under Sub-sec. 9, it must be shown clearly that before the meeting of creditors broke up there was a definite demand for the debtor to sequestrate, and a definite refusal. In re Webster, 5 V.L.E. (I. P. & M.,) 16. Act No. 379, Sec. 37, Sub-sec. 9 — Meeting of Creditors.] — The act of insolvency relied on was that at a meeting of creditors the debtor con- sented to present a petition for the sequestra- tion of his e3tate, and that within 48 hours after such consent he did not present such petition. There was no chairman elected, and one creditor asked if the debtor would consent. Held,, that all that was required was that cre- ditors must understand that a schedule is to be filed, and that debtor must leave the meeting with the idea that he is bound to file it j that there was no need for a chairman or a resolu- tion, and that the meeting might assent silently to a question asked by a creditor. In re John Smith, 7 V.L.B. (LP. & M.,) 4 ; 2 A.L.T., 116. (ft) Fraudulent Preference. Giving a Fraudulent Warrant of Attorney — What Is — No. 373. Sec. 13.] — Executing a warrant of attorney in favour of a creditor for the purpose of preventing another creditor from proceeding in an action against the insolvent, is executing a fraudulent warrant of attorney, whereby the insolvent's estate had been or might be affected within the meaning of Sec. 13 of the " Insol- vency Statute 1865," and executing such a war- rant is an act of insolvency. In re Kerr and Gray, 3 W.W. & a'B. (I.E. & M.,) 34. [The corresponding Sec. of Aot 379 is Sec. 37, Sub-sec. 10.] Act No. 379, Sec. 37, Sub-sec. 10.]— See in re Wiedeman, ante column 587. Act No. 379, Sec. 37, Sub-seo. 10— Omission of Creditors by Mistake From Schedule to Deed of Creditors.] — See in. re Haslam, ante column 587. As to Fraudulent Preferences generally, see Fraudulent Pbeeerence and Certificate of Discharge. Assignment of Part of Property — Intent—" Insol- vency Statute 1871," Sec. 37, Sub-seo. 10.] — An assignment by a man of the whole of his pro- perty, or of the whole, with a trifling exception, to one creditor, in satisfaction of, or as security for an antecedent debt, is in itself an act of insolvency, because the necessary consequence of such an assignment is to defeat or delay all the other creditors, and the debtor is deemed to have intended the necessary consequences of his act; and no question is left to the jury whether the assignment were fraudulent within Sec. 37, Sub-sec. 10, of the " Insolvency Statute 1871." But where the assignment does not comprise all, it is by no means a necessary consequence that the other creditors must be* defeated or delayed, and the intent is not, and cannot be, presumed as a matter of law, but must be proved as a matter of fact. And even where the assignment does comprise all the property, but there is some new advance- made, or agreed to be made, and afterwards made, the legal presumption does not arise. and the intent must then be proved as a matter of fact. Hasker v. Moorhead v. Blackwood v. McMullen, 2 V.L.B. (L.,) 160. (2) Who May Take Advantage of. Act No. 379, 8ecs. 37, 39, 47.]— B. and others trading as partners, attended at a meeting of creditors, and B. seconded a resolution for acceptance of an assignment to trustees for creditors ; but they did not execute the deed. B. and others were the petitioning creditors. Held that, as the Act under Sees. 37, 39, and 46 did not expressly exclude creditors who had so assented to a deed of assignment from petitioning, and the policy of the Act being to prefer the administration by insolvency to that by trustees outside of it, the order for seques- tration based upon the petition of B. and others must be made absolute. In re Eastwood, 5 A.J.R., 61, 62. Held, overruling Molesworth, J., that where a creditor assents to the execution of an assignment of an insolvent's estate for the benefit of creditors, even though the deed was not signed by any of the creditors, such creditor cannot petition for the sequestration of the insolvent's estate. In re Vail, 1 V.L.E. (LP. & M.,) 5. Collusion Between Non-signing Petitioning Credi- tor and Signing Creditor — Petitioning Creditor Pre- sent at Meeting but Not Taking Part in Proceedings — Evidence.] — An insolvent's notice of objec- tions to order for sequestration alleged collusion between the petitioning creditor who had not signed a deed of assignment (the aot of insol- vency,) and other creditors who had signed ifc Quavre whether such disentitles the petitioning creditor from obtaining the order. But where a petitioning creditor was present at a meeting of creditors where it was resolved to assign the estate to trustees, he not signing the deed or assenting to or dissenting from the resolution, held that he was not disentitled from taking advantage of the assignment as an act of insolvency. Evidence in support of insolvent's objections is admissible. Jn re Wiedeman, 5 V.L.B. (LP. &M.,)32. The execution by one member of a firm as trustee of a creditor's deed of assignment does not bind the firm as creditors as a relinquish- ment of the debt, and will not operate, as a bar to proceedings by the firm for sequestration of the assignor's estate. In re Orate, 3 "W. W.. 6 a'B. (I. E. & M.,) 13. 597 INSOLVENCY. 598. VI. The Sequestration. {A) Voluntary Sequestration. District in Which a Petition for Voluntary Seques- tration is to be Presented — Act No. 379, Sec. 36] — Regina v. Poole, 3 V.R. (L.,) 181, ante column 579. Effect of Voluntary Sequestration of Partnership Estate on Separate Estate of Each Partner.] — See Bates v. Loewe, in re Tumbull, post column 599, Official Assignee's Power to Bring an Action of Devastavit Against Executors Who Have Sequestrated the Estate of Their Testator.] — Hasher v. MMillan, 5 V.L.E. (E.,) 217 j 1A.L.T., 45, post under sub-heading Trustees, Official Assignees, &c. And for effect of voluntary sequestration see post under Effect of Insolvency. Voluntary Sequestration of a Firm.] — In re Torsion and Webster, post column 599. (B) Compulsory Sequestration. (1) When and How Made. How Far a Composition a Bar To— Act No. 379, Sees. 129, 151. — C. obtained an order nisi for sequestration of M.'s estate, January 31st, re- turnable February 22nd. On February 8th a meeting of creditors was held, C. not being present, when a resolution was passed to accept a composition, and this was duly confirmed at a meeting held February 19th. Held, that Sees. 129 and 151, did not provide for a composition being arranged, " notwithstanding proceedings in Insolvency," and order for sequestration made absolute. In re Marie, 3 A.J.E., 6. The mere convening of a meeting of creditors before the order nisi is no bar, and order for sequestration made absolute. In re Hislc, 3 A.J.E., 115. In the Absence of the Debtor.]— "Where there is no reasonable prospect of the debtor return- ing within a reasonable time, no postponement will be made of an application to make an order nisi for sequestration absolute. In re Gardiner, 4 A. J.E., 6. Fresh Petition for Sequestration.]— A firm of creditors may file a fresh petition for seques- tration on the same materials upon which an order nisi obtained by one of the partners was discharged. In re Warmoll, 4 A. J.K., 32. Order Nisi — Hearing— Adjournment] — Applica- tor the adjournment of the hearing of orders nisi are looked upon with disfavour by the Court. In re Portue, 4 V.L.E. (I. P. & M. ,) 93. Of Estate of Uncertificated Insolvent.] — L.'s estate had been sequestrated May, 1868, and his certificate granted April, 1869, but it was never confirmed. Held, on petition for a second! sequestration, that there was nothing to pre- vent a second sequestration. Order made- absolute for sequestration. In re Love, 5 A. J.B., 157. But see in re Bryan, post under sub-heading Setting Aside. Debtor's Summons Set Aside After Making of Order Nisi.] — A debtor's summons was served on L. for the payment of .£202 2s. Id , and was neither paid nor compounded for, and no- application was made to dismiss the same. Twenty days afterwards an order nisi was made thereon, and a time appointed for its being made absolute. Before that time, however, the summons was set aside. On the order nisi coming on for hearing, Held that there were proper materials for making the order nisi at its date, and that it should be made absolute,, notwithstanding that the debtor's summons had been set aside. In re Lawler, 4 V.L.E, (I.P.&M.,)8. Proof of Act of Insolvency — Act No. 379, Sec. 37.} — Per Barry, J. — Strict proof of the act of insolvency is required, but the production o£ the proof is not confined to any stage of the- proceedings. In re Hodgson, 5 A.J.B., 133. Two Orders Nisi — Second Discharged After First Made Absolute.] — "Where two orders nisi by- different petitioning creditors against the same debtor had been obtained, and the first obtained had been made absolute, the Court refused to make the second absolute also. In re Higg, 4 V.L.E. (I.P. & M.,) 20. Valuation of Security — Sequestration of Firm's. Estate— 5 Vic, No. 17, Sec. 39.]— A secured! creditor of the separate estate of one partner is not bound in a sequestration of the firm's estate to value his security upon the separate estate, J2x parte Flower, Salting and Co.f 1 W. & "W. (I.E. & M.,) 143. Affirmed on appeal to the Privy Council, sub. nom. Bolfe v. Flower, L.E , 1, P.O., 27. Compare Sec. 37 of Act No. 379. Valuation of Security — Statement in Petition — ■ Act No. 379, Sec. 37.] — .See in re Rowley, in re; Harward, in re M'Namara, post column 605. Second Order Nisi— Costs of Previously Discharged One Not Paid.] — The Court ordered the issue of an order absolute upon an order nisi to be de- layed till the costs of a previous order nisi, by the same petitioning creditor, which order had been discharged with costs which had been taxed, were paid. In re Harward, 4 V.L.E. (I.P. & M.,) 65. Subsequent Order Nisi Not Made Absolute Till Costs of Former One Paid.]— An order nisi ob- tained by a firm was dismissed with costs on the ground that the petition only showed the debt to be due to two of the "members of the firm. A. 599 INSOLVENCY. 600 fresh order nisi was thereupon obtained by the two members in question, and the costs of the former order were taxed the day after. After the long vacation which then intervened the second order nisi came on for hearing, and the respondent applied for leave to file objections nunc pro time, one of such objections being that the petitioners were indebted to him in a certain sum. Held that this Could not be allowed to prevail as a set-off since the amount idue might be on a bill not then due or payable, but that before the order nisi could be made •absolute the costs of the former order nisi must be paid by the petitioners. In re Fraser, ■« V.L.E. (I. P. & M.,) 20; 1 A.L.T., 118. Making Order Absolute for Sequestration— What ■Will be Considered.] — On an application to make absolute an order nisi for sequestration, the Court will not go behind the order, if it be sufficient on its face, to see whether the materials on which it was made were sufficient. In re Fitzpatrick, 10 V.L.K. (I. P. & M.,) 6; 5 A.L.T., 213. Petition by Executors for Compulsory Sequestra- tion — Who Must Join.] — In a petition for the compulsory sequestration of the estate of a debtor of a testator, all the executors must join. Ex parte Staughton, 1 W.W. & a'B. (I.E. & M„) 15. *{2) Joint and Separate and of Estate of a Firm. Sequestration of Partnership Estate by Majority -. — Separate Estate.] — Qucere, per Molesworth, J. — Whether a majority of partners by volun- tarily sequestrating the partnership estate sequestrate also the separate estates of the majority. Bates v. Loewe, 1 W. & W. (E.,) 7. Joint — " Greater Number of Partners" — Firm of Two.]— On an application by a creditor to set aside a voluntary sequestration made by one partner only of a firm of two, on the ground that it was not made on the petition of the •*' greater number of the partners." Held that the validity of the sequestration depended -upon the antecedent consent of the other part- .ner, and could not be rendered valid by his subsequent assent. In re Torston and, Webster, H.iW. (I. E. & M.,) 96. Sequestration of Joint Estate is a Sequestra- tion of Separate Estate — Administration] — Per JZhapman, J. On compulsory as on voluntary sequestrations, the joint sequestration of part- nership estate is a sequestration of the separate ^estate of each partner, and there need be no separate order for sequestration of any one of the separate estates. But in administering the ^estates the joint and separate estates must l>e kept distinct as to claims on them respec- tively. In re Turnbull, 1W.4W. (I.E. & M.,) 105. ' Mode of Administering Estate When Separate Estate is Sequestrated as a Consequence of the Sequestration of Joint Estate.]— Per Chapman, J., affirmed on appeal. If the sequestration of separate estates follows as a consequence from the sequestration of the joint estate, the rights of all the several parties under each estate, and the mode of administering the estates, would still be precisely the same as it would be under separate orders of sequestration. Ex parte Flower, Salting and Co., lW.&W. (I.E.& M.,) 143. And see S.C. post under sub-heading Peoop or Debts — Debts Provable. Joint Debt.] — A man may be made insolvent upon a debt which he and another conjointly owe, and in cases of partnership the creditor is not bound to proceed under Sec. 18 of No. 273, for sequestration of the firm's estate unless he so please. In re Drysdale, 3 W. W. & a'B. (I.E. & M.,) 30. Sequestration of Separate Estate for Partnership Debt Before Sequestration of Partnership Estate.] — It is no answer to an application for the sequestration of the separate estate of a partner for a partnership debt that no attempt has been made to sequestrate the partnership estate. Re Gardiner, 4 A.J.K., 6. Construction of Act No. 379, Sec. 37, Sub-sec. 1, and Sec. 41, in the Case of Sequestration of the Estate of a Firm.] — See in re Thomas and Cowie, ante column 588. Construction of Sec. 37, Sub-sec. 8, and Sec. 41.] — In re Martin, ante column 594. The Act of Insolvency Committed by One Partner is Sufficient on Which to Base a Petition for the Sequestration of the Firm's Estate.] — In re Martin, and in re Oppenheimer, ante column 605. In proceedings for the sequestration of a firm's estate the names of the members of the firm should be stated in the petition and order nisi. In re Martin and in re Oppenheimer, post column under sub-heading Petition. (3.) The Petition, Orders, Practice, Evidence and Costs. (a) Form and Requisites of Petition, Orders, Summonses and Affidavits. Petition Must State Act of Insolvency.] — The petition for compulsory sequestration need not be dated; it or the summons must show that there was a return or affidavit from sheriffs officer shewing, in fact, that he could not find any disposable property, and it or the summons must show that the alleged insolvent has been required to satisfy the debt. In re Gibb, 2 W. & W. tI.E. & M.,) 40. Compare Act 379, Sec. 37. Petition — Act of Insolvency Must be Stated Fully.] — A petition for compulsory sequestration for an alleged act of insolvency must state pre- cisely the ■ act of insolvency alleged, for the defendant does not necessarily see the affidavit. Therefore a petition which alleged only that a person haying a judgment against him has not satisfied the same, or pointed out to the officer disposable property to satisfy the same, and did not allege that he had been required to do so, was held bad. In re Chambers, i'W.&'W. (I.E & M.O 172. 601 INSOLVENCY. 602-" Compare Act No. 379, Sec. 37. Petition — Setting Out Non-Payment of Judgment Debt — What Must be Alleged.] — On a. rule nisi for compulsory sequestration, the petition, order, and summons alleged that the debtor, haying the sentence of a competent Court against him, and being thereunto required by a proper officer, did not satisfy the same, or point out sufficient property to satisfy the same. None of these documents alleged that the officer failed to find sufficient property to satisfy the sentence. Held that the alleged act of insolvency was not sufficiently set forth; leave to amend was refused, and the order discharged without costs. In re Fisher, 1 W.W. & a'B. (I.E. & M.,) 31. Statement of Act of Insolvency — Ho. 273, Sec. 13 — What Sufficient] — A statement in an order nisi and petition that the debtor had property in Victoria when he failed to satisfy a judgment, orto point out sufficient disposable property to satisfy it, is a sufficient statement of an act of insolvency under Sec. 13 of the "Insolvency Statute 1865," No. 273. In re Murray, 1 V.E. (I.E. & M.,) 8 ; 1 A.J.E., 113. Compare Act No. 379, Sec. 37. Order Nisi — Sufficiency of Statement of Acts of Insolvency — Act No. 379, Sees. 31,43.]— An order nisi for sequestration which stated the acts of insolvency committed within six months before the petition to be " with intent, &c, having departed out of Victoria, and with intent, &c., having remained out of Victoria, and with intent, &c, having otherwise absented himself," was held to be sufficient, though the last act of insolvency as alleged was held too vague to alone support an order absolute. In re Wolter, 4V.L.B. (I. P. & M.,) 75. Form of Petition — Date of Act of Insolvency — Affidavit.] — It is not necessary that the date of an alleged act of insolvency should appear in the petition ; it is sufficient if the date appear in the affidavit verifying the petition. Ibid. Form of Order Nisi — Allegation of Act of Insol- vency — "Insolvency Statute 1871," Sec. 43.] — An order nisi for sequestration alleged that the petitioner had been informed and believed that the officer who attempted execution of a judgment, the non-satisfaction of which was the alleged act of insolvency, was the " officer charged with the execution of the judgment," and that by reason of the matters aforesaid the insolvent had committed an act of insol- vency by not satisfying a judgment when called upon by the officer charged with the execution thereof to do so. Held, that the act of insolvency was sufficiently set out, under Sec. 43 of the "Insolvency Statute 1871," and that even if it were not the Court would direct an amendment. In re Syunot, 4 V.L.E. (I.F. & M.,) 89. Order Nisi— Statement of Act of Insolvency- Satisfying Execution.] — An order nisi stated the return of a writ of execution unsatisfied, and then stated that the debtor was called upon to satisfy. An objection thereto, on the ground- that the allegations were not made in proper- chronological order, overruled. In re Allen, & V.L.E. (LP. & M.,) 25. Form of Petition — Statement of Aot of Insolvency —"Insolvency Statute 1871," Sec 37, Sub-sec. 8.] — A petition for sequestration stated that exe- cution had been issued against the real and personal estate of the debtor, which was returned unsatisfied, the form of the return being, that "the within-named W. hath not any goods or chattels within any bailiwick whereof I can cause to be made the debt and interest, &c." Held that the return was insuffi- ■ cient, and an act of insolvency under Sec. 37, Sub-sec. 8, of the " Insolvency Statute 1871 ,' r was not proved ; and order discharged, but, since it was upon a technical objection, without costs. In re White, 6 V.L.E. (I.P. & M.,) 50; 2 A.L.T., 43. Order Nisi — What must Appear on Face of.] — Where an insolvent had been asked by the sheriff of the western bailiwick to satisfy a judgment, but it did not appear on the face of the order nisi that any demand had been made upon the insolvent in that bailiwick, or that - his place of abode was in that bailiwick, Held ■ that it was not necessary that the order should show that the demand was made in the wes- tern bailiwick, the principle of omnia rite esse acta applying. In re Symons, 1 A.L.T., 29. Order Nisi— Form of— Statement of Act of Insol- vency — "Insolvency Statute 1871," Sec. 87, Sub- sec. 8] — An order nisi for sequestration, which, purported to be based on Sub-sec. 8 of Sec. 37 of the "Insolvency Statute 1871," did not allege execution to be returned unsatisfied in whole or in part, or that the alleged act of insolvency was committed within six months of" the petition , or that the debt was unsecured. The - order also stated that the petition " was pre- sented to me," without saying to a Judge of" the Court of Insolvency. Held bad, and dis- charged with costs. In re Cahill, 1 A.L.T.,. 145. Petition — Act of Insolvency — Judgment Recovered by Two Members of a Firm — Order Nisi Obtained by Firm.] — An order nisi for sequestration was obtained on a petition by the individual mem- bers of a firm trading as, &c., the act of insol- vency alleged being the failure to satisfy a judgment which was recovered by two members ■ only of the firm on behalf of the firm, but it did not appear in the petition that the judg- ment was recovered on behalf of the firm. Held that the petition was irregular, and that the order nisi should be discharged with costs.. In re Fraser, 6 V.L.E. (I. P. & M.,) 20; 1 AL.T., 113. Summons Upon Order Nisi — How Entitled.] — The summons need not be entitled either " In the Supreme Court" or "In Insolvency." In re- Fox, 2 W. & W. (I.E. & M.,) 35. "Insolvency Statute 1885," No. 273, Sec. 20 — Heading of Summons.] — Where a summons was headed " In the Supreme Court, &c," " In the; •603 INSOLVENCY. 604 Matter of the Petition, &c," but was not in the Queen's name and was addressed to no one, Held it was not " a process" under Sec. 20, the summons being insufficient on account of the •omission, In re Mackinnon, 6 W.W. & a'B. (I.E. & M.,) 1. The proceedings should be entitled, " In the Insolvency Court," and not " In the Supreme ■Court," but the Court allowed an amendment, :and there being no other objection, made the •order absolute. In re Ryan, 1 V.L.E. (I.P. & M.,) 4. According to note at p. 83 of 2 V.L.E. (I.P. & M.,) this decision is incorrectly reported; all that waB done was to strike out " In the Supreme Court." Order Nisi for Sequestration — Heading.] — It is no objection to an order nisi for sequestration -that it is not headed in any Court at all. In re Cooper, 2 V.L.E. (I.P. & M.,) 82. Title of Cause— Up to Order Absolute.] — A case up to the hearing of the order nisi is pending between two Courts, and is not in either until the order is made absolute or discharged, and therefore the proper title is *' In the * Insol- vency Statute 1871.' " In re Wolter, 4 V.L.E. (I. P. & M.,j 75. Address of Petition.] — The petition should be addressed to the Judge by whom the order nisi is made. InreM'Conmlle.l V.L.E. (I.P.&M.,) 17; 2 A.L.T., 156. Summons — Form of.] — The summons need not recite at length the petition and the order nisi, and may omit the statement as to property, the meaning of a summons being to bring the person served to Court to look to documents referred to in the order nisi, not to accurately describe them. In re Mwrray, 1 V.E. (I. E. -& M.,) 8 ; 1 A.J.E., 113. Form of Summons — No Allegation of Order to Show Cause.] — At the hearing of an order nisi for sequestration it was objected that the sum- mons served upon the respondent did not show sufficient materials on which to base it, recit- ing that the Judge and commissioner upon reading the petition and affidavits did place the estate under sequestration, and there was no allegation that the statements in the petition -were true. Another objection was that there -was no allegation of an order to the respondent to show cause. Held that the statements in the summons were sufficient, for if the Court, upon reading the petition and affidavits had not believed them to be true no order nisi would have been granted, and that since the order nisi contained an order on the insolvent to show cause the summons might be amended by inserting the recital of that order. In re Knowles, 1 A. J.E., 105. Petition — Signature of— Affidavit in Support.] — A petition set forth three partners as petitioning creditors, two of whom signed, and one as attorney for the third, who was out of the jurisdiction — The affidavit stated the nature of the debt, and that the three were partners — Held sufficient. In re Murray, 1 W. & W. (I.E & M.,) 137. Petition — Signature of Petitioning Creditor.]— A petition for compulsory sequestration, un- signed by the petitioning creditor, cannot be regarded as a petition at all; and where an order nisi was obtained on such a petition, the Court held that it was not a case for amend- ment, and the order was discharged as not being supported by a petition. In re Barry, I W. & W. (I.E. & M.,) 174. Compare Sec. 31 of Act No. 379. Objection to Signature of Petition.] — The Court will not entertain an objection to the signature of the petition where the order nisi for seques- tration is correct. In re Ritchie, 8 V.L.E. (I.P. & M.,) 1 ; 3 A.L.T., 88. Petition— Certificate of Security for Fees— Sig- nature — 5 Vic., No. 17, sec. IS.] — The certificate required by Sec. 15 of 5 Vic, No. 17, that secu- rity for fees, &c, has been found, to be endorsed on a petition for compulsory sequestration must be signed by the chief commissioner personally. In re Oliver, 1 W. & W. (I. E. & M.,) 179. Order Nisi— Certificate of Security for Costs.] — The order nisi for sequestration need not recite the commissioner's certificate of security for costs or be drawn up on reading it, it is suffi- cient if the certificate is endorsed on the petition. Inre Fawcett, 2W. & W. (I.E. & M.,)5. Security for Costs of Sequestration— 28 Tic, No. 273, Sec. 16.] — Where the Commissioner has certified that security for the fees and charges of a sequestration, required by Sec. 16 of No. 273, has been given, the Court will not go behind his certificate to enquire by whom the security has been given. Giving security means promising it to be given, and if given on behalf of the petitioning creditors, it must be pre- sumed to have been by their procuration. In re Phelan, 3 W.W. & a'B. (I.E. & M.,) 1. Certificate of Security for Costs — Improper a Bar to Jurisdiction Under Sec. 16 of Act No. 273.]— If the certificate of security for costs endorsed on the petition for sequestration be made out in the wrong name, it is an objection to the juris- diction, and the order nisi for sequestration will be discharged. In re Bandars, 1 V.E. (I.E. & M.,) 1 ; 1 A.J.E., 38. Commissioner's Certificate of Security for Costs.] — It is no objection to a petition for compul- sory sequestration that the certificate of the commissioner of security for costs bears a date earlier than that of the petition, for the docu- ment as a petition must be taken to have existed when the commissioner certified upon it, and the inference should be that one date is erroneous. In re Murray, 1 V.E. (I. E. & M.,) 8; 1 A.J.E., 113. [N.B. — These provisions in 5 Vic, No. 17 and Act No. 273 do not appear to be embodied in Act No. 379.] «05 INSOLVENCY. 606 Form of Petition— Married Woman's Estate — Separate Property.]— See in re Willison, 4 V.L.E. ■(I. P. & M.,) 67, post under sub-heading JSvidence. Form of Petition and Affidavit — Act No. 278, See. IS — " Having Property in Victoria."] — Held, that ■on a petition for sequestration the petition and affidavit should, under Sec. 13, run "having at the time of the alleged act of insolvency and now having property in Victoria." Order nisi discharged where the petition did not show this. In re Mackinnon, 6 W.W. & a'B. (I.E. .& M.,) 1. Petition for Sequestration of Partnership Estate — Jlembers of Firm to be Stated in Petition and Order Nisi.] — On an order nisi for sequestration of -the estate of "A. 0., trading as A. O. and Co." Held, that petition and order nisi should state, as far as is known, who are the members of the firm. Order discharged. In re Oppen- .heimer, 3 A.J.K., 91. See S.P., m re Martin, 5 V.L.E. (I. P. & M.,) 13. Form of Petition — Creditor Holding Security — Act No. 379, Sec. 37.] — The fact of a petitioning ■creditor not disclosing that he has security for ids debt though it may he a reason against -making absolute an order nisi for sequestration is no ground for setting aside the sequestratiqn at the instance of the debtor when the order has been made absolute. In re Rowley, 2 V.L.E. (I. P. & M.,) 50. Petition — Form of — Creditor Holding Mining Shares as Security.] — A petition for sequestra- tion presented by a creditor who holds mining shares as a security for his debt must set a value -on them, or if the shares be of no value should state so, and offer to give them up for the benefit of creditors. It is insufficient to state merely that the shares are of no marketable value. In re Harward, 4 V.L.K. (I. P. & M.,) Where a petitioning creditor in the petition, affidavit and order nisi set out a debt on which a. judgment was recovered, alleging that it was not secured, and afterwards stated that he held security which he valued at Is., Held that the -objection as to the petition and order nisi not ■disclosing security was fatal, and order dis- charged with costs. In re M'Namara, 10 V.L.B. (I. P. & M.,) 84. Act No. 379, Sec. 45 — Petition — No Prayer for Sequestration.] — Where an objection was ■ taken to an order nisi that the order did not show jurisdiction, and there was no prayer for seques- tration in the petition, Held that the want of the prayer was fatal; that it was included in the objection, and was not technical under Sec. 45. In re Richards, 5 A.J.E., 103. Petition — Fatal Mistake — Dismissal.] — A peti- tion, upon which an order nisi was founded, prayed by mistake for the sequestration of the petitioning creditors' estate, and not of that of the alleged insolvent. Held a fatal error ; that the objection going to the jurisdiction, it did not come within the clause in " The Supreme Court Rules" giving power of amendment, and that the order nisi must be dismissed. In re Murray, 1 W. U W. (I. E. & M.,) 137. Order Nisi — Form.] — It is not a material error in the curial part of an order iiisi if it purports to sequestrate the estate until the day when the insolvent was to show cause instead of until otherwise ordered. In re Murray, 1 V.B., (I.E. &M.,)8j 1A.J.E., 113. Form of Order Nisi— Omission of Words.] — Where an order nisi stated that the estate was placed in the hands of the assignee, omitting the words "under sequestration" after the word "placed," Held, that the words omitted were implied, and objection to the form over- ruled. Inre Palmer, 5 A.J.R., 157. Order Nisi— Copy— By Whom Certified.]— A copy of an order nisi for sequestration should be certified' by the chief clerk of the Judge making the order. In re Dunne, 2 V.L.E. (I.P. & M.,) 16. Order Nisi for Sequestration — Informal Recital.] — An order nisi for sequestration recited that a petition had been presented, but did not say to whom, whether to the Insolvency Court or a Judge of the Supreme Court. The order was signed " Robert Molesworth," but it did not appear who he was. or that any petition hadi been presented to him. Held that since the order did not show the authority under which it was signed, that authority being a petition properly presented, in the absence of such petition the Court could not amend the order nisi by reciting the petition properly, and therefore must discharge it. In re Cooper, 2 V.L.E. (I. P. & M.,) 82. Order Nisi — Description of Insolvent.]— Under the " Insolvency Statute 1871," an alleged in- solvent may be properly described either by his place of bodily residence or by his plaee of business. In re Bayldon, 2 V.L.E. (I. P. & M.,) 85. Order Nisi— Affidavits on which it is Founded.] —If there is nothing wrong on the face of an order nisi the Court will not go behind it to consider whether it was granted on insufficient affidavits. In re Thompson, 7 V.L.E. (I.P. & M.,) 146. Order Nisi for Sequestration — Clerical Error Amendment.] — A clerical error in an order nisi for sequestration, which is not a want of form or omission only, but states something, which puts the petitioner out of Court, cannot be amended. In re Beade, 2 V.L.E. (I.P. & M.,) 83. Where an order nisi omitted the word " within " in the statement " that the said act of insolvency was committed and occurred within six months before the presentation o£ the said petition," Held, that it could not be amended under Sec. 31 of the "Insolvency Statute 1871." Ibid. 607 INSOLVENCY. 60S Amendment — "Insolvency Statute 1871," See. 81.] — An order nisi for sequestration was made "upon reading the petition of T," but did not state that the petition was addressed to any person. The petition itself, however, was properly addressed and presented. On the hearing, the Court allowed the order to be amended, under Sec. 31 of the "Insolvency Statute 1871," subject to the costs of the amendment, holding that it was a matter not material. In re Johnson, 4 V.L.E. (I.P. & M.,) 69. Statement of Petitioner's Debt — Variance — Amendment — " Insolvency Statute 1871," Sec. 31.] — A petitioning creditor's debt was alleged to be upon a judgment of the Supreme Court upon two bills of exchange, but turned out to be in fact a judgment entered up on a certificate of a judgment in tbe County Court. Held, such a variance as the Court could not amend under Sec 31 of the " Insolvency Statute 1871." In re Synnott, 4 V.L.E. (I.P. & M.,) 89. Order Nisi — Incorrect Statement — Discharge.]— An ordernisi for sequestration which stated that the petitioner had been called upon to satisfy debt, was discharged without costs, the Court refusing to amend, although the petition stated correctly that the respondent was called upon. In re Portue, 4 V.L.E. (I. P. & M.,) 93. Supreme Court in Insolvency Jurisdiction — Amendment — "Supreme Court Rules 1851," Cap. 10, Eule 26.] — The Supreme Court in its insolvency jurisdiction has power to amend pleadings in insolvency under the general power of amend- ment conferred by the " Supreme Court Rules 1854," Cap. 10, Eule 26. In re Synnot, 4 V.L.E. (I. P. & M.,) 89. Form of Order Nisi — Amendment.] — An order nisi stating that debtor called a meeting of cre- ditors as under Fart 3 of Act No. 379, and that he was requested to surrender his estate under the Statute, is not bad because it does not state under what part of the Statute the estate is to he sequestrated, or because it does state that the meeting was called under Part 3, and is capable of amendment if required. In re Webster, 5 V.L.E., (LP. & M.,) 16. Amendment of Order Absolute.] — Where an order absolute for sequestration is sought to he amended, it should be produced before the Court from the custody of the Court of Insol- vency, and the amendment made by manually altering the document itself. In re McOillivray, 6 V.L.E. (LP. & M.,) 40; 1 A.L.T., 202. Supreme Court in Insolvency Jurisdiction — Amend- ment of Order Absolute.] — The Court has power to amend an erroneous and impossible date in an order absolute for sequestration, if the matter is entirely between the petitioning creditor and the insolvent ; but where a trustee had been appointed, and other parties had acquired rights in the matter since the making of the order, the Court refused to amend, and dismissed the application without prejudice to its renewal, after serving all the parties inte- rested or affected by the amendment. Ibid. Order for Sequestration — Impossible Date.]— Where an order absolute for sequestration was; dated " Thursday, 22nd July," which was an im- possible date, and recited an order nisi of 30th July, and a petition of 26th July, Held that the order should be read as of no date, and that parol evidence should be admitted to prove the correct date, viz., 22nd August.. Shiels v. Drysdale, 6 V.L.E. (E.,) 126; 2 A.L.T., 14. Petition — Written or Printed.] — It was provided by a rule of Court that all petitions in insol- vency should be partly written, partly printed, on paper or parchment. An order nisi for sequestration having been granted on a peti- tion wholly written, Held that the rule was merely directory; and that the petition having- been accepted, and the order nisi granted, the- Court would not discharge it on this ground alone. In re Cutter and Lever, 1 V.E. (I.E. & M.,) 13. Affidavit of Debt — What Must be Stated.] — It is not necessary that the affidavit of debt of a petitioning creditor should negative the existence of a security where none exists. In. re M'Manomonie, 1 W.W. & A*B. (LE. & M.,) 53. Affidavits in Support of Petition — Joint Cre- ditors — One Out of Jurisdiction.]— The affi- davit required to be made by each creditor by Sec. 16 of No. 273, in support of a petition for sequestration, if made by one only of two joint creditors, of whom one is out of the jurisdiction, is insufficient ; but in such a case, the affidavit of the duly authorised agent of the absent creditor is a sufficient affidavit of such creditor, and may be made on information and belief. In're Phelan, 3 W.W. & a'B. (LE. & M.,) 1. See Sec. 22 of Act No. 379. Affidavits in Support of Petition — Numbering Polios.] — The regulation as to numbering the- folios of affidavits in support of a petition for sequestration is to be regarded before making an order nisi, and not as cause against it. In re M'Manomonie, 1 W.W. & a'B. (LE. & M.,) 53. Affidavits to support a petition need .not he- filed before using them to form the basis of an order nisi for sequestration. In re Trevarrow r 2 W. & W. (LE. & M.,) 84. Affidavit — Unnoticed Interlineations— 7 Vic, No- 19, See. 15.] — On an appeal from a decision making absolute an order nisi for compulsory sequestration, Held, dubitante ted non, dissen- tiente Molesworth, J. — that it was a sufficient ground for reversing the decision and dis- charging the order nisi, that the affidavit on which it was obtained contained interlineations, which had not been "noticed in the margin opposite thereto by the officer or person taking- such affidavit." In re Stephenson, 1 W. & W- (I. E. & M.,) 114. 609 INSOLVENCY. 610 Affidavits— 7 Vic, No. 19, Sac. 15.]— Two of the affidavits . deposing to the act of insolvency, contained erasures which had not been initialled by the commissioner before whom they had been sworn. Held that the facts as to that particular were not essential, and might be found elsewhere. Objection overruled. In re Stephenson distinguished. In re Gherson, 2 W. W. & a'B. (I.E.&M.,) 14. Affidavits — "Common Law Procedure Stat. 1865," Sec. 379.] — On an objection upon an order nisi for sequestration, that the petitioning creditor's affidavit of debt did not specify the abode as required by Sec. 379, but merely described him as "of Elizabeth -street," Held that Sec. 379 of the " Common Law Procedure Stat." had no reference to affidavits filed in insolvency. In re Haydon, 2 W.W. & a'B. (I. E. & M.,) 34. [Under Insolvency Rules, Eule 49, the affi- davits must conform to Sec. 379 of the " Com- mon Law Procedure Stat."'] Where affidavits and other documents have been made the foundation of any curial act, an objection that they are not folioed according to "Supreme Court Rules," Cap. 10, Eule 7, will not be entertained. In re Fox, 2 W. & W. (I. E. & M.,) 35. Affidavit.] — Where the affidavit of petition- ing creditors is made by two persons, if they be named in the jurat as having sworn the affi- davit, it is not necessary for the jurat to state that they swore it "severally." In re James, 5 W.W. & a'B. (I. E. & M.,) 1. Affidavit of Debt.] — It is no objection to a petition for compulsory sequestration that the petitioning creditor's affidavit of debt is dated before the petition; all the "Insolvency Statute 1865" provides is, that the petition and affi- davit are to be presented together to the Judge. In re Murray, 1 V.E. (I.E. & M.,) 8; 1 A.J.E., 113. But see Eules (further) Eule 2, and Insol- vency Eules, Eule 3. Affidavit in Support of Debt — Bank — Attorney Under Power.] — Where a bank is the petitioning creditor the affidavit of the debt need not be made by the attorney conducting the case, but may be made by the attorney under power of the bank. In re English, 2 A.J.E., 9. Affidavit — Informality.]— If a case be launched on insufficient materials it should still be heard. Where an affidavit was informal as to the jurat, but was not material for the jurisdiction, an objection thereto was overruled. In re Richmond, 3 V.L.K. (I.P. & M.,) 109. Affidavit — Title.] — After the order nisi, affi- davits used in an insolvency matter are pro- perly headed in the Supreme Court. In re Fraser, 6 V.L.B. (I.P. & M.,) 20; 1 A.L.T., 118. (5) Service and Enlargement of Order Nisi. Service of Summons— " Insolvent Act," 5 Vic, No. 17, Sec. 25.]— Sec. 25 of the Act provides that service of the summons to show cause against sequestration shall be made in the same manner as is by law provided for the service pf any other summons, provided that if debtor has been absent for forty days from his usual residence, copies of the summons shall be inserted in three successive publications of the Gazette. Held that this means that the sum- mons should in all cases be served on the debtor as far as it can be, according to the' usual practice of the Court as to summonses ; and that if debtor has been forty days absent the Gazette notice shall be published. Where, after order nisi, an order for substituted service* was obtained upon affidavit that insolvent was believed to be in the colony, but as a matter of fact he was not, Held that the order could not be made absolute on such substituted service, but that it should not be discharged. Order made directing substituted service with Gazette advertisements. In re Fox, 2 W. & W. (I. E. & M.,) 35. Compare Sec. 44 of Act No. 379. Advertising Summons— Substituted Service— 5 Vic, No. 17, Sec.25.] — On an order nisi for compul- sory sequestration, the alleged act of insolvency was that the debtor departed from the colony, or being out of the colony, remained absent therefrom with intent to defeat or delay his creditors. Prom the affidavits it appeared that he was in another colony, and had probably gone there to defeat or delay his creditors; that, having been forty days absent from his usual residence, the petitioning creditor, with- out obtaining any order for substituted service, inserted a copy of the summons in one of the Melbourne papers, under 5 Vic, No. 17, Sec. 25. Held that such advertisements are only proper when the person to whom they are addressed remains in Victoria, and is evading service within the jurisdiction; and that the adver- tisements were in this case nugatory; and order nisi for sequestration enlarged, with liberty to the creditor to apply in the meantime for an order for substituted service. In re Smith, 1 W.W. & a'B. (I. E. & M.,) 1. Compare Sec. 44 of Act No. 379 as to pro- visions concerning absence from Victoria. Service— Act 5 Vic, No. 17, Sec. 25— How Effected Where Personal Service Impossible—" Common Law Procedure Stat."]— If an alleged insolvent can- not be served personally, he must be served under the provisions of " The Common Law Procedure Stat." or a special order must be obtained. In re Newbigging, 1 W.W. & a'B. (I.E. & M.,) 33. See Sec. 44 of Act No. 379. Service of Summons — When Dispensed With.] — Where an alleged insolvent had not been served with the summons, but appeared by counsel at the hearing of the order nisi for sequestration, the Court dispensed with service upon him. In re Brann, 3 W.W. & a'B. (I.E. & M.,) 6. Service of Order Nisi.] — Office copies of the order nisi, which had been served on respon- dent, must be certified by the clerk of the Judge of the district in which the order is made. In re Steed, 3 A.J.E., 62. §11 INSOLVENCY. 612 Order Nisi — Signature of Judge Necessary in Copy for Service — Act No. 879, Sec 44.] — The signa- ture of the Judge who made the order is necessary in the copy for service of an order nisi. In re Sang Hi, 4 A. j.E., 43. Order Nisi Not Personally Served — Wrong Name.] ^— If an order nisi for sequestration is not personally served on the debtor, and the debtor's name is incorrectly stated, he may appear as " A.B., wrongly described as CD.," and take objection to it. Inre Wolter, 4 V.L.E. (I P. & M.,) 75. Irregularity in Service — How Waived ] — Irregu- larities in the service may be waived by the debtor's filing objections. In re Harry, 1 W. & W. (I.E. & M.,) 136., But where the irregularity is relied upon as an objection, the filing of objections is no waiver. In re Newbigging, 1 W.W. & a'B. (I.E. & M.,) 33. Order Nisi — Service — Proof.] — The debtor is not allowed to call viva «oce evidence to prove that service of an order nisi is bad, where such service has been proved by affidavit. In re Clarton, 4 V.L.E. (I.P. & M.,) 84. Service of Order Nisi where Respondent is Tra- velling.] — The proper method of serving an order nisi on a person sought to be made insol- vent, who is travelling, is not to send telegrams to correspondents in towns where the respon- dent may happen to be, but to send a person with the order on his track, and with instruc- tions to follow the respondent till he be served. In re Finney, 1 A.L.T., 129. Affidavit of Service of Order Nisi — Mode of Authenticating Order.]— An affidavit of service of an order nisi for sequestration should state that the order was signed and sealed. It is not sufficient to state the signature of the Judge. In re Passmore, 2 A.L.T., 44. Affidavit of Service — Substituted Service — Time for Filing Notices of Objections — Act No. 379, Sees. 44, 45]— The affidavit of service of the order nisi should state the means of know- ledge that the place mentioned was the last known place of abode or business of the debtor. Orders for substituted service should not fix an absolute time for filing notices of objection, without having regard to the time of effecting service of the order nisi, but where service had been effected ten days before the time fixed by the order, it was held sufficient under Sec. 45. In re Hayes, 3 V.L.E. (I. P. £M.,)98. *■ L An affidavit stating a knocking at the door aiid no one answering it, without stating also the inf erence, that no adult person was there capable or willing to accept service or at all is insufficient j an affidavit of substituted service should state means of knowledge that the place is the last known place of abode or business. In re Booh, 3 V.L.E. (I. P. & M..) 107. ' Substituted Service — Jurisdiction of Judge of Insolvent Court.] — An order nisi for sequestra- tion had been granted, and the Judge of the Insolvent Court had granted an application for leave to substitute service on the insolvent, who was sworn to have left the colony, at his last place of abode, "L. Street, Carlton." Held, that the Judge had jurisdiction to make the order for substituted service, but that that part of it which described the last place of abode might be treated as surplusage. In re Adolphe Oppenheimer, 3 A.J.E., 94, 95. Service of Order Nisi — Substituted Service.] — Service of an order nisi under an order for substituted service was effected upon the officer or messenger of the official assignee, who was the only person on the premises, the last known place of business of the insolvent, and who had been resident there for a week. Held, that it was good service. In re Biordan, 9 V.L.E. (I.P. & M.,) 1. Substituted Service of Order Nisi — Motion for — Evidence in Support — "Insolvency Statute 1871," Sec. 44.] — The deposition of the sheriff's officer in support of a motion for an order for substituted service of an order nisi, under Sec. 44 of the "Insolvency Statute 1871," stated that six days after the order nisi was made, he went to the respondent's residence, but found him not at home, and, on making enquiries, ascertained that he was in New South "Wales. Held not sufficient materials on which to grant an order for substituted service, the Court requiring more definite information of the respondent's absence from the colony. In re Campbell, 2 A.L.T., 4. Substituted Service of Order Nisi — Affidavit — " Insolvency Statute 1871," Sec. 44.]— The affidavit of substituted service of an order nisi, under Sec. 44 of the "Insolvency Statute 1871," as to the fact that the insolvent resides on the pre- mises where service was effected, should not be made on information, but on personal know- ledge of the fact. In re Thomson, 1 A.L.T., 123. Substituted Service.] — The order for substi- tuted service must not be made part of the original order nisi. In re Merriman,^ A.J.E., 31. Substituted Service — " Insolvency Statute 1871," No. 379, Sec. 44.] — An order for substituted service should direct service at the last known place of abode, and not at any specified address. In re O'Connor, 4 A.J.E., 139. Substituted Service — Notice of Objections.] — The order for substituted service should be on some person residing at and not being at the last known place of business. Where no time is fixed in the order of substituted service for delivery of objections, notice of objections is not necessary. In re Richards, 5 A. J.E., r 10§. Service of Order Nisi for Sequestration — Order for Substituted Service.] — Orders for substituted service of the order nisi for sequestration ought to specify a time within which notice of objec- tions is to be given, or there should be some order doing so. In re Stewart, 2 V.L.E. (I. P., & M.,) 1. 613 INSOLVENCY. 614 Order for Substituted Service of Order Nisi — Absolute Time Fixed for Lodging Notice of Objection.] —An order for the substituted service of an order nisi for sequestration, which fixed an absolute time for lodging objections, is not on that ground to be discharged; but it is a matter for consideration by the Court in allow- ing further time to file objections. In re Wolter, 4 V.L.E. (LP. &M,)75. Enlargement of Order Nisi — S Vic, No. 17, Sec. 26.] — As a rule orders nisi for compulsory sequestration will not be enlarged " in hopes of a settlement" where the official assignee is not in possession. . Good grounds must be shown for such enlargement. In re Keighran, 1 W. & W. (I. E. & M.,) 8. .See also in re Downie and Murphy, ibid., p. 102. Compare Sec. 39 of Act No. 379. Crder Nisi — Enlarging.] — The Court refused to enlarge an order nisi for sequestration on the ground that there were accounts pending in the Master's office between the alleged insolvent and the petitioning creditor, by which, when completed, a balance would be shown due from the petitioning creditor; or in default, to allow objections to be filed nunc pro tunc that the alleged insolvent was not indebted to the petitioning creditor, certain judgments on which the order nisi was founded having been obtained by default, owing to the poverty of the alleged insolvent. In re M'Manomonie, 1 W.W. & a'B. (I. E. & M.,) 53. Order Nisi Not Enlarged — When Insolvency does not Lapse.] — An order nisi which sequestrated an estate till a given day, or "further" order was not enlarged on that day, owing to there being no single Judge sitting. Held, that the order being till "further order," the insol- vency did not lapse. Ibid. Mistake in Order Nisi — Enlargement of Time.] — Where a wrong date was by mistake inserted in the order nisi, making it returnable before it was issued, the Court enlarged the order for a week to serve an amended order, petitioner paying the costs of the day. In re Fenner, 7 V.L.E. (I. P. & M.,) 13 ; 2 A.L.T., 145. Act No. 379, SecB. 44, 45, 46.]— Where an order nisi was served so as not to give the respondent the four days, within which to lodge objections, allowed bv Sec. 45, the Court enlarged the order for a week, directing the order nisi and the enlarging order to be served in the manner prescribed by Sec. 44. In re Farsons, 7 V.L.E. (I.P. & M.,) 118. Service of Order Nisi— Enlargement,] — It can- not be presumed that the petitioning creditor has tried every available means to effect service; the power of enlargement is discre- tionary, and will only be exercised where due diligence has been used. In re McPherson, 1 A.L.T., 92; in re Crofts, 1 A.L.T., 112. Who Should Serve — Enlargement of Order.] — Per Molesworth, J.—" It is not the duty of the sheriff's officer to serve the order nisi." Writs of fi fa were issued to a sheriff, who issued his warrants on them to his officer, who executed, and they were returned nulla bona. The petitioning creditor's solicitor forwarded to the officer an office copy of the order nisi for service on the insolvent, and the officer, after having failed to effect service, informed the solicitor thereof. An application for an enlarge- ment of the order for fourteen days, in order to effect service of the petition, was refused. In re Doyle, 10 V L.K. (LP. & M.,) 87. (is) Notice of intention to oppose petition. Objections to Order Nisi When Taken — 5 Vic, No. 17, Sec. 26.] — Preliminary objections to an order nisi, though grave ones, cannot be taken when cause comes to be shown, if they were not taken when an enlargement of the order was, on a previous occasion, opposed. If not taken then they will be deemed waived. In re McMurrey, 1 W. & W. (I.E. & M.,) 103. Compare Sees. 39, 44, and 45 of Act No. 379. Act No. 379, Sees. 44, 45— Time within which Notice of Objections to Order Nisi must be Signed — Agent.] — The combined effect of Sees. 44 and 45 is to allow the insolvent a greater time than four days in which to sign objections to the order nisi. Where an order nisi had been granted for sequestration, and the insolvent had left the colony, and an application had been made to sign objections by his agent (H.,) who was acting under a power of attorney which had ceased to be strictly applicable, Held that the insolvent might sign the objec- tions within four days after the application, and failing that, that H., who appeared to be instructed more than any one else to act on insolvent's behalf, might sign objections within the same time. In re Adolphe Oppenheimer, 3 A. J.E., 103. Notice of Objections — Application to Make Nunc Pro Tunc] — An application to receive notice of objections, which has been lodged too late, nunc pro tunc can only be granted when there are materials before the Court for it to act upon. In re Clarton, 4 V.L.E. (I.P. & M.,) 84. Where an order nisi was served so as not to give the respondent the four days within which to lodge the objections allowed by Sec 45, the Court enlarged the order for a week, directing the order nisi and the enlarging order to be served in the manner prescribed by Sec. 44. In re Parsons, 7 V.L.E. (LP. & M.,) 118. As to time for signing objections where an order for substituted service of order nisi has been obtained, see In re Hayes, In re Richards, In re Stewart, and m re Wolter, ante columns 611, 612, 613. Filing Objections to Order Nisi — Sunday — "In- solvency Statute 1871," Sec. 45— Enlarging Time.] — When Sunday intervenes it counts in the four days allowed by Sec. 45 of the "Insolvency Statute 1871," for filing objections to an order nisi; but where Sunday does so intervene, and the four days have been allowed to elapse without filing objections, Semble, that the 615 INSOLVENCY. 616 Court will almost, as a matter of course, allow further time for filing objections, if there are affidavits explaining the delay and showing merits. In re Counihcm, 8 V.L.B. (I. P. & M.,) 14. Notice of Objections — Application to File Hone Pro Tunc — Affidavit of Truth.] — Where there is an application to file nunc pro tunc, a notice of objections to a petition for sequestra- tion, there having been an omission to file such notice at the proper time, the Court requires an affidavit that the objections are true. In re Fitspatricle, 10 V.L.E. (I. P. & M.,) 6; 5 A.L.T., 213. When Notice Dispensed With.] — Where the order permitting substituted service did not fix any time within which the notice of objections was to be filed, Molesworth, J., decided to hear the case in a week without requiring such notice. In re Brown, 3 A.J.B., 105. For circumstances under which the Court will extend the time of filing notice of objec- tions see in re Frazer, 1 A.L.T., 118. Affidavit of no Intention to Oppose.] — On the hearing of an order nisi for sequestration, where no notice of intention to oppose the rule has been filed under Sec. 45 of the "Insol- vency Statute 1871," it is unnecessary for the petitioning creditor to file an affidavit that no such notice has been filed. In re Mowling and Dunkley, 2 V.E. (I. E. & M.,) 7. Filing Objections.] — The Court takes notice of objections filed or otherwise without affidavit, and there is no necessity for an affidavit of the fact that no notice of objections has been filed. In re Klemm, 3 V.L.E. (I. P. & M.,) 105. Act No. 379, Sec. 45— Signature of Notice of Objections.] — The notice of objections under Sec. 45 must be signed by the insolvent per- sonally, and not by his attorney, but on consent all technical objections were waived. In re McDonald, 1 A.L.T., 112. Serving Objections Without Signature When Allowed.] — Where personal service of an order nisi has been dispensed with, on the ground that the alleged insolvent has departed from out the jurisdiction, leave will be given to him to serve objections without signature. In re Brann, 3 W. W. & a'B. (I. E. & M.,) 6. Notice of Objection When Required — "Insol- vency Statute 1871," Sec. 45.]— Sec. 45 of the " Insolvency Statute 1871 " only requires notice of objection to be given where it is intended to dispute facts, or set up facts by way of avoid- ance j and does not apply to objections on the face of the proceedings. In re Reade, 2 V.L.B. (I. P. & M.,) 83. An order nisi omitted the word "within" from the statement that the act of insolvency " occurred within six months before the presen- tation of the petition." Held that no notice of objection was necessary to entitle the debtor to object to the omission. Ibid. Act No.379, Sec. 45 — Of What Objections Notice Be- quired — Omission in Jurat of Affidavit.]— An objection that the jurat of the petitioning creditor's affidavit has an important date omitted is a special defence of which notice should be given in the notice of objections under Sec. 45. In re Ryan, 7 V.L.B. (I. P. & M.,) 122 ; 3 A.L.T., 52. Summons— Objection to Improper Service- Waiver.] — On an order nisi for compulsory sequestration, filing other objections by the alleged insolvent, operates as a waiver of an objection that the summons has been improperly served. In re Harry, 1W.4W. (I. E. & M.,Y 136. Objections for Insufficiency of Service— When not Precluded.] — An alleged insolvent is not debarred from having an order against him discharged on the ground of insufficient service, by the fact that he has filed notice of objection one of which is upon the ground of the irregularity of the proceedings. In re New- biggmg, 1 W. W. & a'B. (I. E. & M.,) 33. The fact that the certificate for costs en- dorsed on the petition is of security in the matter of an insolvent of another name, con- stitutes an objection to the jurisdiction, and the service by the insolvent of notice of points to be disputed is not an obstacle to his urging the objection. It is only as to objections to service that such notice has been held a waiver. In re Sanders, IV. B. (I. E. & M.,) Ij 1 A.J.E., 38. Objections by Debtor — Act No. 375, Sec. 45.] — Where, on an order nisi for sequestration, the act of insolvency relied on is the non-satisfaction of an execution, the debtor will not be permitted to impeach the judgment upon which the execution issued. Such an objection should have been set up as a defence to the action at law. In re Morris, 2 V.E. (I. E. & M„) 2. Form of Order Nisi — Objection to When Sustain- able — Act No. 379, Sec. 45.] — An objection that the petitioning creditor's debt is stated in the order nisi as " for goods sold and delivered," instead of as " for money payable for goods sold and delivered," is a mere technical ob« jection, and cannot be sustained. In re Walter, 4 V.L.E. (I. P. & M.,) 75, For other objections as to form of petition or order nisi, see in, re Murray, ante column 605 ; in re Palmer, ante column 606; and in re Richards, ante column 605. For objections as to form of affidavits, see in re Fok, ante column 609 ; in re Stephenson and in re Gherson, ante columns 608, 609 ; and in re Richmond, ante column 608. (d) Evidence. On Making Married Woman Insolvent Under See. 218 of " The Bankruptcy Act* 1801— Separate Pro- perty.] — On an application under Sec. 218 of " T7ie Bankruptcy Act 1861," 24 and 25 Vic, Cap. 134, to sequestrate the estate of a married €17 INSOLVENCY. 618 woman who had been made insolvent in New South Wales, had afterwards married, and had come to Victoria, it is not sufficient to show that she has separate property in Victoria, without also showing that she has acquired such property before her insolvency, and be- fore contracting the debts upon which she has been made insolvent in New South Wales. In re Dickson, 5 W. W. & a'B. (I. E. & M.,) 4. Married Woman — Separate Property — Judgment Recovered.] — In a petition for sequestration against a married woman for not satisfying a judgment, the notice of objections stating she had not been asked to satisfy it, it is not neces- sary to allege that she has separate property. The judgment recovered against her is prima facie evidence that she has separate property. In re Willison, 4 V.L.E. (I. P. & M.,) 67. But where the order nisi stated that a mar- ried woman had property to her separate use, and that execution was returned unsatisfied, and the objections were to the effect that she had not real or personal property in respect of which she could be made- insolvent, Held that the judgment was not prima facie evidence, and that petitioning creditor must prove his whole case. In re Cunningham, 5 V.L.E. (I. P.& M.,) 60. Order Nisi — To Sequestrate Estate of Married Woman — Judgment — Carrying on Business — Evi- dence of Separate Property.] — An order nisi to sequestrate the estate of a married woman recited that she was "possessed of property within the colony of Victoria for her separate use." The act of insolvency alleged was the not satisfying a judgment, and there was an averment that she carried on business as a licensed victualler. Meld that the order nisi need not show how the property was for her separate use, or follow the words of Sec. 21 of the " Married Women's Property Act," since the fact that a judgment had. been recovered against her, and that she carried on business, was sufficient prima facie evidence that she had separate property. Inre Nelson, 2 A.L.T., 27. Per Molesworth, J. — If it were necessary, this would be a clear case for amendment. Ibid. Admissibility of Evidence in Other Proceedings — Tinder " Insolvency Statnte 1871," Sec. 19.]— There 3s nothing in Sec. 19 of the "Insolvency Statute 1871." to render inadmissible written admissions or statements which have been used in other proceedings — e.g., the examination of one of the creditors in the insolvency proceed- ings. Re Maley, 4 A.J.K., 7- (e) Costs. Petitioning Creditor's Costs— What are.]— Costs of prosecuting.insolvent's son for perjury dis- allowed as not being petitioning creditors costs within Sec. 17 of Act No. 273. Costs of opposing certificate of investigating insolvent's conduct and dealings, and of appointment of petitioning creditor as trade assignee similarly disallowed. In re Kingsland, 6 W. W. & A*B. (I. E. & M".,) 25; N.C., 39. Taxation.]— Commissioner ordered to re-tax petitioning creditor's costs in the presence of the insolvent's solicitor unless all parties agreed to their being fixed at a lump sum. Ibid. Petitioning Creditor's Costs — Act No. 379.] — Per Molesworth, J., " After the order nisi the petitioning creditor must at his own expense prosecute the proceedings, and if the order is made absolute the estate is primarily liable for them. Sec. 151 contains no provisions under which if a composition supersedes the seques- tration, these costs could be enforced, so that a majority of creditors if they could act under Sec. 157 against the consent of the petitioning creditors might defeat those inchoate rights." In re Marie, 3 A.J.E., 6. Of Solicitor— Should be Taxed Before Filing Plan.] — A solicitor charged an insolvent certain costs, but did not show promptitude in taxing and presenting his costs before the plan of dis- tribution was filed, and the assignee refused to pay the balance found due on taxation after the plan was filed. The solicitor entered a caveat against the confirmation of the plan, and in person moved to amend the plan by the inser- tion of the unpaid balance of his taxed costs. Held, that the solicitor should have ascertained and had his costs taxed with the greatest promptitude, so that his claim should not be a clog upon the filing of the plan, and motion refused. In re Anmer, 1 W. & W. (I. E. & M.,)100. [.See now Sec. 34 of Act No. 379.] As to costs upon applications for certificates of discharge see post under sub-heading Certifi- cate of Discharge — Practice. As to costs of setting aside settlements see ante column 478. As to costs of trustees and assignees see post under sub-heading Trustees. Of Petitioning Creditor.] — Where a petitioning creditor had before the order nisi for seques- tration been refused inspection of a deed of assignment (the alleged act of insolvency) the Court allowed him his costs under the circum- stances, although it discharged the order. In re Haslam, 3 V.L.E. (I. P. & M.,) 10. Costs of Person Taking Objections.] — An objec- tion, though technical, if fairly taken at the proper time entitles the successful objector to costs. In re Phelan, 3 W, W. & a'B. (I. E. & M.,) 1. Of Order Nisi— Creditor Obtaining With Notice of Proceedings for Composition.] — Where a creditor obtained an order nisi with notice that a pre- liminary resolution for composition under Sec. 181 of the "Insolvency Statutel871," had been passed, the order nisi was dismissed with. costs against him. In re White, 2 V.E. (I. E. & M.,) 42; 2 A.J.E., 132. On discharge of an order nisi upon an objec- tion taken by the Court and not by counsel, no order was made as to costs. In re Barry, 1 W. & W. (I. E. & M.,) 174. 619 INSOLVENCY. 620 Of Petition and Appeal— Partners Appearing Separately.] — Where a petition was presented for the sequestration of the property of a firm, and the members appeared separately, and offered the same defence and the same notices of opposition, the Full Court varied the order dis- missing the petition and order nisi by allowing the members of the firm only one set of costs for the petition, and limited the costs of the appeal in the same way. In re Thomas and Cowie, 9 V.L.E. (I. P. & M.,j 2, 16; 5 A. L. T. 95. Setting off Against Debt.] — On discharge of an order nisi with costs, the Court will not always set off the costs against the debt. . In re White- sides, 3 A.J.R., 115. (/) Other Points of Practice. "Supreme Court Eules," Cap. 10 — "Miscel- laneous."] — Cap. 10 of the "Supreme Court Rules," headed "Miscellaneous," applies to proceedings in the Insolvency Jurisdiction. In re Stephenson, 1 W. & W. (I. E. & M.,) 114. Eules of Court made under the Insolvent Act, No. 273.]— There is nothing in the Act 28 Vie., No. 273, which gives to the rules made under it the effect of an Act of Parliament. They are framed to govern the general practice of the Court, but are not to be made the masters of the Court, and may be relaxed in accordance with the exigencies of the occasion. In re Brann, 3 W. W. & a'B. (I. E. & M.,) 6. 5 Vic, Ho, 17, Sec. 25.] — Where a summons was taken out four days after order nisi for seques- tration, Meld that that complied with word "forthwith" in Sec. 25 of the Act. In re Trevarrow, 2 W. & W. (I. E. & .M,) 84 [Compare Sec. 21 of Act No. 379.] Act No. 379, Sec. 29 — Signature of Judge — Judicial Notice.] — The Court in its Insolvency Jurisdiction takes judicial notice of the signa- ture of one of its Judges to an order nisi for sequestration, and of the office by virtue of which he signed it. In re Cooper, 2 V.L.E. (I. P. & M.,) 82. Lapse of Order Nisi— Act No. 379, Sec. 39.]— Semble, per Molesworth, J., the lapse of an order nisi (the order not being discharged) revests the estate in the debtor subject to the right of another creditor taking the order up. In re Bay, 1 V.L.E. (I. P. & M.,) 56. Order Nisi for Sequestration Abates by Death.] — An order nisi for sequestration abates by the death of the alleged insolvent, and cannot be revived, or otherwise carried on against his representatives, being a proceeding in personam and not in rem. In re Mann, 1 W. & W. (I. E. § M.,) 103. Not Satisfying Debtor's Summons— Making Order Absolute.] — Making absolute an order nisi for sequestration where the act of insolvency is not satisfying a, debtor's, summons, does not affirm the existence of the. debt, but the insolvent may afterwards dispute it in the Insolvent Court. In re Counihan, 8 V.L.E. (I. P. & M.,) 14. Orders — Signing — Judge's Associate.] — An order in insolvency, Bigned by the associate of a Judge of the Supreme Court, other than the Judge who made the order, is not thereby bad. In re Walter, 4 V.L.E. (I. P. & M.,) 75. (4) Reviving Sequestration. Bevivor of Order Nisi — S Vic, No. 17, Sec. 28.]— Where an order nisi lapses through no one- appearing on either side when the case is called on it is practically superseded within the meaning of Sec. 28, and no express order for- that purpose is necessary to enable a creditor to revive it. In re Butchart, 2 W. W. & a'B.. (I. E.&M.,)8. For S.P. see in re Von Der Heyde, ibid'' p. 28. Where » person takes up an order misi, based upon sufficient materials in fact, he ought not to be defeated by a defect in the original petition, and in spite of such defect may revive the order nisi. In re Butchart, 2: W. W. &a'B. (I.E. &M.,)8. [Compare Sec. 49 of Act No. 379.] Petition to Eevive Sequestration — Service of.] — The original petitioning creditor need not he- served with notice of an application under '5 Tic, No. 17, Sec. 28. to revive a sequestration.. Ex parte White, 1 W. W. & a'B. (I. E. & M„) 24. [Compare Sec. 49 of Act No. 379.] Petition for Revival of Sequestration — What Allegation Necessary.]— A petition under 5 Vic, No. 171, Sec 28, for revival of a sequestra- tion, after setting out the debt, and act of bankruptcy, alleged that, though the insolvent appeared, the petitioning .creditor colluding with him, made default in appearing, so that the order misi was, in consequence, superseded, and the petition dismissed. The collusion was not proved. Held that proof of default alone was sufficient without collusion, and that the allegation of collusion was mere surplusage. Ex parte Maughton, 1 W. W. & a'B. (I. E. & M.,) 15. [Compare Sec. 49 of Act. No. '379] Petition for Revival of Sequestration — What Petitioner Must Prove.] — A creditor seeking to revive a sequestration, must prove his own debt to be a good petitioning creditor's debt, and must prove the insolvency in all other respects, save that he need not prove that the original petitioning creditor's debt was a good one. Ex parte Staughton, 1 W. W. & a'B. (I. E. & M.,) 15. Application to Eevive Sequestration — Dismissal when no Bar to Subsequent Application.] — The dis- missal of an application by two out of three executors, under 5 Vic. No. 17, Sec. 28, for a revival of a sequestration of the estate of a debt or of their testator, on the ground thafc 621 INSOLVENCY. 622 two out of three executors could not so apply, is no bar to a subsequent application by another creditor for a revival. Ex parte White, 1 W. "W. & a'B. (I. E. & H.,) 24. [Compare Sec. 49 of Act No. 379.] When Creditor Seeks to Revive a Sequestration.] — Upon an application to revive a sequestra- tion, it is not necessary that the debt owing to him should have been incurred before the act of insolvency relied on ; it is enough if it be incurred prior to the order for sequestration. Ibid. [Compare Sec. 49 of Act No. 379 as to pro- visions for reviving a sequestration.] Nature of Debt — Advance to a Partner under Act No. 179.] — B. and J. entered into an agree- ment by deed, by whioh J. stipulated to become an anonymous partner, although the business ■was carried on in the name of B. and Co. J. advanced 4500, and stipulated for a share of profits not of losses. He made further advances without any provision as to increased share of profits in reference to these advances. On a petition by J. for revivor of order nisi for sequestration of B.'s estate, Held that the transaction was one in which the original 4500 and the subsequent advances could be severed, and that as to these advances he stood in the relation of any other creditor. Order absolute for revivor of sequestration. In re Butchart, 2 W. W. & a'B. (1. E. & M.,) 8. (5) Setting Aside Sequestration. Voluntary Sequestration — Notice.] — In an application to set aside a voluntary sequestra- tion of a firm's estate made by one partner only of the firm, the official assignee does not represent all parties so as to dispense with the service of notice upon " all the parties," and notice to the assignee is not enough, but must be given to "all the parties" including the party voluntarily sequestrating. Inre Yorston and Webster, 1 W. & W. (I. E. & M.,) 96. Uncertificated Insolvent.] —In May, 1858, an insolvent's estate was sequestrated, butthe insol- vent was described as James B. instead of John S., and no certificite of discharge was obtained. In April, 1865, an order for a second sequestra- tion was made. This second sequestration was set aside on the ground that B. was an uncer- tificated insolvent at the time of the second sequestration. In re Bryan, 2 W. W. & a'B. (I. E. & M.,) 20.' On What Grounds.] — The Court refused to set a^ide an order of sequestration on an applica- tion alleging that the petition did not value the security, and that it had been fraudulently obtained because the petitioning creditor had only a future contingent debt, being satisfied that the proceedings had been regular, that there had been no undue attempt to catch the judgment of the Court over a party who had no opportunity of defending himself, and that the conduct of the insolvent had been such as to justify the petitioning creditor in regarding him as an absconding debtor. In re fiowley, 2 V.L.E. (I. P. & M.,) 50. Quaere, whether the Court has any, and, if any, in what cases jurisdiction to set aside a ' sequestration. Ibid. VII. Composition Deeds and Deeds of Assignment. [Note. — Deeds of assignment are no longer protective in insolvency, being made acts of insolvency under Act No. 379, Sec. 37, Sub-sec. 1, except that under Sec. 69 a certain protec- tion is given to certain acts and things done.] Deed of Assignment — Proof of Execution by Trustees— 5 Tic. No. 9, Sec. 33.]— E.W. executed a deed of assignment of all his property to trustees for the benefit of all his creditors, under 5 Vic, No. 9, Sec. 33, but it appeared that the attestation clause of the deed, as it originally stood ran thus : — " Signed, sealed, and delivered by the said E. W. in the pre- sence of and attested by B. W. F., J.P. ;" so that it made no mention of the execution by the trustees in H. W. F's. presence. Nearly a year afterwards the attestation was amended" by H.W.F. certifying that he saw the deed executed by the trustees as well as by E. W., at one and the same time. On a rule nisi for compulsory sequestration against E. W. for not satisfying the sentence of a competent Court being thereunto required, the deed of assignment was shown as cause against seques- tration. Held, that the principle of expressio unius exclusio alterius applied, and that the execution must be taken to have been as shown by the attestation as it originally stood ; that ■ the omission could not be subsequently corrected, and that the subsequent addition did not cure the defect ; that the deed must be held \ not to have been executed and. attested in con- formity with the Act, and to be invalid, and no excuse for the alleged, act of insolvency. In re Woolley, 1 W. & W. (I. E. & M.,) 8L Deed of Assignment in Favour of Creditors — 5 Vic, No. 9—7 Vic, No.',19, Sec. 8.]— A deed of assignment in favour of creditors has no validity „ under 5 Vic, No. 9, until executed by a majority of creditors in number and value, though it may be good at common law the . moment it is signed by debtor, and does not protect the assignor under 7 Vic, No. 19, Sec. 8, from being made insolvent until so executed. In re Lawrance, 2 W. & W. (I. E. &M.,) 45. 5 Vic. No. 17, Sec 5.]— "Where such a deed contains an ultimate trust of possible surplus for the assignor, such assignor has " disposable property " within the meaning of Sec 5 of No. 17. Ibid. Deed of Assignment — 7 Vic, No. 12, Sec 8 — > How; Far a Protection Against an Act of Insol- vency.] — A deed of assignment in favour pf creditors, executed by a majority of creditors.. in number and value, but not by four- fifths, is ' a sufficient excuse under See. 8 of the Act for . not pointing out property to Sheriff levying an execution, and order nisi for sequestration discharged; but concurrence , of four-fifths of the creditors is necessary to make the release operative. In re Hall, 2 W. & W. (I. E. '& M.,) 87. 623 INSOLVENCY. 624 Deed of Assignment — How Far a Protection Against an Act of Insolvency.] — A deed of assign- ment for the benefit of creditors is not complete until executed by a majority in number and value of the creditors. Such a deed, until so executed, will afford no protection from not pointing out property to the Sheriff levying an execution ; and no protection against seques- tration following on the act of insolvency will be afforded by the subsequent execution of the deed by the necessary majority. In re Ellis, 3 W. W. & a'B. (I. E. & M.,) 11. Deed of Assignment — Protection Afforded By.] — A deed of assignment under the " Insolvency Statute 1865," if executed by a bare majority in number and value of the creditors, will afford protection against not pointing out property to satisfy an execution on a judgment obtained before or after the execution of the deed. In re Curie, 3 W.W. & a'B. (I. E. &M.,) 56, 63. " Insolvency Statute 1865," No. 273, Sec. US- Deed no Excuse for Not Satisfying Debt on Debtor's Summons.]— On an order nisi for sequestration, a deed of assignment in favour of creditors was relied upon as a defence. The deed contained a clause that no creditor executing should be entitled to a dividend upon a greater sum than trustees should certify to be due. Held that the sole power given to the trustees was bad, and that under Sec. 115 of No. 273, it was not an excuse for not satisfying a debt on a debtor's summons. Order absolute. In re M'Donald, 5 A.J.R., 45. 5 Vic, No. 9, Sec. 87— Where Prior Mortgage Good as Against Deed of Assignment.]— By a deed poll, T. assigned his interest in certain lease- hold property to A. to secure a debt of £2000 then owing, and to secure further advances. Within 60 days afterwards T. assigned all his property upon trust for his creditors, the lease being mentioned in the schedule as subject to mortgages, and the deed providing for creditors executing without prejudice to their securities. A. executed, as a creditor, for £1250, but did not do so expressly as without prejudice to his securities. The agents for the trustees sold the property. On bill by A. and his repre- sentatives praying for an account and payment or foreclosure, Held that the mortgage was not fraudulent under Sec. 37 of the Act, that sectionrelating to chattels, personal only, and that A.'s execution of the deed was sufficient to protect his security; and that any objection against the validity of the mortgage was one which the trustees could only take personally, and not purchasers from them. Tuckettv. Alex- ander, 1W.4W, (E„) 87. Deed Executed by One Partner Only, How Far it Binds the Firm.]— The execution, by one mem- ber of a firm as trustee, of a deed of assignment for the benefit of creditors, does not bind the firm as creditors, as a relinquishment of the debt, and will not operate as a bar to proceed- ings by the firm for compulsory sequestration of the assignor's estate. In re Crate, 3 W. W. & a'B. (I. E. & M.,) 13. Deed of Assignment — Not Executed by a Majority of Creditors— 28 Vic, No. 273, Sec. 29.]— A deed of assignment to a trustee for the benefit of creditors, which contains a release of debts, and which is executed by some, but not by a majority of the creditors, is valid under Sec. 29 of the " Insolvency Statute 1865," and the release by some of the creditors is a sufficient consideration. Such a deed will give the trustee a good title to the property assigned as against the official assignee under a subsequent sequestration. Aarons v. Board of Land and Works, 5 W. W. & a'B. (L.,) 107. Act No. 273.] — A deed of assignment in favour of all such creditors as might execute it within 20 days was held not to be a deed of assign- ment for the benefit of all the creditors within the meaning of the Act. Port v. London Chartered Bank, 1 V.B. (L.,) 162. And a deed of assignment in favour of creditors is not per se a fraudulent preference. Goodman v. M'Callum, post column 630. Composition Deeds — General Construction and Operation.] — Where on an order nisi for seques- tration in consequence of failing to point out sufficient property to satisfy a judgment, a deed of assignment in favour of creditors, was set up as a defence, Meld (1) that the deed lying in the solicitor's office from August 14th until August 25th, and the adver- tisements properly describing the place where it was, the "Insolvent Act" 5 Vic, Mo. 17, had been complied with; (2) that it was not necessary that the attestation by a magistrate should be dated; (3) that a provision that the trustees should retain a commission not ex- ceeding five per cent, did not invalidate it, such being protected under See. 51 of No. 17 (also under Sec, 62 of No. 273;) (4) that a provision for some creditors not enumerated in the schedule, did not invalidate it under Sec. 115 of Apt No. 273, Sec. 118 of the same Act showing that a wilful and material omission only would do so ; (5) that a provision that after it had been signed by three-quarters in number and value of the creditors, the majority of creditors might allow furniture and some other payments to the debtor, did not invali- date it ; (6) that a provision that after three- fourths in number and value had signed other creditors might be paid, did not invalidate it ; (7) that an arbitration clause as to disputed debts coming into effect after the deed was so signed as above was good, and (8) that a provision that each signing creditor should release his debt was not invalid. Order nisi discharged. In re Fbm Der Heyde, 2 W. W- & a'B. (I. E. & M.,) 28. Deed of Assignment — Setting Aside — Omission of Assets from Schedule, Act No. 273, Sec. 118.]— An insolvent executed a deed of assignment for the benefit of his creditors under Part 13 of the "Insolvency Statute 1865." Subsequently his estate was compulsorily sequestrated. There was an omission from the schedule to the deed of a sum of £700, which had been secreted by the insolvent. On rule nisi to set aside the deed, Held, reversing Molesworth, J., that the -625 INSOLVENCY, 626 omission from the schedule was a wilful and material non-compliance with the Act within the meaning of Sec. 118 of the "Insolvency Statute 1865 ;" and that the Judge below should have exercised his discretion in either setting it aside, or depriving the insolvent of all benefit thereunder ; and rule made absolute. In re Brann, 3W.W.4 a'B. (I. E. & M.,) 47. Seed of Assignment — " Insolvency Statute 186S " — Retention of Separate Estate by Debtor.] — A deed of assignment under the "Insolvency Statute 1865 " contained a clause, that when executed by four-fifths of the creditors, the debtors, who were partners, might retain their separate real estate, and that the trustees should convey it to them ; and that the trustees should be allowed a commission of five per cent, on the gross proceeds realised under the deed. Held, that the insertion of these provisions did not make the deed void. Moss v. Levy, 1 V. E. (L ,) 94 ; 1 A. J. E., 92. Deed of Assignment — What Schedule Must Con- tain.] — The schedule to a deed of assignment under the "Insolvency Statute 1865," by partners should contain all the creditors and all the property, both joint and separate; but an omission in either respect does not necessarily invalidate the deed, or prevent its affording, till set aside, protection against not pointing out property in satisfaction of an execution. In re Curie, 3 W. W. & a'B. (I. E. & M.,) 56. Deed of Assignment — Wearing Apparel Should he Excepted.]— The debtor's wearing appeal is property excepted from assignment by a deed of assignment under the " Insolvency Statute 1865," as well as omitted from the schedule to the deed. Ibid. What is a Valid Deed under Sec. 115 of " Insol- vency Statute 1865," No. 278.]— In Sec. 115 of Act, No. 273, the word "or" between "con- veyance " and " assignment " must be read " and," since an assignment will not pass real estate. A debtor who wishes to take advant- age of a deed under that Sec. must convey all his real and personal estate, whether he knows of the property or not; it is not sufficient if an .assignment is proved of personalty only, even though the debtor swear that so far as he knows ".he has no realty. Caro v. Devine, 6 W. W. & A'B. (L.,)258; N.C., 67. By Partners — Not Noticing Separate Estate, Invalid.] — A deed of assignment purporting to be under Part 13 of the "Insolvency Statute 1865," executed by partners assign- ing all their estate, but not noticing separate estate or creditors, is not a good deed under the Act. In re Upton and Bowes, 2 Y.E. (E.J 117; 2A.J.E,68. Trustees of Creditor's Deed — Not Estopped by Execution of Invalid Deed ] — Trustees of an insolvent who had executed a deed of assignment which was held to be invalid were held not to be estopped by the execution from availing themselves of the invalidity of the deed as against a creditor who had obtained a .rule nisi under Sec. 121 of "Insolvency Statute 1865." calling upon them to pay a dividend to him under the deed, but the rule was discharged without costs. Ibid, Deed of Assignment— Memorial of Registration. ] — The memorial of registration of a deed of assignment under the "Insolvency Statute 1865" should be a copy of the entire schedule of property, both real and personal ; but the Act is, in this respect, directory only, and non-' compliance with its provisions does not render the deed void. But, semble, per Stawell, C.J., that all that the Act requires is that a copy of the schedule, so far as the real estate is con- concerned, should be registered. In re Curie, 3 W. W. & a'B. (I. E. & M.,) 56, 59, 64. Deed of Assignment — Registration — Insolvency Statute 1865, Sec. 116.]— The 116th Sec. of the " Insolvency Statute 1865" as to the registra- tion of the schedules of personalty and memorials of realty to deeds of assignment is directory, and not mandatory. Moss v. Levy, 1 V.E. (L.,) 94; 1 A. J.E., 92. Creditor's Deed— When Valid — Executed by At- torney Under Unregistered Power.] — See Stacpoole v. Glass, 1 V.E. (L.,) 195 ; 1 A.J.E., 154. Post under Power op Attobnet. Trust Deed for Benefit of Creditors — Who May Compel Payment of Dividends Under.] — An assignee for value of a debt due on bills of exchange is an "interested party" within the meaning of the *' Insolvency Statute 1865," Sec. 121, so as to be able to compel the trustees of a trust deed for creditors to pay him a dividend. In re Sloman, 1 A.J.E., 110; I V.B. (E.,) 129. Act No. 273, Sec. 121— Dividend Not Payable to a Non-executing Creditor.] — Until a deed of assignment is executed by a majority of the creditors in number and value, it does not become a deed under the Act, and there- fore execution of the deed is necessary. A bank was a creditor to the extent of £7000, and they refused to execute a deed of assignment because the trustees only recognised their claim to the extent of £3000. Without the bank there would not be the majority sufficient to constitute the deed a release of debts. Held, per Molesworth, J., that the trustees need not pay the dividend unless the bank executed the deed, but that the signature by the bank should be accompanied by a memorandum limiting its effect to the £3000. Held, on appeal, that the bank was bound to execute, but that the execu- tion was not to be so limited. In re McDonald, 3 A.J.K., 106, 130. Assignment of Estate to Trustee under 5 Vic, No. 9 — Duty of Trustee.] — By an assignment intrust for creditors it was provided that no creditor should be entitled to receive a dividend upon any greater sum than the trustee should certify to be due, and that the trustee should act under the direction of a meeting of creditors as to whether claims should be admitted or not. On rule nisi by a creditor for payment of a divi- dend on a debt claimed by him, but which the trustee refused to certify, and under direction of a meeting of creditors declined to pay a 627 INSOLVENCY. 62fr dividend upon, Held, that it was the duty of the trustee to exercise such a discretion as the deed reposed in him, and rule discharged ; but it appearing that its provisions came upon the applicant as a surprise, without costs. Ex parte Nathan, 1W.T.4 a'B. (B.J 107. Execution — Interest.] — A creditor before tak- ing any benefit of distribution under a creditor's deed of assignment must execute it, but his execution is not a condition precedent to his proving in the Master's office for his debt. Semble, that creditors are entitled to interest on their debts up to the date of payment, the method of distribution being payment of principal and interest of all debts down to date of deed, and then the balance of interest out of the surplus if any. Beape v. Hawthorne, 2 W. W. & a'B. (E„) 76, 87, 89. Deeds of Assignment — Heading.] — Proceedings as to deeds of assignment under the '• Insol- vency Statute 1865," are to be headed as here- tofore, "In Equity," not "In Insolvency." In re Brann, 3 W. W. & a'B. (E.,) 111. Setting Aside Assignment — Parties.] — "Where a bill is filed to set aside a deed altogether, the trustees do not represent the cestui que trustent. Therefore where a suit was brought by the official assignee of a debtor to set aside an assignment for the benefit of all the debtor's creditors, it was held that the trustee did not sufficiently represent the creditors who were necessary parties. Goodman v. M'Callum, 1 W. & W. (E.,) 135, 136. Creditor's Deed — Not Signed by Majority — Setting Aside— No. 273, Part 13, Sec. 118— No. 379, Sec. 2 ] — A creditor's deed purporting to be made under Part 13 of the "Insolvency Statute 1865," and executed by the debtor an d trustees, was not signed by a majority in number and value of the creditors as required by Part 13 of the Act. On motion to set it aside, Held that the Court had jurisdiction to set the deed aside under Sec. 118 of, the "Insolvency Statute 1865," although the deed was not signed by a majority in number and value ; and semble, that such a deed is. a deed " executed under Part 13" within the meaning of the " Insolvency Statute 1871," Sec. 2. On appeal, Held that since the trustees had executed the deed, as one under Part 13, they were precluded from saying that it was not a statutory deed : and that the Act of 1871 did not repeal Part 13 of the Act of 1865 so as to deprive" the Court of jurisdiction under Part, 13. In re Knowles, 2 V. E. (I. E. & M.,) 8 ; 2 A. J. E., 8, 41. ' Assignment for Benefit of Creditors -Subsequent Insolvency— Payment of Dividend—" Insolvency Statute 1871," Sec. 69.]— Per Noel, J. An as- signment to trustees for the benefit of creditors generally is included in Sec. 69 of the " Insol- vency Statute 1871," without any reservation, and is therefore void. In re Finnev, 1 A. L. T. 187. A debtor assigned his property to a trustee for the benefit of his creditors generally, and dividends were paid to some. Three of his creditors refused to agree to the assignment, and more than six months after the assignment sequestrated his estate. Property had been collected and dividends paid under the assign- ment. Held, per Noel, J., that the assignment was void against the trustee in insolvency, that the undistributed property passed to him, that the trustee in insolvency was entitled to the dividends retained for, but not paid to the dissentient creditors, and to money subse- quently collected for the payment of further dividends, and that the creditors who had executed the deed could prove on the estate for the balance of their debts. Ibid. Deed of Assignment — How Far a Defence to Action at Law.] — To an action on a bill of ex- change the defendants pleaded a deed of assignment to trustees for the benefit of creditors, in bar. The deed was executed by four-fifths in number and value of the defen- dant's creditors as required by the "Insolvency Statute 1865," and contained a clause empower- ing " any meeting of creditors called and con- vened as aforesaid to give any direction respecting the household furniture and other household effects," of each of the assignors ; and " also to give any directions respecting any allowance" to the assignors out of their "property or business." Held, on demurrer, that though this clause might give rise to difficulties and embarrass the trustees, yet it did not invalidate the deed, and that the plea-.* was good. Levy v. Katzenstein, 3 W. W. & ' a'B. (L.,) 80. Assignment for Benefit of Creditors — Effect of at Law.] — A debtor who assigns all his property to trustees for the benefit of his creditors on ' the faith of an agreement on their part that the debts due to them should be suspended, if not extinguished, cannot, afterwards be sued by those creditors for these debts. Goldsbrough v. M'Culloch, 6 W. "W. & a'B. (L.,) 113, 124. Deed of Assignment — Operation at Common Law , — Proof.] — A deed of assignment, though not good under the " Insolvency Statute," may be good at common law, and sufficient to pass the property comprised in it, and such a deed, as a conveyance at common law, may be proved ' without producing the attesting justice. White v. Young, 1 V.E. (L.,) 188; 1 A.J.E., 151. Deed of Assignment — Consideration — Construction and Operation at Law — Execution by Creditors.] — A memorandum of agreement was signed by B., by which he made S. a trustee for his credi- tors _ as set out in the document. Two of the creditors who had not signed this document- brought an action to recover from S., as garnishee, the value of the money which B. had handed over to S. Held that the deed was not without consideration, and therefore good, and., that the deed being without an express or im- plied condition that it should not take effect until a certain number of creditors signed it, it took effect immediately upon its execution by the debtor and the majority of the creditors who had executed it. Rule absolute to enter verdict for S. Davey v. Schurmann, 7 V.L.E. (L.,) 188. Arid see Cases ante column 344. 629 INSOLVENCY. 630, VIII. Fraudulent Conveyances. See Fraudulent Conveyances and Settle- ments, ante columns 466-478. IX. Protected Transactions and Fraudu- lent Preferences. (1) Protected Transactions. Execution Against Land— Who Entitled to Pro- ceeds.]— B., a County Court bailiff, seized under execution the land of a judgment debtor. After seizure and before sale, he re- ceived information by informal notice of the sequestration of the judgment debtor's estate and of S.'s appointment as his official assignee. B. sold the property and paid out of the pro- ceeds .£32 to the landlord for rent, and paid the rest into Court. S. sued B. to recover the £32 as paid by the defendant in his own wrong. There was a verdict for B. On rule nisi for a new .trial or to enter verdict for plaintiff, Held that B.'s act was not analagous to the payment of debts by an executor de son tort, and was not similarly protected; that B. paid the debt without due authority, and which the official assignee himself could not have paid until the landlord had taken proper proceedings under the insolvent law. Rule absolute to enter verdict for plaintiff for £32. Simpson v. Burrowes, 4 W. W. & a'B. (L.,) 150. And see cases under Fraudulent Convey- ances — What are or are not, ante-column 466, et seq. (2) Fraudulent Preferences. What Constitutes— 5 Vic, No. 17, Sec. 8.]— M bought goods from T. on " sale or return," and for shipment to O., with the understanding that, if not sold there, they might be returned to T. within a reasonable time. M. insured the goods for the voyage to O. On the way they were totally lost, and M. recovered a verdict for their value from the insurance company. M. and Y. agreed that Y. should receive the amount of the policy from the company, in dis- charge of M.'s debt to him for the goods. M.'s debt to Y. would thus have been paid in full. There were then other creditors of M., who sequestrated his estate within 60 days of the arrangement, and C. was appointed his as- signee. On an interpleader summons a feigned issue was tried between C. and Y. as to their right to the amount of the policy, and the Judge directed the jury that the transaction between M. and Y. was void under 5 Vic, No. 17, Sec. 8, as a preference to Y. over M.'s other then existing creditors. Upon appeal, held that the direction was right. Per Stawell, C.J., and Barry. J. — No question of intent arises under the 8th Sec ; and per Stawell, C.J. — If the payment or delivery be within 60 days, it seems irresistible that it has the effect of preferring. Yov.nghusband v. Courtney, 1 W. & W. (L.,) 55. Fraudulent Preference — 5 Vic, No. 17., Sec. 73.] — Regina v. Wallis, see post under Offences by Insolvent. Assignment for Benefit of Creditors — Sequestra- tion—Acts 5 Vic, No. 9, 5 Vic, No. 17, Sees. 5, 6, and 8.]— By indenture dated 13th July, 1861, H. assigned all his real and personal estate to trustees for the benefit of all his creditors. On the 17th July, H. became insolvent, and the plaintiff was appointed official assignee. On the latter day the requisites of 5 Vic, No. 9, as to the deed of assignment to creditors had not been complied with. The official assignee filed a bill against the trustees of the deed only, alleging it to be if valid at common law yet fraudulent and void in equity as against himself, and praying for a declaration to that effect, and a reconveyan ce by the trustees to him- self. Held, on demurrer, that the deed was not a fraudulent alienation or transfer within 5 Vic, No. 17, Sec. 5; that on the facts stated in the bill it could not be inferred that the deed was either an alienation without consideration within Sec. 6, or an alienation having the effect of preferring one existing creditor to another under Sec. 8. Goodman v. M'Callum, 1 W. & W. (E.,) 135. What is Not — Assignee Eetaining Contract Moneys to Which Others were Entitled — Act 5 Vic, No. 17, Sec 8.] — H. contracted to erect buildings at the Melbourne Hospital, and applied to A. and Co. for assistance in the shape of cash and materials, which A. and Co. by writing agreed to give, in consideration of H. giving orders duly acknowledged by the treasurer to receive the contract monies. H gave a note which was acted on to the treasurer to pay to A. and Co. the contract monies. H. became insolvent, and J , his official assignee, took up and finished the contracts, and received £ 1 7u more than he had expended. Action by A. and Co. against J. for money had and received. Held, that J. received the money and held it subject to the arrangement between H.and A. and Co., and that he was in no better position than H- would have been, and that the case did not fall under the Act 5 Vic, No. 17, Sec. 8, as a fraudulent preference. Anderson u . Jacomb, 2 W. & W. (L.,) 269. [The corresponding Sec. of Act No. 379 is Sec. 71.] Inadequate Consideration.] —When the con- sideration for a conveyance, executed within sixty days preceding an order for sequestra- tion of the grantor's estate, is the release of a debt due by the grantor to the grantee, such conveyance is a "preferring" of the releasing creditor within the meaning of 5 Vic, No. 17, Sec. S. Jacomb v. Donovan. 1 W. W. & a'B. (B.,) 66. Where C. under a conveyance executed on the 17th July, 1863, conveyed his equity of redemption in real estate to D., for an inade- quate consideration and under suspicious, circumstances, and on the 30th day of the same month an order nisi was made for the sequestration of C.'s estate, and the considera- tion was the release of a debt due by C. to D* on bill by the official assignee of C.'s estate to set aside the conveyance, Held, that the conveyance was fraudulent and void, both at 631 INSOLVENCY. 632 common law, and under 13 Eliz., Cap. 5., the dealing showing embarrassment of the grantor, near approach of insolvency, a connection between the parties and inadequacy of price, and therefore raising a strong suspicion of fraud. Ibid. [The corresponding Sec. of Act No. 379 is Sec. 71.] Transfer of Bills of Exchange Within Sixty Days of Sequestration — Pressure— 5 Vie., No. 17. See. 8.] — S., in 1860, borrowed .£1500 from W., and gave him a warrant of attorney and bond for the amount. Judgment was never entered up on the warrant of attorney, but a writ was issued by W., and by arrangement judgment was signed in the action. W.'s agent, by dint of threats and pressure, in January 1862, -obtained . certain payments in cash and two bills of exchange from S., who then absconded, and within sixty days of the transaction his estate was sequestrated. His assignee sought to recover the proceeds of the bills of exchange from W., contending that the mere transfer of them was void under Sec. 8 of No. 17., by the mere fact, that it was made within sixty days next preceding the sequestration, and that W. was preferred to other then existing creditors, even though there were no question of fraud or intent. The jury found for the ■defendant; and found specifically that the transfer was made by S. bona fide. On rule nisi to enter a verdict for the assignee, Held, that the transfer not being voluntary, it was not void under Sec. 8 of 5 Vic, No. 17 ; and rule nisi discharged. Courtney v. Wilson, 1W.W.A a'B (L.,) 110. ■What Constitutes.] — W. assigned all his property to » creditor in consideration for a sum of money which was paid, but immediately returned to the creditor, who shortly after- wards sold nearly all the property, by auction, and bought it in himself. W.'s estate was shortly afterwards compulsorily sequestrated ; but the official assignee made no demand for the property assigned, nor did he, before action, indicate, in any way, an intention to treat the transaction as a fraudulent prefer- ence. On action by the official assignee in trover and upon money counts for the proceeds of the part of the property sold, Held that there was evidence to go to the jury of a fraudulent preference, but that the defendant (creditor) was entitled to succeed on the plea of " Not Guilty " since the transfer was made by the debtor while fully competent to make it, and it could not be affected by relation back ; and that W. was entitled to be fairly informed of the assignee's intention to dispute the assignment, although a formal demand by the assignee was not essential; and judgment for the plaintiff on the count in trover without costs. Simson v. Mitchell, 5 W. W. & a'B. (L.,) 114. " Insolvency Statute 1865 " (Ho. 273,) Sec. 81 — Pre-existing Debt— Bill of Sale.]— N. and K. were traders in partnership, and on 3rd Decem- ber, 1866, executed a bill of sale to plaintiff of certain scheduled chattels, to secure payment of .£702 of which £150 was advanced at the time, the balance being a then existing debt. Default was made in payment, and the plaintiff D. took possession of goods comprised in the bill of sale. N. and K. voluntarily seques- trated their estate on 26th January, 1867, and the defendant S. was appointed official assignee. The defendant claimed the whole of the property taken by plaintiff, and by agree- ment the chattels were sold and the proceeds placed in a bank to await the issue of the suit. Suit by D. against S. to test the ownership of the proceeds, Held that though the bill of sale was executed bona fide and not to prefer D. to the other creditors, yet it was void by Sec. 31 of Act No. 273, but only so far as it was a security for a pre-existing debt, and not as to the JiloO then advanced. Bank of Australasia v. Harris (\h Moo P.C. 97,) and Nunes v. Carter (L.E. 1 P.C. 342,) commented on. Douglass v. Simson, 6W.W.4 a'B. (E.,) 32. [The corresponding Sec. of Act No. 379 is Sec. 71.] " Insolvency Statute 1865 " (No. 273,) Sec. 31.] — A payment within 60 days of insolvency is not void under the Statute, unless evidence of facts is adduced, showing that such a payment was fraudulent as well as preferential. W. was indebted to S. and other creditors, and, being pressed by S., gave an order to A., who was entrusted with W.'s wool for sale directing him to pay S. out of the proceeds a certain amount. W. became insolvent within 60 days, and did not contemplate insolvency when he gave the order. S. had instructed his solicitor to proceed against W. on an overdue accept- ance, and under this pressure W. made the order. Held that the order for payment given to W. was not a fraudulent preference within Sec. 31 of the Act No. 273, although pre- ferential. Douglass v. Simson overruled. Bank of Australasia v. Harris, 15 Moo P.C.C. 97, Nunes v. Carter, L.E. 1 P.C, 347, followed, Sheldrick v. Aitken, 6 W. W. & a'B. (L.,) 59. What is a Fraudulent Preference.] — Per Stawell, C. J. " A transfer spontaneously made by a person being insolvent out of the usual course of business to secure or pay a creditor without receiving a sufficient consideration is a fraudu- lent preference." Cohen v. M'Gee, 4 V.L.B. (L.,) 543, 553. Transfer of Goods Within Three Months of Insolvency — "Insolvency Statute 1871," Sees. 71, 72, Sub-sec. 3.] — Within four days before his insolvency, a debtor transferred all his available assets to his creditors in consider- ation of debts due to them upon bills of ex- change. Held, per Molesworth, J., that although the debts were of a class which the debtor was specially bound to pay, and (irre- spectively of the Act) would be morally justified in paying preferentially, the payment was within the mischief of the first part of Sec. 71, and did not come within the pro- tection of Sub-section 3 of Sec. 72, and an order was made for the re-payment. In re Maley, 4 A. J.K., 7. 633 INSOLVENCY. 634 Assignment of Part of Property Under Pressure.] — Where a debtor had assigned a considerable part of his property to a creditor under pressure of threats of a criminal prosecution against the debtor, Held that this did not invalidate the transfer, and that it would not have done so even had there been an actual agreement to stifle a prosecution, since the property had clearly passed. Hasleer v. Moorhead, v. Black- wood, v. M'Mullen, 2 Y.L.E. (L.,) 160. A bill of sale given under the above circum- stances as security for a promissory note before its maturity, the note itself having been given under the same pressure, was held not to con- stitute a fraudulent preference. Ibid. Payment Under Pressure is Not.] — A payment resulting from pressure, as for a debt due, is not a fraudulent preference, though upon the verge of insolvency, or the person paying may be partly influenced by a wish to prefer. In re Schlieff, 6 V.L.E. (LP. &M.,) 51; 2 A.L.T., 55. Assignment Good as to Part and Bad as to Part] A debtor executed an assignment of the greater part of his stock-in-trade to a ereditor who was not pressing him in trust to sell and pay the two creditors rateably. The con- sideration was a trifling further advance from the creditor who was not pressing, and for- bearance to sue, and obtaining forbearance to sue from the creditor who was pressing. The jury found that the assignment was a fraudu- lent preference as regards the creditor who was not pressing, and the Court held that the pressure by the other creditor made the assign- ment good as regards his debt. Seld that the assignment could be treated as good in part and bad in part, and be upheld so far as it provided for the payment of one debt, though invalid so far as related to the other debt. Cohen v. Jlf'Gee, 4 V.L.E. (L.,) 543. Bill of Sale — Antecedent Debt and Present Advance.] — N., a trader, being indebted to M. & Co. in .£946 12s., on the 30th December, 1869, assigned by bill of sale all his stock-in- trade and available assets to M. & Co., to secure their antecedent debt and a present advance of £350, of which £120 was imme- diately returned to one of the firm of M. & Co., in payment of of a private debt owed him by TS. On the 13th January, 1870, M. & Co. took possession under their bill of sale, and sold for £1094 19s. 4d. N. was also largely indebted to other creditors. On the 14th January, 1870, N . voluntarily sequestrated his estate. On bill by the official assignee of N. to set aside the bill of sale as fraudulent, and as having the effect of preferring M. & Co., Held, that the bill of sale was not void, and that the transac- tion did not amount to a fraudulent preference, and bill dismissed, but without costs. Shaw v. Solomon, 1 V.E. (E.,) 153 ; 1 A.J.E., 139. A bill of sale given by a debtor bona fide over all his stock in order to obtain assistance in difficulty for a past debt, and for further advances is not a fraudulent preference although it must if acted upon necessarily prevent him from carrying on his trade, the circumstances showing that it was- not " spontaneous " on the part of the debtor. The true question is not whether the deed stops the trader's business, but whether it makes him insolvent and unable to pay his creditor in the ordinary way. Jacomb v. Boss, 4 A.J. E., 44, 97. And see the same case for consideration of what is a " past debt." And see S.P., in re Mathieson, 3 A.J.E., 92,. post under Certificate op Discharge — "When Granted or Eefused. Giving security for a debt is not to be con- sidered fraudulent, merely because such debt is not presently payable. Simson v. Guthrie, 4 A.J.E., 123,. 182. M., who was indebted to G. upon bills fall- ing due on March 3rd, on the 1st of March obtained cheques from G. to take them up, and gave in return a promissory note due on April 4th. Held, that G. was entitled to credit for the cheques given ou March 1st, though a bill to secure the amount was then current. Ibid. Deed of Assignment in Favour of Scheduled Cred- itors — Not Necessarily a Fraudulent Preference Under Sec. 71.] — See in re Wiedemann, ante column 587. Fraudulent Warrant of Attorney — Act No 273*, Sees. 13, 33.] — See in re Kerr and Gray, ante column 595, and compare Sec. 71 of Act No. 379. Bill of Sale Given as Fraudulent Preference — Goods Sold Bona-fide Before the Insolvency.] — See Halfey v. M'Ewan, post column 638. Judgment by Consent Improperly Obtained.] — A judgment improperly signed operates pre- judicially against the estate of the debtorj. and may be set aside. Where, therefore, H. was indebted to A. for a loan, and had promised at the time of the loan to allow A. to sign judgment against him, but before judgment was signed H. gave A. acceptances for the amount of the loan, and during the currency of the loan A. signed judgment against H., who thereupon sequestrated his estate. Held that, since A. took H.'s acceptance that amounted to- a suspension of the promise by H. during their currency, the judgment was improperly signed and might be set aside by the assignee of H.'s estate as a fraud on the creditors' Andrews v.Harley, 1 V.E. (L.,) 127; 1 A.J.E., 122. Judgment by Consent Improperly Obtained.]—" K., to assist W., gave his guarantees to certain; persons for the re-payment of the price of goods to be delivered to "W., who, by this means, obtained goods to the value of £500. K. also advanced to"W. £100. Afterwards W. requested K. to guarantee him to a further amount of £360. At this time the price of the goods delivered to W., and the £100 advanced by K., remained unpaid. K. consented to give €35 INSOLVENCY. 636 the further guarantee if W. consented to his ob- taining a judgment against him. W. agreed, and a writ, accompanied by particulars of de- mand, was issued against W. and served. The particulars of demand were for money lent, money paid, money had and received, and interest. On the day the writ was issued W. signed a consent to a Judge's order for entering up judgment. K. then gave his further guarantee, and signed judgment, and issued ■execution. Under the execution K. received ,£856 10s. 6d. Twenty-five days afterwards W. voluntarily sequestrated his estate, and three months afterwards his official assignee took out a summons to set aside the judgment and execution. Held, that so far as the claim was for money lent, the judgment and execution were good ; but that, as far as the rest of the claim was concerned, K. should refund what he had recovered to the assignee; that the judgment was good j but that the execution, so far as the ■excess over the amount of money lent was con- cerned, should be set aside, K., by retaining such excess, committing a fraud upon the general body of creditors. Kyle v. Williams, 1 V.E. (L.,) 129; 1 A.J.E., 122. And see cases under headings Act of Insol- vency, Offences and Discharge and Eelease from Sequestration. X. Property op the Insolvent and the Assignee's Title Thereto. •(1.) What Property Passes to the Assignee, and Subject to What he Takes — Generally. Act 5 Vic. No. 17, Sec. 8— Assignee Retaining •Contract Moneys to Which Others were Entitled.] — H. had contracts for erections at the hospital, Melbourne, and applied to A. and Co. for . assistance in the shape of cash and materials, which A. and Co., by writing, agreed to give on consideration of H. giving orders duly acknow- ledged by the treasurer to receive the contract moneys. A note directing the treasurer to pay to A. and Co. was given by H., and acted upon. H. became insolvent, and J. , his official assignee took up the contracts and finished them, and he received .£170 more than he had expended. Action by A. and Co. against J. for money had . and received. Held that J. received the money under, and held it subject to the arrangement between H. and A. and Co., and he was in no better position than H. would have been, and that the case did not fall under the Act 5 Vic, No. 17, Sec. 8, as a fraudulent preference. .Anderson vJacomb, 2W.4W. (L.,) 269. [The corresponding Sec. of Act No. 379 is Sec. 71.] Act 5 Vic, No. 17, Sec. 58 — Money under a Will to Which Insolvent has a Contingent Claim.] — Where insolvent was interested in a sum of money in England under a will payable at the death of his mother, Held that it passed to official assignee, not so as to entitle him to sue in England for it, but so that he should notice it in the plan of distribution in such a way as to leave it open for him to say afterwards that he was mistaken as to its being an available claim. Ex parte Bank of Australasia, in re Flower, 2W.4W, (I. E. & M.,) 47. [Compare Sec. 58 of Act No. 379.] Per Molesworih, J. An assignee of an insol- vent takes his estates subject to unregistered mortgages. Fraser v. Australian Trust Com- pany, 3 A.J.B., 1, 2. Money Paid Into Court to Abide Result of Action.] See Goodman v. Strachan, 2 A.J.E., 63, post under Sub-heading Effect of Insolvency. Summary Procedure as to Property Taken by Assignees under Sec. 17 of Act No. 379.]— See cases post under Subheading Summary Juris- diction and Procedure. Partners — Joint and Several Estate — Vesting of the Estate.] — In re Curtain and Healey, 5 V.L.E. (I. P. &M.,) 109; 1 A.L.T., 93, post column 641. Effect of Order Absolute in Vesting Estate.]— See cases under Sub-heading Trustees, &c. — Their Eights and Powers. Payment of a Dividend— Property Acquired by Insolvent Before Discharge— No Interference by First Assignee — Payment of Money to Vendor Before Discharge — Second Insolvency — Rights of First and Second Assignees.] — H. was insolvent in 1861, and J. was appointed assignee, and paid a dividend of 3s. iu the £. H. saved money and paid ,£200 as part of the purchase money of certain land in April, 1867. H. obtained his certificate of discharge under the first insolvency. J. had not interfered. H. settled the land by voluntary settlement upon trustees on trust for wife and children, April, 1868. H. became insolvent again March, 1871, S. being appointed assignee. The settled land was brought under the Act No. 301, and a cer- tificate issued to J. subject to the rights of the settlement, December, 1870. On bill by S. against the trustees of settlement and J. to set aside the settlement as void, and to redeem J., ffeJ26,000, and recovered about i24,000. Held, in the absence of evidence to explain the failure in recovering the whole amount claimed, and in regard to the .£2000 which the creditor failed to recover being a considerable sum, this was not a frivolous or inequitable defence within the meaning of Sec. 138, Sub-sec. 3, even though the main line of defence was frivolous. In re Wright and Higgins, 7 V.L.E. (I. P. & M.,) 7; 2 ALT,, 144. Act No. 379, Sec. 138, Sub-sec. 3 — Frivolous Defence.] — See in re Kershaw, ante column 675. €77 INSOLVENCY. 678 Erivolou9 and Unjustifiable Defence — " Insolvency Stat. 1871," Sec. 188, Sub-sec. 8.]— Insolvent was •employed to select under the Land Acts 1862 and 1865 as a hired agent for E., who gave him the money to pay the fees, and afterwards paid the rent and for all improvements, and held posses- sion from the time of selection. When the lease was issued E. asked insolvent to transfer for £50 in pursuance of the agreement, but insolvent refused, and raised the defence that lie had selected for himself, being provided with the money by a deceased friend. Held,, jper Noel, J., that this was a frivolous and unjustifiable defence within the meaning of Sec. 138, Sub-sec. 3, of the " Insolvency Stat., 1871." In re M'Gralh, 1 A.L.T., 132. Good grounds of defence are not merely such grounds as would be available as a defence in a court of justice, but grounds which to an ionourable man would afford a moral justifica- tion for the defence. Ibid. Act No. 379, Sec. 138, Sub-sec. 4 — Wilfully Delaying Sequestration.] — Per Noel, J. — Proof of mere sequestration or shrinking from the ordeal of the Court is not sufficient under Sub-sec. 4, nor is a foolish and ill-advised persistency in avoiding sequestration, but a designed and preconcerted postponement of sequestration is what the Sub-sec. contem- plates. In re Mathieson, 3 A.J.R., 92. Act 7 Vic, No. 19, Sec. 18 — Gambling.] — The fact that an insolvent has been a deep, and, having regard to his position in life, an improvident rash gambler, is no ground for refusing him his certificate under 7 Vic, No. 19, Sec. 18, for having, "by habits of gambling diminished his means of payment," Q he has not on the whole been a loser by his gambling. In re Davies, 1 "W. & W. (I. E. & M„) 5. [Compare Act No. 379, Sec. 138, Sub-sec. 5.] Sealing in mining shares is not the offence of gambling within Sec. 138, Sub-sec. 5, of Act No. 379. In re Schuhkrafft, ante column 673. Act No. 379, See. 138, Sub-sec. 7— Carrying on Trade with Fictitious Capital.] — Where an insolvent, knowing the very uncertain, not to say bankrupt, state of his affairs, continued to order large consignments, and raise money on bills of lading, &c, and thus with inadequate capital, traded on speculative consignments of goods purchased on credit, and with the advances made thereon from time to time, paid for previous purchases made in a similar manner, Held that this did not constitute the offence of carrying on trade by means of fictitious capital. In re Oppenheimer, 6 V.L.E. (I. P. & M.,) 26. Carrying on Trade by Means of Fictitious Capi- tals—Per Molesworth, J. The offence of carry- ing on trade by means of fictitious capital would be committed by trading on accommo- dation acceptances, disposing interpreters to put upon the words in question a sense includ- ing participators in the former offences as accessories. In re Bryant, 4 W, W. & a'B. (I. E. & M.,) 7, 11. Where an insolvent began business without capital and in debt; never was solvent from commencement to close ; kept afloat by trans- actions which, while they furnished supplies from day to day, left him always in debt ; had no real capital to meet his liabilities ; borrowed money continually to avert difficulties as they thickened ; and used his wife's money to eke out the paucity of his own, Held, Per Judge Nod, that he had committed the offence of carrying on trade by means of fictitious capital. In re M'Donald, 1 A.L.T., 185. " Fictitious" does not mean feigned or falsely described, but unreal; that which seems, and is not. Ibid. Carrying on Trade by Means of Fictitious Capital.] Per Noel, J. " I cannot hold that the consider- ing of bad debts as good ones is carrying on trade by means of fictitious capital within the meaning of the "Insolvency Stat. 1871," Sec. 138, Sub-sec. 7. In re Martin, 2 A.L.T., 48. Act No. 379, Sec. 138, Sub-sec. 7— Carrying on Trade With Fictitious Capital.] — Where the insolv- ent entered into a contract with the Govern- ment without funds, relying upon funds to be supplied by a bank which was to participate in the profits, receiving the payments made by the Government, Held that this was trading with "fictitious capital," and certificate suspended for one year. In re Wright and Hiagvns, 7 V.L.E. (I. P. & M.,) 7; 2 A.L.T., 144. " "Insolvency Stat. 1871," Sec. 138— Carrying on Trade wiith Fictitious Capital.] — A., an accountant and commission agent, broker, &c, carried on his business by means of fictitious capital. Held, per Molesworth, J., that he was not a " trader" within the meaning of the " Insol- vency Stat. 1871," Act No. 379, Sec. 138, Sub- sec. 7, so as to constitute this an offence against the Act. In re Aarons, 6 V.L.E (I. P. & M.,) 56;2A.L.T.,28. Objections to Grant of— Trading with Fictitious Capital— What is— "Insolvency Stat, 1871," Sec. 138, Sub-sec. 7.]— To constitute the offence of trading with fictitious capital, within the meaning of Sec. 138, Sub-sec. 7, of the "Insol- vency Stat. 1871," it must be shown that the insolvent has made some false statement, or acted in some way so as to produce a false opinion about his capital. In re Monaghan, 10 V.L.E. (I. P. & M.,) 9; 6 A.L.T., 1 Not Disclosing Property — 7 Vic, No. 19, Sees. 18, 19.] — An insolvent filed his schedule, suppressing the ownership of the greater portion of his property, introducing a ficti- tious statement as to debts, and admitting that he owed the debt for which he was sued. When a messenger of insolvency called upon him in order to take possession of his goods, he represented that the goods belonged to a woman with whom he was co-habiting, and to whom he had made an assignment of such goods. The insolvent afterwards in the Insol- vent Court disclosed what was his property fully and fairly, and confessed his dishonesty. Held that he had perpetrated an offence under 679 INSOLVENCY. 680 Sec. 18 of the Act, and was liable to punish- ment under Sec. 19. In re Pogonowslei, 1 W. "W. & a'B. (I. E. & M.,) 29. [Compare Act No. 379, Sec. 138, Sub-sec. 8.] 7 Vic, No. 19, Sec. 18.] — An insolvent's non- disclosure of the acquisition of property by him when he has remained within the jurisdic- tion continuously from sequestration to the application for his certificate, is no ground for the refusal of such certificate; but secus, when he acquires property while out of the jurisdiction and does not inform the assignee. In re Tyrer, 4 V.L.E. (I. P. & M.,) 12. Act Ho. 379, Sec. 138, Sub-sec. 8— Sec. 154, Sub- sec. 2 — Full Disclosure of Property.] — An insol- vent who states in his schedule that an asset is not mortgaged when in fact it is, does not thereby become liable to have his certificate refused or suspended. In re Aarons, 6 V.L.E. (I. P. & M.,) 56; 2 A.L.T., 28. A. failed to set out in his schedule certain property, viz., his interest as the proprietor of a theatre in a certain agreement with a gas com- pany. Held that as this was uncommon property, and it might be doubted by the insolvent whether it would pass to his trustee, the omission was not within Sub-sec. 8 a ground for suspending his certificate. Ibid. Act No. 379, Sec. 138, Sub-sec. 8, Sec. 154, Sub- sec. 4.] — Per Noel. J. The offence of concealing property under Sec. 154, Sub-sec. 4, means doing something, and a mere non-disclosure of assets is not sufficient, and under Sec. 138, Sub-see. 8, the mere silence of the insolvent is not sufficient, there must be inquiries made as to his property, and a non-disclosure in refer- ence to those inquiries. In re Dunphy, 3 A.L.T., 28. Act No. 379, Sec. 138, Sub-sec. 9— Wilful Violation of Provisions of Act.] — In re Kershaw, ante column 675. Act 7 Vic, No. 19, Sees. 18, 19. — Contract- ing Debts With No Seasonable Expectation of Paying Them.] — H., being largely indebted, shortly before his insolvency paid a debt of .£100 by a cheque on a bank when his account was already overdrawn. Held, that this was contracting a debt which he had no reasonable or probable expectation of paying. In re Handasyde, 1 W. & W. (I. E. & M.,) 110. [Compare Sec. 138, Sub-sec. 10, of Act No. 379.] Contracting Debt Without Expectation of Paying —Act No. 379, Sec. 138, Bub-sec. 10.]— Where an insolvent subsequent to a release under an assignment for benefit of creditors accepted a bill for the balance of a debt due prior to the assignment under an express agreement for indefinite renewal, and the drawer's insolvency caused a sudden demand for payment. Held not to be contracting a debt without intending to pay within the meaning of Sub-sec. 10 of Sec. 138 of Act No. 379. In re Mathieson, 3 A.J.E., 92. Contracting Debts Without Expectation of Paying; Them.] — A general inability to pay all his debts would not constitute the offence by an insol- vent of contracting debts without having the means of paying them, or without any reason- able or probable expectation of having the means of paying them. In re Walters, 3 W. W. & a'B. (I. E. & M.,) 14. Contracting Debts Without Expectation of Paying Them.] — To escape committing the offence of contracting a debt without reasonable or pro- bable expectation of being able to pay it, as denned by the Act No. 273, it is not necessary that the debtor should have a good expectation of being able to pay all he owes, but only the particular debt then contracted. In re Mason, 3 W. W. & a'B. (I. E. & M.), 28. Followed in in re Arnold, 5 V.L.E. (I. P. & M.,) 39; and in in re Goldsmith, ibid, p. 18, on the correspond- ing enactment, Act. No. 379, Sec. 138, Sub-sec. 10. " Insolvency Stat. 1871," Sec. 138 — Contracting Debts Without Intending to Pay.] —Per Molesworth, J. An inability to pay all debts will not'.sustain the objection that an insolvent contracted debts without intending to, or having any reasonable expectation of paying them within the meaning of Sec. 138, Sub-sec. 10 of No. 379. In re Aarons, 6 V.L.E. (I. P. & M.,) 56; 2 A.L.T., 28. Contracting Debts Without Intending to Pay — Act No. 273, Sec. 103.] — B. started in business without any capital at all, under the auspices- of a firm to which he gave a bond to cover advances. The firm advanced goods to him, and he in turn gave accommodation acceptances to the firm, some of them in blank, which were filled up to a larger amount than he expected. This led to his insolvency. Held, per Moles- worth, J., that the question was to be regarded on the general liability of sureties relying on the solvency of their principals, and that in that aspect B. had not contracted debts " with- out intending to pay, &c," within the meaning of Sec. 103, Act No. 273. On appeal|HeJ(J that the debt of a person accepting an accommoda- tion acceptance arises as soon as the bill is accepted, and that the solvency of the person, accommodated cannot affect the ability to pay of the accommodation acceptor; and that B. had so contracted debts within the meaning of Sec. 103. Certificate refused. In re Bryant 4 W. "W. & a'B. (I. E. & M.,) 7. [Compare Act. No. 379, Sec. 138, Sub-sec. 10.] When Granted or Refused.] — For circumstances in which Court held that a rectifier of spirits obtaining spirits on credit, hoping to get his licence from the Board of Trade which was accidentally delayed, was not guilty of obtain- ing goods on credit without reasonable expec- tations of paying or of reckless trading See m re Herring, N.C., 30. [Compare Act No. 379, Sec. 138, Sub-sec. 10.] Certificate When Suspended or Refused — Reck- lessly Contracting Debts.] — Contracting debts €81 INSOLVENCY. 682 without any reasonable expectation of payment -under the " Insolvency Stat, 1865," relates to the particular debt, and not to debts generally ; ■when the debt is contracted the debtor must have no reasonable expectation of paying it ; and he is not liable as coming under the Act in contracting debts under such circumstances that he has no reasonable expectation of paying all. In a great many cases the line of demar- cation between inability to pay all debts and the inability to pay a particular debt is very fine, and a person who contracts a debt when he certainly cannot pay all his debts should be subject to some penalty as regards the grant •of his certificate. When H. had contracted •debts when he could not pay all his debts, but he had not purchased goods to sell at a sacri- fice, and the creditors to whom he was indebted at the time of his insolvency were persons with whom he had dealt for some time, and to whom he had made payments from time to time, and no large purchases were made on the eve of insolvency, but, on the contrary, when some creditors sought orders he had refused to accept their goods ; and there was no imputa- tion that he had appropriated assets in favour of a particular creditor, and for some months preceding his insolvency there had been sick- ness in his family, owing to which he had incurred considerable expense ; Held that the total refusal of H.'s certificate would be too severe a punishment, and that a suspension for six months would meet the case. In re Hill, 1 A.J.R., 172. [Compare Act No. 379, Sec. 138, Sub-sec. 10.] Incurring a Debt Without Intending to Pay — "Insolvency Stat. 1871," Sec. 138, Sub-sec. 10.]— Incurring a debt, such debt being a renewal of a former one incurred in order to buy off opposi- tion to the grant of a certificate, the insolvent informing the creditor at the time, that he had no means to pay the debt, is not contracting a debt without intending to pay, within the meaning of Sec. 138, Sub-sec. 10, of the "Insol- vency Stat." 1871." In re Cunningham, 2 V.L.E. (I. P. & M.,) 9. Per Noel, J. — " Sub-sec. 10 does not include debts contracted by a person who is not solvent, but does include the debts contracted by one who expects, or ought to expect, imme- diate stoppage of payment." In re M'Donald, 1 A.L.T.,185. For circumstances under which Noel, J., re- fused to grant a certificate on account of fraudulently contracting debts and reckless trading, see in re Gardner, 1 A.J.E., 47. Unjustifiably Disposing of Goods Otherwise than Bona-fide— 7 Vic, No. 19, Sec. 18.]— H„ being largely embarrassed, and wishing to raise money, bought goods on credit, which he con- signed to W., taking his acceptances for much less than their value, and made over the whole of the goods to W. as security for the accept- ances, and continued to do so till shortly be- fore his insolvency, Held that this was " un- justifiably disposing of goods otherwise than bona-fide" within the meaning of 7 Vic, No. 19, Sec. 18. In re Handasyde, 1 W. & W. (I. E. & M.] 110. [Compare Act No. 379, Sec. 138, Sub-sec. 11.] Unjustifiably Making Away with Property — Setting Aside a Settlement No Ground For.] — An insolvent, eleven months before his insolvency, executed a settlement, which was after his insolvency set aside under Sec. 7 of 5 Vic, No. 17. There was no other evidence of any improper conduct on the part of the insolvent, ana there was evidence that at the date of executing the settlement he was solvent. Held, that the mere fact of the settlement having been set aside under the Act was no ground for refusing him his certificate, and that he was entitled to it. In re Mahoney, 1 W. & W. (I. E. & M.,) 188. [Compare Act 379, Sec. 138, Sub-sec. 11.] Unjustifiably Making Away with Property — Act No. 879, Sec. 138, Sub-sec. 11.]— See in re Mathieson, post column 680. Charges under Sec. 138, Sub-sec. 1 1 , of dis- posing of property otherwise than bona fide should be made emphatically and clearly. In re Wright and Higgins, 7 V.L.E. (I. P. & M.,) 7; 2 A.L.T., 144. Disposing of Property, Whilst Indebted, Otherwise than buna fide, and for a Valuable Consideration.] — The insolvent was sole executrix and universal devisee and legatee of her husband, P. S., wh was at his death a partner in a firm. The insolvent sued the surviving partner for accounts, and a decree was made ordering him to pay the insolvent 42000. A few months later B. sued the insolvent as executrix of her husband to establish a sub-partnership with him in P. S's. firm, and for payment of the share of the sum recovered from the partner, and other partnership moneys received by her. Insolvent defended the suit, which was in March, 1862, registered as a lis pendens. On 23rd January, 1863, immediately before the marriage of her daughter, insolvent executed a settlement of all her real estate on the daughter, including that which was vested in her by her husband's will. The property was conveyed to the daughter's separate use without power of anticipation, and the hus- band took no interest. On 7th October, 1863, a decree was made in the suit by B. against insolvent, declaring B. entitled, as a partner in P. S's. firm, to a half share of the partnership property, and directing an account with costs against the insolvent up to the decree. There was no evidence that the trustees of the settle- ment had entered into possession of any part of the settled property, or that the daughter had received any of the rents, and it appeared that the insolvent had remained in possession of one of the houses settled, and had paid no rent to the trustees or the daughter. Evidence was given by the insolvent of a promise to her husband shortly before his death that she would execute a settlement on her daughter when she should marry. She admitted that she had not communicated this promise ,to her daughter or 683 INSOLVENCY, 684 her husband until the settlement was actually- being prepared. On the 28th November, 1863, the insolvent voluntarily sequestrated her estate. On appeal from the Chief Commissioner grant- ing her her certificate, Held by the primary Judge and confirmed on appeal, that the insol- vent was indebted to B. at the date of the settlement, though proof of the debt was not then established ; that under the circumstances the settlement was not bona fide, but colourable, and could not be supported by the considera- tion of marriage; and that the certificate should be refused on the ground that the insol- vent being indebted had unjustifiably disposed of property otherwise than bona fide, and for valuable consideration. In re Solomon, 1 "W. W. & a'B. (I. E. & M.,) 45. [Compare Act No. 379, Sec. 138, Sub-sec. 11.] Eefusing Certificate.] — Where a commissioner had refused a certificate on evidence which showed that an insolvent had prior to insol- vency settled his property on his wife to evade the payment of damages and costs in an action for slander, Held that commissioner was right. In re Curley, 2 W. W. & A'B. (I. E. & M.J 1. Withholding the Certificate.] — Per Molesioorth, J. For the purpose of withholding a certificate, assignments between the members of a family on the eve of the insolvency of the assignor, not publicly visible, and the details of which are very improbable, should generally be held fraudulent, although sworn by the assignor and assignees to have been honestly effected, in such a way that no decided falsehood can be detected in their testimony. Appeal from decision of a commissioner refusing certificate dismissed. In re Allen, 2 W. W. & a'B. (I. E. & M.,) 3, 7. [Compare Act No. 379, Sec. 138, Sub-sec. 11.] Granting or Refusing — Act No. 273, Sec. 143 — Fraudulent Alienation of Property.] — The word " unjustifiably" should be taken as not only illegally but dishonestly j and where insolvent had made a settlement on his wife of property of great value, and it being probable that he contemplated insolvency from the extent of his liabilities the Court held it was so far dis- honest as to come within the meaning of the word "unjustifiably," and refused a certificate. In re Rogers, N.C. 41. [N.B.— Act No. 379, Sec. 138, Sub-sec. 11, substantially follows Act No. 273, Sec. 143.] Fraudulent Alienation of Property Under Act No. 273, Sec. 143,] — See in re Cobain, 4 A.J.E., 31, post colwmn 687. "Insolvency Stat. 1871," No. 379, Sec. 138, Sub-sec. 11.] — Where an insolvent's sole source of income was derived from a theatre, and he leased it to a person with the design that the lessee should hold against the assig- nees or trustees in insolvency, and for the benefit and under the direction of the insol- vent, Held and affirmed on appeal that this was a disposition of property punishable under No, 379, Sec. 138, Sub-see. 11, by refusal or sus- pension of the insolvent's certificate. In re- Aarons, 6 V.L.R. (I. P. & M.,) 56; 2 A.L.T., 28, 51. See also in re Mathieson, post column 686. Improperly Appropriating Moneys Deposited with Insolvent as Agent.] — In order to justify the- refusal of an insolvent's certificate for having improperly appropriated moneys deposited with him as an agent, he must be an agent in. the sense in which that word is used in popular parlance, or there must be a series of continu- ous transactions. He must come rather under the character of a trustee, if within the Act at all, than that of an agent, and the best test to distinguish between a trustee and an ordinary debtor is to inquire — was it the duty of the insolvent to have kept the moneys deposited with him so ear-marked and distinguished from his own, as that in the event of the death of the depositor his moneys could be readily recognised ? or was the insolvent warranted by all the previous transactions between himself and the depositor in receiving the money, and treating himself merely as an ordinary debtor for the amount? In re Nantes, 1 W. & W. (I. E. & M.,) 1. [Compare Act No. 379, Sec. 138, Sub-sec. 12.] Appropriating Moneys Entrusted to Him as Agent— 7 Vict., No. 19, Sec. 18.]— C, an insol- vent, received moneys from B., and signed a receipt as follows: " Received from B. ,£220 sterling, to be invested at interest on good and approved securities on his account, for periods not exceeding two years from date. — C. C. lent out this money on bills, drawn by and payable to himself personally, and did not disclose his character as agent in any transac- tion. In his schedule also he treated the money as a loan to himself, and entered B. as an ordinary creditor. Held,, that he had appropriated to his own use money entrusted to him as agent, and under 7 Vict., No. 19, Sec. 18, should rightly be refused his certifi- cate. In re Christophers, 1 W. & W. (I. E. and M.,) 108. [Compare Act, No. 379, Sec. 138, Sub-sec. 12.] Appropriating Property Entrusted to the Insol- vent as Agent or Trustee Only — 7 Vict, No. 19, Sec. 18.] — P., an auctioneer, being entrusted by his customers with property for sale, sold it and paid the proceeds into his general banking account. Although frequently requested to do so, he neglected to render account sales, or to pay over, the proceeds. In the course of his business his account gradually diminished, and he eventually became insolvent. The Commissioner held that he had " expended for his own benefit, or appropriated to his own use trust funds or other property, of which he had the charge or disposition as trustee or as an agent only," and refused his certificate. Upon appeal to a Judge,ffel 182. [Under Eule 35 of Eules 1871 it should be made by motion.] Application For — What Facts Should be Verified.] — Upon motion for the grant of a certificate- under the rider to 10 Vic, No. 14, the consent of the creditors, and the fact that the parties consenting are all the creditors, should be verified by the affidavit of the solicitor of the- insolvent, and not by the insolvent himself. In re Handasyde, 1 W. W. & a'B. ^1. B. & M.,) 62. Such an application may be by rule nisi to the official assignee or notice to him, or there may be a consent by the official assignee duly verified, but a single day's notice to him is not sufficient. Ibid. [But see now Sec. 135 of Act No, 379, and the Eules 91-100.] Application for— 7 Vic, No. 19.]— Under the Act 7 Vic, No 19, there is no limitation as to the time within which applications for certifi- cates may be made. In re Tyrer, 4 V.L.E. (I. P. & M.,) 12, 17. [But see Sec. 135 of Act No. 379.] Application for — When Heard/'Insolvency Statute, 1871," Sec. 133.] — There is nothing to prevent a certificate application being heard, pending the examination of witnesses under Sec 133. In re Were, 6 V.L.E. (I. P. & M.,) 43; % A.L.T., 30. Application for Certificate — Renewal after Pay- ment of Dividend.] — Per Noel, J. When the Court has refused to dispense with the condi- tion of paying seven shillings in the £, required by Sec. 136 of the "Insolvency Statute, 1871," the insolvent may renew his applica- tion and obtain a certificate without notice t<> €95 INSOLVENCY. 696 the opposing creditors, under Sec. 135, when he has paid the requisite dividend. Be Spencer, 1 A.L.T., 176. Application for — One Application Refused — "Insolvency Statute, 1871," Sec. 186.]— Per Woe! J. Where the application of an insolvent for a certificate, alleging that the estate will pay a dividend of 7s. in the £, as required by Sec. 136 of the "Insolvency Statute, 1871," has been refused because the required dividend has not been proved, the decision of the Gourt is final, and no second application, if such dividend have not in the meantime been paid, will be entertained, but the remedy (if any) must be by appeal. Re M'Kay, 4 A.J.E., 131. It is discretionary with the Judge of the Insolvent Court to decide in what order he shall take the application for the certificate under Sec. 135, and the application for dis- pensing with the condition under Sec. 136; but he should only make one order on the subject. In re Dixon, 5 A. J.E., 171. Act Ho. 379, Sections 135, 136.]— Per Noel, J. The refusal of a certificate is final, and can only be got rid of by an appeal to the higher Court. In re Murphy, 1 A.L.T., 71. Followed by Noel, J , as to the refusal to dispense with the condition of payment of 7s. in the £ under Sec. 136. In re Wood, Ibid p. 72. Per Noel, J. The Court of Insolvency has no jurisdiction to reconsider its decision as to dispensing with the condition in Sec. 136 of Act- No. 379, unless the Court of Appeal has remitted the question to it, and given the insolvent liberty to apply. In re Hearty, 2 A.L.T., 112. In an appeal against a refusal of a certifi- cate the dispensation with the payment is con- sidered as a matter per se, and if the appeal is allowed on general grounds, the Court leaves the question of dispensation to a future appli- cation to the Court below. In re Arnold, 5 V.L.E. (I. P. & M.,) 39, 44. Act No. 379, Sec. 136 — Dispensing with Payment of 7s. in the £ — Practice — Affidavits — Jurisdiction of Court of Insolvency.] — The order of proceed- ings should be that the Judge of the Court of Insolvency should first decide if a certificate should be granted at all, and if he decides in the affirmative he should inquire if the estate will pay 7s. in the £, and if that is answered in the negative, should inquire as to reasons to dispense. The Judge refused an application to dispense with the payment on the ground that the affidavits were insufficient without stating how they were insufficient or giving an opportunity of supplying the deficiency. Held that the Judge had a right to manage the routine practice of his Court, and that the Court of Appeal would not entertain further affidavits, but the order was set aside because it did not decide whether a certificate should or should not be granted, apart from dispensing with the payment of 7s. in the £, and it was declared that the affidavits disclosed no good ground for dispensing with the condition of paying 7s. in the £ without prejudice to a renewed application. In re Gale, 7 V.L.E. (I. P. & M.,) 1 ; 2 A.L.T., 115. Per Noel, J., on a review of in re Dixon, in re Arnold, in re Dwyer, and in re Gale. " A refusal to dispense is not a refusal of the cer- tificate notwithstanding the words at the beginning of Sec. 136 : That although there is to be one order inasmuch as the application for a certificate is twofold, there must be a distinct decision on each branch of the appli- cation to be embodied in the order as two distinct decisions; the decision respecting the remission of the dividend is not final. Semble, that re M'Kay, re Wood, and re Hearty were wrongly decided, and I think that the jurisdic- tion of this Court to re -hear final decisions has not been pronounced upon, but the decision under Sec. 136 has been determined to be a different decision from that under Sec. 135 to be not final, and for that reason open to renewed application by the insolvent with further affidavits." In re Dwyer, 3 A.L.T., 39. Jurisdiction to Re-hear Application for Certificate.] — Courts of insolvency have jurisdiction to re- hear application for certificate of discharge upon which they have already adjudicated. In re Murphy, 4 A.L.T., 93. Insolvency — Re-hearing Application for a Certifi- cate.] — Held, reversing Molesioorth, J., that a judge of a Court of Insolvency is at liberty, if he thinks fit, to re -hear an application for a certificate. In re Murphy, 8 V.L.E. (I. P. & M.,) 15; 4A.LT,75. Insolvency — Postponing Application for Certi- ficate.] — Semble that a Judge of an Insolvent Court has a discretion to postpone the hearing of an application for a certificate, In re Millikin, 4 V.L.E. (I. P. & M.,) 71. Powers of Commissioner — Act No. 273, Sec. 102.] Although the Act gives persons interested in the granting or refusing of a certificate of dis- charge the right to be heard, it does not dis- able the commissioner from dealing with the case, if no one wishes to be heard ; and in such a case he has jurisdiction to refuse a certificate, but the commissioner should state his reasons for refusal in a specific form, and give the insolvent the opportunity of answering them. The Court then expressed its concurrence with the commissioner upon the evidence, and affirmed the refusal. In re Marshall, 6 W. W. &a'B. (I. E. &M.,)4. [Compare Sec. 135 of Act No. 379.] Refusal in one District — Transfer of Proceedings — " Insolvency Stat. 1871," Sec. 10— Jurisdiction of District to Which Proceedings Removed.] — A person's estate was sequestrated in one district, and his application for a certificate refused by the Judge of that district, but leave was given to renew the application. Pending the re- newed application an order was obtained, under | Sec. 10 of the " Insolvency Stat. 1871," by the 697 INSOLVENCY. 698^ creditors, transferring the proceedings to another district. Held, that the judge of the district to which the proceedings were trans- ferred had jurisdiction to entertain the renewed application. In re Hinneberg, 8 V.L.E. (I. P. &M.,) 7; 8 A.L.T., 133. Signing the Certificate — Commissoner of Insol- vent Estates.] — It is entirely within the discre- tion of the commissioner of insolvent estates whether he will sign a certificate of discharge or not, and the Court cannot interfere in the matter. In re Guthrie, 8 V.L.E. (I. P. & M.,) 4. Suspension — Appealing from Ultimate Grant — 7 Tie., No. 19.] — The suspension of an insolvent's certificate is a decision, and the proper time for appealing against such decision, either by the insolvent contending that his certificate should not be suspended, or by the creditors against the ultimate grant of such certificate, is at the Court held next after the suspension, and if no appeal be then made the certificate will at the expiration of the period of suspension issue as of course. In re Murray, 2 V.E. (I. E. & M.,) 11 j 2 A.J.E., 71. [But see Sec. 12 of Act No. 379 as to time for "] Where Appeal Lies — From Decision Dispensing With Dividend—" Insolvency Stat. 1871," Sec. 136.] — The words " in the opinion of the Judge," in Sec. 136 of the ," Insolvency Stat. 1871," do not exempt decisions of the Judge of an Insol- vent Court dispensing with the payment of the required dividend under that section from liability to appeal Be Byte, 2 V.L.E. (I, P. & M.,) 42, 47. Appeal— Deposit— " Insolvency Stat. 1871," Sec 12.] — The provision for deposit under Sec. 12 of the " Insolvency Stat. 1371," does not apply as to any appeal about a certificate. In re Dyte, 2 V.L.E. (I. P. & M.,) 42, 47. See also S.P., m re Goldsmith, 5 V.L.E. (I. P. & M.,) 18, 21, where the Judge in addition to refusing the certificate sentenced to imprison- ment. Appeal to Full Court — Questions on.] — On an appeal to the Pull Court from the decision of the Primary Judge, made upon appeal to him from the decision of a Court of Insolvency, granting or refusing a certificate of discharge, the Court will only entertain the questions raised by the notice of appeal, and will not allow objections taken and decided in the Court below to be opened up without notice. In re Aarons, 6 V.L.E. (I. P. & M.,) 56. Appeal From Decision Disallowing— Preliminary Objection Overruled— Court Will Not Enter into Merits.]— On an application to compel an insol- vent to apply for his certificate the Court of Insolvency overruled a preliminary objection to the sufficiency of a notice of objection, and proceeded to hear the case, and, thinking the objection, of which notice had been given, was proved, refused the certificate. On appeal to the Supreme Court the preliminary objection was held well founded, and the appeal allowed, but the Court refused, on such appeal, to go into the question as to whether the certificate should be granted or not, holding that it would only place the parties in the position in which, they were before the irregular notice was served, and before the insolvent was brought before the Court. In re Caulfield, 10 V.L.E. I. P. & M.,) 73 ; 6 A.L.T., 58. Opposing Certificate Before Commissioner.] — As there are no pleadings required before the com- missioner, neither the insolvent nor those who oppose the application for his certificate ought to be held very strictly to the precise form of the issues ; but it ought to be required, and it is sufficient, that the insolvent be apprised sub- stantially of the grounds for opposing his certi- ficate. In re Perry, 1 W & W. (I. E. & M.,) 150. [.See now "Insolvency Rules," Eule 93.] Practice — Notice of Opposition to Grant of Certi- ficate— Eule 93.] — The notice of opposition in Eule 93 should be served seven clear days before the meeting of creditors, and such notice should state shortly and with reasonable cer- tainty the grounds of opposition — a notice that insolvent had" given creditors a fraudulent pre- ; ference, contracted debts, &c, held bad. In re ' Dixon, 5 A.J.E., 171. After service of the notice of opposition Noel, J., allowed an objection to be added. In re Mathieson, 3 A.J.E.. 92. Irregular Notice of Opposition to Certificate — Adjournment — Eule 93.] — Where a creditor, under Eule 93 of the rules of the Court of Insolvency of 25th April, 1871, had filed within in the prescribed time a notice of opposition . to a certificate, and the notice was improperly drawn, and did not disclose any offence, Judge Noel refused to adjourn the certificate, appli- cation to enable fresh notice to be given. Be M'Grane, 1 A.L.T., 120." Act No. 379, Sec. 135— Grounds of Opposition.] — If the statement of grounds of opposition to a certificate are vague, the creditor should amend such statement before the Judge of the Insolvency Court, or otherwise he will not be allowed to urge such objections on appeal. In re Kershaw, 1 V.L.E. (I. P. & M.,) 44. Affidavit of Opposing Creditor Against Certificate — Where Insufficient.] — Upon an appeal from the decision of a Judge of an Insolvent Court, sus- pending a certificate of discharge for eighteen months, and directing that it should then issue upon the payment of a certain dividend, it appeared that the affidavit of the opposing creditor, a bank, was in the wrong form, being an affidavit as for an individual instead of for a banking company, Held, that the affidavit was insufficient, and that the bank having no status as an opposing creditor, the certificate must issue upon payment of the dividend. In re Farrell, 4 A. J.E., 101. €99 INSOLVENCY. 700 Who May Oppose Application — Creditor Whose Debt was Incurred as the Price of not Op- posing Certificate.] — An insolvent incurred a debt to a creditor in order to buy oft the creditor's opposition to his certificate, and before a second insolvency renewed the debt, proof of which was not opposed on the second insolvency, Held that the status of such creditor on an application by the insolvent for a certi- ficate could not be impeached, but that the manner in which such creditor acted might be regarded. In re Cunningham, 2 V.L.B. (I. P. and M.,) 9. Who May Oppose Application.] — A creditor, who has not proved has no right to be heard against the grant of a certificate of discharge to an insolvent. In re Ditchburne, 2 V.L.B. (Jt. P. & M.,) 49. Per Molesworth, J. " I do not think that Sec. 136 limits the provisions for creditors to those who have proved, though until they have proved they cannot get a dividend. In re Farrell, 4 A.J.E., 101. Obiections to Certificate.] — In objections to cer- tificates, unless the insolvent is likely to be misled, the exactness of pleadings is not re- quired. In re Aarons, 6 V.L.B. (I. P. & M.,) 56. Objections to Grant of — Vagueness.] — It is too vague an objection to the grant of an insol- vent's certificate, that the general conduct of the firm, of which he was a member, was " calculated and intended to deceive the credi- tors of the said firm as to the true position of the said firm." In re Walters, 3 W. W. & a'B. (I. E. & M.,) 14. Objections to Grant of— Obtaining Credit by False Bepresentations — Evidence — " Insolvency Stat. 1871," Sec. 1S4, Sub-sec. 13.]— In order to sup- port an objection to a grant of a certificate, under Sec. 154, Sub-see. 13, of the" Insolvency Stat. 1871," that the insolvent obtained credit by means of false representations, it must be shown distinctly that the credit was obtained by means of such false representations. In re Clapham, 10 V.L.B (I. P. & M.,) 18; 6 A.L.T., 15. Objections to Grant of — Notice of Objections Must Specify Charge—" Insolvency Stat. 1871," Sec. 138, Sub-sec. 12.] — A notice of objections to the grant of an insolvent's certificate must state with reasonable certaintly what the objections are. If the objection relied on be that under Sec. 138, Sub-sec. 12, of the "Insolvency Stat. 1871," of unlawfully expending trust property, the notice must specify the nature of the pro- perty dealt with, the name of the owner, and the time when the act complained of was com- mitted. It is insufficient if the notice merely states the offence in the precise words of the statute. In re Caulfield, 10 V.L.K. (I. P. & M.,) 73 ; 6 A.L.T., 58. Compulsory Application for Certificate — Act No. 379, Sec. 146— Rules 93, 101— Objections.]— An insolvent was examined under Sec. 132 of Act No. 379, and the examination was adjourned and never concluded. He and others were examined under Sec 133. After six months the assignee proceeded under Sec. 146 to compel him to appear for his certificate, and served him five days before the time with notice of objections. Held, that Bule 93, prescribing seven days' notice only applied to voluntary applications for a certificate made by the insolvent, and not to proceedings under Sec. 146, which supposes written objections to be delivered before the day of hearing, and further hearing after adjournment, and that as insolvent had not applied for an adjournment the objection as to service was properly over- ruled. In re Goldsmith, 5 V.L.B. (I. P. &M.,) 18, 23. Objections To — Petition Presented in Wrong Dis- trict.] — Semble that it is not a good objection to the grant of a certificate of discharge, that the order sequestrating the estate was bad, through the petition for voluntary sequestration not having been presented to the chief clerk of the proper district. In re Heath, 8 V.L.B. (I P & M.,) 10. Examination of Witnesses on Oath by Commis- sioner— " Insolvency Stat. 1865," Sec. 103.]— The commissioner, though not expressly authorised by the "Insolvency Stat. 1865," has power to examine witnesses upon oath at a certificate meeting under Sec. 102 of the statute. In re Bell, 1 V.E. (I. E. & M.,) 2 ; 1 A.J.E., 38. [Compare Sec. 135 of Act No. 379.] " Insolvency Stat.," No. 379, Sec. 135— Exami- nation of Insolvent.] — On an application for a certificate of discharge the Court has no power to direct the insolvent to attend for purposes of examination ; he must, if necessary, be sum- moned to the Insolvent Court. In re 50, so that under Sec. 130 of the "Insolvency Statute, 1865," creditors cannot be reckoned in number, a majority in value is sufficient to release an estate from sequestra- tion under Sec. 42, but such creditors must prove their debts, otherwise they are not creditors within Sec. 42. In re Knoebel, 1 V.R. (I. E. & M.,) 10; 1 A.J.R., 144. [Compare Sec. 129 of Act No. 379.] Application for— 5 Vic, No. 17, Sec. 86— Evi- dence.] — On a motion, under Sec 86 of 5 Vic, No 17, for the release of an insolvent's estate from sequestration, where a composition has been accepted by the creditors, the Court requires evidence that the debts of the creditors who have accepted the composition, were properly proved, i»e., at a meeting of creditors. In re Motherwell, 8 V.L.R. (I. P. and M.,) 6. Majority of Creditors — Act No. 273, Sec. 189.] — Where there is a debt admitted to proof, but as to which proof there is an appeal pending, the creditors claiming such debt must be counted in the majority; but if the proof is expunged, another application must be made to the Court for the release of the estate. In re Dallimore, 5 A.J.R., 1. Only those creditors who have proved can be regarded in the majority,- and where only one creditor has proved, such one is not considered- as a majority. In re Curley, 5 A.J.R., 5. Followed in in re Fallu, 3 V.L.R., (I. P. & M.,)- 106. Majority — One Person Holding Proxies for two Creditors — Such Person Cannot Split Himself Into Two Capacities.] — In re Schlieff, post column 170. Where Court May Grant— Act No. 273, Sees. 40, 41, 42 — No Meeting of Creditors Accepting — One Dissentient Creditor.] — After sequestration the creditors held a meeting, at which debts were proved, and afterwards all the creditors, ac- cording to individual agreement, except one, signed and executed a document accepting a composition requesting the release of the estate. Held that there was no jurisdiction to release if any creditor dissented, the majority could only bind at a meeting, when the matter might be discussed. In re Falla, 5 A. J.R., 62. Composition.] — Per Noel, J. The acceptance of a composition is valid, if it be a fair one for all the creditors, though the majority may wish to promote the interests of the debtor. In re Bailliere, 2A.L.T., 57. " Insolvency Stat. 1871," Sec. 121.]— Sec. 121 of the " Insolvency Stat. 1871" relates to the acceptance of the composition from the estate, as it is after the deduction of preferential pay- ments. Ibid. Consent of Three-fourths in Number and Value of Creditors — Preferential Creditors.] — Per Noel, J. With some doubt I hold that preferential pay- ments by the assignee will not affect the validity of the consent of three-fourths in num- ber and value of the concurrent creditors to an application for the release of an estate from sequestration. Ibid. Previous Informal Composition — Consent of Creditors.] — Where an insolvent had on a prior occasion petitioned for liquidation of his affairs by composition arrangement, but the proceed- ings had been irregular and abortive, Meld, per Noel, J., that the proceedings being abortive his liability on his debts continued, and an accept- ance of a composition by his creditors in insol- vency was not an acceptance by three-fourths in number and value of his creditors, but that if the previous creditors had been paid the con- sent of three-fourths in number and value of the creditors under his insolvency was alone requisite. In re Bailliere, 2 A.L.T. 57. 707 INSOLVENCY. 708 Composition Accepted by Three-fourths of Prov- ing Creditors — Effect on Dissentients.] — Where an insolvent has made an offer of composition embracing all the creditors who have proved, and such offer is accepted by three-fourths in number and value of such creditors, and the estate has been released from sequestration by the Court of Insolvency under Sec. 129 of the "Insolvency Stat. 1871," the dissentient creditors are bound by such acceptance. Con- nellv. Carroll, 10 V.L.E. (L.,) 169; 6 A.L.T., 55, Quaere, whether creditors who have not proved would be bound in such case. Ibid, When Granted— Act No. 273, Sec. 42— Composi- tion With Creditors.] — Where assets in an estate were under ,£100, and only one meeting had been held at which an offer of composition had been accepted, the Court made an order releas- ing estate from sequestration. In re Leete, 6 W.W. & a'B. (I. B. & M.,) 36; N.C., 42. [Compare Sec. 129 of Act No. 379.] "Insolvency Stat. 1871, No. 379, Sees. 39, 129, 94— Costs. ] — Per Judge Noel. If the requirements of Sec. 129 and Rule 105 which must be read with that section have been complied with, the Court will make the order for release, and will not go into extraneous matter respecting the conduct of the insolvent or the management of the estate, but where the liquidating debtor had opposed the creditors opposing the release at every step, and put them to unnecessary expense, such creditors were allowed their full costs. In re Marie, 3 A.J.R., 63. Objections on Ground of Misconduct Towards Creditors — Costs of Sequestration.] — Where, on an application for the release of an estate from sequestration under Sec. 129 of the "Insolvency Stat. 1871," the requirements of the Section and Rule 105 have been complied with, the in- solvent is entitled to an order, and objections as to alleged misconduct on the part of the insol- vent towards his creditors should not be enter- tained, because the Court has no discretion to refuse the application on such grounds. But where the circumstances are special, the peti- titioning creditor will be allowed his costs of the sequestration as a condition for granting the order, because an unconditional order of release would have the effect of depriving him of the benefit Sec. 40 of the Act gives him of getting his costs out of the estate. Per Noel, J. Re Bisk, 4 A.J.R., 25. Act No. 379, Sec. 129.]— Per Noel, J. The terms of Sec. 129 are obligatory upon a Judge to release the estate from sequestration if the provisions of the section are complied with, and the Judge has no discretion in the matter under such circumstances to refuse on the ground of the dividend not being the largest possible, or want of oona fides in the majority of creditors. In re Blood, 4 A.L.T., 184. Who May Obtain— Executors — " Insolvency Stat. 1865," Sees. 42, 43.] — A release of an estate from sequestration cannot be obtained under Sec. 42 of the " Insolvency Stat. 186f>," on the ac- ceptance by the creditors of a composition, by the executors of a deceased insolvent, since Sees. 42 and 43 of the Act do not apply after the death of an insolvent. In re Scallan, 2 V.L.R. (I. P. & M„) 2. (3) The Effect of Discharge or Release. Effect of Discharge under Insolvent Laws in Hew South Wales Upon a Judgment Eecovered in Vic- toria.] — G. brought an action on a judgment recovered in Victoria against K. ~K. pleaded that he was domiciled in New South Wales, that G. caused a memorial of the judgment to be filed in the Supreme Court of New South Wales, and K's. estate was sequestrated under the insolvent laws of New South Wales ; that G. held as security for his debt the licence of a station in New South Wales, and mortgage of stock thereon, and that valuing these securities he proved and received dividends on the dif- ference between the value and the amount of the debt retaining the securities, and that K. received his certificate of discharge in New South Wales. The locus contractus was not stated in any of the pleadings. Meld, on demurrer to the plea, that it could not be pre- sumed that the contract was made in New South Wales, but that without deciding any question of international law, G. having voluntarily submitted to the laws of New South Wales, and having taken proceedings under the insolvent law of that country had dis- charged the defendant from the debt upon which this action was based. Judgment for defendant. Glass v. Keogh, 4 W. W. & a'B. (L.,) 189. "Insolvency Stat." Ho. 379, Sees. 129, 131.]— Where W. made a voluntary settlement of land in August, 1874, and became insolvent in February, 1875, and obtained his certificate of discharge in August, 1875, Held, that the effect of Sees. 129, 131 of Act No. 379, was to put him into position of owner of the land if the voluntary settlement were out of the way. Moss v. Williamson, 3 V.L.R. (E.,) 221. Effect of Release— Act No. 379, Sec. 131.]— To a declaration defendant pleaded in bar seques- tration of the estate after the accrual of the cause of action, and before the date of the writ. Plaintiff replied that after the issue of the writ the estate was released from insol- vency under Sec 129. Held that the case was in principle the same as that of an adminis- trator, the release and letters of administration relating back when they were obtained but not before. Judgment for defendant. Hodgson v. M'Caughan, 3 V.L.R. (L.,) 292. Act No. 273, Sec. 43— Effect of Release from Sequestration.] — J. became insolvent December, 1870. In June, 1872, he was convicted of felony, completing his sentence in February, .1877. In August, 1881, his estate was released from sequestration by his creditors under Sec. 42 of Act No. 273. Quosre, per Williams, J., how far Sec. 43 of Act No. 273 had the effect of wipidg out the sequestration, so as to vest in 709 INSOLVENCY. 710 the Crown by relation back and under the for- feiture for felony, an interest which the Insol- vent had not at the time of the felony. Johnson v. Kelly, 7 V.L.E. (E.,) 97; 3 A.L.T., 41. [Compare Sec. 131 of Act No. 379.] XX. Examination op Insolvent and Witnesses. Insolvency Statute, No. 273, Sec. 87 — Examina- tion of Insolvent after Certificate of Discharge — Official Assignee's Discretion — Costs.] — A creditor moved for an order to compel an official assignee to apply under Sec. 87 for an order for insol- vent's examination after he had obtained his certificate. Held, that the power of discretion rested solely with the assignee, and that the Court had no jurisdiction. Motion refused, but without costs, the assignee not having answered fully enough as to his having exercised a discretion. In re Ireland,, 6 W. W. & a'B. (I. E. & M.,) 5. [Compare Sec. 132 of Act No. 379.] Act Ho. 379, Sec. 132.]— Per Noel, J. Where ■an insolvent has been examined by the trustee, the Court will not allow him to be examined at the same sitting by individual creditors. In re Zongstaff, 1 A.L.T., 8. But (per Noel, J.) where a trustee (also a creditor) stands aloof from the examination, a creditor may examine the insolvent. In re Maries, 1 A.L.T., 96. See also cases ante columns 700,701. Insolvent not Appearing at Adjourned Examina- tion.] — Per Noel J. Where an insolvent does not appear at an adjourned examination, the Court will further adjourn and direct a warrant to be made out for the apprehension of the insolvent, allowing it to lie in the office until the date of the adjournment, when the insol- vent must file accounts and appear in Court. In re Young, 1 A.L.T., 78. Examination of Insolvent — Discretion of Trustee — Powers of General Meeting and Committee of Inspection to Appoint a Solicitor for Purpose of — Act No. 379, Sees. 53, 56, 67, 78, 132.]— Sees. 78 and 132 do not give either the general meeting, or the committee a voice in selecting a solicitor for the purposes of examination, but leave it to the sole discretion of the trustee, but the trustee should not resist the wishes of the creditors properly conveyed, if he should do so, the proper punishment should be his removal under Sec. 56. Under Sec. 67 the control of a general meeting is like that of the committee under Sec. 53, but in cases of conflict, that of the committee prevails under Sec. 67. This control does not refer to the examination of the insolvent, which is not within the meaning of Sec. 53. Order by District Court Judge that the trustee should employ a solicitor named by creditors set aside. In re Mackay, 3 A. J.B. , 10. " Insolvency Stat. 1871," No. 379, Sec. 133— Examination of Insolvent — Production of Docu- ments — Solicitor's Lien.] — Per Noel, J. Under Sec. 133 the trustee appears as agent for the creditors, and not as agent for the insolvent, and therefore a solicitor who claims a lien on the insolvent's documents for costs in an equity suit cannot refuse to produce documents on a summons by the trustee to produce them for examination of the insolvent's dealings. In re M'Kay and Bell, 3 A.J.R., 98. Fees—*' Insolvency Stat. 1865," Schedule 2.]— Schedule 2 of the "Insolvency Stat. 1865" im- posing a fee " of 4d. a folio" for every examina- tion taken at the hearing only refers to examinations in the Insolvent Court on the hearing of a rule for the compulsory sequestra- tion of an estate. In re Green, 1 V.B. (I. E. & M.,) 6 j 1 A. J.E., 104. XXI. Liquidation by Arrangement. Act No. 379, Sec. 150, Sub-sees. 4-6, Sec. 152.] — The registration by the clerk of resolutions passed at a meeting of creditors is, under Sec. 150, Sub-sees. 4-6, and Sec. 152, conclusive evidence, in the absence of fraud, that the resolutions were duly passed, and the requisi- tions of the Act complied with. In re Bateman, 1 V.L.K. (I. P. & M.,) 52. After resolutions were passed and a trustee appointed, a creditor gave notice to the Judge of the Court of Insolvency of a motion to set aside the registration, and, pending that motion, moved to restrain the trustee from pay- ing a dividend ; the Judge refused the motion to restrain. Held that he was right. Ibid. Effect Of.] — See England v. Moore, ante columns 63, 64. Petition for Liquidation Followed by Confirmation is Not an Act of Insolvency.] — In re H. S. Smith, ante column 589. XXII. Composition with Creditors. (1) Proceedings Under. Meeting of Creditors — Majority.] — An insol- vent's estate was sequestrated under the Act 5 Vic, No. 17, Sec. 86, and at a meeting of creditors held to accept a composition of 5s. in the £, one person, J., attended as a proxy for the only two creditors who had proved, and J., as representing debtor A., moved the resolution, and, as representing . B., seconded it. Meld that J. could not in this way be split into two separate capacities so as to constitute a ma- jority. Application for release of estate refused. In re Schlieff, 3 V.L.E. (I. P. & M.,) 18. How Far Resolutions Passed Under Sees. 129 and 151 of Act No. 379, a Bar to an Order Nisi for Sequestration.] — In re Marie, ante column 597, Act No. 379, Sees. 151, 152.]— From Sec. 151 it appears that the statement of assets and debts by the debtor as required in Sub-division 2 is in fact the foundation of the proceedings, and so far as the Act is concerned the only material for deciding who are entitled to vote or ascertaining majorities, and such statement requires to be verified as the Act provides in order for the proceedings to be valid. In re Dane, 3 V.L.K. (I. P. & M.,) 19. 711 INSOLVENCY. 712 Objections to the validity of the proceedings at creditors' meetings may tie taken by a solicitor to a creditor, even though the solicitor is not entitled to vote. Ibid. Registration of Resolution.] — Begistration need not be effected personally by the debtor's solicitor ; it may be done by the debtor him- self or by the solicitor's clerk. Ibid. Registration of Resolution — Act No. 379, Sec. 152.] — Where a resolution had been registered in great haste before objections could be reasonably filed, and the debtor did not call the attention of tlie chief clerk to the fact that the date of verification of the statement required in Sub-section 2 of Sec. 151, was subsequent to that of the first meeting, the Court held that such amounted to fraud within the meaning of Sec. 152, and cancelled the registration. Ibid. Quoere, whether registration properly obtained would be conclusive so as to prevent a review by the Judge promptly sought as to the irregularity of the statement not being sworn. Ibid. "Insolvency Stat. 1871," No. 379, Sec. 151— Court of Insolvency Rules 109, 110, 123 — Confirma- tion—Registration — Filing.]— Where at a, meet- ing of creditors a resolution was passed accepting a composition, which was filed and registered, and a week afterwards a resolution was passed confirming the previous resolution, but this second resolution, though filed with the chief clerk, was not registered by him, Held, on a suit by a creditor for dissolution of partner- ship, and accounts as against defendants who had made the composition, that such composi- tion was invalid, and could not be set up against plaintiff who had not been entered as a creditor in the statement submitted at the first meeting of creditors. Enqland v. Moore, 5 V.L.E. (E.,) 135. Priority— Sequestration.]— On 25th October a resolution was duly passed under Sec. 151 of the "Insolvency Statute 1871" by three-fourths of the creditors of W., accepting a composition. On 28th October a. creditor, with notice of the resolution, obtained a judgment against W., and on the same day issued afi.fa., which was returned unsatisfied, and on the 1st November obtained an order nisi for sequestration. On hearing the order, Held that the proceedings for composition had priority, and the order nisi discharged, and since the creditor had notice of the resolution before he obtained the order nisi, with costs. In re White, 2 V E (I. B. & M.,) 42 ; 2 A.J.E., 132. How Far Composition a Bar to Sequestration.] In re Marie, ante column 597. (2) Release of Estate from Sequestration by Creditors. See ante column 703 et seqq. XXIII. Meetings ov Creditors. Question Arising at Meeting of Creditors — Duty of Chief Clerk—" Insolvency Statute, 1871," Rule 18.] — Per Noel, J., Eule 18 is imperative upon the chief clerk, and he is bound to refer a question arising at a meeting of creditors to the Judge when required so to do by either party, and for that purpose should adjourn the meeting. Re Reuter, 4 A.J.E.. 143. Meeting of Creditors — Insolvent Consenting and Failing to Sequestrate Voluntarily — Act Nx>. 379, Sec. 37, Sub-sec. 9.] — As to when meeting regu- lar and requisites necessary. See in re Clemes and Leach, In re Inglis, In re John Smith, ante columns 594, 595. Majority in Sec. 37, Sub-sec. 9. — Proxies.] — In re Southey, ante column 595. Meetings of Creditors to Elect Trustees — Rule 67 —Act No. 379, Sees. 13, 53.]— Eule 67, framed under Sec. 13 of the Act No. 379, is directory only, and in certain cases a meeting to elect a trustee may be held, although the time limited by the Eule has expired. In re Cotton, 6 V.L.E. (I. P. & M.,) 33, 1 A.L.T., 148, and 190. For facts see S.C., ante column 640. At Meetings to Elect Trustee Only Creditors who have Proved may Vote.] — In re Snell, ante column 662. Adjournment of Meeting to Elect a Trustee Through Allowance of Informal Proof of Debt— " Insolvency Rules," Rule 66.] — In re M'Inerney, ante column 640. Power of General Meeting and Committee of Inspection to Appoint a Solicitor for the Purpose of Examining an Insolvent — Relative Powers of General Meeting and Committee of Inspection.] — In re Mackay, ante columns 645, 709. Right of Creditors to Vote at Meetings of Credi- tors — Proof of Debt.] — In re Snell and in re Trump, ante column 662. Meetings of Creditors for Releasing Estate from Sequestration — Right to Vote.] — In re M'Tavish, in re Rowland, in. re Knoelel, and in re Motherwell, ante column 705. Mistake Made in Advertising Time for Such a Meeting — Meeting Fixed for a Sunday.] — In re Brown, ante column 704. How Majority Calculated in Such Meetings.] — In re Knoebel, in re Dallimore, in re Curley, in re Fallu, in re Sailliere, and Connell v. Carroll, ante columns 705, 706. Control of Trustee by Meetings of Creditors Under Act No. 379, Sec. 67.] — See in re Lempriere and in re Thomson, ante column 645. Exoneration of Assignee by Resolutions of a General Meeting.] — In re Harper and in. re Flower, ex parte Bank of Australasia, ante columns 646, 647 713 INSOLVENCY. 714 And see generally under previous headings — Liquidation and Composition with Cmdi- XXIV. Appeal. (1) From Chief Commissioner and Courts of Insolvency. From Chief Commissioner.] — There is no appeal from the Chief Commissioner of Insolvent Es- tates direct to the Pull Court sitting as a Court of Appeal. In re Pascoe, 1 W. & W. (I. E. -& M.,) 121. [Compare Sec. 12 of Act No. 379.] Where Appeal Lies — From Appointment of Trustee — No. 379, Sees. 12, 55.] — An appeal will lie to the Supreme Court from an order of a judge of a Court of Insolvency under Sec. 55 of the " Insolvency Stat. 1871," confirming the ap- pointment of a trustee, since by Sec. 12 of the Act it is intended that every order of such Judge may be appealed from. In re Mackay, 2 V.E. (I. E. & M.,) 22 ; 2 A.J.E., 130. When Appeal Lies — Transfer of Proceedings — From Order in Chambers of a District Judge.] — An order was made under Sec. 10 of No. 379 for transfer of proceedings from District Court to Melbourne Court of Insolvency. Some time afterwards the assignee applied to District Judge in Chambers to rescind the order as made upon insufficient materials, which appli- cation was refused. Held, that an appeal lay from such order in Chambers, but appeal dis- missed with costs on ground of the assignee's failing to apply within a reasonable time. In re Clarton, 5 V.L.E. (I. P. & M.,) 47. Where it Lies — Act No. 379, Sec. 12 — Application for Certificate — Time of Hearing.] — An irregularity in the action of the Judge of an Insolvent Court as to the time of hearing an application for a certificate is not a ground of appeal to the Supreme Court. In re Were, 6 V.L.E. (I. P. & M.,) 43 ; 2 A.L.T., 30. Where Appeal Lies — Eefusal to allow Insolvent to be Examined on Certificate Proceedings.] — An appeal lies from a refusal to allow an insolvent to be examined on certificate proceedings. In re Aarons, 6 V.L.E. (I. P. & M.,) 56 ; 2 A.L.T., 51. In re Patterson, 7 V.L.E. , (I. P. & M.,) 14 ; 3 A.L.T., 4. There is no jurisdiction to hear an appeal on sl certificate except the jurisdiction created by Statute. In re Bateman, ante column 577. Discretion of Judge as to Accepting Affidavit of an Insolvent.] — Per Molesworih, J. "Subjects of such a kind are so discretionary upon facts which cannot be satisfactorily conveyed "to a ■Court of Appeal, that I should be slow to enter- ' tain them." In re Michael, 5 A.J.E., 64. Where Appeal Lies— Act No. 379, Sec. 12— Order of Judge after Expiry of Term of Office.]— An appeal will not be entertained against an order from a Judge of the Insolvency Court unless such order be drawn up. Semble, no such order can be drawn by an acting Judge after his term of office has expired. In re Murphy, 1 V.L.E. (I. P. & M.,) 50. Act No. 379, Sec. 38, Eule 16— Service of Debtor Summons — Appeal or Prohibition.] — Where a person is aggrieved with a decision of the Judge of the Court of Insolvency as to service of a copy of a debtor's summons being suffi- cient, his remedy is by appeal, and the Supreme Court will not grant a prohibition in respect of defect in the service. Ex parte M. 8. Levy, 1 V.L.E. (L.,) 271. From Court of Insolvency — Question of Fact.] — "Where there is evidence on which the Judge of an Insolvent Court might reasonably find a certain fact, the Supreme Court will not on appeal disturb his finding. In re Summers, ex parte Hasleer, 10 V.L.E. (I. P. & M.,) 78. From Chief Commissioner — Eefusal to Grant Certificate — When Appeal Must be Made — 7 Vic, No. 19, Sec. 20.] — "When the Chief Commissioner of Insolvent Estates has refused a certificate, and the insolvent desires to appeal to the Court, he must do so at its next sittings, and the Court will not allow him to appeal at a later sitting on the ground of surprise. In re Greenlaw,^ "W. & W. (I. E. & M.,) 7. [Compare Sec. 12 of Act No. 379.] Appeal from Chief Commissioner — Time — 7 Vic, No. 19, Sec. 20.]— The time to which the intend- ing appellant must look under Sec. 20 of 7 Vic, No. 19, as the one from which to date " the next sitting of the Court," in appeal, is the time when the Chief Commissioner pronounces his decision, granting, suspending or refusing the certificate ; and if the appeal be not made, or saved at "the next sitting," it is lost. In re Klein, 1 W. & W. (I. E. & M.J 139. [But see now Sec. 12 of Act No. 379.] From Chief Commissioner — Initiation of Appeal.] — After the refusal by the Chief Commissioner of a certificate the "next sitting of the Court" was three days after such refusal. On the day of such sitting, the insolvent's counsel did not "complain or appeal," but merely mentioned the case to the Court, and obtained an enlarge- ment till the following "next sitting of the Court." Held, that there being no particular mode prescribed by the Act (7 Vic, No. 19, Sec. 20) for commencing an appeal, it is a sufficient initiation- of the' appeal to give the Court jurisdiction, for counsel at the next sitting of the Court merely to mention the intention to appeal, and ask, and obtain an enlargement till a subsequent sitting, and, that, on such a course being taken, the Court is sufficiently seized of the "complaint or appeal" to be enabled to adjourn it to a subsequent day. In re Wilson, 1 W. & W. (I. E. & M.,) 141. 715 INSOLVENCY. 716 Time for Hearing Appeals— Rules 1871, Rule 1.] ' — Notices of application to the Supreme Court in its Insolvent jurisdiction should be made before 3 p.m. to make them good for the day, otherwise they will be deemed to be made on the following day. In re Rowley, 3 V.L.E. (I. P. & M.,) 12. "Where the notice of appeal was served upon the respondent (assignee) personally, and upon tbe assignee's solicitor after 3 o'clock. Held, to be good service notwithstanding Sec. 420 of Act No. 274, for there were no provisions limiting time for service upon the respondent. In re Goldsmith, 5 V.L.E. (I. P. &M.,) 18,. 21. Setting Down Appeal — Eules of 10th February, 1871. ] — "Where an insolvent gave due notice of appeal from an order refusing his certificate, but failed from poverty to set the appeal down for hearing within seven days as required by Eule 1 of the Eules of the Supreme Court in Insolvency of 10th February, 1871. Held that the appeal was too late, and the Court refused to hear it. In re M'Intyre, 6 "V. L.E. (I. P. & M.,) 80; 2A.L.T., 76. Per Molesworth, J. — If some notice had been given to the opposing creditor that an appli- cation to hear the appeal would be made, I should have considered it. Ibid. Deposit — Refusal of Certificate and Sentence to Imprisonment — Act No. 379, Sec. 12. — The pro- vision in Sec. 12 as to lodging a deposit upon an appeal to the Primary Judge does not apply to an order refusing a certificate, even though, the Judge of the Insolvent Court, in addition to the refusal, sentence the insolvent to impri- sonment. In re Goldsmith, 5 V.L.E., (I. P & M.,) 18, 21. See S.P., in re Dyte, 2 V.L.E. (I. P. & M.,) 424, ante column 697. Service of Notice of Appeal — "Insolvency Stat.," No. 379, Sec, 12.]— Service of notice of appeal to the solicitor of the opposite party who had acted for him in the Insolvent Court, is good service under Sec. 12. In re Dallimore, 5 A.J.K., 1. See S.P., in re Cotton, 6 V.L.E. (I. P. &M.,) 24; 1A.L.T., 129. From Court ol Insolvency— Security for Costs — "Insolvency Stat. 1871," Sec. 12.]— On appeals from a Court of Insolvency under Sec. 12 of the "Insolvency Stat. 1871," the .£20 deposit required by way of security for costs is rightly paid into the Court of Insolvency from which the appeal is brought. In re Nichol and Payroux, 4 V.L.E. (I. P. & M.,) 81. Sending Case Baok for Evidence.]— In an appeal from a Court of Insolvency, the case may be sent back to such court for further evidence. Ibid, The directions in Sec. 12 of Act No. 379 as to forwarding the evidence, are only applicable to cases in which there is evidence. In re Maclcay, 2 V.L.E. (I. E. & M.,) 22; 2 A.J.E.*. 130. Act No. 379, Sec. 12— Remitting Case for Re- statement.] — "Where a case on appeal from a District Judge was vaguely stated, Held that the Court of Appeal had power to remit it for- re-statement. In re Ruddock, 5 V.L.E. (I. P. & M.,) 51. Appeal — Practice on.] — Semble, that on an appeal against the refusal of an insolvent's certificate it is strictly the practice for the appellant's counsel to open, and the counsel for the respondent to reply, and for the Court then to pronounce judgment. Where the appellant's counsel had been taken by surprise the Court allowed the appellant's counsel to reply. In re Perry, 1 W. & W. (I. E. & M.,) 150. Appeal from Refusal of a Certificate— Practice- Taking Evidence on Appeal.] — On an appeal from the refusal of a certificate by the Com- missioner under Act No. 273, there were no notes of the evidence taken before the Com- missioner in consequence of his refusing to take them, and the Court having no power to make the Commissioner take such notes, re- heard' the case and took evidence, upon which the appeal was allowed, and the certificate granted. In re Green, 1 V.E. (I. E. & M.,) 6 ; 1 A.J.E., 104. Power to take Evidence on Appeal — " Evidence Stat., 1865," Sec. 46— " Insolvency Stat., 1871."] — A certificate of discharge had been granted to an insolvent by the Judge of the Insolvent Court. At the application the Judge refused to allow the insolvent to be examined. The ■ insolvent appealed against an order by Moles- worth, J., suspending the order of discharge, and asked the Court to take evidence. Held that the Appeal Court could not examine- witnesses as it was not a Court of re-hearing In re Aarons, 6 V.L.E. (I. P. & M„) 56 j 2 A.L.T., 51. And see S.P., In re Patterson, 7 V.L.E.. (I. P. & M.,) 14 ; 3 A.L.T., 4. Practice on Appeal — Judge of Insolvent Court sot . Forwarding Reasons.] — On an appeal from an order of a Judge of the Court of Insolvency rescinding a previous order whereby he- directed a transfer of proceedings from one- district to another, the Judge had not forwarded his reasons for his decision, though the clerk of the Court had been written to for the Judge's reasons. Held that the appeal could not proceed unless the Judge forwarded his reasons, and case adjourned to enable him to do so. In re Cottenham, 1 A.L.T., 119. Act No. 379, Sees. 12, 13 — Appeal on Debtor's Summons — Insolvency Rules 1, 48 — Papers— Affi- davits—Certified Copies— Act No. 197, Sees. 20, 25.] — In an appeal on a debtor's summons from a District Court of Insolvency, the summons and affidavits were not before the Appellate Court,.. and the hearing was in consequence adjourned. 717 INSURANCE. 718 On a summons for a mandamus to bring them before the Court, Held that, under Rule 1, the words, "papers in the estate," inolude all papers connected with the matter in the cus- tody of the chief clerk, whether strictly records or not ; and that therefore they may be removed without a special order as required by Rule 48. Semhle, at any rate affidavits are not proceedings " of " the Court within the meaning of Rule 48. Papers so forwarded through the post by registered letter are still constructively in the possession of the Court of Insolvency, which is one Court through the whole colony ; that under Sees. 20 and 25 of Act No. 197, the appellant is not bound to procure certified copies of the original papers. Mandamus granted. In re Portch, 7 V.L.R., (I. P. & M.,) 126; 3A.L.T., 50. Costs of Appeal, — Where the law and practice as to debtor's summonses seemed very vague and unsettled, and one party appealed unsuc- cessfully, the Court allowed for his confusion, and did not visit him with costs of the appeal. In re Fisher, 2 V.R. (I.E. & M.,) 26, 33; 2 A.J.R., 130. Where an appeal against an interlocu- tory order was made by way of motion, in which the appellant succeeded, and after the final order was made by the Judge of the Insolvent Court, the appellant appealed against this order, which was substantially the same as the interlocutory order, the Court of Appeal only allowed the successful appellant one set of costs. In re Eealey, 2 V.R. (I. E. & M.,) 34,41; 2A.J.R., 132. Appeal Against Order Refusing to Expunge Proof of Debt.] — Appeal dismissed with costs. In re HicHnlotham, 5 V.L.R. (I. P. & M.,) 101 ; 1 A.L.T., 84., see S.C., ante column 660. Appeal Against Befusal of Certificate. J — Molesworth, J., said he thought he had no jurisdiction to grant costs; at all events he would not exercise it. In re Stocks, 4 A.J.R., 173. And see in re Clarton, ante coVwmn 713 ; and, in re Cotton, ante column 578, for other cases where appeal was dismissed with costs. (2) From Primary Judge. To Fnll Court.] — An appeal will lie to the Full Court from a decision of the Primary Judge upon an appeal to him from a decision of a Judge of an Insolvent Court, In re Aarons, 6 V.L.R. (I. P. & M„) 56. Appeal From Primary Judge in the Matter of a Certificate — Practice.] — On appeal from the Primary Judge in the matter of an insolvent's certificate, all the grounds adduced against him before the Commissioner are open in the Court of Appeal, although all of those grounds were not relied upon before the Judge before whom the matter came in the first instance, on appeal; and the insolvent ought to hold himself prepared to meet the whole of the case made against him. In re Perry, 1 W. & W. (I. E. & M.,) 150. Practice on Appeal— What Questions May be Eaised.]— The Pull Court as a Court of Appeal only entertains questions raised in the notice of appeal, and will not allow objections taken and decided in the Court below to be opened up without notice. In re Aarons, 6 V.L.R. (I. P. & M.,) 56, 59. Notice— 19 Vic, No. 13, Sec. 5.]— A notice of appeal, under 19 Vic, No. 13, Sec. 5, which stated, in the words of the Act, that the grounds on which it was intended that the • appeal should be made, were those briefly and distinctly set forth in the petition for appeal, though it did not in itself specify any grounds of appeal, was held sufficient. Ex parte Gessner, 1 W. & W. (I. E. & M.,) 183. INSTRUMENTS AND SECURI- TIES STATUTE. Interpretation and Construction — Sec. 98 — " Specialty."]— The word "specialty" in Sec. 98 of the " Instruments and Securities Statute, 1864," must be read as applying merely to deeds ejusdem generis with conveyances and mortgages. Stacpoole v. Glass, 1 V.R. (L,,) 195 ; 1 A. J.R., 154. For other decisions on "Instruments and Securities Statute," see Bills of Exchange, Bills of Sale, Insurance, Guarantee, Mortgage, Lien, Limitations, Statute of, and as to sections which enact the provisions of the " Statute of Frauds," see under Con- tract, Sale, Specific Performance, and Vendor and Purchaser. INSURANCE. (a) FIRE. (1) Description of Property and Interest Insured, column 719. (2) In other Cases, column 719. (b) LIFE. (1) Assignment, Mortgage, and Gifts of Policies, column, 724. !2) Actions on Policies, column 725. 3) Persons entitled under Policies, column 726. (c) MARINE. I. Policies. (1) Re-insurance, column 726. (2) Valued Policy, column 726. (3) Construction and Duration of, column 727. II. Risks Insured Against and Amount Recoverable, column 728. 719 INSURANCE. '720 III. Interest of Assured, column 729. IV. Warranties, column, 730. V. Abandonment, column 730. VI. Deviation, column 731. VII. Premiums, column 731. VIII. Baeeatey, column 731. IX. Actions on Policies, column 731. (a) Fiee. 1. Description of Property and Interest Insured. Omission ofMaterial Fact — Knowledge of Insurers' Agent.] — J. wishing to insure his premises employed as his agent D., the agent of the in- surers. The agent surveyed the premises, pre- pared and signed the proposal, and in doing so omitted a material fact as to the premises insured. D. was aware of this fact, but he, as the agent of the insurers, accepted the proposal, received the premium, and signed and gave J. an interim receipt, upon which a policy was issued. The premises were destroyed by fire, and J. sued on the policy. Held that the omission was made by D. as J.'s agent, but that the fact that D. was also the insurers' agent did not remove the effect of D.'s omission as J.'s agent; but that D., being at the time he accepted the proposal and received the pre- mium as the agent of the insurers aware of the omitted fact, the insurers were bound by his knowledge, and were liable on the policy not- withstanding the omission. Jones v. Queen Insurance Company, 2 V.E. (L.,) 127; 2 A.J.E!, 69. Condition to Inform Company of Change in Nature of Occupancy.] — "Where a building which was insured was described as a "farm- house," and the column for the name of the occupants was left blank, and there were no occupants at the time of the insurance being effected, and from then up to the loss, Held that this was no breach of a condition to in- form the company of any change in the nature of the occupancy. London and Lancashire Insurance Company v. Honey, 2 V.L.E. (L.,) 7. Chattel — Insurable Interest.] — Semble, that a legal interest in a chattel is not necessary to create an insurable interest in a person insuring the chattel; an equitable assignment based upon a loan or advance being sufficient. Either " a right in the property or a right derivable out of some contract about the pro- perty, which in either case may be lost upon some contingency affecting the possession or enjoyment of the party," is sufficient, accord- ing to the authorities, to constitute an, insur- able interest. . Johnson v. Union Fire Insurance Company of New Zealand, 10 V.L.E. (L.,) 154, 161 ; 6 A.L.T., 50. (2) In other Cases. Condition in Jteeeipt Form— By Whom to be Performed.]— A receipt for the renewal of a . premium of a fire insurance given by an agent contained the following condition : — "This tem- porary receipt has the full force of the com-, pany's policy (and is.subjeet to its conditions) for fourteen days only from the date of issue; but on expiry of that time none other than the head office receipt will be acknowledged by the company." Held that the condition referred rather to the duty of the agent than to acts to be performed by the insured, in order to enable him to recover, and having paid the premium to a duly constituted agent, the insured could not be deprived of his right to recover by the condition. Moore v. Halfey, 9 V.L.E. (L.,) 400; 5A.L.T, 129. Condition on Policy — Construction.] — A policy of fire insurance provided " that from the date of these presents and until the 28th day of February, 1871 inclusively, and no longer," the company should be liable to pay for damages caused by fire. A condition was endorsed on it as follows — "On bespeaking policies, all persons shall pay the premium to the next half-yearly day, and from thence for one more year, at least, or shall make a, deposit for the same, and shall, so long as the managers agree to accept the same, make all future payments annually at the said office within fifteen days after the day limited by their respective policies, upon forfeiture of the benefit thereof." A fire occurred after the 28th of February, but before the expiration of the fifteen days mentioned in the condition. Held that the expression in the condition, " upon forfeiture of the benefit thereof," did not imply a conti- nuance of the risk, in the face of the express declaration in the policy that the risk should last " »o longer" than February 28th, and that the company was not liable. Connell v. the Scottish Commercial Insurance Company, 4 A.J.E., 168, 185. Condition for Forfeiture if Action Not Brought Within Three Months After Eejection of Claim.]— Gk sued on a policy, the 13th clause of which provided that, if the claim were not brought within three months after fire, or if made and rejected an action were not brought within three months after rejection, all benefit should be forfeited. The company pleaded that claim was rejected, and action was not brought within the three months. Judgment for the defendant. Demurrer to plea overruled. Grieve v. Northern Assurance Company, 5 V.L.B. (L„) 443. Inserting Name of Persons for Whose Benefit Insurance is Made — "Instruments and Securities Statute 1864," Sec. 46.]— A policy of fire insur- ance on a personal chattel is not within Sec. 46 of the "Instruments and Securities Statute 1864," and need not therefore .have inserted in it the name of the person for whose benefit it is made. Johnson v. Union Fire Insurance Company of New Zealand, 10 V.L.E. (L.,) 154, 161 ; 6 A.L.T., 50. Condition that False Statement Vitiates Policy- Practice — Direction to Jury — Burden of Proof.] — An action was brought ; upon a fire insurance policy which contained a condition that a false statement or declaration would vitiate it. The pleas averred that the plaintiff made a declara- tion .which, was false to his knowledge. Semble that the Judge should have- told the jury that, 721 INSURANCE. 722 notwithstanding the statement in the pleas, it "was not material that the plaintiff should have Tmown the statement to have been false ; that the plaintiff should in respect of this statement he held as responsible as if he had asserted what he knew to be untrue, and the onus of proof that the statement is true or false is shifted on to the plaintiff, Meagher v. London and Lancashire Fire Insurance Company, 7 V.L.E. (L.,) 390. Conditions Endorsed on Policy — Construction — Alteration of Premises — Degree of Eisk— Seduc- tion of Damages.] — To an action on a policy of insurance against fire on goods it was pleaded that there was an alteration by erection of a stage, scenery, &c, by which "the degree of risk " was increased, and an additional premium required, and not allowed by endorse- ment, and that there was an alteration in the nature of the occupation by which an additional premium was required, and not allowed by endorsement. The alteration in the occupation was that from an hotelkeeper to that of the keeper of an hotel where theatrical performances were allowed. There was a verdict for plaintiff, and part of the damages assessed were in respect of a moveable floor, which the defendant, under a policy effected by the owner of the house, had reinstated after the plaintiffs term had expired or been deter- mined. On leave reserved to enter a verdict for defendant on either plea, or to reduce the damages by the value of the moveable floor, Meld that the language of the conditions being ambiguous since it was the language of the company must be taken most strongly against them; that though the chances of a fire might he rendered greater by the addition (owing to the increased space) still the degree of risk was not increased ; that the change in the nature of the occupation was not to a more hazardous class, and that the damages should not be reduced by the value of the moveable floor. Zeplin v. Anderson, 4 A.J.E., 146. Condition — Condition Precedent to Sue.] — A jolicy of fire insurance contained a condition that in the event of any difference arising in the adjustment of a loss, the amount (if any,) to be paid should be referred to arbitration, as therein provided. The company did not dis- pute the amount due, but repudiated any lia- bility on the ground that the policy was void, owing to the concealment of material facts on the part of the insured. Held that an adjust- ment was a condition precedent to the right to sue. London and Lancashire Insurance Com- pany v. Honey, 2 V.L.E. (L.,) 7. Alteration of Policy — Notice — Knowledge of Assured.] — A. fire policy contained a clause that the assured should give notice in writing to the company previous to a loss occurring, " if any- thing occurred on the premises insured, or on those adjacent thereto, within the knowledge of the assured, after an assurance has been effected . whereby the risk in which the company is interested shall in any way be increased, and have such alterations allowed by endorsement, and in default of such notice and endorsement the policy will be void,". The insured, after the risk attached, and before loss, introduced gasoline on his premises, whereby the risk was increased ; but gasoline was a new substance, the dangerous character of which was unknown to the insurers, the insured, and the general public. Held that the question of knowledge did not arise, and only had reference to what occurred on the adjacent premises; and that th insured could not recover for the loss. Hillerman v. National Insurance Company, 1 V.E. (L.,) 155; 1 A.J.B., 134. Covenant to Insure— "The Landlord and Tenant Statute 1864," Sec. 15.] — It is still very material for landlords to enforce the insurance being in thiernames, although " The Landlord and Tenant Statute 1864," No. 192, Sec. 15, much diminishes the probability of their suffering by the opposite. Per Molesworth, J. Gutheil v. Delaney, 8 V.L.E. (E.,) 13 ; 3 A.L.T., 91. Covenant to Insure — Name of Insurer.] — G., a lessee under covenant with his lessors, S. and D., to insure the demised premises in the name of his lessors, obtained a policy in the name of " G. as lessor in terms of the lease granted by S. and T>. as lessees." Held, an insurance in the name of G., the lessee, in spite of the blunder in transposing the names of lessor and lessee, the policy showing that the insurance company understood it as in compliance with the covenant in the lease. Ibid. Covenant to Insure — Relief Against Breach.] — Where a lessee under a covenant to insure the demised premises in the names of his lessors had without fraud or gross negligence insured in his own name, relief against the breach was granted under the "Real Property Statute 1864," No. 213, Sec. 218, on the terms of the lessee paying the cost of Police Court proceed- ings to evict him, and all the costs of the suit. Ibid. Concealment of Material Fact.] — An omission to fill in any answer to the question in a pro- posal whether the insured had ever been a claimant upon any fire insurance company (the insured having, in fact, been so) is not a con- cealment of a material fact which would vitiate the policy. London and Lancashire Insurance Company v. Honey, 2 V.L.E. (E.,) 7. Eeinstatement of Partially-destroyed Premises — Second Fire — Liability of Insurer.] — S. insured his house with a, company, and, during the currency of the policy a fire occurred on the premises, which were partially destroyed. The company elected to re-instate, and expended a considerable sum in so doing; but, before completion, a second fire occurred, also during the currency ©f .the policy, and totally des- troyed the house. In an action on the policy, the company claimed to deduct the amount expended in re-instatement from the value of the policy. Held that they were not entitled so to do, but must make good the loss occa- sioned by the second fire up to the amount insured by the policy. Smith v. Colonial Mutual lire Insurance Company, 6 V.L.E. (L.,) 200. 723 INSURANCE. 724 Liability for Fencing Pulled Down to Prevent Fire Spreading— Fixtures.]— A policy of insu- rance against fire contained the following condition : — " The directors, or any other persons on behalf of the company, in case of any fire breaking out, may break into or pull down any house or building, and take or carry away any goods, merchandise, or other effects belonging to the assured, and use all their power, and all proper ways and means, for the most speedy extinguishing of such fire, and securing any house or building, goods, merchandise, and effects, the company paying the damage which shall be done thereby, or their rateable proportion thereof." H. insured his shops under the policy, and a fire having broken out and destroyed the shops, the com- pany rebuilt them; but H. sued for further damages, on the ground that the company had, through the firemen, pulled down certain fencing for the purpose of stopping the fire from spreading, and that they were liable for shelves and counters which had been burnt, and which II. contended were fixtures, and should be included in an insurance on the buildings. Held that the shelves and counters were not fixtures, but merely trade fixtures, and that to entitle H. to recover for the fencing, he must show that the company had either authorised some person to pull it down, or recognised the act afterwards; and that, there being no authorisation or recognition, H. could not recover. Harding v. National Insurance Company, 2 A.J.E., 67. Policy on Goods— What May be Recovered for — Moveable Floor.] — Where a moveable floor which had been supplied by the company under a policy effected by the owner of the house had been reinstated by the company after the ex- piration or determination of the plaintiff's term, and was burned, the plaintiff was held entitled to recover its value in an action on a policy against fire on goods in the house. Zeplin v. Anderson, 4 A.J.E., 146. Person with Limited Interest in Chattel Insured —Amount Recoverable.] — A person insuring a chattel, and having only a limited interest, must, if he insure to the full value, intend to insure the entire interest at the time he effects the insurance, otherwise he would recover more than an indemnity for his own loss, and he would not be liable to the other parties for the balance. The contract being one of indemnity there is no legal principle which forbids the insured to enter into a contract to protect the insurable interests of other persons interested, provided he intends so to protect them at the time of the contract. But if even without instructions or without its being known for whom he is a trustee, or where the interests of others are contingent only, a person having a limited interest who insures for the full value intending to protect the vested or contingent interests of others, the contract will be valid, and if the chattel is wholly destroyed the value of the whole must be made good, and the insured will hold the surplus after applying so much as will cover his own interest as a trustee for those whose interest he intended to protect. Johnson v. Union Fire Insurance Com- pany of New Zealand, 10 V.L.E. (L.,) 154, 161, 162; 6A.L.T., 50. (b) Life. 1. Assignment Mortgage and Gifts of Policies* Assignment — "Life Assurance Companies Act 1873," No. 474, Sees. 39, 40, Sched. 12— Equitable Assignment Before the Act.] — D., in 1869, being indebted to the plaintiffs, deposited a policy effected on his life, and agreed to assign it to them on request as security. In July, 1874, D„ signed a memorandum endorsed on the policy to the effect that he transferred all his right, title, &c., in the policy to the plaintiffs, but such memorandum was not in the form pre- scribed in the schedule to the Act No. 474. After D.'s death the plaintiffs applied to the insurance company for payment, which they were willing to make with the consent of D.'s administratrix, which consent she refused to give. Bill by plaintiffs. Held that the Act No. 474 was not retrospective, and that though the memorandum on the transfer being in- formal under the Act was not sufficient to pass the quasi legal estate in the policy, yet the- equitable rights acquired by plaintiffs- before- the Act were not affected. Ettershank v.. Munne, 5 V.L.E. (E.,) 99. Assignment — How Affected by " Life Insin-ance Companies Act 1873."] — Prior to the " Life In- surance Companies Act 1873," No. 474, policies of life insurance were regarded as choses in action assignable in equity, and an assignee of one took only the rights of the assignor, and was subject to all equities against him without having notice of them ; and that Act does not take such policies of insurance out of the general principles applicable to choses in action. Evans v. Stevenson, 8 V.L.E. (E.,) 108; 3 A.L.T., 93, 130. Per Molesworth, J., Semble, that Sees. 39 and 40 only provide for the protection of insurance companies from confusion of claims of ownership of moneys payable by them, but not for adjusting the rights in those moneys as between transferor and transferee. Ibid, at p. 115; 3 A.L.T., 93. Mortgage of Policy— Act No. 474, Sec. 89— Death by Assured's Own Hand— Notice of Assign- ment.]— W. insured his life for .£2000, and on the policy was endorsed the following condi- tion : — " In the event of the assured dying by his or her own act (sane or insane) .... this policy shall become void and of no effect except as to the extent of any bond fide interest which at the time of such death shall be vested in any other person or persons for his, her, or their own benefit for a sufficient pecuniary or other consideration, upon satisfactory proof of the creation, existence, and extent of such interest; provided that notice of such interest shall have been received by the company within fourteen days of the date of its incep- tion, and provided that such notice shall have been given before the death of the assured." W. being indebted to the defendant bank,. assigned the policy by an assignment in the 725 INSURANCE. 726 statutory form given in Soh. 12 to Act No. 474, on August 16th, 1876, and the assignment was registered on September 6th, hut there was evidence pointing to the fact that the policy, with the endorsed assignment, was lodged for registration on August 28th. Later in August, 1876, W. mortgaged certain land to the biink. W. was, on June 7th, 1877, found dead by a gunshot wound, the evidence point- ing to the fact of suicide. Letters passed between the bank and the insurance company, the company disputing its liability to the bank on the ground of the fourteen days' notice mentioned in the condition not having been given. Subsequently the bank and company effected a compromise by which the company were to purchase the mortgaged land for .£1170, and the bank was to surrender the policy for the sum of .£1293 — these two sums making up the whole of W.'s indebtedness to the bank. Suit by W.'s representative, seeking to make the bank liable as mortgagee for the full value of the policy (.£2000,) and seeking accounts as on that basis. Held, per Molesworth, J., and affirmed on appeal, that the bank was entitled to make the best of its securities, and to enforce them in such order as it might think fit, and was not bound to enter into litigation with the company to enforce the recovery of the policy moneys. Semble, per Molesworth, J., that it was the bank's duty as mortgagee to take care that the fourteen days' notice was given. Held, per the Full Court, that the notice required in the condition was a notice, not of the ostensible but of the real interest, in order to avoid a forfeiture in the event of suicide, and that the statutory notice given under Sec. 39 of the Act was not such a notice ; that, in fact, the notice required by the policy was not given; and that in such a case the bank as mortgagee was not under any obligation as to the mortgagor to give the notice required in the policy. Walpole v. the Colonial ttank, 10 V.L.R., (B.,) 315, 325, 327, 329; 6 A.L.T., 147. 2. Actions on Policies. Who May Sue — Policy Payable to Third Party.] — In a policy of insurance made by deed poll, and reciting that B. had agreed to effect a policy on his life, and to pay premiums, it was witnessed that the society would pay to.M. the sum assured. M. sued on the policy. Held that being a deed poll, and it being ambiguous with whom the society covenanted, it must be construed as being a covenant with the person to whom the money was payable, and that M. might sue upon it in his own name. Moss v. Legal and General Life Assurance Society, 1 V.L.E. (L.,) 315. When Maintainable — Untrue Statement] — In a proposal for life assurance the question, " Have any of your near relatives died of con- sumption, or been afflicted with insanity ? " was answered, " No ; all still living j " and at the end of the proposal there was a declaration by the assured that the above statements were true in every respect, and he thereby agreed that the declaration should be the basis and should form part of the contract between him and the company, It was proved that a brother of the assured had died of temporary insanity, and that the assured was aware of it when he signed the declaration. Held, per Stawell, C. J., and Barry, J. (dissentiente Williams, J.) that the statement was calculated to mislead on a material matter, the statement " all still living," though not in answer to a question, being material, and having been proved to be untrue within the knowledge of the applicant, the policy was invalid. Graham, v. Wright, 3 V.K. (L ,) 79 ; 3 A. J.K., 49. 3. Persons Entitled under Policies. Persons Entitled under "Life Assurance Com- panies Act 1873," Sec. 37.] — Semble, per Moles- worth, J. The persons entitled to the ,£1000 protected by Sec. 37 of the "Life Assurance Companies Act 1873," in the event of the in- solvency of the insured, are his next of kin. Davey v. Pein, 10 V.L.E. (E„) 306, 308; 6 A.L.T., 131. (c) Marine. I. Policies. 1. Re-insurance. Action Against Re-iDsurer — Matters of Defence.], — The re-insurer is entitled to make the same defence to an action brought against him on the second policy as the original insurers might on the first policy. The practice of in- serting a provision in policies of re-assurance that the re-assured shall only be obliged to produce evidence of payment of the loss, and the re-assurer will be bound to refund it, confirms this principle. Universal Marine In- surance Company v. Miller, 3 W.W. & a'B., (L.,) 139. Followed in National Marine Insurance Com- pany v. Halfey, 5 V.L.B,. (L.,) 226 ; where the Court had brought to its notice a recent case decided otherwise by the Supreme Court of New South Wales. Condition that Insurer should not be Liable for Total Loss unless Estimated Value of Repairs ex- ceeds the Declared Value.] — Action on policy o£ re-insurance valued at ,£4000, with a proviso that the plaintiff company would not be liable as for a total loss unless the estimated value of ship's repairs exceeded her value in the policy, and there were general averments of total loss by perils insured against and performance of conditions precedent. The pleas by the de- fendant company were that there had been no total loss and no notice of abandonment. The plaintiff company recovered a verdict. Held that the fact that the repairs exceeded the declared value was contained in the general averment of all conditions precedent, and that this fact should have been specially traversed, and that plaintiffs were not called upon to prove it. National Marine Insurance Company, of South Australia v. Australian Alliance Insur- ance Company, 5 V.L.K. (L.,) 426; 1 A.L.T., 99. 2. Valued Policy. What is or is Not.] — A policy was effected on freight, and the interim insurance (cover) note contained the words " have this day insured 727 INSURANCE. 728 the Bum of .£400 on freight." No policy was drawn out, but the parties rested content with the cover note. Held that this was an open :and not a valued policy. Boss v. Adelaide In- surance Company, 1 V.E. (L.,) 232; 1 A.J.B., 170. Cost of Repairs — Position of Jury.] — In estimat- ing the costs of repairs of a stranded ship under a valued policy only making under- writers liable when the cost of repairs exceeds the declared value, the jury alone are in a position to enter into the question of the costs, and for that purpose may accept the highest estimate of a witness for the plaintiff against the opposing evidence of defendant's wit- nesses if they place the greatest reliance upon the skill and judgment of such witness. Corr v. Standard Fire and Marine Insurance Com- pany, 7 V.L.E. (L.,) 504, 528, 529, 531. 3. Construction and Duration of. Of Re-insurance — "Valued at £6000, Insured Only for £4000."] — A company effected a re- insurance upon a vessel with A. and others. In the proposal the company stated, " valued at ,£6000, insured only for ,£4000," and also set -out the amount re-insured in various other offices. The vessel had originally been insured with the company by the mortgagors of the vessel, and it eventually turned out that the mortgagee had unknown to the company insured the -ship in another office. No policy was issued by the company in the original insurance with the mortgagor, or on the re- insurance with A. and others. In an action by the company upon a loss to recover from A. and others the amount reinsured by them, Held that the words " insured only for ,£4000 " referred to the risk which had been taken by the company, and part of which they applied to A. and others to re-insure ; that their being placed in collocation with the value was merely to show the risk the company retained, and that they were not intended as a warranty that no other insurances existed upon the vessel, and judgment for the company. Pacific In- surance Company v. Anderson, 5 W. W. & a'B. .(L.,)61. Affirmed on appeal to Privy Council, N.C., ,37; 21L.T. (N.S.,) 408. Description of Goods Insured — Specific — "Horses."] — In a policy of marine assurance on horses, the horses, were insured for a bulk sum, and were warrantedf ree of j ettison and mortality : and free of particular average unless occasioned by the ship being burnt, sunk, or stranded. Twenty-six of the horses died on the voyage, and the insured sued for paymenton the policy. Jleld that "horses" was a specific and not a generic description, and that the insured, there- fore, could not sue on the policy unless all the horses died. Lempriere v. Miller, 2 V.E. (L.,) 26; 2 A.J.B., 18. On Merchandise per Ship or Ships— Election — .Declaring on what Ship.]— Where a policy of insurance is made upon merchandise per ship ■or ships from one place to another for a certain period, it is the duty of the assured, before he can recover for a loss, to elect or determine to which of several ships the risk shall attach, if not before the ship iD respect of which he seeks to recover sails, at anyrate before any loss is known. Such election must be by express words, or by an act, and under such circum- stances as to show that the matter has been irrevocably determined, though such election need not be communicated to the underwriters. A usage, however, that the assured must, before loss, declare his election to the underwriters, is reasonable, and consistent with such a contract. Anderson v. United Insurance Company, 2 V.L.E. (L.,) 129. Time Policy — Permission in Writing to go to an , Open Roadstead — Several Visits — Ambiguity— Parol Evidence.]— A ship was insured under a time po- licy, which was voidable if open roadsteads should be visited without permission in writing of the insurers. The insured obtained permission in writing to visit two ports, and as to the latter of which there was a latent ambiguity in the description, it not being clear whether the per- mission extended only to that port or to the whole of an island near which it was situated, such port not being itself an open roadstead, though a port in the island was. The ship visited the port in question in the island, was driven away by stress of weather, came back and left again twice, once for water and once for provisions, on each occasion for the men engaged in cutting down the timber which was to form the cargo. On the visit for provisions to one of the ports mentioned in the permission she was wrecked. Held that parol evidence was admissible to explain the latent ambiguity in the permission as to what place was in- tended, and that it was competent for the insured to revisit the prohibited port if com- pelled to leave it before the business there was completed, and that the insured could recover. Wright v. Imperial M arine Assurance Company, 6 V.L.E. (L„) 334; 2 A.L.T., 65. Quare, whether such a permission under a time policy has the effect of excepting the port to which the permission extends from the prohibition for the remainder of the term of the policy. Ibid. II. Eisks Insured Against and Amount Eecoverable. Policy Under Seal — Declaration of Interest Not Under Seal Covering a Lesser Risk.] — P., by his agents, effected a floating policy of insurance under seal over goods "to be shipped at and from Melbourne to port or ports in New Zea- land, as interest might appear to be declared on shipments." By an unsealed instrument P.'s agents declared as on an amount of .£462 10s. per Goldseeker to Hokitika, sea risks only ; and on another part of the instrument, unsealed, completing the agreement, it was declared that " Eisk was to cease on arrival at outer anchorage." There was a lower rate of insurance to the outer anchorage at H. than at the wharf, and the " G." was lost between the anchorage and the wharf. In an action by P. against the insurance company, Held, hi answer to the plaintiff's contention, that the 729 INSURANCE. 730 two unsealed documents, comprising the agree- ment as to declaration of interest, could not operate as an alteration of the policy under seal; that, unless the declaration of interest was accepted such as it was, there was no policy at all; that the plaintiff must accept the declara- tion as a whole; and, taken as a whole, the decla- ration of interest only covered the lesser risk, so that qu&cunque vi& the plaintiff must fail. Puzey v. Southern Insurance Company, 6 W.W. & A'B. (L.,) 125. Horses and Fodder in One Policy — Consumption of Fodder Before Loss.] — Horses and fodder were insured in one policy and the horses had to be jettisoned. Before the time of the loss a large part of the fodder had been consumed. Held that the insurers were not liable for the amount of such fodder. Warren v. Swiss Lloyd's In- surance Company, 9 V.L.B. (L.,) 397 ; 5 A.L.T., 123. Evidence of Usage— Deck Cargo.] — Per Higin- botham J. Where a usage to carry horses on deck is proved, the insured may carry any number on deck consistent with the safety of the ship. Per Williams, J. The evidence to rebut the prima facie presumption that goods are to be carried in the hold should be very conclusive. Ibid. III. Interest of Assured. What is Sufficient Interest in a Charter Party Agreement.] — S. chartered a ship for a voyage from Melbourne to London by an agreement which provided that freight should be paid at the lump sum of .£2700, .£500 cash, the re- mainder to be secured by bills of lading to the satisfaction of the master, and in the event of the same not amounting to the required sum the balance should be paid by the plaintiff be- fore the ship left Melbourne; and after the payment of the £500 should the amount of freight as per bills of lading exceed the balance (,£2200) the master was to give to S. an order on the owners for the surplus. The .£500 was paid, and the amount of freight as per bills amounted to .£2809, and the master gave an order for ,£609. S. insured his interest in the agreement for ,£500 as against total loss, but the bill alleged that the defendants inserted in the policy by mistake and contrary to the terms of proposal the additional condition of "by total loss of ship only." The ship took fire on the voyage and the total freight earned was insufficient to leave any balance in plaintiff's favour. On a bill for rectification of the policy, Held on demurrer by the full Court, reversing Molesworth, J., that the plaintiff had an insur- able interest. Solomon v. Miller, 2 W.W. & A'B. (E.,) 135, 140. What is Sufficient — Where Insurer has Assigned Charter-party as Security.] — W. chartered a vessel, and assigned the charter-party as secu- rity to his agent for advances made by the agent to W. Whatever was recovered on the charter-party was to be set off against the advances ; if more were recovered, the balance would be paid to W.; if less, W. would still be indebted to the agent. Held that, as between a quasi mortgagor and mortgagee, W. had an insurable interest, since the pro- perty was in him absolutely in the first instance, and he had transferred it to the agent only as security, leaving in himself an interest or equity, which was insurable. JZoss v. Adelaide Insurance Company, 1 V.B. (L„) 232; 1 A.J.B., 170. IV. Warranties. Position of Ship — "At Sea."] — A ship having departed from Grafton, a port situated on the Clarence Biver, forty miles within the bar, her owner, on the 12th November, insured her from Grafton to Melbourne, and a cover note was as follows : — " F. has this day insured the sum of .£200 on hull, &c, per Sarah, from Grafton to Melbourne, extension of time policy expiring 15th November, vessel being at sea, in terms of proposal." As a matter of fact the vessel did not cross the bar till December 23rd. The owner sued on the policy upon a subsequent total loss. Held that the words "at sea," meant that the vessel had left Grafton, and that the owner could recover on the policy. Fisher v. Adelaide Insurance Oom- pany,2V.~R. (L.,) 90; 2 A.J.E., 61. V. Abandonment. Notice of Loss — New Trial.] — Following a dictum of Lord Mllenbrough in Parmenter v. Todhunter (1 Camp., 541) the Court made absolute a rule nisi for a new trial where it appeared that the opinion of the jury had not been taken as to whether the word " abandon- ment " was used or not in a verbal notice of loss given by the owners of a wrecked ship to the agents of the insurance company. Clough v. Salier, 1 W. & W. (L.,) 232. Notice of Abandonment — Taking Possession — Valued Policy — Total or Partial Loss.] — Although insurers may take possession of an abandoned- ship for repairs only, provided they avow the purpose for which they take her, and having repaired her properly and sufficiently may then compel the owners to take her back — notwith- standing due notice of abandonment having been given — yet they are bound to complete the repairs effectually and within a reasonable time ; if they do not it is as if they had not repaired at all, and their act in taking pos- session would be strong evidence of an accept- ance of abandonment; they cannot even by proper repairs if insufficient convert a total into a partial loss. Gorr v. Standard Fire and Marine Insurance Company, 7 V.L.B. (L.,) 504, 530. Notice of — Valued . Policy — Eepairs Exceeding Declared Value — Constructive Total Loss.] — A clause in a valued policy provided that in case of damage the insurers should not be liable as for a total loss unless the estimated cost • of repairing such damage should exceed the declared value of the ship. Held that such clause did not affect the right of the assured to abandon in the case of a constructive total loss, the rights to abandon and to recover after abandonment being distinguishable, and the actual value of the ship when repaired and not the value in the policy is to be regarded in 731 INTEREST. 732 considering whether abandonment is justified. Ibid, pp. 504, 538. Notice of Abandonment — Who May Give — Position of Assured.] — Semble, the master of a ship has no power to give the underwriters notice of abandonment, but qucere, whether an agent of the assured who effected the policy is authorised to give such notice, but the assured are allowed a reasonable time after receiving notice of the loss, and sufficient information to form a judgment to decide whether they will give notice of abandonment. Ibid,, pp. 532, 536. VI. Deviation. What Is.] — An insurance was effected on goods, on a voyage from Melbourne to Java, with liberty to call in at King George's Sound, or Perth — not at both. The crew were shipped for Sumbawa, not for Java, and the ship was cleared for Java, via King George's Sound, hav- ing goods on board for Perth. One of the part- ners in the firm insuring the goods appeared on board at the Port Phillip Heads. On the pre- text of having left the register behind, the master put into King George's Sound, although it was not necessary to go there for such a pur- pose, and on leaving Perth, the partner on board told the master to go to Tin Sing. They then touched at various places in Australia and elsewhere. Semble, that this was a deviation. Moore v. Graham, 5 W.W. & a'B. (L.,) 229. VII. Premiums. Interim Receipt for Premium — Where it Benders Insurer Liable.] — Where an insurance company gave an insurance broker an interim receipt for the premium of insurance, which receipt purported to have the effect of a policy until the policy was issued, and the premium was not, in fact, paid ; but it was proved that the company was in the habit of giving credit to brokers, Held that the liability of the com- pany was complete. Moore v. Graham, 5 W.W. & a'B. (L.,) 229. VIII. Barratry. When a Bar to Action on Policy.] — A barratrous abandonment of the voyage by the master, instigated by a member of the firm owning goods insured for the voyage, although the intention to commit such barratry was not manifested, and could not be determined till a date after the date of an order nisi seques- trating the firm's estate, will debar the official assignee of the firm from recovering the amount insured. Moore v. Graham, 5 W. W. & a'B. (L.,) 229. Action for Loss by — Who May and Who May Not Maintain.] — The assignee of an insolvent firm cannot maintain an action upon a contract of insurance effected by the firm where the loss, the subject of the action, was caused by barratry of the master, who was instigated thereto by a partner in the firm. Ibid, p., 232. IX. Actions on Policies. Action — Plea — When Bad.] — A marine policy contained a clause as follows: — "Claims for losses or average to be payable by the company at.three months after settlement of the same." On action by the insured the declaration averred, inter alia, "That all conditions had been fulfilled, and all things happened to en- able the plaintiffs to be paid." The defendants pleaded " That three months after settlement of the claim of the plaintiffs for the said alleged loss had not elapsed before suit." Held, on demurrer, that it was bad, for not stating affirmatively the settlement, or facts dispens- ing with the settlement; and judgment for plaintiffs. Clough v. Hopkins, 1 W.W. & a'B. (L.,)55. Action on Policy — Declaration — Exceptions to Liability.] — If, in a policy of insurance, the exceptions to the company's liability form a substantial part of the contract, a declaration on the policy must negative the exceptions. Osborne v. Southern Insurance Company, I A.J.E, 160. " Burning" — Question for Jury.] — In an action on a policy of insurance upon goods loaded on a ship for a voyage free from average unless general, or the ship be " burnt, sunk, or stranded," it appeared that part of the goods had been damaged by spontaneous combustion, and that part of the ship bore marks of burn- ing. Held that the question whether the ship was "burnt" was one for the jury. Service v. Mercantile Marine Insurance Company of South Australia, 4 V.L.E. (L.,) 436. INTEREST. On Judgment.] — A defendant having obtained leave to appeal to the Privy Council on paying into Court the amount of the judgment and one year's interest, the appeal was kept pend- ing for two and a-half years, and then allowed to lapse for want of prosecution. Held that the plaintiff was entitled to issue execution for the interest which had accrued from the expiration of the year for which it had been paid into Court till the date of the arrival of the certificate from the Privy Council that the appeal had lapsed. Smart v. O'Callaghan, 4 V.L.E. (L.,) 448. On Mortgages.] — See Mortgage. Amount of Policy Paid into Court in Interpleader Suit — Interest Should be Paid in as Well.] — Aus- tralian Mutual Provident Society v. Broadbent, 3 V.L.E. (E.,) 138, post under Interpleader. Eate of When Ordered by Court.] — When the Court orders interest to be paid, it will be at 8 per cent., and not " bank interest." Ashley v. Cook, 6 V.L.E., (B.,) 204; 2 A.L.T., 2. Justices Have No Power to Allow Interest on Money Lent.] — See Wilson v. Crawley, 2 W. & W. (L.,) 78, under Justice or the Peace — Jurisdiction and Duty — In other cases. In What Manner Creditors Entitled to Interest on their Debts Under Deed of Assignment— How Paid.] — See Heape v. Hawthorne, 2 W.W. & a'B. (E.,) 76, 87, 89, ante column 344. 733 INTERPLEADER. 734 INTERNATIONAL LAW. As to Domicil.] — See Domicil. Jurisdiction Over Foreign Court.] — See Foreiqn Law and Fobeignek. INTERPLEADER. In What Cases — Shareholder in a Company — Suit to Compel Registration.] — The benefits of inter- pleader are confined to cases where actions have actually been commenced against the stakeholder, or legal proceedings have been threatened by adverse parties, and do not •extend to a case where the plaintiff only has proceeded against a company, and where all that the other party claiming to interplead had -done was to write to the manager of company requesting him not to deal with the shares. Eddy v. Working Miners' Gold Milling Company, 2 W.W. & a'B. (E.,; 110. " Common Law Procedure Statute," Sec. 189 — Defendant Taking an Indemnity From a Claimant.] — S. had goods deposited for custody in his bonded stores. The first purchasers of the goods failed, and then the vendor served upon S. a notice to stop delivery, containing also an -undertaking to indemnify S. S. did not reject the indemnity within a reasonable time. An ultimate purchaser sued S. for the goods. Held that S. was not, under the circumstances, entitled to an interpleader order. Smythers v. Stewart, 5 A.J.E., 139. Interpleader Summons — " Justices of the Peace Statute 1865," Ho. 267, Sec 121.]— C. obtained a justice's order, October 30th, for payment of money owing him by B., and G., a constable, seized B.'s goods under a warrant to execute the order, and sold them. B. had, on October 19th, executed a bill of sale of these goods to McG., and McG. claimed the proceeds of the .goods from G. G. then took out an inter- pleader summons. The justices in petty ses- sions awarded that C. should pay McG. the value of the goods. Held, on appeal, that Sec. 121 makes the constable a stakeholder, but that as soon as he voluntarily parts with the goods he ceases to be a stakeholder, and that the justices should have dismissed the sum- mons. Appeal allowed. Summons below dis- missed. Cousens v. McGee, 4 W.W. & a'B, (L.,) 29. Interpleader Summons Dismissed by Justices — No Notice to Plaintiff of Summons — Plaintiff Not Bound by Dismissal.] — See Maritime General Credit Company v. Jiands, 1 A.J.B., 79; ante column, 253. Summary Determination — Largeness of Amount — "Common Law Procedure Statute 1866."]— The " Common Law Procedure Statute 1865" is silent as to the amount on which the jurisdic- tion of tha Judge upon an interpleader sum- mons in Chambers to determine the matter on its merits in a summary way depends, and no definite limit is fixed. The matter is one for the discretion of the Judge, and that having been exercised the Court will not interfere unless it appears clearly that the Judge was mistaken or misled. Carter v. Sternberg, 10 V.L.E. (L.,) 33 ; 5 A.L.T , 176. Interpleader Summons Before Justices — Nearest Court— Act No. 565, Sec. -15— How Nearness of Access Determined.] — Kegina v. Kavanagh, ex parte Comrie, 6 V.L.E. (L.,) 179 ; 2 A.L.T., 7, post under Justice op Peace — Procedure on Summary Jurisdiction. Amendment — Consent Order — Mistake.] — In an interpleader summons an order was made by consent that "the Sheriff do withdraw from possession," and that J., the trustee under a deed of settlement made by the execution debtor (M„) should be allowed his claim. It appeared that the words " that the claimant's claim be allowed" were not noticed by the town agent of W.'s solicitor — W. being the execution creditor. W. brought a, bill in equity seeking to set the deed aside when the order was set up by the answer as a defence. On a summons to amend the order by striking out the words "that the claimant's claim be allowed," Held that as both parties sawthe order and consented to it, and as a considerable time elapsed before the application was made for amendment, [the application could not be allowed; that no amendment to the effect "without prejudice to any equity suit" could be allowed, as the equity suit did not appear to be in the contemplation of both parties. Williamson v. M'Ravey,1 V.L.E.' (L.,) 150; 3 A.L.T., 5. Motion to Put Matter in Course of Inquiry — Pay- ment into Court — Costs.] — B. effected an insu- rance on his life in the office of the plaintiff society, and deposited it with a bank to secure an overdraft, and subsequently, by indenture, assigned it to C. and D., subject to the claim of the bank. Notice of this assignment was given to the insurance society. The bank also gave notice of its claim.. B. died, and the defendant (his executrix) received the policy from the bank, but the bank refused to release their claim. The defendant then brought an action on the policy against the insurance society, when the insurance society instituted an interpleader suit after paying amount of policy moneys into Court, and obtained an etc parte injunction. Upon motion to put matter in course of inquiry for payment of plaintiff's costs, and for leave to pay in interest on the amount of the policy moneys which had been claimed by the defendant executrix in her action, Held that this was the proper course, but that interest should have been paid in with the principal ; and though the insurance society was entitled to its general costs, it was not under the circumstances entitled to its costs for the injunction or for the motion. Austra- lian Mutual Provident Society v. Broadbent, 3 V.L.E. (K,) 138. Evidence — New Trial.] — H., an execution debtor, was owner of a hotel. , In 1877 H. pur- 735 ISSUE. 736 chased the furniture in it on behalf of K., and with moneys furnished by K„ and gave evidence that the hotel was leased to K., and the business carried on by K. H. corroborated this, and stated in cross-examination certain facts which were inconsistent with his state- ments in the examination in chief as to who had managed the hotel, and was contradicted in some parts of his evidence by witnesses called for the execution creditor. In an inter- pleader issue, the jury found for the execution creditor. Held, on rule nisi for new trial, that the proof adduced by the execution creditor did not disturb the fact that goods in question were purchased for claimant by money given expressly for the purpose. Eule absolute. Kroschel v. Colonial Bank, 5 V.L.E. (L.,) 174; 1 A.L.T., 11. Practice Under " Judicature Act " — " Supreme Court Bules, 1884," Order 57, Bules 13, 15— Sheriff's Costs.] — Under the rules a Judge has power to make provision in an interpleader order for costs and fees of Sheriff. See also for form of order. Solomons v. Mackenzie, 6 A.L.T., 69. Act No. 22, Sec. 6 — " Insolvency Statute," No. 379, Sec. 37.]— Per Bolroyd, J. " The Interpre. tation Statute " enables us to read * debtor or debtors ' in Sec. 37 of Act No. 379 so as to admit of a petition for sequestration being presented under that section against joint debtors whether carrying on business in partnership or not." In re Thomas and Currie, 9 V.L.E. (I. P. & M.,) 2, 10. Act No. 22, Sec. 8—" Weights and Measures Statute 1864," No. 215, Sec. 49.]— A forfeitureof weighing machinery under Act No. 215, Sec. 49, is not within Sec. 8 of Act No. 22, the for- feiture in Sec. 8 of No. 22 only referring to- forfeiture of money. Begina v. Caddy, 1 V.L.E. (L.,) 38, 39. Act No. 22, Sec. 8 — Recovery of Penalties.] — Begina v. 0' Flaherty, ex parte Winter, 9 V.L.E, (L.,) 14; 4 A.L.T., 147. For facts see S.C., post under Offences. (Statutory.) INTERROGATORIES. See DISCOVEEY. "INTERPRETATION ACT." Act 21 Vic, No. 22, Sec. 6— "Seal Property Statute 1864," No. 213, Sec. 98.]— Molesworth, J., appeared to act on Sec. 6 of No. 22, by reading " newspapers " in Sec. 98 of Act No. 213 as " newspaper." In re Mahood's Estate, 4 V.L.E. (E.,) 56. Act No 22, Sec. 6 — "Common Law Procedure Statute," No. 274, Sec. 307.] — It was urged in argument that in Sec. 307 of Act No. 274, making provision for a " party *' filing a me- morial of a judgment the word "party," by the force of Sec. 6 of Act No. 22, included a corporation, and the Court held that the word "party" did include a corporation. Ruby Extended Tim Mining Company v. Woolcott, 6 V.L.E. (L.,) 301. Act No. 22, Sec. 6—" Licensing Act," No. 566, See. 38.] — The word " owner" in Sec. 38 of Act No. 566, by virtue of Sec. 6 of Act No. 22, in- cludes " owners." Ex parte Slack in re Panton, 7 V.L.E. (L.,) 28. Act No. 22, Sec. 6 — " Insolvency Statute 1871," No 379, Sec. 90.] — It would appear that Sec. 6 of Act No. 22 does not apply to Sec. 90 of Act No. 379, for it was held that all the " persons " entitled in possession must concur in the peti- tion mentioned in Sec. 90 of Act No. 379. In re Healey, 7 V.L.E. (E„) 1. Act No. 22, Sec. 6—" Insolvency Statute," No. 379, Sec. 37, Sub-sees. 3, 3.]— Per Molesworth, J. " I think that under Act No. 22 the word 'creditors,' in Sec. 37, Sub-sees. 2 and 3, of Act No. 379, includes a single creditor." In. re Bickards, 5 A.J.E., 103. INTOXICATING LIQUORS. See LICENSING ACTS. INVENTION. See PATENT. INVESTMENT. By Trustees.] — See Trust and Trustee. ISSUE. Interpleader.] — See Inteepleadeb. In Matrimonial Suits.]— See Husband and Wife — Judicial Separation and Divorce. In Equity Suits.]— See Practice and Plead- ing— In Equity. 737 JUDGE. 73S JUDGE. Interested in his Own Case — Rating.] — No judge should interfere in the hearing of a case involving his own interest ; and the decision of a judge interested need not be accepted, even by the party in whose favour he would be likely to decide. Where, therefore, in an appeal against a valuation, two justices sat who had on a previous occasion adjudicated, each on the other's appeal — the one sitting on the case of the other, who for the time left the bench ; and then the other in turn deciding on the case of the first, who in his turn left the bench, and the municipal council protested against their deci- sion on general grounds, without assigning any motive, and in the appeal of a ratepaper objected that the justices, having reduced the assessment in their own cases, were interested in reducing it in that of other parties, but there was nothing to show that the reductions were not right, Held, nevertheless, that as a deci- sion from a magistrate who was interested should not be accepted at all, a writ of certiorari should be granted to remove the order into the Supreme Court to be quashed. Municipal Council of Prahran v. Clough, 1 W. & W. (L.,) 238. Interested in Case] — If the objection of interest in the judge is once taken, the judge ought not to entertain the case. Molloy v. Gunn, 2W. & W. (L.,)76. Justices when Disqualified.] — See under Justices op the Peace — Jurisdiction and Duty — When disqualified. , Altering Decision before it is Recorded.] — There is nothing contrary to law in u. judge giving a decision apparently inconsistent with some remarks made by him in delivering judg- ment. He is not precluded from altering his decision until it is recorded. Allen v. Oicer, 6 V.L.R. (L.,) 213 ; 2 A.L.T., 22. Discretion — When Court will Overrule.] — Per Higinbotham, J. Where a Statute gives a dis- cretion to a judge to do, or not to do, a particu- lar act, it is always competent for the Court to overrule his discretion, which the Court will only do however (a) where there is no evidence to support his decision; (o) where he has been misled by false evidence; (c) where the judge, by a mistaken exercise of his discretion, has done an injustice to any party. De Saxe v. Schlesinger, 7 V.L.R. (L.,) 127; 3 A.L.T., 1. Single Judge Sitting as Full Court in Divorce and Matrimonial Jurisdiction — Effect of Order of.]— See Hall v. Hall; 1 W. & W. (L.,) 333, post under Practice and Pleading — At Law — Rules and Orders. Judge in Chambers — May Grant an Order Ab- solute in the First Instance for a Certiorari.] — See Seyina v. Carr, ante column 129. Judge in Chambers — Has no Power to Grant a Rule Nisi for Certiorari in Vacation Returnable Before the Court on the First Day of Term.] — See Berjina o. M'lntyre, ante column 129. In Chambers — Reviewing Decision of Another Judge.] —Pec Higinbotham, J. (inChambers). A judge in Chambers has no jurisdiction to review the considered judgment of another judge. Merry v. The Queen, 6 A.L T., 23. Jurisdiction of Primary Judge in Equity.] — See under Equity, ante column 405. Of County Court.]— See County Court. Of Insolvent Court.]— See Insolvency. Of Courts of Mines.]— See Mining. JUDGMENTS. (1) Foreign Judgments. {a) Validity of, column 738. (b) Effect of, column 738. (c) Attachment on, column 739. (2) Conclusiveness of and Estoppel by Judg- ment, column 739. (3) Signing and Practice on Generally . See Practice. (4) Setting Aside and Impeaching. See Practice. (5) Judgment Debtor's Summons. See Debtors' Act— Insolvency. I. Foreign Judgments. {a) Validity of. Where there is any substantial defect in the proceedings of a foreign court, not a mere technical irregularity which would be cured by the next step, but such as would put the opposite party to a disadvantage, the Court will permit the judgment or decree to be im- peached by pleadings in this Court, and the defect to be shown by extrinsic evidence. Larnach v. Alleyne, 1 W. & W. (E.,) 342, 358. For facts see S.C., post under Trust and Trustee. (b) Effect of. Memorial Filed under Sec. 307 of "Common law Procedure Statute"— Sec. 308.] — Piling the memo- rial of a foreign judgment under Sec. 307 of the "Common Law Procedure Statute," does not give such judgment the effect of a judgment of the Supreme Court of Victoria, so as to enable the creditor to attach debts in the hands of garnishees under Sec. 200 of the Act, until the requirements of Sec. 308 of the Act have been complied with by him. And quaere, whether after compliance with such requirements the foreign creditor can enforce his judgment by any other means than execution. Johnson v. Dickson, 1 V.R. (L.,) 159; 1 A.J.R., 135. Enforcing Foreign Judgments — Corporation Plaintiff — "Common Law Procedure Statute 1865," Sees. 307, 308.]— A corporation plaintiff is in- cluded in the provisions of Sec. 307 of the 739 JUDGMENTS. 740 " Common Law Procedure Statute 1865," which allows a " person" in whose favour a judgment has been obtained in another colony to file a memorial of it in the Court here ; and such cor- poration may obtain leave under Sec. 308 to issue execution upon such judgment. Ruby Extended Tin Mining Company v. Woolcott, 6 V.L.R. (L.,) 301. Semble, that a defendant could show as cause against an application for leave to issue execution under Sec. 308 that the judgment had been obtained in the other colony. Ibid. Enforcing Foreign Judgments — Practice — " Common Law Procedure Statute 1865," Sec. 307.] — The memorial of a decree of the Supreme Court of another colony, which is filed for the purpose of enforcing an order for payment of a sum of money, need not contain the whole decree pronounced ; but it is sufficient if it con- tain such particulars as relate to the order for payment, that being all that is presented by Sec. 307 of the " Common Law Procedure Statute 1865." Fattorini v. Fattorini, 6 V.L.R. (L.,) 454; 2 A.L.T., 87. Enforcing Foreign Jndgments • — What are Foreign Judgments — Decree in Divorce Jurisdic- tion.] — A decree of the Supreme Court of another colony in the Divorce and Matrimonial Causes Jurisdiction in a suit for the restitution of conjugal rights, is within sec. 307 of the " Common Laiv Procedure Statute 1865," and may be enforced by execution under Sec. 308 of that Act. Ibid. County Court judges have no jurisdiction in case of judgments recovered ovit of the colony. Greville v. Smith, N.C., 67. Enforcing Judgment Against one Partner on Behalf of AH — "Common Law Procedure Statute 1885," Sec. 308.]— On 17th May, 1880, H. obtained a judgment in the Supreme Court of New South 'Wales in an action on contract against M., a member of a, co partnership. In accordance with the law of New South "Wales, M. was sued on behalf of all the members. The me- morial of the judgment was filed in the office of the Supreme Court of Victoria -on 6th May, 1884. Application under Sec. 308 of the " Common Law Procedure Statute 1865" for an order to issue execution against M. and nine others, members of the co-partnership, as being the persons against whom the judgment was ob- tained. Held, per Higinbotham, J. (in Cham- bers), that a foreign judgment in personam when it is sought to be enforced in another coun- try is conclusive between all the original parties to the cause, to the same extent as in the coun- try where the judgment was obtained, and that it is not examinable in the courts of the country where it is enforced, except for defects apparent on the face of it, or upon extrinsic evidence adduced to show that the foreign court had no jurisdiction, or that the judgment was obtained by fraud or manifest injustice, and that none of these having been shown execution should issue under Sec. 308 as applied for. Order with costs. Hogan v. Moore, 6 A.L.T., 156. Ho Notice of Procee lings— Contributory to a Company Agreeing to ex rarte Proceedings for Winding up.]— A banking company in Scotland was wound-up, and the liquidators obtained in Scotland a judgment against R. , a contributory, who was domiciled in Victoria, without any notice to the contributory of the proceedings. It appeared that R. , while domiciled in Scot- land, had signed the memorandum of associa- tion of the company, which was a company registered under the English "Companies Act 1862," which in Sec. 121 provided that judgment might be obtained ex parte, and without notice to the contributories. Held that R. must be taken to be aware of the law when he signed the memorandum, and by so agreeing that pro- ceedings might be taken ex parte had contracted himself out of the general protection afforded to persons not knowing the law of a country, in which a judgment is obtained behind their backs. Jamieson v. Itobb, 7 V.L.R. (L.,) 170; 3 A.L.T., 7. (c) Attachment on. When Allowed.]— See Main v. Kirk, 1 A.J.R. 155, ante column 60. (2) Conclusiveness of and Estoppel by Judgment. Estoppel.] — B. recovered in the Court of Mines a judgment for goods sold and delivered to the A. Company, and on the basis of that judgment an order was made by the Court of Mines ordering the company to be wound up, and appointing B. a liquidator. B. then sued W. for the balance of the amount of his shares and recovered a verdict. On appeal it was held that the Court of Mines had no jurisdic- tion, and the verdict based on B. 's appointment was set aside. B. then recovered judgment in the County Court for the same goods, and the Court of Mines upon that order appointed B. a liquidator. Held that the judgment in the first action in the Court of Mines was no bar to the second action in the County Court for the same debt. Wilson v. Broad/oot, 2 W. & W. (L.,) 96. Verdict followed by Judgment when an Estop- pel — Must he on the Same Point.] — Per Privy Council. A verdict followed by judgment, to be an estoppel, must be on the precise point, and a distinct finding thereon. Nor is the effect of the verdict as an estoppel to be en- larged by parol evidence showing what the discussion was or what the evidence was. Mul- caliy v. Walhalla O. M. Coy., 2 A.J.R., 93, 95. County Court Judgment— When a Bar.]— A jury gave a verdict for defendant in an action in the County Court to recover commission on the ground that the action was premature, the money not yet being due. A judgment entered in accordance with the verdict is not a bar to a subsequent action by the plaintiff after the money becomes due, the cause of action not being identical. Bishop v. Woinarski, 1 V.L.R. (L.,) 106. And see cases ante column 406-409, under Estoppel. Decision of Justices when a Bar.] — See poet under Justice of the Peace— Where Decision a Bab, to Sobsequent Proceedings. r-41 JURY. 742 JUDGMENT SUMMONS. See DEBTORS' ACT— INSOLVENCY. JUDICIAL SEPARATION. See HUSBAND AND WIFE. JURISDICTION. Issue sent from Probate Jurisdiction to Nisi Prius — Eule for New Trial — In what Jurisdic- tion.] — When an issue has been sent by the Full Court on an appeal from a suit in the Probate jurisdiction for trial at Nisi Prius, "the rule for a new trial of each issue is properly •obtainable from the Court sitting in Banco in Term, in its Common Law Jurisdiction. The Court so sitting in Banco, however, will not hear a motion for an order to issue probate, which should be made before the Primary Judge, whose decision may be considered by the Full Court on appeal. If the Court in Banco were to hear an application for the issue of a probate the litigants would be deprived of their right to have the subject reviewed by the Full Court. Wilson v. Shepherd, In the Will of Wilsmore, 2 V.L.R. (L.,) 35. Of Court in Matrimonial Jurisdiction. ]- Husband and Wise. -See Of Justices.] — See Justice of the Peace. Of Courts in Equity.]— See Equity. Of Insolvent Court.]— See Insolvency. Of County Court.] — See County Court. Of General Sessions.]— See Sessions. Of Court in Probate Jurisdiction.] — See Will. Of Courts of Mines, &c.]— See Mining. JURY. Special Jury — Trial of Issues by— 21 Vict No. 19, Sec. 17.] — In granting an application under sec. 17 of 21 Vict. No. 19 {Juries Act), for trial of issues by a special jury of twelve, the only proof required by the Court is that a person has been committed for trial. Regina v. Uos- lello, 1 W. &W. (L.,)8. Foreign Juror— Ignorant of the English lan- guage.]— See Regina v. ffoctor, ante column 308. Jury de Medietate Linguae— " Juries Statute 1865," Sees. 37, 38.]— Regina v. Levinger, L.R., 2 P.C. 282; 1 A.J.R., 137, ante column 308. De Medietate Lingua— Challenge of Foreign Panel.]— A foreigner on trial by a jury de medi- etate Ungues has no right of peremptory chal- lenge as regards the foreign panel then returned by the sheriff ; but is restricted to challenging ' ' for cause" under the 38th section of the "Juries Statute 1865," No. 272. Regina v. Ah Toon, 3 W. W. & a'B. (L.,) 31. Challenged Juror Sitting During Trial.]— In applications for new trial on the ground of a challenged juror sitting during the trial, there should be a distinct statement that the appli- cant had not exhausted his challenge. Bryens v. M'Lennan, 1 A.J.R., 89. Disqualified Juror not Challenged.]— If a juror who is disqualified is not challenged at the trial, the Court will not grant a new trial upon affidavits of the subsequent discovery of such disqualification. Sinclair v. Harding, '2 V.R. (L.,) 185; 2A.J.R, 114. Act 272, Sec. 41 — Agreement for Remunera- tion. ] — An agreement by the parties to a cause to pay the jurors engaged a remuneration in addition to the fees allowed them is in contra- vention of Act No, 272. Glass v. Martin, 3 W. W. & a'B. (L.,) 117. Finding — How far Binding.] — The finding of a jury upon a specific question put to them is not binding, unless supported by the evidence. Nkhol i'. London Chartered Bank of Australia, 4V.L.R. (L.,) 324, 329. As to cases of setting aside verdict, see post under Practice— At Law— Trial. Misconduct — Evidence of Jurors as to.]— Any misconduct of a jury, even though the verdict is right, and the j udge concurs with it, renders the verdict void, and a new trial is ordered. But to support an application on such a ground some other evidence than that of the jurors must be given. ■ The jurors, being participators in the misconduct, are not permitted to say that they have been guilty of misconduct, and this principle is not altered by the evidence being tendered by one of the dissenting jurors where a three-fourths verdict has been taken. O'Malley v. Elder, 2 V.L.R. (L.,) 117. Misconduct.] — Theadjournment by a juryafter retiring to consider their verdict, openly, and without permission of the Court, to a hotel for refreshment, in ignorance of the impropriety of the course, is not such misconduct as will necessitate the granting of a new trial. Per Barry, J. , even if the jury had so acted wilfully, and knowing that they were doing wrong, it would be a ground for punishing them, but not for impeaching their verdict. C'rowther v. May, 4 V.L.R. (L.,) 425. View — Cost of.] — Costs of a view by the whole jury are always allowed. Young v. Ballarat Water Commissioners, 6 V.L.R. (L.,\ 14; 1A.L.T.,133. 743 JUSTICE OF THE PEACE. Hi Challenges in Excess — Panel Exhausted — Remedy. ] — The proper mode of remedying the error where, by mistake, the prisoner has been permitted to challenge three jurors in excess of the number allowed, and the panel is exhausted, is to return the three names in excess to the box and empanel the first drawn out, not to allow the prisoner to exercise his right of challenge de novo, or to empanel a juror whose name has, by inadvertence, not been called, liegina v. Lee, 6V.L.R. (L.,)225. Mistake of— When Ground for New Trial.]— See under New Trial. And see ante under Criminal Law, columns 308, 309. JUSTICE OP THE PEACE. Statutes 14 Vic. No. 45, 25 Vic. No. 29, re- pealed by Act No. 267. "Justices of the Peace Statute 1865" (No. 267), sees. 41, 65 and 106 repealed and re-enacted by Act No. 319 ; sees. 5, 8, 49, 135, 136, 137 and 143 repealed by Act No. 565. "Justices of the Peace Statute 1865, Amendment Act 1867" (No. 319). "Justices of the Peace Statute 1865, Amendment Act 1876" (No. 565). "Justices of the Peace Statute (Pro- hibition) 1877" (No. 571). I. Jurisdiction and Duty. (o) When Disqualified, column 744. (6) Claim of Might and Questions of Title, column, lii. (c) Limitation in the Jurisdiction, column 748. (d) In other Cases, column 749. (e) Compelling Justices to do Duty, column 754. II. Matters Preliminary to Examination or Hearing, column 755. III. Procedure in Summary Jurisdiction, column 759. IV. Appeal and Reviewing Decision. (a) Where Appeal Lies and Conditions Precedent to be Observed, column 763. (6) Form of Special Case, column 767. (c) Compelling Justices to State a Special Case, column 769. [d) Practice, column 770. V. Prohibition to and Quashing Convic- tion and Orders. (i. ) What Convictions and Orders may be Prohibited or Quashed, column 772. (a) Generally, column 772. (J) On Account of Defect in the Conviction, Want of Juris- diction, Errors or Mistakes on the Part of the Justices, column 774. (ii.) Practice in Applications to Prohibit or Quash, column 7JS. VI. Where Decision a Bar to Subsequent Proceedings, column 783. VII. Actions Against Justices, column 783. I. Jurisdiction and Duty. (a) When Disqualified. Justice — A Ratepayer not Disqualified from Adjudicating on a Complaint for Breach of Bye- laws— Act No. 267, Sec. 13.] — J. was informed against under » bye-law for encroaching on a, street and fined. It was objected that the chairman and justices, being ratepayers, and interested in the application of the funds, were unfit to adjudicate. Meld that they were not so "interested" in the result of the adjudica- tion as to be disqualified from adjudicating. Jewell v. Young, 2 W. & W. (L.,) 243. Adjudicating on a Rate When a Ratepayer — "Justices of the Peace Statute 1865,"No. 267,Sec. 13 — Disqualification Removed.]— A justice of the peace adjudicated in a rate case after his in- terest in such rates had accrued due. The " Justices of the Peace Statute 1865," No. 267, Sec. 13 of which removes the disqualification for such interest, was passed after the rate was due and after the justice's interest arose. Held that, on the point of interest, the justice was interested; but that the disqualilication for such interest under the old law was removed by Sec. 13 of the Act No. 267, and that his adjudi- cation was valid. Meyina v. Ford, 3 W. W. & a'B. (L.,) 130. And see Municipal Council of Prahran v. Clough, ante column 737. Being Interested — Proceedings under Public Health Act— Act No. 267, Sec. 13.]— Pour out of seven justices who adjudicated in making an order under Sec. 47 of the "Public Health Amendment Act" were members of the Local Board of Health. Held that the four were dis- • qualified from so adjudicating, and their in- terestedness vitiated the proceedings of the whole number. Rule absolute for prohibition. Re- gina v. Lloyd, ex parte Godfrey, 1 V.L.R. (L.,) 120. Justices Managers of a Common.] — When jus- tices are managers of a common they are dis- qualified from adjudicating upon a complaint for trespasses upon the common, although the penalties for trespass go into the consolidated revenue, and they have no pecuniary interest in the case. Eegina v. HorsfaU, ex parte Hus- band, 4 V.L.R. (L.,) 53. (6) Claim of Right and Questions of Title. Questions of Title under "Land Act 1862," No. 145.] — R. applied for land, assumed to have been declared as open for selection under the Act, got his certificate under Sec. 20, and en- tered into possession. It was then discovered that the land was not within the area declared open, and a commissioner sued R. for unau- thorised occupation. The justices declared he was in unauthorised possession. Held, on appeal, that the case before the magistrates might involve title, and their jurisdiction was ousted. Appeal allowed, but without costs. Robinson r. Carey, 2 W. & W. (L.,) 114. Question of Title.]— J. H. sued P.H. for trespass. J.H. produced a Crown grant for sixty acres, and P.H. a grant for ten acres adjoining. P.H. was in possession of twenty- eight acres of the sixty claimed by J.H., and 745 JUSTICE OF THE PEACE. 746 refused to leave when ordered. J.H. and one D. at one time held the whole of the land under store licenses ; and it was afterwards put up to auction, and sold to D. and P.H.. who agreed upon an equal division. J.H. bought D. 's share, and declined to carry out the agree- ment. Held that there being a bond fide. question of title, the justices had no jurisdic- tion. Hobanv. Hoban, 2 A.J.R., 118. Question of Title— Act No. 265, Sec. 17, Sub-sec. 1.]— On a complaint for disturbing a water-race, the defendant relied on a, Crown grant of the land, and the plaintiffs on their miners' rights. Held, a bond, fide question of title was involved, and that the question was not one to be disposed of by justices. Regina v. Webster, 1 V.R. (L.,) 82 ; 1 A.J.R., 78. Question of Title — Act Ho. 265, Sec. 17, Subsec. ii.] — C. was summoned before justices for destroying a fence connected with a toll- gate. The toll-gate had been temporarily re- moved on to Crown land, and had obstructed C. in his usual access to a watering place. The fence C. broke was not on his own land, nor on land in which he claimed any interest. Held that C. had no colour of right to break the fence, and that there was no evidence to raise any claim of right to oust the jurisdiction. Cahill v. Keilor Road Board, 4 W. W. & a'B. (L.,)262. Wilful Trespass — " Police Offences Statute 1865," Sec. 17 (VI.)— Jurisdiction when Ousted.]— Merely raising a question of title does not oust the jurisdiction of the justices upon an informa- tion under Sec. 17. Sub-sec. VI. of the "Police ' Offences Statute 1865," for wilful trespass, but the justices must also be satisfied that the tres- pass was committed under a fair and reasonable supposition that the defendant had a right to do the act complained of. Begina v. Eeid, ex parte Brennan, 4 V.L.R. (L.,) 133. Duty of Justices — " Police Offences Statute 1865," Sec. 17.] — Where a defendant on an in- " formation under Sec. 17 of " The Police Offences Statute 1865 " sets up a claim of right to do the injury complained of, the justices have, in effect, to consider not merely whether there was a defence at law, but whether the defendant had a bond fide and reasonable belief that he was justified in committing the act complained of. Williams v. Clauscen, 6 V.L.R. (L.,) 29: 1 A.L.T., 149 ; followed in Daniel/, v. Bowbotham, 9 V.L.R. (L.,), 215 ; 5 A.L.T., 75. Police Offences Statute, Sec. 32 — Question of Title.] — Complaint for illegal detention of pro- perty. L. agreed with P. and W. to erect wire fencing, and as P. and "VV. had need of work- ing bullocks to carry out the agreement, L. further agreed to purchase a team, on the condition that the purchase-money should be deducted from the payments accruing under the agreement to erect the fencing. P. and W. took possession of the bullocks, used them, but did not carry out the agreement. L., besides buying the bullocks, had paid P. and W. money for the fencing, and had in so doing overpaid them for the little they did erect. P. and W. sold the bullocks by auction, one J. purchased them, and L. sued him for illegal detention. The justices, being of opinion that a, question of title was involved by the purchase at auc- tion, thought that their jurisdiction was ousted by Sec. 32 of the " Police Offences Statute." On appeal, Held that they had jurisdiction. Lyon v. Jones, 1 A.J.R., 30. Under Pounds Statute, No. 249, Sec. 26— Question of Title.] — On a summons before jus- tices for illegally impounding from unenclosed land, it appeared that the land in question was purchased from the Crown in 1862, and it was contended that there was no power under the Land Acts of 1865 and 1869 to impound from unenclosed land. Held that there was no jurisdiction in the justices to enter into the question, since it raised a question of title, but that they were confined to inquiring whether the requirements of the " Pounds Statute " had been complied with. O'Keefe v. Behan, 2 V.R. (L.,) 16 ; 2 A.J.R., 19. [Compare Sec. 29 of Act No. 478 (Pounds Act 1874.)] Maliciously Throwing Down a Fence — Claim of Title — " Criminal Law and Practice Statute 1864," Sec. 178-"Amending Act 1871," Sec. 23.] —On a complaint before justices of unlawfully and maliciously throwing down a fence, under Sec. 178 of the " Criminal Laio and Practice Statute 1864," No. 233, though Sec. 23 of the "Criminal Law, Ac, Amendment Act 1871, "No. 399, provides that no claim of right or title shall oust the jurisdiction of the justices over complaints under Sec. 178 of No. 233, it may be shown that the defendant was removing a fence which obstructed him individually in the use of ■-■ way to which he had a right, since this is not a claim within the meaning of Sec 23, No. 399. Begina v. Guthridge £• Brennan ex parte Campbell, 4 V.L.R. (L.,)' 77. Question for Justices — Remedy — Appeal.] — Where a question of title or a bond fide belief by the defendant of his right to do an act com- plained of, is set up as a defence, it is for the justices to find as a matter of fact whether the defence is bond fide raised, and even if the finding be contrary to evidence, the Court will not grant a prohibition. The proper remedy is by appeal. Begina v. Walker, exparte Kennedy, 4 V.L.R. (L.,) 452. Question of Title ] — S. was summoned for wilfully damaging a fence belonging to W., and put in as a defence that the land belonged to one H., and that the fence was broken down merely to try the right. W. had, been in undis- turbed possession for thirteen years. Held, that there was a question of title involved, and that the justices had no jurisdiction. Hodgson v. Whitmore, 2 A.J.R., 122. Unlawfully and Maliciously Destroying a Fence — Joint Ownership — " Criminal Law and Practice Statute 1864," Sec. 178, No. 399, Sec. 23.]— The jurisdiction of the justices is ousted on an infor- mation for unlawfully and maliciously cutting or breaking down a fence if the defendant makes a bond fide claim of right or title to the fence, unless such right or title is jointly with 747 JUSTICE OF THE PEACE. 748 the person in whom the property in the fence is laid in the information; and Sec. 23 of the '* Criminal Law and Practice Statute 1864 Amendment Act," No. 399, applies only to such cases of joint ownership. Williams v. Clauscen, 6 V.L.E. (L.,)29; 1 A.L.T., 149; followed in Daniell v. Eobotham, 9 V.L.R. (L.,) 215; 5 A.L.T., 75. Question of Title.] — A borough summoned R. for displacing soil of certain land under the control of the borough. R. was working for a mining company, which claimed to occupy the land as being registered for it under the bye- laws. R. was fined. On appeal, held, that a question of title was involved, and the justices had, therefore, no jurisdiction. Bowe v. Mayor ofBallarat, 2 A. JR., 122. Disturbing Soil of a Street.] — A mining com- pany, holding a mining lease from the Crown, were convicted and fined by justices for dis- placing and disturbing the soil of a street. Held that the company had no power to disturb the street, and it was for the justices to decide, as a matter of fact, whether it was a street or not. Appeal dismissed. Koh-i-noor Mining Coy. v. Drought, 3 V.R. (L.,) 75; 3 A.J.R., 48. Claim of Bight — Dispute as to Existence of a Highway.]— On a summary proceeding before justices, under Sec. 511 of the "Local Govern- ment Act 1874," for obstructing a person employed by a municipal council to remove obstructions which had been placed on a road to prevent access to a public bridge, a bond fide dispute as to the locus in quo being a highway will not prevent the justices from acting, and their decision on that point is conclusive for the purpose of enforcing the conviction, though the conviction will not preclude the person con- victed from trying the right in an action of trespass. Ex parte Scott, in re Strutt, 2 V.L.R. (L.,) 70. Interference with a Creek — Management of Municipality — Mining Claim — " Local Govern- ment Act 1876," Sec. 400.]— O. was convicted before justices, " for that he did," on a certain date, ' ' interfere with a creek within the borough of W., after the said creek had been taken under the charge of the council of the munici- pality, without the authority of such council. " At the trial the justices found as a matter of fact that the creek had been so taken, and the defendant showed that the municipality had managed the creek, not as a watercourse, but as a road, and had allowed others to mine on it, and raised a claim of title under a miner's right and registered claim. Meld that raising such claim of title did not oust the jurisdiction of the justices. Eegina v. Mayor of Walhalla, ex parte O'Grady, 4 V.L.R. (L.,) 470. Act No. 506, Sec. 399— Obstruction of Public Koad.] — An information was laid by a shire council for obstructing a public road. The de- fendant objected that he claimed part of the road as his private property and that this question of title ousted the justices' jurisdiction. The justices thought they .had no jurisdiction, and dismissed the information. Held that they had, and rule absolute for them to hear the information. Eegina v. Foster, ex -parte Molyr. neux, 7 V.L.R. (L.,) 294; 3 A.L.T., 23. (c) Limitation in the Jurisdiction. 11 & 13 Vict, Cap. 43, Sec. 11— Defence— Act No. 29.]— Sec. 11 of "Jervis's Act" (11 & 12 Vict, cap. 43) is not merely in restriction of the plaintiff's right of procedure, but is also in limitation and definition of the jurisdiction of the magistrates ; and such jurisdiction has been conferred on magistrates under that section to make orders for payment of debts and costs only where the complaint is made within the time named in the section ; and if facts dis- ■ placing the jurisdiction under that section appear on the plaintiff's pleadings, it is not necessary to plead them under Sec. 38 of 21 Vict. No. 29. In re Prince, ex parte Binge, 1 W.W. & a'B. (L.,) 12. N.B. — The sections in the "Justices of (lie Peace Statute 1865" corresponding to those above mentioned are Sees. 47, 51. Period of Limitation for Unpaid Calls on the Winding-up of a Mining Company.] — See Melville v. Higgins, 1 W. & W. (L.,) 306 ; post under Mining — Mining Companies — Winding-up— Calls — Enforcement of. Period of Limitation for Capital Subscribed but not Paid (not including Calls).] — See Broadfoot v. O'Farrell, 2 W. & W. (L.,) 102. Post under Mining — Mining Companies — Winding-up— Official Agents and Liquidators. " Justices of the Peace Statute 1865," No. 267, Sec. 51— Part Payment of an Old Debt.]— Where K. owed W. £25, and paid off £12 within twelve months before proceedings before the justices, Held that the part payment of the debt made the remainder a new debt which arose within the twelve months, and that the justices had jurisdiction under sec. 51. Rule nisi for ■prohibition discharged. Eegina v. Wells, 4 W.W. & a'B. (L.,) 31. See also S.P. Mount- ford v. Paton, 5 A. J.R., 164. Limitation in Case of Complaint for Non-Pay- ment of Kates — Time Runs from Expiration of 14 days after Demand in Writing.] — See Mayor of Sandhurst v. Broderick, 3 W.W. & a'B. (L.,) 108. Post under Rates and Eating. Act No. 267, Sec. 51— Cross-demand.— A com- plaint dated July, 1875, was for goods supplied. The particulars of demand gave credit to the defendant for salary due as on 10th July, 1875, but the affidavit of the relator showed that such salary was due on 10th July, 1874, and that he had not consented to such appropriation of his salary. Held that the complainant could not treat the cross-debt to the defendant as part payment without his consent. Order absolute for prohibition. Eegina v. Webster, ex parte Prentice, 1 V.L.R. (L.,) 199. Act No. 267, Sec. 51— Limit of Time.]— S. had been summoned before the justices, and had been fined for disobedience of an order to main- tain an illegitimate child, under Sec. 39 of the 749 JUSTICE OF THE PEACE. 750 Act No. 268 (Marriage and Matrimonial Causes Act);^ the fine was imposed for disobedi- ence in respect of payments due more than twelve months previously. Held that the case did not come within Sec. 51 of Act No. 267, and that the justices had jurisdiction. Regina v. Panton, ex parte Sutterby, 1 V.L.R. (L.,) 264. limitation of Actions — Part Payment— Justice of the Peace Statute 1860, Sec. 51.]— Under Sec. 51 of the " Justices of the Peace Statute 1860," a complaint must (in the absence of special enact- ment) be brought before justices within twelve months from the time when the matter of com- plaint arose ; but although the complaint be not brought within the twelve months, a part pay- ment after such period, and within twelve months of the bringing of the complaint, will give the justices jurisdiction, since it affords proof of a new promise to pay, and does not merely constitute an account stated. Ex parte Forsman, 4 V.L.R. (L.,) 55. {d) In other Oases. Work and labour Done—" Justices of the Peace Statute," Sec. 41.]— Where a complaint before justices was for £7 for work and labour done, and the complainant had entered into a contract in writing to do the work, which contract he had not complied with ; but the defendant had accepted the work and taken the benefit of it, Held that since the defendant had accepted the work, he could be sued for work and labour done, and that the justices had jurisdiction under Sec. 41 of the "Justices of the Peace Statute 1865." Regina v. Lloyd, 1 A.J.R. 78. Note.— Sec. 41 of Act No. 267 is repealed, and a new provision is substituted for it by Sec. 1 of Act No. 319. Special Contract— Work and labour— "Amend- ing Act" (No. 319), Sec. l.]-T. on 20th January, 1871, gave a written order for the insertion of an advertisement in a paper for six months for £30, payable monthly. On the 20th February T. wrote—" My advertisement month up to-day ; discontinue insertion of same, and I shall draw you one up in another form to-night, and see you to-morrow." The advertisement was discontinued, no other one was inserted, and the newspaper proprietors sued T. for the month's insertion as work and labour done. The justices made an order against T. for £7 10s. On order nisi for a prohibition, Held that it was a question of fact rather than of law for the justices to determine, they being at liberty to decide on the evidence that the special contract was rescinded by the parties, and if that .were so the complainant could sue for work done. Order discharged. Regina v. Call, ex parte Thomson, 2 A.J.R. 106. Money lent— Interest— Act No. 319, Sec. 1.] —Justices sitting in Petty Sessions have no jurisdiction to allow any thing beyond the princi- pal of .money lent either as interest or bonus. Wilson v. Crawley, 2 W. & W. (L.,) 78. Claim for Money not Exceeding £20— "Justices of the Peace Statute 1865," Sec. 41.]— When the cause of action exceeds £20, the plaintiff cannot bring the matter within the jurisdiction of the justices under the "Justices of the Peace Statute 1868," Sec. 41, by giving credit for more than the excess. Regina v. Clarkson, ex parte Hay- loch, 4 A.J.R. 116. Claim for Honey Paid — Amendment.] — A claim for " money paid" is not within the jurisdiction of justices ; and where justices had made an order comprising a sum due for "money paid," their order was amended by deducting the sum so comprised. Regina v. Williams, 5 W.W. & a'B. (L.,)5. Expenses of Witnesses.] — On an order nisi for prohibition to justices to restrain them from enforcing an order for the payment of expenses to witnesses, it appeared that the justices had considered the witnesses entitled to a certain sum, but had stultified themselves by allowing them more. The Court refused the prohibition, but on the terms of the order being amended so as to allow the witnesses only the sum the justices had considered them entitled to. Regina v. Adams, ex parte Ewart, 1 A.J.R., 160. Act No. 267, Sec. 41 — Use and Occupation of Land.] — Where plaintiff leased land to defen- dant for two years at a yearly rental of £28, payable half-yearly, and summoned defendant for use and occupation for six months, claiming £14, Held that it was within the justices' jurisdiction, as the yearly rent was not the subject of inquiry, the only inquiry being as to use and occupation for half-a-year. Laven v. Flower, 5 A.J.R., 71. Note. — This same test of jurisdiction in the case of the County Court wWs affirmed in Cavanagh v. Sach, see ante column. 250. Act No. 267, Sec. 41— Assault — Person Suing for must be the Person Assaulted.]— Under this section the person suing in respect of an assault must be the person who has been assaulted ; therefore a father cannot sue for an assault committed on his infant son, such a grievance not being one cognisable by the justices. Regina o. Charles, 3 W.W. & a'B. (L.,) 52. Under £20— Act No. 267, Eec. 44— Allowance of Discount.]— On a complaint before justices for the price of seven hogsheads of beer at £4 per hogshead ; £1 4s. was allowed for returns, and £1 per hogshead was allowed as discount, according to the course of dealing between the parties, leaving a balance of £19 16s. The justices made an order for the amount, and an order nisi for prohibition was obtained on the ground that the allowance of discount was really a set-off, which the defen- dant had not agreed to, and that the matter was therefore beyond the jurisdiction of the justices. Held that the discount, not being for cash, but being a trade allowance by arrange- ment was not a set-off, but a reduction in the price, and order nisi discharged. Reginn v. Morgan, ex parte Dehnert, 2 V.L.R. (L.,) 102. Under £20— Cross Claim Disputed— Set-off.]— On a complaint for goods sold and delivered, the particulars of demand showed the amount due to be £29 10s. Id., and credit was allowed 751 JUSTICE OF THE PEACE. 752 for £2 cash, and £8 for a horse sold by defen- dant to the plaintiff, leaving a balance sued for of £19 10s. Id. The defendant proved that he had sold a horse to plaintiff for £11, and another for £9 (the one for which credit was given), in respect of which sums a defence of set-off was .■entered, that no balance had ever been agreed upon, and that the credit of £8 had never been admitted. Held that the complainant's allow- ,, ing one of the items of the defendant's set-off could not give jurisdiction, though, semble, that if he had admitted the whole of the defendant's set-off it would have given jurisdiction. Regina v. Panton, ex parte Wilson, 6 V.L.R. (L.,) 33 ; 1 A.L.T., 149. Act No. 267, Sees. 41. 44— Claim Reduced by Payments.] — In a complaint before justices for ■work and labour done, the claim was for £61, less cash payments, £43 ; balance, £18. Held that justices had jurisdiction. Regina v. Alolli- son, ex parte Warne, 1 V.L.R. (L.,) 17. Under £20— Abandonment of Excess — "Jus- tices of the Peace Statute 1865," Sec. 44.]— Where a claim is over £20. giving credit as on a contra account for the excess is not equivalent to an abandonment of the excess so as to give the justices jurisdiction. Regina v. Cahill, ex parte Patton, 4 V.L.R. (L.,) 194. "Justices of the Peace Statute 1865," Sec. 44 — Severing Causes.] — In an action to recover the amount of a running account, where the sum sought to be recovered is outside of the justices' jurisdiction, the plaintiff may not separate his claim so as to bring each of the parts thus severed within the jurisdiction; but if he wish to sue before justices must abandon the excess under See. 44 of the " Justices of the Peace Statute 1865." Regina v. Daly, 1 A.J.R., 26. Dividing Cause of Action — Running Account — "Justices of the Peace Statute 1865," Sec. 44.] — By Sec. 44 of the " Jvstv-es of the Peace Statute 1865," where there is a running account between a tradesman and a customer the former cannot split up the amount due into separate causes of complaint. Ex parte Victor, 2 A.L.T., 6. Set-off— Under " Justices of the Peace Statute 1865," Sees. 41, 47, 48— Of What Nature it Must be.]— A set-off under the "Justices of the Peace Statute 1865," No. 267, Sees. 47, 48, must be one of the causes of action mentioned in Sec. 41 of the Act; in other words, of such a nature that, if made the subject of an original com- plaint, the justices would have jurisdiction to entertain it Wynne v. Barnard, 5 W. W. & A'B. (L.,) 35. Set-off.]— Where items claimed in a set-off are in excess of jurisdiction, such set-off cannot be allowed, although the balance on an adjust- ment of the amount claimed and the set-off is a sum within the jurisdiction. Regina v. Bond, ex parte Woodhead, 5 V.L.R. (L.,) 130- 1 A.L.T., 1. Set-off.] — To a complaint before justices, a set-off was pleaded to an amount exceeding their jurisdiction. They disregarded the set- off, and made an order for the amount sought in the plaint. Rule absolute to prohibit, sub- ject to the filing of the copy of the minute. Regina v. Heron, ex parte Burnip, 9 VL R. (L.,) 186; 5 A.L.T., 66. Stranger about to leave the Colony— Act No. 565, Sec. 12.] — Justices have no jurisdiction to make an order for payment of a debt upon an ex parte application under Sec 12. Ex parte Rice 3A.L.T.,67. Jurisdiction as to Forfeiture of Goods Exposed for Sale in Street —Act No. 265 (" Police Offences Statute"), Sec. 8 — "Interpretation Act," (No. £2), Sec. 8.]— Regina v. 0' Flaherty, ex parte Winter.' Post under Offences (Statutory) — Punishment of offences, &c. Summons Heard by other Justice than the one who Granted It — "Police Offences Statute 1865," Sec. 32—" Justices of the Peace Statute 1865," Sec. 11.]— By virtue of Sec. 11 of the "Justices of the Peace Statute 1865" a summons for illegal detention of property under Sec. 32 of the "Police Offences Statute 1865" may be heard, and an order made thereon by a justice other than the justice who granted such summons. Reijina v. Lloyd, ex parte Allen, 2 V.L.R. (L.,) 1. To Enforce Payment of Calls in a Mining Com- pany.]— See Regina v. M'Gregor, ex parte Wil- kinson, and other cases. Post under Mining — Mining Companies- -Calls and Winding-up— Petition and Practice on — Calls. Rates—" Municipal Institutions Act 1852," (No. 18), Sec. 31.]— Under Sec. 31 of the Act, justices have jurisdiction only as to amount of assessment, and cannot go into the question of rateability. Where they adjudicate simply that an appellant was not aggrieved by the amount of assessment they keep within their jurisdiction. Blair v. Municipal Council of Batla.at, 2 W. & W. (I.,) 245. And see also cases under Rates and Rating, Information for Being in Uauthorised Occu- pation of Crown Land — Expired License— " Land Act 1869," Sec. 23.] — Justices have no jurisdic- dion to hear an information under Sec. 23 of the " Land A ct 1869 " for being in unauthorised occupation of Crown Land under an expired license, unless the license be produced, or its existence and contents proved. Broadbent v. Hornlyrooh, 4 V.L.R. (L ,) 415. Injury to a Boat on Hobson's Bay — " Town and Country Police Act" (18 Vict. No. 14), Sec. 15.] — Hobson's Bay may for the purpose of the Act be considered an inland lake, and magis- trates have jurisdiction in cases of injury done to a boat thereon. Webb v. Andrews, 2 W. & W. (L.,) 128. Enforcing Bye-Laws— Entertaining Objections to Validity of Bye-Law — " Local Government Act 1874," Sec. 225.]— Justices of the Peace whoare called upon to enforce any bye-law under the " Local Government Act 1874," are deprived by See. 225 of that Act of any jurisdiction to enter- tain objections to the validity of the bye-law. Ridtrv. Phillips, 10 V.L.R. (L.,) 147; 6 A.L.T. 37. 753 JUSTICE OF THE PEACE. 754 "Dog Act 1864" (No. 229), Sec. 15.]— The justices have no jurisdiction under Sec. 15 of No. 229, to assess damages in respect of sheep being worried by a dog. Hazelhurst v. Kerr, 6 W.W. & a'B. (L.,) 244. Damage for Injuries Caused by Dogs— "Dog Act 1864," Sec. 16.] -Under Sec. 16 of the " Dog Act 1864," justices in Petty Sessions have jurisdic- tion toward damages not exceeding £20 for injuries to sheep done by dogs. Ex parte Billiard, 2V.L.R. (L.,) 2. Summons to Find Surety to Keep the Peace —Fine.] — Justices have no jurisdiction, upon a summons to find sureties to keep the peace, to impose a fine, even though an assault had been committed. Regina v. Turner, ex parte James, 4 V.L.R. (L.,)61. To Inflict a Whipping--" Criminal law Amend- ment" (No. 399), Sec. 33— Act No. 265, Sec. 36, Subsec. v.] — A single justice, not being a police magistrate, has no power when adjudicating under Sec. 36, subsec. v. of No. 265, to inflict a whipping under No. 399, Sec. 33. Purcell v. Nimmo,3V.R. (L.,) 233; 3 A.J.R., 112. Sentence for Unlawful Assault.]— Justices under Act No. 233, Sec. 38, have power to sen- tence a person convicted of an unlawful assault to an imprisonment of three months, in default of payment of a fine of £10, notwithstanding Sec. 15 of Act No. 265. Morrison v. Clarke, 2 V.R. (L.,)9; 2A.J.R., 17. Jurisdiction and Duty of Justices as to War- rants of Ejectment under " Landlord and Tenant Statute."] — See cases post under Landlord and Tenant. Jurisdiction and Duty as to Order of Forfeiture under " Customs Act" (No. 13), Sec. 238.] -See Regina v. Call, ex parte Callaghan, 5 A. J.R., 91. Post under Revenue. Jurisdiction of Justices under "Pawnbrokers Statute 1865, " Sec. 5.]— Ex parte Nyberg, in re Nicholson, 8 V.LR. (L.,) 292; 4 A.L/f., 78. Post under Pawnbrokers. Under "Pounds Statute 1865," Sec. 26.]— See Howe v. Middleton, 2 V.R. (L.,) 59; 2 A.J.K., 54. Post under Pounds and Impounding. Jurisdiction and Duty as to Hearing Evidence under Sec. 15 of the "Pounds Statute 1874" (No. 478).]— Schneider v. Wright, 4 V.L.R. (L.,) 62; Segina v. Heron, ex parte Jones, 8 "V.L.R. (L.,) 140; 4 A.L.T., 6. See. post under Pounds. Jurisdiction Generally under " Police Offences Statutes."]— See Offences (Statotory). Jurisdiction and Duty under Sec. 16 of " Mas- ter and Servant Statute" (No. 198)— Complaint not Stated to have been on Oath.] — Regina v. Pear- son, ex parte Hall, 5 V.L.K. (L.,) 289; 1 A.L T., 42. Post under Master and Servant. Jurisdiction and Duty as to Issuing a Distress Warrant under Sec. 38 of the " Mining Companies Statute" (No. 228).]— liegina v. Gaunt, 1 A.J.R., 36. Post under Mining Company — Winding up — Enforcement of Contribution. Jurisdiction and Duty as to Imposing Penalty for Breach of Bye-laws of Government Railways.] — Regina v. Nicholson, ex parte PuJ/lett, 8 V.L.R. (L.,) 44. Post under Public Works. (e) Compelling Justices to do their Duty. Mandatory Order — " Justices of the Peace Statute," Sec. 138.] — A mandatory order nisi issued under Sec. 138 of the " Justices of the Peace Statute" (No. 267) need not refer to that Section. Regina v. Pohlman, ex parte Nickless, 5 W. W. & a'B. (L.,) 31. Licensing Justices — Not Inclnded in Sec. 138.] — Sec. 138 does not apply to licensing justices. The proper remedy in their case is by man- damus, liegina v. Sturt, ex parte Lalor, 4 A.J.R., 20. Act No. 267, Sec. 138 — Refusal of Publican's Licence — Mandamus Proper Remedy not Mandat- ory Order under Sec. 128.] — See ex parte Mendell- sohn, 2 A.L.T., 45. Post under Mandamus. Justices Dismissing Case on Preliminary Objec- tion, having Refused Leave to Amend — Proper Remedy under Sec. 138, since no Appeal will Lie. ] — See Regina v. Cogdon, ex parte Wilkinson, 2 V.R. (L.,) 134; 2 A.J.R., 84. Post under Appeal column 764. Hearing and Determining — What is.] — Hearing and determining a case can only be after evi- dence is taken, not by allowing an pbjection in the nature of a special demurrer. Regina v. Cogdon, ex parte Wilkinson, 2 V.R. (L.,) 134; 2 A.J.R., 84. Forcible Entry and Detainer.] — Where a per- son was charged with a forcible entry and detainer under 5 Vict. II., Stat. I., cap. 7, and there was no force used at the time of the entry, but it did not appear that there might not have been an offence within the Statute, the Court granted a mandamus to compel the justices to hear the case, and give their decision on that part of the case. Regina v. Templeton, ex parte Moore, 4 A.J.R., 20. Mandamus to Compel a Justice to Endorse a Warrant Issued in Another Colony — Act No. 267, Sec. 63 — Extra Territorial Jurisdiction.] — A warrant had been issued by a justice in New South Wales for the apprehension of a person charged with sheep-stealing. The warrant was produced to a "Victorian justice for him to endorse it. On an application for a mandamus, Held that the power given by Sec. 63 of Act No. 267 to a justice to endorse a warrant, " whether issued in Victoria or elsewhere," was not ultra vires, but that the schedule No. 13 referred to in the margin of Sec. 63, and the words " execute the same " in Sec. 63, do not authorise the constable to take the offender into New South Wales to the justices issuing the warrant, but only authorise the arrest and con- veyance to the Victorian boundary ; per Higin- botham, J., that the constable was authorised to take the offender into New South Wales 755 JUSTICE OF THE PEACE. 756 Mandamus issued. Regina v. Call, ex parte Murphy, 7 V.L.R. (L.,) 113 ; 2 A.L.T., 124. Act No. 267, Sec. 138— Criminal Prose- cution — larceny — Previous Proceedings in Civil Court.] — C. was arrested on a warrant for larceny, and on his being brought before the justices his attorney objected to their hearing the charge, on the ground that the informant had obtained a debtor's sum- mons for the amount mentioned in the charge, and had obtained an order to sequestrate C.'s estate. Rule absolute for justices to hear and determine the criminal charge. Eegina v. Call, exparte Miller, 9 V.L.R. (L.,) 120. Mandamus to compel justice to grant a Pawnbroker's License.] — Ex parte Nybenj, re Nicholson, 8 V.L.R. (L.,)292; i A.L.T.I 78. Post under Pawnbroker. Duty to Hear Complaint for Nuisance.] — Jus- tices have no discretion to refuse to hear a com- plaint for a nuisance at common law ; but must hear the case. Reijina v. Balcombe, 1 A.J.R., 152. Mandamus— Appearance of Counsel— Costs.] — If there is no opposite party to be served with a rule, and if questions of law are in- volved, justices may appear by counsel, and are entitled to costs. Regina v. Alley, ex parte Guess, 9 V.L.R. (L.,) 19; 4 A.L.T., 150; See also S.P., Ex parte Minogue, 4 A.L.T., 149. Order to Hear Case — Costs — Defendant not Appearing • to Defend.] — The Court on making absolute an order to justices to hear a com- plaint, which they had erroneously declined to hear, on the ground of want of jurisdiction, re- fused to award costs against the defendant, who had not appeared before the justices, or resisted the complainant's claim. Regina v. Daley, ex parte Hansford, 6 V.L.R. (L.,) 28 ; 1 A.L.T., 151. Costs— Act No. 267, Sec. 138 — Person Obtaining an Order Nisi to Compel Justices to Hear and Determine a Case.] — Where a person obtained an order nisi, calling upon justices to hear and determine a complaint, and the order absolute was simply to hear the case, and was therefore different from the order nisi, no costs were allowed the complainant. Regina v. Balcombe, 1 A.J.R., 152. And see under Licensing Acts and Man- damus. Compelling Justices to State Special Case on Appeal.] — See post under sub-heading Appeal. II. Matters Preliminary to Examination or Hearing. Issuing Warrant — Act No. 267, Sec. 57.]— A justice has power under Sec. 57 to issue a warrant on a Sunday, only for an indictable offence. Graliam v. Haig, 6A.L.T., 158. Act No. 267, Sec. 67 — Non-appearance of Defen- dant.] — Defendant was summoned for a breach of by-laws of the Board of L. and W., and, not appearing, was convicted in his absence, and ordered to pay a certain fine, " in default dis- tress, in default seven days." Defendant re- ceived no notice of the minute of conviction, and was served with a warrant of distress, and afterwards with a warrant of commitment. Held that it was not necessary to serve defendant with a copy of the minute of conviction before issuing the warrants. Prohibition refused. Regina v. Koch, ex parte Wilks, 9 V.L.R. (L.,) 121 ; 5 ALT., 20. Defendant Brought Irregularly before Justices — No Objection Taken at the Time.] — M. was brought before justices, charged with an offence without a warrant or a summons, and, making no objection to the mode of procedure, was con- victed. Held that the convictkm would not be quashed on an affidavit showing the irregu- larity of the proceedings, that objection then being taken for the first time. Regina v, Gas- coigne, ex parte Millidge, 9 V.L.R. (L.,) 108 ; 5 A.L.T., 8. Rehearing by Justices— Necessity of Fresh Summons.] — Where 0. was summoned for calls by the official agent of a wound-up company, and notice was served on him by a solicitor that the case was to be reheard, being remitted for that purpose on appeal, but no fresh sum- mons was served on O., Held that the notice was insufficient, that a fresh summons or some intimation from the Court was necessary, Osborne v. Gaunt, 3 A.J.R., 47. Variance Between Name of Plaintiff and that Given in the Summons — Act No. 267, sees. 69, 70.] — In the certificate of registration of a com- pany the company was called the "Union Quartz Mining Company " (Registered,) and in the summons it appeared as " The Union Quartz Mining Company" (Registered.) Held that the variance was immaterial, and that the jus- tices ought not to dismiss a case on the ground of variance. Reeves v. Forbes, 1 A.J.R., 154. Amending Summons — " Justices of Peace Statute " (No. 267) Sec. 69— Insufficiency of Summons.]— C. was summoned under Sec. 26 of No. 265 ("Police Offences Statute") for using abusive language which " might have " pro- voked a breach of the peace, and an objection taken at the trial before the justices that the summons as so worded did not disclose an offence was overruled, and she was fined. The justices refused to state a special case. Rule nin for a mandamus. Held that there was no power of amendment under Sec. 69 of Act No. 267 in cases where the summons disclosed no offence on the face of it. Rule absolute for a mandamus to state special case. Regina v. Call, ex parte Clurson, 3 A. J.R., 45. Power to Adjourn— Act No. 267, Sec. 69.]— Sec. 69 comprises all informations, whether for indictable offences or summary convictions, and the power of adjournment therein given in case of insufficient information applies to all such informations. Pyrlce v. Netlleton, 3 V.R. (L.,) 6 ; 3A.J.R..27. 757 JUSTICE OF THE PEACE. 758 Act No. 267, Sees. 69, 70— Error in Summons —Amendment— Costs.]— Where a summons con- tained a date as the 2nd of February, instead of the 12th, and the justices dismissed it, re- garding this as a fatal error, a rule absolute for a mandamus was granted, as the justices had power to amend the summons, but without costs, as a fresh summons would have been a simpler remedy. Eegina v. Cogdon, re Sistron, 5A.J.R., 20. Error in Summons— Amendment.]— Where a complaint was improperly taken out in the name of the Queen, and it was sought on the return of a rule nisi for a prohibition to amend by adding the names of others as complainants, the Court thought the amendment too large, and made the rule absolute without costs. Beaina v. Howe, 1 V.R. (L.,) 83. ' Two Inconsistent Offences Included in one Summons— Matter for Amendment under Sec. 69 of Act No. 267.]— Where a person was sum- moned under the " Waterworks Statute," for " causing" and " permitting" injury to be done to a reservoir.and it was objected that the two offences were inconsistent, and the magistrate refused to allow an amendment, and dismissed the case. Held, per Barry, A.G.J., that the amendment should have been permitted under Sec. 69, and if the defendant had been in any way deceived or misled by the amendment, the case could have been adjourned. Eeqina v. Cogdon, ex parte Wilkinson, 2 V.R. (L.,j 134. Adjournment to Amend Defective Summons- Particulars of Demand— " Justices of the Peace Statute 1865," Sec. 69.]- Justices may, under Sec._69 of the "Justices of the Peace Statute 1865," adjourn the hearing of a complaint, in which particulars of demand have not been endorsed on the summons in compliance with Sec. 16 of the "Amending Act" (No. 565), in order to allow the complainant to remedy the defect. Exparte Forsman, 4 V.L.R. (L.,) 55. Summons for one Offence and Conviction for Another— Act No. 267, Sec. 69. ]— Although a charge in which justices have primary jurisdic- tion, may be entertained against a person, when he is actually before justices, without any previous summons, yet, if such person has been sum- moned for an offence, the justices, after hearing the evidence, have no power to proceed to convict him of a different offence, unless they inform him that they have acquitted him of the former charge, and that they intend to entertain the other. Eegina v. Wharton, ex parte Erilly, 4 V.L.R. (L.,) 160. Summons Containing More than One Matter of Complaint.]— A summons containing more than one matter of complaint is, by virtue of See. 73 of the " Justices of the Peace Statute 1865," bad as to all or any of them. Eegina v. Mollison, ex parte Borough of Sandridge, 2 V.L.R. (L.,) 51, Complaint for Rates.] — A complaint before justices for rates due, comprised several rates, some due under Acts prior to the Act under which the complaint was laid. Held that the justices were right in declining to hear it, on the ground that it contained more than one matter of complaint. Ibid. A criminal information should not include several distinct offences. Where, therefore, L. was summoned for infringing the regulations of a common on three different days. Held that it was bad. Lloyd v. Qibb, 1 A. J.R., 134. Act No. 267, Sec. 73— Several Acts Charged in one Summons — Disobedience to a Master.] — A summons was taken out under Act No. 198, Sec. 11, for the one offence of disobedience, setting out three instances of such disobedience. Held that the summons was not bad under Sec. 73 of Act No. 267, and rule to quash conviction discharged. Bet/ina v. Turnlev, ex parte Oleeson, 9 V.L.R, (L.,) 114. Act No. 267, Sec. 73— Complaint for Calls.]— The Court held that there must be a separate complaint for each call. Ogier v. Ballarat Pyrites Company, 4 W.W. & a'B. (L.,) 245. But see contra Guthrie v. Cippsland G.M. Company, 5 A.J.R., 161; Eegina v. M'Gregor, ex parte Wilkinson, 6 V.L.R. (L.,) 167 ; 2 A.L.T., 4, where the Court held that a company might sue for several calls under one complaint. Preliminary Examination on Charge of Indict- able Offence — Adjournment for More than Eight Days — Act No. 267, Sec. 88.] — 6. was com- mitted for trial by justices on a charge of lar- ceny, and he swore an information against the prosecutor, H., for perjury in that very matter. As such information would have to be tried at the Court of Assize, which did not sit till after the sitting of the Court at which the charge of larceny was to be tried, thejustices, thinking that it would needlessly prejudice the trial for larceny if H., the principal witness, were under committal for trial for perjury at the time when he would have to give his evidence, adjourned the hear- ing of the information for perjury till after the trial for larceny. Held on an application by G. that the justices had a discretion in the matter, and that the Court would not compel them to proceed with the examination on the charge of perjury. Eegina v. Smythe, ex parte Godfrey, 8 V.L.R. (L.,)'l41. No Personal Service of Summons— Affidavit of Service.] — Under Sec. 2 of the " Justices of the Peace Statute Amendment Jet" (No. 319), where there has not been a personal service of the summons the justices have no jurisdiction to hear the case upon an affidavit of service. Eegina v. Gaunt, ex parte Vallins, 2 V.L.R. (L.,)283. Amendment of Conviction — Service on Eight Party under Wrong Name— Act No. 267, Sees. 64, 65.] — On an information for an offence against a certain Statute, A.Y., the right de- fendant, was summoned under the name of S.C.Y. The summons was served, and AY. appeared and was convicted. The Court re- fused to prohibit the conviction, but ordered the conviction to be amended. Eegina v. Carr, ex parte Ah Ying, 5 V.L.R. (L.,) 391 ; 1 A.L.T., 97. 759 JUSTICE OF THE PEACE. 760 Sufficiency — Determination of Justices — " Jus- tices of the Peace Amending Act," No. 319, Sec. 2.]— It is a matter entirely for the determin- ation of the justices whether a summons has been sufficiently served under Sec. 2 of the "Justices of the Peace Amending Act" (No. 319.) Service at the place of abode of the de- fendant, and in his absence, is sufficient, if the justices be satisfied, though he have had no knowledge of the summons until after an order has been made upon it. Ex parte M'Evoy, 6 V.L.R. (L.,) 424; 2 A.L.T., 125; sub nom. Regina v. M'Eooy. Service of Summons.] — "Where a summons was served only half-an-hour before the hearing, but the affidavits showed that the defendant was in • attendance at the hearing, having a cross sum- mons against the complainant, Held that the justices had jurisdiction to hear it at once. Regina v. Cantwell, ex parte Costelloe, 7 V.L.R. (L.,) 475. Service on Manager of Company — No Appear- ance — Adjournment — Application to Quash.]— A summons to appear before justices was served on the manager of a mining company two days after the day fixed for appearance, but he took no steps to ascertain what had been done at the hearing of the summons, which had been in fact adjourned, but no notice was given to the com- pany of the adjournment. Held that there was no sufficient reason for quashing the order made at the adjourned hearing. Regina v. Lawlor, ex parte Lone Hand Q.M. Coy., 8 V.L.R. (L.,) 207. Affidavit in Support of Service — Act No. 319, Sec. 2— Affidavit "Made and Signed."]— The jurat of an affidavit in proof of the service of the summons required by the Act No. 319, Sec. 2, was in the form "sworn before me," &c. Held that this was insufficient, since the words did not show that the affidavit was, or pur- ported to be, "signed" as well as "made" before the justices as required by the terms of the section. Regina v. Hovntt, ex parte Walker, 10 V.L.R. (L.,) 320; 6 A.L.T., 150. Quashing Order— Summons Improperly Filled Up— Duty of Clerk of Petty Sessions— Costs.]— The Court quashed an order on a summons, where the summons had been altered so clumsily that it was uncertain on what day the defendant ought to appear ; but did not allow costs against the complainant, since the responsibility for the correctness of the proceedings rested, not on the parties, but on the clerk of Petty Sessions, whose duty it was to fill in the summons pro- perly, but, the clerk not being before the Court, costs were not given against him, but were left to abide the event. Regina v. Harrigan, ex parte Allen, 8 V.L.R. (L.,)22; 3 A.L.T., 101. Interpleader Summons — Admission of Evidence as to Bill of Sale being Fraudulent.]— See Dunlop v. Tvtty, ante column 109. III. Procedure m Summary Jurisdiction. Remand Warrant— What Sufficient Materials on which to Grant—" Justices of the Peace Statute 1865, " See. 101.]— The police received a telegram from England directing them to arrest a passen- ger by steamer who was alleged to be guilty of forgery; and, on the arrival of the steamer, the passenger was arrested, and brought before the City Bench, but no warrant or sworn informa- tion was produced. Upon the application of the police, the prisoner was remanded until a date, by which it was anticipated a police officer would arrive from England with all the neces- sary documents. Held, that these were sufficient materials for granting the remand warrant. In re Davis, 1 A. J.R., 1. Act No. 263, Sec. 12 — Justice Adjudicating on Part of the Case — Waiver.] — A complaint was heard before three justices; of these, one came on the bench after part of the evidence had been taken, but he took part in the adjudica- tion. Held, that all the justices adjudicating upon a case ought to have been present during the entire hearing. A justice, by merely sitting upon the bench, takes part in the adjudication, and if he does so after the hearing has begun the previous witnesses ought to be re-sworn and re- examined, but that such an objection not being taken at once will be deemed to be waived, and cannot be subsequently taken. Regina v. Browne, ex parte Sandilands, 4 V.L.R. (L.,) 138. Practice— Court most Easy of Access— " Justices of the Peace Act 1876" (No. 565), Sec. 13.]— For the purposes of determining, under See. 13 of the "Justices of the Peace Act 1876" (No. 565), which is the Court nearest, or most easy of access, both the execution creditor and the claimant, on an interpleader summons by a constable who has executed a distress warrant issued by jus- tices, must be considered as defendants, one as much as the other. Distance is not always to be the ruling element considered in determin- ing which Court is the most easy of access. Regina v. Kavanagh. ex parte Gomrie, 6 V.L.R. (L.,) 179; 2 A.L.T., 7; sub nom. ex parte Gomrie. Nearest Court— Act No. 565, Sec. 13.]-On a rule nisi for prohibition on the ground of pro- ceedings being had at the Court nearest of access, under Act No. 565, Sec. 13, the Supreme Court will not interfere upon insufficient evi- dence, and the burden of proof lies upon the person wishing to disturb the order. Regina v. Panton, ex parte Winstone, 7 V.L.R. (L.,) 303; 3 A.L.T., 22. Warrant for Commitment— Service of Summons No. 267, Sec. 117.] — W. was convicted before T., a police magistrate, and other justices, on a summons under Sec. 38 of the "Scab Act 1870" for being the owner of scabby sheep, and fined. In default of payment of fine, the amount was to be recovered by distress, and, in default of distress, to be imprisoned. The amount was not paid, a distress warrant was issued, and a return of nulla bona was made, after which a summons was signed by T. calling upon W. to show cause why a warrant of commitment should not be issued. This was not served, as W. had left the colony. T. subsequently signed a warrant for W.'s arrest. vv. sued T. for false imprisonment. The jury gave a verdict for T. On rule nisi for new trial, Held that the 761 JUSTICE OF THE PEACE. 762: words of Sec. 117 of No. 267 were mandatory, and the act of the justices ministerial, and that before signing the warrant of commitment it was not necessary for a summons to show cause to be served. Wair v. Templeton, 3 V.R. (L.,) 56; 3 A. J.R, 37. See S.P., Bradley v. Greeth, 4 A.J.R., 92. Warrant of Distress — Issue before Service of Copy of Minute of Order — " Justices of the Peace Statute 1865," Sec. 117.]— Justices may, under Sec. 117 of the "Justices of the Peace Statute 1865," issue a warrant of distress on default of payment of money without any prior service of a copy of the minute of the order, and before the order itself is drawn up, if the defendant has been present when the order for payment of the money was made. Regina v. Bradshaw, ex ■parte Merry, 6V.L.E. (L.,) 197; 2 A.L.T., 20; sub nom. in re Bradshaw. When Commitment Bad — Act No. 267, Sec. 122.] — Justices had made an order for payment of a certain sum of money, in default of pay- ment distress, in default of distress imprison- ment. The defendant was committed to gaol. Upon return of a writ of habeas corpus, it ap- peared in the warrant of commitment that there was no sufficient distress. Held that there was no order recited of an adjudicating magistrate to the effect that there was no sufficient distress, but only a recital to that effect by the commit- ting magistrate ; that a definite adjudication was necessary, and that commitment was bad. Prisoner discharged. In re Maver, 4 W.W. & a'B. (L.,) 213. Adjudication of Commitment in Default of Dis- tress — Sufficiency of Warrant.] — On an adjudica- tion of commitment, in default of satisfying a distress, the justices have no jurisdiction to entertain an objection to the sufficiency of the distress warrant. M'Eachren v. Shaw, 4 A. J.R. 72. "licensing Act 1876," Sec. 54 — ' Justices of the Peace Statute 1865," Sees. Ill, 125— Conviction Odering Payment, Distress, or Imprisonment.] — Justices have no power, under a conviction imposing a penalty under Sec. 54 of the "Licensing Act 1876," which statute provides no means of enforcing payment, to order, under Sees. 111-125 of the " Justices of the Peace Statute 1865," in default of payment distress, and in default of sufficient distress imprison- ment. Segina v. M'Cormidc, ex parte M'Monigle, 10 V.L.R. (L.,) 268; 6 A.L.T., ' 105. Per Higinbotham, J. Section 123 of the " Justices of the Peace Statute 1865" is only ap- plicable to cases where the Act on which the con- viction is based authorises a warrant of distress to issue ; and does not, therefore, apply to a a conviction under Sec. 84 of the " Licensing Act 1876." If it did apply, the justices would have power under such a conviction to order imprisonment in default of distress in their original adjudication. Sed per Williams and Holroyd, J J. Sec. 123 of the "Justices of the Peace Statute 1865" applies to all cases where the statute which authorises the conviction provides no means of enforcing payment ; and applies, therefore, to a conviction under Sec. 54 of the " Licencing Act 1876." But Sec. 123- does not empower the convicting justices to order, in their original adjudication, imprison- ment in default of distress. Ibid. Where, therefore, convictions under Sec. 84 of the "Licensing Act 1876," for selling liquor without licenses, ordered payment of a fine of £25, in default distress, and in default of suffi- cient distress imprisonment for one month, Held by the whole Court, though on different grounds, that the convictions were bad. Ibid. And see under Licensing Acts. Jurisdiction under the " Masters and Servants Statute 1864," Sec. 11.]— See Regina v. Bayne, ex parte Rea, 4 V.L.R. (L.,) 89; post under Master and Servant— Rights and duties, &c. Punishment on Convictions of Offences under "Police Offences Statutes."]— See post under Offences (Statutory.) Conviction — Venue. — The venue in the margin of a conviction was " colony of Victoria to wit," and in the body of the conviction it was stated that the appellant " is convicted before the undersigned Police Magistrate m and for the said colony," and that the offence was com- mitted "at Ballarat in the said colony." Held that the description of Victoria as the place in which the offence was committed, with the- other evidence on the face of the document, would suffice to show jurisdiction, and that the conviction was valid. Batchelder v. Corden, 5 V.L.R. (L.,)45. Amending Information — Act No. 319, Sec. 3.] — It is open to justices at any time before final determination on a conviction, either by appeal, certiorari, or otherwise, and before it has been made a record, at the General Sessions, to amend that originally drawn up, or to substi- tute for that first drawn up another in a differ- ent or amended form, provided the amendment be in accordance with the facts proved. Regina v. Puckle, ex parte M'Intosh, 4 A. J.R. , 21. Amending Conviction.] — Justices may amend a conviction imposing a penalty where the penalty is a matter of computation, and a mistake has been made in the amount as stated on the minute of conviction. Regina v. A ke- hurst, ex parte Gavel, 3 A.J.R., 119. Conviction — Sentsnce to Commence at the Expiration of Another Sentence — " Justices of the Peace Statute 1865," Sec. 127.]— Justices sentenced a prisoner under Sec. 127 of the "Justices of the Peace Statute 1865," on four charges of indecent exposure. On three charges he received sentences. On the fourth the sen- tence was for six months, with hard labour, the sentence to commence "at the expiration of three other sentences passed upon the prisoner this day " for indecent exposure. On special case, Held that the conviction was sufficient, and was not bad for uncertainty. Regina v.. Hodges, 10 V.L.R. (L.,) 319 ; 6 A.L.T., 144. 763 JUSTICE OF THE PEACE. 764 Verbal Order Followed by a Warrant for Con- viction—Effect of Acts, Nos. 284, 292 upon Jus- tices' Power to Convict.] — In re Devaney, ante column 348. Awarding Costs — Act No. 267, Sec. 115.] — Magistrates can only award costs in cases where they have a, summary jurisdiction. Therefore, in a case of perjury which justices had dismissed with costs, a rule nisi for a prohibition against the order for costs was made absolute. Megina v. Daly, 6 W.W. & a'B. (L.,) 76. Fraud Summons — Dismissal — Magistrates Can- not give Costs.] — See O'Donoghue v. Hamilton, ante column 348. " Under Companies Statute 1864," Sees. 25, 63— "Justices of the Peace Statute 1865," Sec. 114 — Power to Award Costs to Informer.] — justices of the peace may award the costs of a conviction, under Sec. 25 of the ' ' Companies Statute 1864," to the informer independently •of Sec. 63 of the Act, since Sec. 114 of the " Justices oj the Peace Statute 1865 " extends to a conviction under Sec. 25 of the former Act. In re Bishop, 4 V.L.R. (L ,) 287. Distress Warrant — Tender of Part of Amount Ordered—" Justices of the Peace Statute 1865," Sec. 117.]— B. recovered a judgment against D. in Petty Sessions. D. went to B. 's house and tendered a part of the amount recovered, which tender B. refused to accept, and obtained a distress warrant. D. '"brought an action before the justices for illegal distress, and recovered a verdict. ;On appeal, Held that the verdict should be set aside, D. not having accepted the tender. Barry v. Dolan, 2 A.J.R., 114. IV. Appeal and Reviewing Decision. (a) Where Appeal Lies and Conditions Prece- dent to be Observed. Power of Appeal Conferred by Act No. 159, Sec. 14 — Stating a Case.] — The power conferred by the Act No. 159 on both parties to a proceeding before justices to appeal is limited to cases in which the determination of the justices is erroneous in point of law ; and in those in- stances in which it is sought to compel the justices to state a case, it lies on the intending appellant to show that the justices have arrived at an erroneous conclusion in point of law. Ex parte Malt, 1 W. & W. (L.,) 234. [Compare Sec. 153 of the "Justices of the Peace Statute 1865" (No. 267.)] Appeal upon a Point not Determined On — Stating CaBe— Act No. 159, Sec. 11.]— Sec. 11 of the Act only gives justices power to state a case where, "after a determination by a justice of any matter which he has power to determine," either party aggrieved appeals against "such determination" as erroneous in point of law. Justices therefore cannot state a case upon rateability, a matter in which they have no jurisdiction. Blair v. Municipal Council of Ballarat, 2 W. & W. (L.,) 245. [Compare Sec. 150 of Act No. 267.] Act Ko. 267, Sec. 150 — Decisions in R a t e Cases.]— Appeal cases under Sec. 150 of the Act No. 267 are allowed from decisions of Petty Sessions in rate cases. Mayor of Fitzroy v Collingwood Gas Coy., 6 W.W. & a'B. (L ) 72- 1 A.J.R., 82. ■'' ' Where Appeal lies— Act No. 159, Sec. 11— De- termination.]— A decision of justices in rejecting evidence, which if admitted, might have left the ultimate decision of the case the same, is not such a determination of the matter before the justices as is contemplated by the Act No. 159, Sec. 11, which gives the right of appeal to a, person aggrieved by such deter- mination as being erroneous in point of law ; and no appeal will lie where evidence is rejected which would not affect the principle of the case, but might possibly go to lessen damages. Peachment v. Cordon, 1 W.W. & a'B. (L.,) 74. [Compare Sec. 11 of Act No. 159 with Sec. 150 of Act No. 267.] Where Appeal Lies— Hearing and Determining- Act No. 267, Sec. 138.]— Upon a case at Petty Sessions coming on for hearing a preliminary objection was taken that the summons being for "causiiig and permitting" injury to be done to a reservoir was informal, since the two offences were inconsistent. The magistrate refused leave to amend, and dismissed the case without hearing it. On a rule calling on the magistrate to show cause why he should not hear and determine the ease, Held that the case had not been " heard and determined," so that an appeal would lie ; and rule to compel the magistrate to hear and determine the case made absolute. Regina v. Cogdon, ex -parte Wil- kinson, 2 V.R. (L.,) 134 ; 2 A. J.R., 84. Where Appeal Lies— Prisoner Sentenced to a Whipping for an Offence under Sec. 36 of Act No. 265 — Tinder the Age of Sixteen — Appeal, not Rule to Quash, the Remedy.] — See Regina v. Benson, ex parte Tubby, 8 V.L.R. (L.,) 2. Post under Sessions — Appeal to, &c. Appeal— Where it Lies.]— No appeal will lie from a decision of justices refusing to entertain an objection as to' the sufficiency of a distress warrant on an adjudication for commitment in default of satisfying a distress, since the justices had nothing to determine. If the warrant on which the defendant was committed is bad, his remedy is by habeas corpus. M'Eachem v. Shaw, 4 A.J.R., 72. Decision on Facts.] — Although the Court is un- willing to interfere with a decision' of justices upon facts, nevertheless the Court will interfere with such a decision, where the conclusion or inference of the justices is not warranted by the facts. Regina v. Mollison, ex parte Crichtcm, 2 V.L.R. (L.,) 144. Practice— Act No. 565, Sec. 11 — Question of Fact.] — Where there is evidence upon which jus- tices were at liberty to act, the Court will not review their decision in matters of fact ; though the Court might arrive at a different conclusion upon the evidence. Regina v. Taylor, ex parte Lewis, 5 V.L.R. (L.,) 108. 765 JUSTICE OF THE PEACE. 766 Decision on Facts.] — Where justices had de- cided on facts before them, a summons for a breach of regulations prohibiting "processions," that there had been a procession, the Court re- fused to review this decision, not being satisfied that the justices were clearly wrong. Bannon v. Barker, 10 V.L.R. (L.,) 200. Application to State a Case need not be in Writing — " Jnstices of the Peace Statute," Sec. 160.] — The application by the appellant, under Sec. 150 of the ' ' Justices of the Peace Statute 1865," to the justices to state a case need not be in writing. If the justices choose to state a case on a verbal application it is entirely in their dis- cretion to do so. Lloyd v. Oibb, 1 A.J.R., 134. Conditions Precedent.] — The transmission of an appeal case from justices, under the Act 25 Vict., No. 159, within the time— seven days — allowed by the Act, and giving the notice of ap- peal required by the Act, are conditions prece- dent to the appellate jurisdiction of the Supreme Court; and where they have been omitted, the Court will order the case to be struck out of the list. Williams v. Roio, 1 W. & W. (L.,) 376. [Compare Sec. 150 of Act No. 267.] Time for Transmitting Case — Act No. 159, Sec. 11.]— Under Sec. 11 of the Act No. 159, which enacts that the appellant shall "within one week after receiving such case, transmit the same " to the Supreme Court, the case must be in the hands of the officer of the Supreme Court within the seven days, or there will be no juris- diction in the Supreme Court to hear the case. Stirling v. Hamilton, 1 W.W. & a'B. (L.,) 14. [Compare Sec. 11 of Act No. 159 with Sec. 150 of Act No. 267.] Transmission of Case — " Justices of the Peace Statute 1865" (No. 267), Sec. 150.]— A prelimi- nary objection was raised that the case had not been transmitted in time under Sec. 150 of Act 267. The case bore an endorsement by the Clerk of Petty Sessions to the effect that he "posted the statement, at the request of the attorney's solicitor, on 24th May, 1867, and that, in the ordinary course of postal arrange- ments, with one day added, the document would arrive at its destination on or before 26th May, 1867." The date of its arrival at Court was such that, if 24th May were to be deemed the day on. which it was "received" by the appel- lant's solicitor, it was not "transmitted" within the "fourteen days," sed aliter, if 26th May were the day of its receipt. Held, by Barry and WiUiams, JJ. [dissentiente Stawell, C.J.,) that as the case was received by the Clerk of Petty Sessions for and on account of the appel- lant, the time should run from the day on which it was so received by him. Objection upheld. Boss v. Pyke, 4 W.W. & a'B. (L.,) 145. On an appeal from justices, the special case was returned to the appellant's attorney more than fourteen days before it was filed with the Prothonotary. On the special case, however, appeared the initials of the magistrate, and a date, within the fourteen days before filing, as if the case had been delivered to the appellant's attorney and then taken back by the magistrate and redelivered at the late date. Held that the Court was bound to assume that the magis- trate acted correctly in taking back the case, and that the explanation of the retention of it by the magistrate lay upon the party seeking to strike the case out. Middlcton v. Rome, 2 A.J.R., 54. Practice — Transmission of Special Case— Time — Act No. 267, Sec. 150.] — An appellant, on re- ceiving the case, was dissatisfied with it; took it back to the justices, who declined to amend it on a material statement, but amended it on technical grounds. The fourteen days had elapsed if they were to be reckoned from the time it first left the justices; but not so if time was to be reckoned from the date when it was last received. Held that the days in Sec. 150 were to be counted from the time it was last re- ceived since the justices amended it. M 'Galium v. M'Vean, 3 V.R. (L.,) 98; 3 A.J.R., 52. Notice of Appeal— Act No. 267, Sec. 150.]— Where it did not appear on the notice of appeal given under Sec. 150 of the Act that the person appealing was a " person feeling himself ag- grieved" by the magistrates' determination, Held that the respondent was, by the notice, put in full possession of what he should know. Rule nisi to strike out appeal refused. Henley v. Hart, 4 W.W. & a'B. (L.,) 1G2. Notice — Notice in Writing — No. 159, Sec, 11.] — Where it did not appear on the face of a case that '"notice in writing," as required by Sec. 11 of the Act No. 159 (see now Sec. 150 of Act No. 267), had been given to the defendant, but it only appeared that "notice" had been given, Held that the point could not be raised by way of preliminary obj eetion. H ' Cormack v . Murray, 2 W. & W. (L.,) 122. Appeal by Special Case — Notice of Appeal — "Justices of the Peace Statute 1865," Sec. 150.] — On appeal by special case, under Sec. 150 of the "Justices of the Peace Statute 1865," the special case must be served on the respondent before it is filed with the Prothonotary. Kett v. The Queen, 2 V.R. (L.,) 1; 2 A.J.R., 15. Moroney v. Purkis, 5 A.J.K., 127. Act No. 267, Sec 50.] — Notice of appeal must be given in writing. Mallett v. Tuff, N.C. 63. iSeeS.P. Moroney v. Purkis, 5A.J.R., 127. Beechworth Waterworks Act No. 105, Sec. 84 — Notice of Appeal.]— Under Sec. 84 of the Act No. 105, a notice of appeal from a conviction under the Act need not show the time or place of the conviction, and need not state that the appeal was made within four months. Shire of Beech- worth v. Spencer, 5 A. J.R., 160. Recognisances— Act No. 267, Sec. 151.]— On an appeal from justices, the recognisance should not include-the costs, and where the amount awarded is under ±20, the recognisance should not be for more than £20. Anderson v. Luth, 1 A.J.R., 78. See S.P. Powell v. Taylor, 1 A.J.R., 78. 767 JUSTICE OF THE PEACE. 768 Recognisance in Excess of Amount Recovered — Act Ho. 267, Sec. 151.] — Where justices made an award against a defendant for a sum under £20, and on appeal the appellant entered into a recognisance for over £20, Held a fatal ob- jection to the appeal. Perkins v. 0' Toole, 1 V.R. (L.,) 81 ; 1 A.J.R., 78. Followed in Reynolds v. Reynolds, 9Y.L.R. (L.,) 82. Recognisances.] — 0. was fined £212 15s. and 5s. costs for possessing a larger quantity of gunpowder than was allowed by law. The re- cognisance entered into was for £426, double the amount of the penalty, and costs. A pre- liminary objection that the recognisance was bad as including costs, was held fatal, and the appeal dismissed with costs. Cook v. M'Oullayh, 1 A.J.R., 153. Time for Entering into.] — It is sufficient if a recognisance for an appeal is entered into at any time before the special case is delivered. Regina v. Wyatt, ex parte Rutherford, 3 V.L.R. (L.,) 126. Recognjsances — Act Mo. 267, Sec. 151.] — Justices made an order for payment of 15s. a week for maintenance of a wife for twelve months, and a recognisance of £20 was entered into. Held that the amount actually "adjudged to be paid" was 15s. a week, and not a certain sum by weekly instalments, and that the re- cognisance was sufficient. Mackenzie v. Mac- kenzie, 3 V.E. (L.,)24&;3A.J.R., 121. Recognisance for too large an Amount.] — Where the amount of an order of justices appealed from is under £20, and the recognis- ance is entered into for more than £20, the re- cognisance is bad, and the practice is to strike out the appeal without costs. Heenan v. Layley, 6 V.L.E. (L.,) 301 ; 2 A.L.T., 46. Entering into by Incorporated Company — Manager.] — An incorporated mining company has no power to enter into recognisances by its manager ; but the recognisance must be under seal. Pride and Stringer's Company v. Conisbee, 2A.J.E..57. Entered into by Corporation — Secretary.]— In an appeal under ActNo.267, Sec. 151, by L. and others, the president, councillors, and rate- payers of a shire entered into a recognisance to prosecute the appeal, a copy was attached to the case, and it purported to be entered into by the secretary of the shire. Held that the recognis- ance was entered into by the wrong person, and was insufficient. Logan v. Stevens, 3 V.R.(L.,) 144; 3 A.J.E., 65. Deposit— Act No. 159, Sec. 12.] —Under Sec. 12 a deposit is a condition precedent to the jurisdic- tion of stating a case, and where deposit was too small. Case struck out. O'Dea v. Clayton, 2 W. & W. (L,)252. [Compare Sec. 12 of Act No. 159 with Sec. 151 of Act No. 267.] (b) Form of Special Case. Appeal on Case Stated— Act No. 237, Sec. 151.]— It need not appear on the face of a case stated by justices under the Act No. 267, that the appellant has either entered into the recognisance, or paid the deposit required by Sec. 151 of No. 267 ; and such a defect, even if existing, although it might be sufficient to sustain an application supported by affidavits to strike the case out of the list, yet affords no ground for the Court de- clining to hear the matter. Wooller v. Carver, 3 W.W. & A'B. (L.,) 1. " Justices of the Peace Statute" (No. 267)— Form of Case.]— An objection that the special case did not state that security was given, or that ap- pellant was aggrieved, is not anobjection appear- ing on the face of the case, and cannot be taken by way of preliminary objection; the respondent should in such a case apply to strike case off the list. Woolcottv. Kelly, 3 A.J.E., 39, 40; 3V.R. (L.,)62. Amendment of Special Case.] — The proper practice to obtain an amendment of the special case by the insertion of evidence not referred to in the case, is to make application for amend- ment when the case is called on. Rule nisi for the purpose refused. McCallum v. McVean, 3V.R. (L.,) 157; 3 A.J.E., 68. The justice who stated the case has power to amend it. S.C. 3 V.R, (L.,) 98. Signature.] — An appeal case is sufficiently signed when signed by one only of the justices who adjudicated upon it. Skene v. Allen, 5 V.L.R. (L.,) 179 ; 1 A.L.T., 12. It is the duty of magistrates in Petty Sessions stating a case for appeal under the Act to state the case carefully, and the Court will not, ex- cept on distinct evidence of an omission, send back the case to be restated. Wilson v. Crawley, 2 W. & W. (L.,) 78. See also S.P. Webb v. Andrews, 2 W. & W. . (L.,) 128. Appeal Case not Distinctly Setting Out Grounds on which Case was Decided. ] — Where the precise grounds on which the magistrates decided the case were not easily discovered from the appeal case, the Court did not send the case back for restatement, but directed the prothonotary to communicate with the magistrates and obtain their answers to certain questions, and inti- mated that the appeal would be allowed or dis- missed according to the answers given. King v. Robinson, 2 W. & W. (L.,) 5. Remitting Case for Amendment — Proof.]— Jus- tices determined that the evidence, viz. , a single- sale of spirits, did not constitute sufficient proof" of a breach of Act No. 147,' Sec. 136, and dis-< missed information. Held that it being un- certain whether the difficulty was one of fact, i.e., whether the evidence "did not" constitute such proof, or one of law, i.e., whether it "could not," the case must be remitted. On amendment it appeared that the evidence "could not" constitute such proof. Held that there was evidence to go to a jury, and that the evidence " could" constitute such proof, and case remitted for justices to readjudicate having regard to such evidence. Moody v. Penny, 2W. & W. (L.,)247. 769 JUSTICE OF THE PEACE. 770 (c) Compelling Justices to State a Special Case. Where Justices Refuse to State a Case as Frivolous— Act No. 267, Sec. 152.]— C, in 1863, entered into an agreement to lease land for five years, and entered into possession and paid rent, but as the agreement was not under seal he was merely a tenant from year to year. He paid rent after the expiration of the five years, and remained in possession till September, 1870, when he became insolvent. M., his landlord, thereupon served him with notice of ejectment, on the ground that the tenancy had been deter- mined by the insolvency, and as C. refused to quit a warrant was applied for to eject him. The magistrates granted the warrant, and re- fused to state a case onC.'s application, as they considered it frivolous and only meant for delay. M. 's affidavit could not be used, as it was sworn before his attorney, and the case stood over from Friday to allow it to be resworn. This was not done, but an affidavit was produced from one of the justices detailing the grounds upon which they had acted; Held that the application was not frivolous, and order to compel justices to state case made absolute, with costs. Regina v. Panton, ex parte Connor, 1 A.J.R., 155. A justice is not bound to state a special case where only questions of fact are involved, and no question of law. Regina v . Wi/att, ex parte Rutherford, 3 V.L.R. (L.,) 127. Refusal to State a Case— Two Convictions and One Appeal.] — H. was convicted and fined by the justices for breach of a bye-law before the case was stated. A decision of the Supreme Court in another special case, upon a conviction for the same offence by H. , was made known, in which the bye-law was declared to be invalid, and the justices, holding that one case ruled the other, and was a mere matter of costs, declined to state a case. Held that the justices must state a case upon the second conviction also. Ex parte Higgins, 3 V.L.R. (L.,) 286. Refusal to State a Case — Certificate of Refusal — Postponement — mandatory Order — Costs.] — It is the duty of justices to state a case when so asked, or to give a certificate of refusal without hesitation. Where an application to state a case was made in Court to one of three justices who had heard the case, and he refused it, Held, on order nisi to give a certificate of refusal, that the justice had no right to postpone giving such certificate till he had consulted the other justices, but that the order should be made absolute, without costs, since the order nisi was obtained . precipitately. Regina v. Dixon, ex parte Richardson, 8 V.L.R. (L.,) 303; 4 A.L.T., 78. Affidavits by Justices on Stating a Case — Act No. 565, Sec. 10.] — A justice is not to make an affidavit on one side or the other on disputed facts. The Act No. 565, Sec. 10, authorises him, where his decision is called in question, to make an affidavit setting forth the grounds of the decision, and any facts which he may con- sider to have a material bearing on the question at issue. Regina v. Mairs, ex parte Vansuylen, 7 V.L.R. (L.,) 43. Refusal to State Case — Frivolous Application — Act No. 267, Sec. 152— Act No. 565, Sec. 11— Affidavits.] — Justices are allowed to refuse to state a case only where the grounds of the objection to their decision are "frivolous" — i.e., the objections taken do not raise a fairly debatable point. Where justices make affi- davits they should do so as neutral parties. Regina v. Dixon, ex parte Richardson, 9 V.L.R. (L.,) 2; 4 A.L.T., 146. Costs.] — Costs are given against justices only in exceptional circumstances. Ibid. Affidavits by Justices.] — Justices are required in their affidavits to send a statement of the facts to the Court, and should not make an affidavit on one side or the other. Ex parte :, 4 A.L.T., 149. (d) Practice. Practice on Appeal — Right to Begin.] — The party supporting the first proceeding below — information or complaint — has the right to> begin in the Supreme Court. Owner v. Muni- cipal Council of St. Kilda, 2 W. & W. (L.,)- 124. Practice on Appeal — Who Begins.] — On an ap- peal case to the Supreme Court, stated by justices under the Act No. 267, Sec. 150, the party supporting the first proceeding below — information or complaint — should begin. Shaw v. Phillips, 3 W.W. & a'B. (L.,) 155. Petty Sessions — Practice on Appeal from.] — On the hearing of an appeal from Petty Sessions the practice is for the complainant below to begin. NiaU v. Page, 5 W.W. & a'B. (L ,) 38. Practice — Right to Begin.] — The party support- ing the proceedings below — information or com- plaint — begins. Bank of Victoria v. M'Hutchison, 7 V.L.R. (L.,) 452. Appearance on Appeal.] — Justices of the peace are not entitled to appear at the hearing of an appeal to the Supreme Court from their de- cision. Woodward v. Davey, 5 W.W. & a'B. (L.,) 4. Appearance by Justices, Act No. 565, Sec. 11.] — Where the question involved is merely one of fact the justices may file an affidavit explaining the grounds of their decision, and bringing material facts before the Court without appear- ing by counsel ; but where questions of law are- involved they may appear by counsel, and will be entitled to costs. Regina v. Taylor, ex parte Lewis, 5 V.L.R. (L.,) 108. Per Stawell, C. J. After giving their decision the magistrates ought not to interfere by making- affidavits or otherwise. Regina v. Panton, ex parte Connor, 1 A. J.R., 155. Practice— Respondent not Delivering Copies of Special Case— Appeal Case not Distinctly Setting out Grounds on which Case was Decided.] — Where a respondent in an appeal from Petty Sessions. had failed to deliver his copies of special case to the judges and appellant had delivered them for him, there is no rule of Court requiring the re- 771 JUSTICE OF THE PEACE. 772 spondent to pay to the appellant the costs of such copies before he can be heard. King v. Robinson, 2 W. & W. (L.,) 5. Appeal Case — Pee Stamps — Copies — Costs.] — Where fee stamps had not been affixed to the papers in connection with a special case by way ■of appeal from a magistrate, and copies of the ease had not been supplied to the judges by either party, Held that both parties were in the wrong, it being the duty of the respondent to furnish copies if the appellant neglected to do so, and the appellant was ordered to pay the costs of the day, and the case was adjourned to allow the stamps to be affixed, and an intima- tion was given that no further costs would be allowed to either party, no matter which suc- ceeded. Cameron v. Thomson, 3A.L.T., 104. Special Case — Fees — •" Justices of the Peace Statute 1865," Sec. 150.]— The fee imposed in respect of a case stated by way of appeal from justices, under Sec. 150 of the "Justices of the Peace Statute 1865," must be paid, though the solicitors for the appellant have prepared the case and copy at their own expense. Bruce v. Oarnett, in re Riedle, 10 V.L.R. (L.,) 126. Practice on Appeal — Drawing up Rule.] — It is not necessary in drawing up the rule allowing an appeal from Petty Sessions, to insert a clause stating that it was allowed on reading an affi- davit of service upon the respondent. Cadden v. Osborne, 4 A.J.R. 165. Costs.] — Where nothing is said about costs, on an appeal from Petty Sessions being dismissed, the successful party may draw up his rule with costs, and there will be no necessity to apply to Court for an express order. M'Kenzie v. Jones, Riley v. M'Oawley, 2 W.W. & a'B. (L.,) 20. Costs.] — Where an appeal case from Petty Sessions had been abandoned by the appellant ■on notice, and the respondent appeared and •claimed full costs, Held, he was so entitled. Cranbourne Road Board v. Wedge, 2 W.W. & a'B. (L.,) 87. Costs.] — Where the respondent gives notice that he abandons an order appealed from, the appellant is entitled to set down the appeal to appear upon it, but is only entitled to costs before notice, and those after notice which are simply attendant on verifying the consent, and to those of his appearance. Henley v. Hart, A W.W. & a'B. (L.,) 162. Costs.] — Where an objection, not taken in the trial before the justices, was held fatal to an appeal, the appeal was dismissed without costs. Ogier v. Ballarat Pyrites Company, 4 W.W. & a'B. (L.,) 245. Costs.] — On an appeal from justices the party who shows cause in the first instance against striking the case out of the list ought not, if successful, to receive costs ; but the party who applies for the rule to strike out, if successful, ought to receive them. Kett v. The Queen, 2 V.R. (L.,) 1 ; 2 A.J.R., 15. V. Prohibitions to and Quashing Convic- tions and Orders. (i. ) What Convictions and Orders may be Pra- ia) Oeneratty. Under Act No. 159.] — A determination by jus- tices to enforce a rate by warrant is not an order or conviction within the meaning of Act No. 159, and therefore a prohibition against such a determination does not lie, Regina v. Fraser, 2 W.W. & a'B. (L.,) 3. Compare Act No. 267, Sec. 136. Act No. 571, Sec. 1 — Order made under Licens- ing Act, No. 566, Sec. 103.] — C. being in occupa- tion of certain premises as a licensed publican was bound over to keep the peace towards his wife, and being unable to find sureties was committed. The owner then obtained an order from justices, under Sec. 103 of No. 566, authorising his agent to carry on the business . Held that such order was not an "order" within Sec. 1 of Act 571, so as to entitle C. to a writ of prohibition, since the proceeding sought J » to be prohibited must be a, conviction in in- \ ; vitum. Regina v. Webster, ex parte Collins, 5 V.L.R. (L.,) 101. Conviction for Selling Liquor without License.] — See post under Licensing Acts— Offences against. Certificate of License — Power of Court to Quash.] — The Court has only power to quash judicial proceedings, and though a license itself is not a judicial proceeding, yet the certificate of license is under the "Licensing Act" (No. 566,) since there must have been evidence of some kind taken before it can be granted. Rule absolute to quash the certificate of license. Regina v. Hamilton, ex parte Attorney-Qeneral, 7 V.L.R. (L.,) 194; 3 A.L.T., 11. Prisoner Sentenced to he Whipped for Offence under Sec. 36 of " Police Offences Statute 1865"— Defence that he was under Sixteen — Appeal not Rule to Quash the Remedy.] — Regina v. Benson, ex parte Tubby, 8 V.L.R. (L.,) 2. Post under Sessions— Appeal to, &c. Effect of Prohibition — What may be Prohibited — Act No. 267, Sec. 136.] — The issue of an order to prohibit stays all proceedings not only from time of its service, but from the time of issue. A warrant of ejectment is not "a conviction or order " within the meaning of Act No. 267, Sec. 136, and rule nisi for a prohibition against such warrant discharged. Regina v. Carr, 6 W.W. & A'B. (L.,)245; 1 A.J.R., 1. See also ex parte Shaw, 4 A.L.T., 5. Act No. 571— Warrant of Ejectment.]— A warrant of ejectment under Act No. 192, "Landlord and Tenant Statute," is not an order within the meaning of the particular sec- tions of Act No. 571, which enable the Court to grant rules to prohibit. Regina v. Taylor, ex 773 JUSTICE OF THE PEACE. 774 parte Blackburn, 3 A.L.T., 67. See also ex parte Carey, 4 V.L.R. (L.,) 408. Where Certiorari the Remedy not Rule to Pro- hibit.]— Ex parte Scott, ante columns 127, 128. Quashing Order — Irregularity of Notices to Justices to Eject under Act No. 192, Sec. 90.] — There was an irregularity in a notice of inten- tion to apply under Act 192 for a warrant of possession, but the justices made an order for the issue of the warrant. Held that the Court would not, under Sec. 4 of Act No. 571, quash such order, as the tenant had his redress under the Act No. 192. Begina v. Snowball, ex parte Gaume, 5 V.L.R. (L.,) 409 ; 1 A.L.T., 100. Warrant of Commitment on Fraud Summons — Act No. 571, Sec. 4.]— A warrant of commitment on a fraud summons issued under Sec. 5 of Act No. 284 by the Prothonotary or a Clerk of Petty Sessions, is not a warrant which may be quashed under Sec. 4 of Act No. 571. Begina v. Tope, ex parte Smith, 9 V.L.R. (L.,) 187; 5 A.L.T., 70. What may be Quashed — Adjudication under " Fences Statute 1874," Sec. 8— No. 571, Sec. 4.]— An adjudication under Sec. 8 of the " Fences Statute 1874," directing the description of fence to be erected between adjoining owners and the portion to be erected by each, is not an " order" within the technical meaning of Sec. 4 of the Act No. 571, and cannot therefore be quashed under that section. Begina v. Kerr, ex parte Palmer, 8 V.L.R. (L.,) 235; 4 A.L.T., 41. Warrant of Distress.] — Semble, that a warrant of distress is included in the word "warrant " in Sec. 4 of the Act No. 571, and may be quashed under that section. Begina v. Bradshaw, ex parte Berry, 6 V.L.R. (L.,) 197. What may be Quashed — Determination under "Masters and Apprentices Statute 1864," Sec. 17 — Act No. 571, Sec. 4.] — A determination of justices, under Sec. 17 of the ' ' Masters and Apprentices Statute 1864," as to the satisfaction which an apprentice is to render to his masterforabsenting himself from his service, is not a " conviction," "order," or "warrant" within Sec. 4 of the Act No. 571, and cannot therefore be quashed under that Act. Begina v. Pickles, ex parte Fickel, 8 V.L.R. (L.,) 126 ; 4 A.L.T., 3. What may be Quashed — Order on Interpleader Summons.] — Semble, that an order of adjudi- cation upon an interpleader summons is a proceeding subject to be brought up to be quashed under Sec. 4 of the "Justices of the Peace Amendment Act" (No. 571). Begina v. Kavanagh, ex parte Comrie, 6 V.L.R. (L.,) 179 ; 2 A.L.T. 7; sub nom. ex parte Comrie. When Granted — Costs.]— An applicant for a prohibition to an order of justices is not disen- titled to the writ because he has appealed to the General Sessions in the first instance ; but having made such an appeal is a ground for refusing him his costs of the rule of prohibition. Begina v. Skinner, 1 A.J.R., 151. And for cases of certiorari to quash orders, see cases ante columns 127, 128. (6) On Account of Defect in the Conviction, want of Jurisdiction, or Error and Mistake on part of the Justices. Prohibition— Mistake or Error— 14 Vict. No. 43, Sees. 12, 13.]— Under 14 Vict. No. 43, Sees. 12, 13, prohibition should not be granted against the execution of an order of justices on the ground of "mistake or error on the part of the justice or justices," unless the mistake or error has been brought before the adjudicating jus- tices. In re Mackenzie, 1 W. & W. (L.,) 135. Act No. 571, Sec. 1— Error or Mistake.]— Semble, that " mistake " in Sec. 1 includes a total want of jurisdiction. Begina v. Pardon, ex parte Winstone, 7 V.L.R. (L.,) 303. _ For cases of prohibition and quashing convic- tions and orders made under "Police Offences Statute " — See Offences (Statutory). Act No. 571, Sec. 2— Prohibitions— Wrong Con- clusion of Law from the Facts.] — Xhe Court will by prohibition interfere with an order made by justices where they have arrived at a wrong conclusion of law from the facts. Begina v. Panton, ex parte Shea, 7 V.L.R. (L.,) 301. Act No. 571, Sec. 2-*-Act No. 565, Sec. 13— Juris- diction — Court Nearest of Access.] — A complaint was heard before justices in Melbourne as to goods bought and delivered at Fitzroy, and an objection was taken under Sec. 13 of Act No. 565 that there was a Court nearer of access. Held that the Court would not interfere by statutory prohibition where the evidence of there being a Court nearer of access was very insufficient, and the burden of proof in such a case rests upon the person wishing to disturb the decision. Begina v. Panton, ex parte Win- stone; ibid, p. 303 ; 3 A.L.T. , 22. Act No. 571, Sec. 2 — Decision on Facts.] — The Court is not at liberty to prohibit the enforce- ment of an order made by justices merely on the ground of the insufficiency of the evidence given to sustain it ; if there is any evidence to support the decision the decision will not be reviewed by the Court. Begina v. Gfrover, ex parte Parsons, 7 V.L.R. (L.,) 334; 3 A.L.T., 31. Per Curiam.] — The words, "conviction or order cannot be supported, " in Sec. 2 of the Act No. 571 mean supported " at law," and the Court is not at liberty to prohibit the enforce- ment of an order made by justices within the limits of their jurisdiction merely on the ground of the insufficiency of the evidence given to sustain it. — Ibid. Insufficient Evidence — Objection not Taken.] — Execution of an order made by justices for pay- ment of calls to the ' ' official agent" of a mining company in process of winding up, registered under the Act No. 109, should not be prohibited on the ground that there was no proper evidence before the justices of publication of the com- pany's registration in the newspapers if such objection has not been taken before the justices. In re Mackenzie, W. & W. (L.,) 135. Practice — Question of Title — Production of Depositions.] — On a rule nisi for a prohibition aa 2 775 JUSTICE OF THE PEACE. 775 where affidavits showed that a question of title was involved which ousted the jurisdiction of the justices, a preliminary objection was taken that applicant ought to have brought up de- positions taken before justices, or affidavits stating that no depositions were taken. Held that where depositions are in fact taken they should be produced, but that the fair inference to be made in the case was that no such depo- sitions were taken. Rule absolute for prohibi- tion on ground disclosed in the affidavit. Begina v. tfapier, 6 W. W. & a'B. (L., ) 105. For cases generally as to claims of right or questions of title see ante columns 744, 745, 746. Under Dog Act, No. 229.] — On a rule nisi for prohibition to restrain justices from enforcing a fine under the "Dog Act," No. 229, where no depositions were brought up from the Court below and when there was no statement in the affidavit that there were no depositions, the Court refused to make absolute the rule for prohibition. Regina v. Taylor, 1 V.R. (L.,) 5 ; 1 A. J.R., 24. Where the evidence which was taken before the justices is not sufficiently before the Court it is impossible to grant a prohibition. JRegina v. Longford, ex parte Luth, 1 A.J.R., 159. Prohibition of Conviction— Coats.]— Where jus- tices had granted a conviction " hastily " and " arbitrarily " the Court refused to grant a pro- hibition, but marked their sense of the justices' conduct by refusing them costs. In re Balcombe, 1 W. & W. (L.,) 49. Costs of Justices Opposing.]— Where a case was nearly heard and there were four justices pre- sent, an application for adjournment was made which was refused. Upon an order nisi for a, prohibition, Held that as the application was made when the case was partly heard, and it might have been hard to get the four justices together again, there was no hardship in the refusal, and that the justices should be allowed their costs of opposing the prohibition. Ex parte Beilbey, 1 W. & W. (L.,) 281. " Justices of the Peace Statute 1865," Sec. 12— Complaint Adjudicated upon by two Justices, neither of whom had been present throughout the Proceedings.] — A prohibition was granted to re- strain further proceedings on a conviction, under Sec. 32 of the " Public. Health Act," (No. 310,) made at an adjourned hearing by justices, neither of whom had been present throughout the whole of the proceedings, there having been adjourned hearings of the complaint at which neither of the justices committing were present. Begina v. Marsden, ex parte Corbett, 4V.L.R. (L.,) 30. Affidavits.]— On an application for prohibition to justices, the affidavits were objected to as entitled in a cause, where there was no cause before the Court. Held that the words objected to might be rejected as surplusage. Regina v. Webster, ex parte Farquhar, 1 V.R. (L.,) 189; 1 A.J.R.,153. Conviction.] — M.P. was convicted of aiding and abetting a prisoner in escaping from gaol, and it was adjudged that he should be im- prisoned for two years and six months. The conviction did not mention any statute. Held that the conviction was valid under Act No. 265, Sec. 37, Subsec. 1, and No. 267, Sec. 50. Rule nisi to quash conviction discharged. Regina v. Richards, ex parte M'Donahl, 5 V.L.R. (L.,) 9. Act No. 265, Sec. 30— Sunday Trading— Con- viction Negativing Exemptions.] — Where an Act makes certain Acts illegal and imposes a penalty therefor, any exemption must in the conviction be distinctly negatived ; but if the exemptions are made bywords of reference to other Statutes, they may be sufficiently negatived in the words of the Statute under which the conviction is made. A. was convicted under Sec. 30 of Act No. 265 of Sunday trading, the conviction speci- fically negativing certain exemptions, and following the words of the Act in negativing by a general reference to other Statutes certain other exemptions within them, but not setting out and specifically negativing the latter class, of exemptions. Held that the conviction was good. Regina v. Montford, ex parte Schuh, 1 V.L.R. (L.,)12; 2A.L.T., 120. Quashing Conviction — Act Ho. 506, Sec. 398 — Superfluous Words in a Conviction.] — A person was convicted for that he " did displace, take up, and remove soil from a street," &c, and an order nisi was obtained to quash the conviction on the ground that it was for more than one offence. Held that the conviction was suffi- cient, and that the justices purporting to con- vict of what is not an offencfc, may be regarded as surplusage so long as a valid offence aptly ' laid still remains. Order discharged. Regina v. Walker, ex parte Trudgeon, 7 V.L.R. (L.,) 137 ; 3 A.L.T. 2. Conviction under " Licensing Act" (So. 566,y Sec. 54 — No Venue — Costs in Blank.] — See ex parte Triable, under Licensing Acts. And generally as to convictions under the Licensing Acts. — See under Licensing Acts. What may he Quashed under No. 571, Sec. 4.] — To be such as may be quashed under the Act. No. 571, Sec. 4, an order should be a command addressed to another person founded on a com- plaint, and requiring hint to pay a sum of money, or do a specified act. Reyina v. Justices at Richmond, ex parte Edlin, 10 V.L.R. (L.,) 87. A decision of justices recorded in their cause book as follows : — "Order for payment to be obeyed, default distress, one month's imprison- ment," is not an order or conviction which can be quashed under Sec. 4 of the Act No. 571. Ibid. Conviction Quashed on Ground of Justices being Interested.]— See Regina v. Horsfall, ex parte Husband, ante column 744. The Court ought to be satisfied that there has been an error in law before it exercises the juris- diction to quash under Sec. 4. Regina v. Rolhery, ex parte Mogg, 4 V.L.R. (L.,) 33. 777 JUSTICE OF THE PEACE. 778 Copy of Order Served on Defendant Bad — Costs.] — An order made by justices upon a judgment summons was good, but the defen- dant was served with a copy which was bad. Rule nisi to quash order discharged without costs. Mc parte Vail, 3 A.L.T., 60. Act No. 571, Sec. 4— Verifying Copy of Order Served.] — A defective copy of an order on a fraud summons was served on a defendant, who obtained an order nisi to quash it. Held that the defendant was not at liberty to act ■on the presumption that the copy served was .a correct copy, and before applying to quash it he must verify it with the actual order. Megina v. Carroll, ex parte Coe, 9 V.L.R. (L.,) 134. Warrant — Quashing— Technical hj ection — Act No. 571, Sec. 4.] — A justices' warrant may, under Sec. 4 of the "Justices of the Peace Amendment Act" (No. 571,) be quashed for mere technical objections, e.g., for misreciting the conviction on which the warrant issued. Megina v. Browne, ex parte Sandilands, 4 V.L.R. (L.,) 138. Act No. 571, Sees. 2, 4.] — Where the objection to an order is that there is no evidence to support the justices the proper remedy is not to apply to quash the order. Megina v. Gleeson, ex parte Meggiani, 5 A.L.T., 29. Befusing to hear Evidence.] — Where justices have rejected the evidence of a witness who re- mained in Court after all witnesses were ordered to withdraw, the Court will prohibit all pro- ceedings on, or quash a conviction made by the justices, even though the justices make an affidavit that the evidence, which such witness swears he' was ready to give, could not have affected their decision. Megina v. Outhridge & Brennan, ex parte Campbell, 4 V.L.R. (L.,) 77. Act No. 571, Sees. 1 & 2.] — Per Higinbotham, J. " If a prima facie case of error or mistake in law or on facts is shown by affidavit, it is the duty of the Court to consider the evidence ad- duced before the justice, and to make the Eule or Order for prohibition absolute only in case the Court shall think that the error or mistake, if any, cannot be amended, and that, if it be not ■amended, the conviction or order cannot be sup- ported." Megina v. Shuter, ex parte Walker, 9 V.L.R (L.,) 204. Act No. 571, Sec. 4 — When Order may he Quashed Under.] — PerHiginbotham,J. (in Cham- bers. ) An order of justices cannot be quashed under Sec. 4 of the Act No. 571, unless it be shown that the justices had no jurisdiction, or exceeded their jurisdiction, or unless the order is bad on its face, or ought not in law to have been made. The erroneous admission of evidence by the justices, or an alleged de- ficiency of proof, is not a ground for quashing an order. Megina v. Littleton, ex parte Kirk, 6 A.L.T.,21. Prosecution for Assisting in and Managing a lottery— Name of Prosecutor not Disclosed.]— On a prosecution for assisting in and managing a lottery the name of the prosecutor was not dis- closed in the summons, and the Crown Solicitor refused to disclose it, when asked, at the hear- ing. Held, on order nisi for a prohibition agains enforcing the conviction, that the objection that the name of the prosecutor was not disclosed was fatal ; and order for prohibition made ab- solute. Megina v. Stmt, ex parte Ah Tack, 2 V.L.R. (L.,) 103. The Court will not grant an application to quash because of an addition made to the order at the party's own instance and made ex parte. Megina v. Miller, ex parte Hassall, 9 V.L.R. (L.,) 177. (ii.) Practice in Applications to Prohibit or Quash. "Justices of Peace Statute " (No. 267,) Sees. 136, 106 — Conviction for an Offence under No. 227, Sec. 45 — Production of Order.] — Rule nisi under Sec. 136, of No. 267, to prohibit further proceedings in respect of a conviction against L. for a breach of Sec. 45 of Act No. 227. The affidavits set forth no " minute or memorandum " as required by Sec. 106 of Act No. 267, and there was no conviction drawn up by the justices. Held, that there being no conviction drawn up in proper form, and no "minute or memorandum " of such conviction, there was nothing to prohibit. Rule discharged. In re Lewis, 6 W.W. & a'B. (L.,) 1. Prohibition — Act No. 267, Sec. 106 — Amending Act (319,) Sec. 3 — Conviction.] — Prohibition will not be granted where the conviction is not brought up, or a minute or a memo, thereof ; a copy of the entry in justices' book of conviction verified by relator's affidavit is not such a minute or memo. Megina o. Templeton, ex parte Peck, 1 V.L.R. (L.,) 21. Prohibition — Production of Conviction.] — It is sufficient if a copy of the conviction be pro- duced upon the hearing of an argument upon a rule nisi for prohibition, although no con- viction had been produced when the rule nisi was obtained. Megina v. Woodi, ex parte Emmott, 1 V.L.R. (L.,) 101. No Copy of Conviction.] — Where » conviction is of a nature capable of amendment, if the conviction, or a copy of it, be not produced at the argument of a rule for a prohibition, the rule nisi will be discharged. But where the case turns upon the construction of a Statute, and not upon the form of the proceedings, and the conviction appears to be altogether wrong and incapable of amendment, and the party supporting the order does not require produc- tion of the conviction, its absence will not prevent the case being proceeded with until it becomes apparent that the conviction, or a copy of it, should have been produced. Megina v. Smart, ex parte Kellett, 2 V.L.R. (L.,) 106. Order not Drawn up — " Justices of the Peace Amendment Act" (No. 571,) Sees. 1, 4.] — An order of justices which has not yet been drawn up cannot be quashed under Sec. 4 of the Act No. 571, nor will a prohibition to it be granted under Sec. 1 unless a memorandum of the decision, or a copy of the entry made in the justices' book, be brought before the Court. Megina v. O'Megan, ex parte Kane, 4 V.L.R. (L.,) 451. 779 JUSTICE OF THE PEACE. 780 Conviction— Production of Copy of Minute.]— On a rule for prohibition to a conviction it is sufficient to produce a copy of the minute of the conviction before the Court, if the minute will enable the Court to ascertain whether the conviction is capable of amendment. Regina v. Pearson, ex parte Smith, 6 V.L.R. (L.,) 329 ; 2A.L.T..63. Quashing — Production of Order Drawn Up.] — In proceedings to quash an order of justices already drawn up, it is necessary that the order or a true copy thereof be produced ; a copy of the minute is insufficient. Begina v. Druee, ex ■parte Frost, 5 V.L.R. (L.,) 156; 1 A.L.T., 9. Quashing — Process or Copy thereof must be Pro- duced — Act No. 571, Sec. 4.] — On an application to quash an order of justices, under Sec. 4 of the Act No. 571, the process sought to be quashed, or a copy thereof, must be produced to the Court. Ex parte Freeman, 2 A.L.T., 6. Order to Prohibit — No Order Brawn Up — Act No. 571, Sees. 1, 2.] — If no order has been drawn up it is sufficient to bring a verified copy of the entry in the justices' book before the Court upon a rule or order to prohibit, under Sees. 1 and 2 of the Act No. 571. Regina v. Taylor, ex parte Hailes, 8 V.L.R. (L.,) 149; 4 A.L.T., 11. Overruling In re Lewis, Regina v. Temple.ton, ex parte Peck; Regina v. O'Regan, ex parte Kane, supra. Quashing — Where no Order Drawn Up — Affi- davit.] — Where it is sought to quash an order of justices, and no order has been drawn up, but a minute only, an affidavit that no order has been drawn up must be filed by the appli- cant. Regina v. Nicholson, ex parte Pvfflett, 8 V.L.R. (L.,) 44. Quashing Convictions.]— It is not necessary, when it is sought to quash a proceeding under Sec. 4, to bring such proceeding before the Court by certiorari or otherwise before quash- ing. Regina v. Browne, ex parte Sandilands, 4V.L.R. (L.,)138. Quashing under Sec. 4 of Act No. 571.]— The procedure under Sec. 4 of Act No. 571 is not in the nature of a prohibition, but is a summary mode of quashing in lieu of the old procedure by certiorari. Regina v. Benson, ex parte Tubby, 8 V.L.R. (L.,) 2. The procedure under Sec. 4 affords a distinct and not a cumulative remedy, and ought only to be applied to the cases for which it is intended. Regina v. Orover, ex parte Parsons, 7 V.L.R. (L.,) 334, 336. S P. see Regina o. Pickles, ex parte Mckel,,8 V.L.R. (L.,) 126. Order Nisi to Prohibit— Application to Quash —Act No. 571, Sec. 4.]— Where an order nisi has been obtained, under Sec. 4 of the Act No. 571, to prohibit an order of justices, the Court will not, on the return of the order, allow the procedure to be changed, and make the order absolute to quash. Regina v. May, ex parte M'Gee, 3 A.L.T., 98. Court will not Entertain two Applications, one to Prohibit, and another to Quash.]— Where two orders nisi, one under Sec. 1 for prohibition, and the other under Sec. 4 to quash, had been obtained in respect of the same con- viction, the Court declined to entertain both, and allowed the relator to elect which should be made absolute, he paying the costs of the other. Regina v. Guthridge and Brennan, ex parte Campbell, 4 V.L.R. (L.,) 77. Nothing to Prohibit — Altering Order to Pro- hibit into Bule to Quash.] — Where the act sought to be prohibited has been actually done there is nothing to prohibit, and the Court will not change an order to prohibit into a rule to quash. Regina v. Gall, ex parte Braun, 10 V.L.E. (L.,) 359. Act No. 571, Sec. 4 — Discretion of Judge.] — Per Higinbotham, J. (In Chambers.) — Under the Act No. 571, a judge has power in his dis- cretion to grant one form of relief or the other, i.e., either to quash or prohibit an order of justice ; and he ought in the exercise of his dis- cretion to grant that relief which will not dis- turb the adjudication of the justices, while it corrects their mistake. Regina v. Littleton, ex parte Kirk, 6 A.L.T., 21. Writ of Prohibition Made by Vacation Judge — 15 Vict. No. 10, Sec. 19.] — An order for writ of prohibition made by a vacation judge must purport to be made under Sec. 19, and the judge should show that he intends to exercise the statutable jurisdiction. In re Brewer, ex parte Baker, 2 W. & W. (L.,) 136. Such an order should be made absolute during vacation, and not returnable next term. Ibid, S.P. Reg. v. Strutt, ex parte Chatty, 4 A. J.R., 73. But the judge has no power in vacation to make an order absolute in the first instance for the issue of a writ of prohibition. Scott v. Riddock, 2 W. & W. (L.,) 138. Application for Writ — When Sustainable — Vacation— 15 Vict. No. 10, Sec. 19. ]— A rule for prohibition may be obtained in vacation from a Judge in Chambers, under the statutory juris- diction at law, given by 15 Vict. , No. 10, Sec. 19, when a Court of Equity is sitting. Dennis v. Vivian, 1 W.W. & a'B. (L.,) 201. Practice — Prohibition— Emergency Clause. ]— Where a judge sees that an application made under the emergency clause for a prohibition has no ground, he may direct the application to be moulded into one under the Act No. 571, and then cause is shown before the Court as required by the Statute. Regina v. Mairs, ex parte len, 7 V.L.R. (L„) 43 ; 2 A.L.T., 126. Prohibition — Time for Application— Act No. 571, Sec. 1.]— The month within which, under Sec. 1 of the "Justices of the Peace Amendment Act" (No. 571,) an application for a prohibition to an order or conviction of 1 justices must be made, runs from the day on which the order or conviction was made, and not from the day on which it was drawn up. Regina v. Edney, ex parte Skinner, 8 V.L.R. (L.,) 1. 781 JUSTICE OF THE PEACE. 782 Conviction — Application to Quash — Time — " Justice of the Peace Amendment Act," Sec. 4.] — An application under Sec. 4 of the " Justices of the Peace Amendment Act" (No. 571,) for an order nisi to quash an order or conviction must be made within one month from the making of the order or conviction ; not from the time when it was drawn up. Begina v. Bayne, ex parte Mau, 4 V.L.R. (L.,) 190. Order Nisi to Quash Conviction — " Justice of the Peace Amendment Act," Sec. 4.] — It is not sufficient that an application for an order nisi to quash a conviction under Sec. 4 of the "Justices of the Peace Amendment Act" (No. 571,) should be made within the month, butthe order must be drawn up and signed by the judge who quashes it within the month, other- wise it will be too late, unless where the judge has postponed the application for consideration. Segina i>, Broderich, ex parte M'Millan, 4 V.L.R. (L.,) 158. Quashing Warrant of Commitment after Time for Application has Expired.]— Under Sec. 4 of the Act No. 572 (" Justices of the Peace Amend- ment Act,") a warrant of commitment maybe quashed on the ground of the invalidity of the order upon which it is based, although the time for applying to grant or prohibit the order itself (one month) has expired. Segina v. Deely, ex parte Wilson, 6 V.L.R. (L.,) 27 ; 1 A.L.T., 149. Quashing — Act No. 571, Sec. 4 — Practice.] — Where an application made to a Judge in Chambers to quash a conviction is refused, and an application for the same purpose is made to the Full Court, this is to be regarded as an ap- peal from Chambers, and does not require to be made under Sec. 4 of the Act No. 571 within a month. Begina v. Armstrong, ex parte M'Pher- son, 7 V.L.R. (L.,) 234 ; 3 A.L.T., 9. Act No. 571, Sec. 4 — Adjournment beyond the Month in Consequence of a Defect in the Ma- terials.] — Upon an order nisi to quash a convic- tion the application was made to a Judge in Vacation within a month, but was adjourned to supply a defect in the necessary materials. Held that it was under those circumstances too late, that the application must be made with all necessary materials ready within the month. Begina v. Mackenzie, ex parte Balloch, 7 V.L.R. (L.,) 328 ; 3 A.L.T., 33. Court has no Power to Remit the Order— No. 571, Sec. 2.] — On an order nisi for a prohibition to justices under the " Justices of the Peace Amend- ment Act" (No. 571), the Court cannot under Sec. 2 of the Act remit the justices' order for amendment, but must either discharge the order nisi for prohibition, or make it absolute. Begina v. Burrouglis, ex parte Blackwell, 4 V.L.R. (L.,) 136. Amendment.] — The power of amendment is apparently negatived by Act No. 571. Begina v. M'Cormkk, ex parte Brennan, 4 V.L.R. (L.,) 36. Amendment.] — The Court cannot amend on an application to quash under Act No. 571. Begina v. Synnot, ex parte Main, 6 V.L.R. (L.,)35. Where justices had not been made parties to an order nisi to prohibit an order made by them, the Court allowed an adjournment and granted leave to amend by serving the justices. Begina v. May, ex parte M'Oee, 3 A.L.T., 98. Act No. 267, Sec. 136— Practice.]— On an order nisi under the "Justices of the Peace Statute 1865," Sec. 136, for prohibition to justices, the practice as to what objection may be raised to the validity of the proceeding before the justices, is the same as on a case stated where the Court confines itself to the points raised, to. the intent that objections not raised before the " justices cannot be raised in support of the pro- hibition. Begina v. O'Brien, 3 W.W. & a'B. (L.,)54. Act No. 571 — Applications in Term Time.] — The intervention of the Court under Act No. 571 in Term time, should be sought by means of an application to the Court for a rule nisi, and not by an application to a Judge in Chambers for an order nisi. Begina v. Cantwell, ex parte Oos- telloe, 7 V.L.R. (L.,) 475. Order Nisi not Set Down for Hearing — Order for Dismissal, how made.] — An application for the discharge of an order nisi for prohibition to justices made in Chambers, but not set down for argument, should be made to the judge who granted the order, with an affidavit that it had not been set down, and not by motion to the Court. Begina v. Hackett, ex parte Wardrop,. 5 W.W. & a'B. (L.,) 5. Act No. 571, Sec. 1 — Rule Nisi not Stating Grounds.] — The Court overruled an objection, that a rule nisi for prohibition under Act No. 571 did not state any grounds. Begina v.. Taylor, ex parte Blain, 5 V.L.R. (L.,) 271 ; 1 A.L.T.,39. Order Nisi to Quash — No Appearance to Move Absolute— Act No. 571, Sec. 4.]— The Court will not discharge an order nisi to quash under No. 571, Sec. 4, when there is no appearance to move it absolute, but will hear the party show-' ing cause, and decide the question on its- merits. Begina v. Pritchard, ex parte Smart, 2A.L.T..58. Rule to Quash— What may he Considered on.] — On a rule to quash an order made by justices- for payment of arrears alleged to be due in respect of a previous order made by them, the question whether the previous order was pro- perly made and served, and whether the arrears were really due, cannot be considered. Be- gina v. Justices at Bichmond, ex parte Mdlin, 10 V.L.R. (L.,) 87. Order Without Jurisdiction — Offer to Abandon Order— Kule to Quash— Costs. — Where justices made an order without jurisdiction, and the defendant obtained a rule nisi to quash it, and after such rule had been obtained the complain- ant offered to abandon the order, but made no- offer to pay the costs incurred, Held, on rule nisi to quash, that the defendant was entitled to go on with his proceedings to quash, and to obtain his costs of so doing, and rule absolute, with costs. Begina v. M'Phail, ex parte Lud- low, 6 V .L.B,. (L.,)19. 783 LACHES. 784 Quashing Warrant for Commitment — Costa.] — The costs will be given of a rule absolute to ■quash a warrant, if an intimation that the warrant would not be executed was not accom- panied with an offer to pay the costs up to that "time. Regi ia v. Bannerman, ex parte Shiels, 6 V.L.R. (L.,) 25. Costs Where Bad Copy of a Good Order has been Served.] — See ex parte Vail, ante column 777. Summons Improperly Tilled Up — Duty of Clerk ■of Petty Sessions — Costs.] — See Regina v. Harri- jgan, ex 'parte Allen, 8 V.L.R. (L.,) 22 ; 3 A.L.T., 101, ante columnloQ. ' Applicant for Writ of Prohibition having Ap- pealed to the General Sessions in the First Instance — Costs.] — See Regina v. Skinner, ante column 773. Costs of Order Nisi to Quash — Matter Debat- able.] — As a rule, the costs of orders to quash follow the event, but where the matter is fairly debatable the Court, in dismissing such •an order, will not allow costs. Regina v. Pickles, ex parte Mckel, 8 V.L.R. (L.,) 126 ; 4 A.L.T., 3. Amendment of Order — Costs.] — Where the order which is sought to be prohibited is amended as a concession to the respondent, he will be ordered to pay the costs of the prohibition. Ex parte Dreher, 4 A.L.T., 12. Conviction Quashed — Prosecutor a Police Offi- cer — Costs.] — Where a conviction was quashed, and the person who had obtained the conviction was a police-officer acting in the discharge of his •duty, the Court, nevertheless, did not depart from the usual rule that costs follow the decision, and gave costs against the prosecutor. Ex parte Norho, 5 A.L.T., 167. VI. Where Decision a Bab to Subsequent Proceedings. Order for Payment — Second Complaint and Order for Part Payment of Same Amount.] — Where jus- tices made one order for the payment of an amount, but no part of it had been paid, and no steps had been taken for its enforcement, such •order is no bar to a second complaint and order for payment of part of the same amount. Ex parte Shire of Alexandra, in re M'Nee, 5 V.L.R. (L.,) 134 ; 1 A.L.T., 2. Certificate of Dismissal of Complaint Under Act No. 267, Sec. 107— Where a Bar.]— Under Sec. 107 of Act 267 the certificate of dismissal is only a bar to Courts of co-ordinate jurisdiction, and not to Courts of superior jurisdiction. Regina v. Skinner, 4 W.W. & a'B. (L.,) 39. For facts see S.C. ante column 407. S.P. See Regina v. Trench, ex parte Chalmers, 9 V.L.R. (L.,) 55; 4 A.L.T., 163, ante column 407. VII. Actions By and Against Justices. Action of Replevin—" Justices of the Peace Statute 1865," Sees. 164, 170.]— A justice of the peace, who is in the position of defendant in an action of replevin, is in a different position from a justice who is sued for an act of his own as justice. A justice in the position of such de- fendant is not entitled to the protection given him by the " Justices of the Peace Statute 1865," aud is not entitled to «, month's notice under Sec. 170 ; and where the action is not based on the order of the justice at all, he is not entitled under Sec. 164 to have the order quashed before proceedings can be taken against him. Smith v. Oogdon, 4 A.J.R., 76. C, a justice,- issued a distress warrant, under the " Mining Companies Act " (No. 228,) Sec. 38, for part of a call, without previously issuing a summons to show cause. The person distrained upon replevied the goods and sued C. Held that C. was not entitled to the protection of Sees. 164 and 170 of the Act. Ibid. Action for False Imprisonment.] — See Smith v. O'Brien, 1 W. & W. (L.,) 386 ; Hunter v. Sher- win, 6 W.W. & a'B. (L.,j 26 ; post under Tres- pass — To the person. LACHES. Laches — What is.] — Where two parties are bargaining, and one makes to the other a state- ment on a material point, and on the faith of that representation the other contracts with him, that other party is not bound to make in- quiry, although inquiry would have shown him that it was false. Time will not run against him through his neglect to inquire until he learns something which ought to arouse his suspicions. Clark v. Clark, 8 V.L.R. (E.,) 303, 327, 328. Where there is nothing to put a man upon inquiry he is not responsible for not inquiring. Ibid. Delay of Twelve Years in Instituting a Suit against a Trustee to Set Aside a Release Ob- tained by Trustee — No Bar to Belief only Material to Costs.]— Bennett v. Tucker, 8 V.L.R. (E.,) 20 ; 3 A.L.T. , 108 ; post under Trust and Trus- tee — Rights, &c. , of Trustee. Where Laches of Cestui que Trust disentitles to Relief.]— Shaw v. Gorman, 2 W.W. & a'B. (E.,) 18; post under Trust and Trustee — Rights, &c, of. When Long Delay of a Creditor under a Credi- tor's Deed Bars his Right.] — Arthur v. Moore, 5 V.L.R. (E.,)207; 1 A.L.T., 29, post. Trust and Trustee. Effect of Laches on Mortgagor's Rights in Setting Aside Wrongful Sale of Mortgaged Mining Shares.] — Hicks v. Commercial Bank, 5 V.L.R. (E.,) 228 ; 1 A.L.T., 60 ; post under Mortgage — Rights, &c, of Mortgagee, &c. Where Right to Redeem Barred by Laches.] — Port v. Bain, 2 V.R. (E.,) 177 ; 2 A.J.R., 129; 785 LAND ACTS. 786 and Bryant v. Saunders, 2 V.L.R. (E.,) 225; post under Mortgage — Redemption — Right to Redeem. Shareholder Lying Idle for Six Years Barred by laches from Bringing Suit to Set Aside Forfeiture of Shares.] — Cushing v. Lady Barhly G. M. Coy. 9 V.L.R. (E.,) 108, 116, 122 ; 5 A.L.T., 10, 98. See post under Waiver. And for examples of acquiescence see post under Waiver and Acquiescence. LAND ACTS. 1. Selectors and Selections, column 785. 2. Leases and Licenses — (a) Generally, column 788. (6) Assignment, column 790. (c) Forfeiture, column 791. 3. Bight to a, Grant in Fee and Conditions Precedent to be Observed, column 795. 4. Illegal Agreements, column 797. 5. Commons, column 801. 6. Offences against, column 802. 7. Other Points, column 803. Statutes. "Sale of Crown Lands Act 1860" (No. 117,) repealed by Act No. 145. "Land Act 1862" (No. 145,) repealed by Act No. 360. " Amending Land Act 1865" (No. 237 ,) repealed by Act No. 360. "Land Act 1869" (No. 360.) "Land Act 1875" (No. 515.) " Land Act 1878 " (No. 634.) "Land Acts Amendment Act 1880" (No. 653.) " Land Act 1880 " (No. 681.) 1. Selectors and Selections. " The land Act 1862," Sec. 23—" The Land Act 1865," Sec. 47 — Selections under — Certificate Holders under.] — Holders of certificates issued under Sec. 23 of the "Land Act 1862" were not entitled to preferential selection, but had to select at the same time and place as other selectors, and in case of two applications on the same day, priority of selection was decided by lot, but in other cases priority of selection was decided by priority of application. The "Land Act 1865" collects all the applicants for land in any area at one place at one hour, and directs lots to be drawn as to priority of choice, and includes applicants under new and old rights in one system of selection prescribed by that Act. The words " exercise the right of selection," in Sec. 47 of the Act of 1865, do not mean more than to obtain recognition of the right of selection, and that after the recog- nition of that right the holders of certificates should select before a Land Officer, and at the same place and time as other selectors under the Act of 1865. Simson v. The Queen, 2 W.W. & a'B. (E.,) 113, 121, 123, 124, " Land Acts 1862 and 1865"— Penalty for Non-Com- pliance with Provisions.] — Per Full Court : The penalty imposed by Sec. 126 of Act No. 145 for non-compliance with conditions imposed by Sec. 36 of that Act is confined to selectors under that Act, and cannot be enforced against a selector under Acts No. 145 and No. 237 con- jointly. Kettle v. The Queen, 3 W.W. & a'B. (E.,) 141. Per Privy Council. Persons entitled to exer- cise rights of selection under the Act No. 237 are liable to the penalty imposed by Sec. 126 of the Act No. 145. Attorney-General v. Etter- shank, L.R. 6, P.O. 354. " Land Acts 1862 and 1865"— Regulations of Board of Land and Works — Ultra vires.] — Per Moles- worth, J. The regulations issued by the Board of Land and Works under the "Lands Acts 1862 and 1865," requiring declaration that ap- plicants are not selecting as agents or trustees for other persons, as regards certificate-holders, exceed the powers which the Board possess under the conjoint operation of the two Acts ; and their requiring certificate-holders to make such a declaration is illegal ; and a person making it untruly is not deprived of the rights which he possesses as a selector. Kettle v. The Queen, 3 W.W. & a'B. (E.,) 50, 56. [But now see latter part of Sec. 20 of Act No. 360.] Selection — "Land Act 1862" — Where Selector a Trustee.] — R., by his agent M., employed G. to select land under the " Land Act 1862," and furnished him with the necessary money and a certificate issued under Sec. 23, which R. pro- cured to be assigned to G. , but for which assign- ment G. gave no consideration. G. selected under this certificate, and paid the first year's rent of the land with the money given him by M. A lease of the land selected having been issued to G. , he repudiated his agreement with R. , and refused to execute a transfer to him of the lease, but offered to repay with interest the money given him by M. Held that inasmuch as R. procured the certificate and advanced the money by which G. obtained the lease, G. was a trustee of the lease for R. ; and transfer by G. to R. decreed with costs. Baleigh o. Glover, 3 W.W. &a'B. (E.,) 163. Agreement to Select — " Land Act 1862," Sees. 23 & 24—" Land Act 1865"— Illegal Contract.]— The plaintiff purchased a certificate under " Land Act 1862," Sees. 23 and 24, enabling the holder to select land, and had it transferred to defendant, no consideration passing between plaintiff and defendant. Defendant agreed to select land for plaintiff's benefit, and to transfer it as plaintiff should direct. Plaintiff selected land under the "Amending Land Act 1865," with plaintiff's money ; plaintiff paid the rent, and defendant obtained the lease and became registered proprietor under the " Transfer of Land Statute. " Bill for specific performance of contract and for transfer. Held that there was nothing illegal in the transaction, and transfer ordered. Glass v. Fowler, 4 W.W. & a'B. (E.,) 122. 787 LAND ACTS. 788 "Land Act 1862" (No.145,) Sees. 23, 24— "Amend- ing Act 1865" (No. 237,) Sec. 7—" Statute of Trusts" (No. 224,) Sec. 97— Selection— Trustee.]— A. was entitled under Sees. 23, 24 of Act No. 145 and Sec. 7 of Act No. 237 to select land. A. em- ployed, through his agent B., C. to select on his behalf under a verbal agreement, A. furnish- ing all necessary documents and moneys. C. selected and paid the first year's rent out of A.'s moneys, A. receiving the receipt therefor. C. paid subsequent rents, taking receipts in A. 's name. A lease was issued to C, who then denied agreement and refused to transfer lease. Held, following Raleigh v. Glover, ubi supra, that a declaration of trust in writing was not necessary under No. 224, Sec. 97, and that C. was trustee for A., and transfer of lease de- creed. Raleigh v. McGrath, 3 V.L.E. (E.,) 250. " land Act 1869" (No. 360,) Sees. 19, 21, 22— licensee Selecting as Agent for Another — Fraud.] — The Board of Land and Works issued to a licensee under the "Land Act 1869," (No. 360,) Sec. 19, a certificate of compliance with the Act, and he applied for a lease, and paid rent as under it for eighteen months. Subsequently the Crown agent refused to receive any more rent, and some time afterwards the lease was refused, the certificate of compliance was cancelled by the Board, and » forfeiture of the lease gazetted, upon the ground that he had selected as an agent for another. Upon petition by the licensee to compel issue of the lease, the Court was of opinion that he had selected as agent for another, and Held that there being therefore fraud under Sees. 21 and 22 of the Act No. 360, the petitioner could not maintain proceedings in Equity to compel the grant of the lease. Evans v. The Queen, 6 V.L.R. (E.,) 150; 2 A.L.T., 38. Power of Governor-in-Council to Withdraw Land from Selection— " Land Act 1862," Sec. 46— On Account of Improvements.]— The Governor-in- Council is warranted in withdrawing from selection "on account of improvements," land declared open for selection, and a proclamation giving effect to such withdrawal dates from the time of its being made, and not from the date of its publication. Kennedy v. The Queen, 1W.W.4 a'B. (E.,) 145. (Compare Sec. 102 of Act No. 360.) " Land Act 1865" (No. 237,) Sees. 10, 14, 21.] —Under Sees. 10 and 21 of Act No. 237, land may be proclaimed by a notice in the Gazette by the Governor-in-Council open for selection after a certain date, not more than three months after the publication in the Gazette, and after such date the land may be selected. Where land was gazetted as open for selection on 29th September, and P. selected on 30th September, Held that P. 's title was good. Russell v. Parkinson, 6 W.W. & a'B. (L.), 264; N.C. 73. "Land Act 1869" (No. 360), Sees. 4, 17, 19, 100, 110 —Refusal by Local Land Board of Application to Select— Allowance of Selection, Receipt of Rent and Promise of Issue of License by Minister of Lands and Board of Lands and Works by an ex parte Application and not by an Appeal in accord- ance with Regulations prescribed.] — R. attempted to select land under the Act No. 360, paid the half-year's rent and costs of license fee and received a conditional receipt. The local land board recommended the refusal of his applica- tion for a selection. R. did not appeal to the Board of Land and Works under the regulations of 26th September, 1870, but saw the Minister of Lands and informed the Board ex parte that his application was a bona fide one. The Board then gave him permission in writing to occupy pending the issue to him of a license which was promised. R. occupied and improved ; but no license was issued. In June, 1872, there was a change of Ministry, and R. received a notice from the Land's Office acquainting him that the Board would hear his case at a public hearing, in accordance with the regulations, and ulti- mately R. was, after the hearing, dispossessed on payment of compensation for his improve- ments. R. brought a petition to be confirmed in the possession of the land. Held by Moles- worth, J., and affirmed on appeal, that the Crown was not bound and the petition refused; that the words in Sec. 19, "may if he think fit" gave an arbitrary discretion of refusal to the Governor : that by Sec. 4 the Governor, subject to the Act, has power to grant or convey land ; and that Sec. 100 or the regulations of the Governor under Sec. 110 did not authorise the delegation of his (the Governor's) power under Sec. 4 to the Board of Land and Works, so that any step taken by the Board would be paramount to the Governor's power of rejection and disallowance; that it was doubtful whether the Governor had power by regulations to legalize any occupation prior to the issue of a license, and that if such regulations gave to any permission to occupy, the effect of binding the land in case the Governor refused the license, they were inconsistent with the Act. Ryan v. The Queen, 3 A.J.R., 61, 86. "Land Act 1869"— Selector in Occupation of More Land than Allowed by Act— Notice to Quit under Sec. 93— Penalty.]— A selector who is in possession of more land than is allowed by the " Land Act 1869" under an occupation, is not, even after he has received notice to quit under Sec. 93 of the Act, liable to a penalty for being in unauthorised occupation of Crown lands, he having obtained possession of the land properly, though he might be treated as a trespasser in a civil suit. M'Can v. Quinian, 4 A.J.R., 117. 2. Leases and Licenses. [a) Generally. 24 Vict. No. 117, Sec. 68.]— The words " such other purposes as may appear to the said board to be for the public advantage or convenience, contained in Sec. 68 of No. 117, mean purposes ejusdem generis with those set forth in the same section ; and a license for " residence and culti- vation" is not ejusdem generis, and is, therefore, not valid. Fenton v. Skinner, 1 W. & W. (L.,) 65. License for Pastoral Occupation— Proclamation of Common over Part— Rights of Commoners and Licensees— Right of Crown to Sell— Act No. 11?, 789 LAND ACTS. 790 Sees. 71, 80, 107, 181, Act No. 145.]— See Begina v. Dailimore, ante column 326. Authority to Assistant-Surveyor-General to Grant—" Land Act 1869," Sec. 47.]— A regulation that all licenses, &c, " may be signed by the Assistant-Surveyor-General, who alone shall be the licensing agent," is sufficient authority to the Assistant Surveyor-General to grant licenses under Sec. 47 of the " Land Act 1869." Coutts o. Jay, 4 V.L.R. (L.,) 10, 15. lease under " Land Acts 1862 and 1865"— Covenant by Lessee.] — Held, overruling Moles- worth, J. , that a covenant by the lessee that he will within one year from the date of the lease cultivate at least one out of ten, or erect a habit- abledwelling on the land,or enclose itwith a sub- stantial fence, may properly be inserted in a lease of land selected under the conjoint opera- tion of the " Land Acts 1862 and 1865." Kettle v. The Queen, 3 W.W. & a'B. (E.,) 141. (Compare Act No. 360, Sec. 20, Subsec. iii.) Board of Land and Works — Disallowance is Non-revocable — Act No. 237.] — Under the pro- visions of the "Amending Land Act 1865," (No. 237,) when the Board of Land and Works has once disallowed an application for a lease by an applicant, who has duly complied with the requirements of the Act, it has no power to revoke such disallowance ; but the publication of the disallowance -deprives the Board of all power in the matter until a fresh application has been made. Webster v. Johnson, 5 W.W. & a'B. (L.,) 67. "Land Act 1869," Sec. 22— Effect of Fraud on Eight to Lease.] — Where a fraud, under the "Land Act 1869" (No. 360,) Sec. 22, is shown, the right of the licensee to a lease may, after the expiry of the license, be revoked. Evans v. The Queen, 6 V.L R. (B.,) 150 ; 2 A.L.T., 38. " Land Act 1869," Sec. 20 (v)— Granting Certi- ficate of Compliance — Effect of.] — Per Molesworth, J.—" The Land Act 1869" (No. 360,) makes the granting of the certificate of compliance with the terms of the Act, and not the truth of its contents, the test of the right to the lease ; though a licensee had, in fact, performed his duties, he could not get a lease unless he got a certificate, and on the other hand should get his lease if he gets an untrue favourable certificate. A certificate of compliance under the "Land Act 1869" (No. 360,) Sec. 20 (v), though untrue, gives the licensee a right to a lease ; and the cancellation by the Board of Land and Works of such certificate, on the ground of its falsity, cannot destroy its effect. Ibid, pp. 150, 157. " Land Act 1869," Sec. 20 (v)— Meaning of Cove- nant to Improve under Analogous Section (Sec. 14) of " Land Act 1865."]— Russell v. Parkinson, 6 W.W. & a'B. (L.,) 264; N.C. 73; post column 795. Covenant to Improve is a Personal One, and does not Eun with the Land.] — Ettershanh v. The Queen; Glass v. The Queen; post column 794. "Land Act 1869," Sec. 45— What Leases of Crown Lands may be Granted— Easement over Adjoining Lands — Eight to Take Water.] — The Governor has no power under Sec. 45 of the " Land Act 1869," which section empowers him to grant leases of Crown lands "for sites for tanneries, or factories, or paper-mills," to grant a lease of Crown lands with an easement over adjoining Crown lands, whether covered or not with water, in the course of a river, or with a right to take water from such river. Brooks v. The Queen, 10 V.L. R. (E.,) 100, 109; 5 A.L.T., 199. (5) Assignment. By Operation or Law — " Land Act 1865," Sec. 22— " Insolvency Statute 1865, " Sec. 25.]— Where the requirements of the "Land Act 1865" have been complied with, the Board must recognise the claim of an official assignee of an insolvent lessee to be registered, who applies more than three years after the granting of a lease under Sees. 13 and 14 ; such official assignee has a right to be registered as assignee by operation of law. Regina v . Board of Land and Works, 6 W.W. & A'B. (L.,) 38. (Compare Sec. 28 of Act No. 360, in which however assignments are made absolutely void, and not merely void, for want of registration. ) By Operation of Law — " Land Act 1865," Sec. 22] — M., an uncertificated insolvent, became lessee of an allotment under Part II. of the "Land Act 1865," and S., his official assignee, was registered as proprietor under a judge's order made under Sec. 110 of the " Transfer of Land Statute." S. sold and transferred to plaintiff, who obtained a certificate of title under the " Transfer of Land Statute." The transfer from S. to plaintiff was registered, under Sec. 22 of the " Land Act 1865." The transfer to S, by operation of law, was not registered. Action for ejectment by plaintiff against M. At the trial plaintiff put in his certificate of title, and also the judge's order and lease, with endorsement of registration of transfer under the "Land Act." Defendant moved for a nonsuit on the ground of non- registration of the transfer by operation of law to S. A verdict was entered for plaintiff with leave to defendant to move to enter a nonsuit. Rule nisi for a. nonsuit on the ground that there was no evidence of registration of any transfer from defendant to S., and the order under which S. was registered as proprietor was ultra vires. Held that if plaintiff had rested his case merely on the certificate of title he must have succeeded ; but that, having chosen to go further, and produced evidence which showed that he had not the legal estate, he must be nonsuited. Rule absolute. Miller v. Moresey, 2 V.R. (L.,) 39. [Note : The case came before the Court again, and the plaintiff then relied merely on his certificate of title and the defendant went into, the evidence prior thereto. Held, per Barry, J. , that plaintiff must succeed. S.C.,2 A.J.R., 115.} Where a lessee permits another person to run stock on the land, that is not an agreement for a lease or a breach of the covenant not to assign, but only a. license to agist stock. Russell v. Parkinson, 6 W.W. & a'B. (L.,) 264; N.C, 73, 791 LAND ACTS. 792 "Land Act 1865," Sec. 22— Assignment of lease.] —A bargain and sale by the Sheriff of the lease of an execution debtor under the " Land Act 1865 " is an assignment by operation of law, which the Board of Land and Works is bound to register under Sec. 22 of the Act. Reginn v. Board of Land and Works, 2 V.R. the defendants stating that "A. appointed manager, you remaining as traveller ;" he con- tinued to act as traveller until March, 1883, when he received a letter stating that his ser- vices were no longer required. D. declared on a contract for a year from 14th February, 1883 (date of the telegram). Held that the offer in the telegram when accepted, formed a new con- tract for hiring for so much of the year as remained unexpired on 14th February, and not for a-year from 14th February ; that the variance between the contract proved and declared upon might be amended ; and that the new contract was one made in February for less than a year, and not, therefore, within the " Statute of Frauds." Dale v. M'Ouiloch & Coy., 9 V.L.R. (L.,) 136. II. Rights and Duties of Master and Servant. (1.) Generally. " Master and Servant's Act," 9 Vict., No. 27 — Engine Driver's Liability for Injuries.]— An engine driver in the course of his duty ran the engine off the line, and certain damage was done to the trucks and line. Held that the locomotive en- gine was not " goods, wares, work, or materials for work," committed to his charge within the meaning of the Act No. 27, and that the driver was not liable for the injuries committed, Semble that he was not a servant within the meaning of the Act. Sacre v. The Board of Land and Works, 2 W. & W. (L.,) 8. [Compare Sec. 13 of Act No. 198.] Dismissal — Action for, Who may Maintain.] — Plaintiff was employed by a company to buy sheep for them during certain months, and was to be paid a certain sum per head on the sheep bought by him. Plaintiff entered upon his duties and bought a large number of sheep, and after incurring expenses was dismissed. Held that the plaintiff was not in the position of a servant so as to be able to maintain an action for wrongful dismissal ; but that he was entitled to be reimbursed by the company for the expenses incurred by him before dismissal. Liscombe v. Echuca Meat Preserving Coy, 1 V.R. (L.,) 148 ; 1 A J.R., 132. Dismissal — Justification of.] — V. sued C. for wrongful dismissal, and recovered a, verdict. C. justified on the ground of misconduct in refusing to work. It appeared that V. had written to C. requesting that a charwoman should be sent to clean out his room, and re- fusing to go on with his work unless certain "improprieties" were, altered and an apology offered. Held that V. had not refused to work so as to make it a ground for justification, but that C. would have been entitled to dismiss V. for impertinence. Vardy v. Cuthbert 3 A.J.R., 25. Dismissal.] — A temporary infirmity incapaci- tating the servant from discharging his duties is not a ground for dismissing him before the expiration of the term agreed upon by the con- tract. Leake v. Holdsworth, 4 A.J.R., 86. Dismissal — Disobedience — Damages.] — Where a discretion has been committed to a servant as to the giving of credit, and the master subse- quently wrote letters insisting strictly on the instructions (i.e., as to credit being kept down) being followed, apparently ignoring the dis- cretion, and dismissed the plaintiff (servant), thinking that amount of credit had increased, Held that the discretion not having been with- drawn the dismissal was wrongful, and that the direction that damages should be calculated upon the rate of wages under the agreement from the time of dismissal to the issue of the plaint summons, with reasonable damages for the breach of contract, and for board and lodging, was correct. Watson v. Boss, 5 A.J.R., 69. Per Fellows, J.: — The County Court Judge was wrong in directing the jury that the damages should not exceed the wages which would have been earned up to the commence- ment of the action. Ibid. Wrongful Dismissal — Damages.] — See Gilles v. Bank of Victoria, ante column 890 under The Contract of Hiring. Wrongful Dismissal.] — See Fox o. M'Mahon, ante column 890. Dismissal.] — In an action by a servant for wrongful dismissal, defendant pleaded that the servant had made a secret proposal to a third person to enter into a business in partnership, in competition with the master's business, and while in his master's service to divert custom from his master's business to that of the partner- ship. Held that the master was not bound to wait until the mischief in contemplation had been actually caused, and was justified in dis- missing the servant. Langhorn v. Benmtt, 3 V.L.R. (L.,) 108. Dismissal— Notice.] — See Williams v. Beckett ; Dalgety v. Husband ; ante column 890 under The Contract op Hiring. Absenting from Service — Belief and Assertion of Eight to leave.] — A servant who absents him- self from his employment under a bondfode, but mistaken belief that he has a right so to absent himself, is not liable to a conviction under Sec 11 of the " Masters and Servants Statutes 1864," for unlawfully absenting himself. Begina v. Mollison, ex parte Crichton, 2 V.L.R. (L.,) 144. 893 MASTER AND SERVANT. 894 Quitting Service — Notice — ''Master and Ser- vants Statute 1864," Sec. 11.]— W. engaged E. at weekly wages as a night miller and engine driver. Under the direction of a day miller in the same employment, R. gave W. about four days' notice and quitted his service. Held that B. was a servant within the meaning of the "Master and Servants Statute 1864," and was bound to give a week's notice, terminating at the end of some week of his engagement before leaving, and conviction under Sec. 11 of the Statute upheld. Regina v. Bayne, ex parte Eea, 4 V.L.E. (L.,) 89. Quitting Service — Bona fide Belief of Bight — Question for Justices.] — The question whether a servant entertained a bond fide belief that he had a right to leave his master's service at » par- ticular time is a question for justices, and the Court will not interfere with their determination on such a matter. Ibid. (2) Wages. Wages — When Payable. — Under an agreement as follows : — "The said G. agrees to engage, and the said W. agrees to serve, as boots, &c, and obey all lawful commands, for the term of six months, at wages, and at the rate of £1 per week with board. If the said W. should not remain for the said six months, his fare from M. to H. is to be deducted from his wages," each week's service is apportionable, and the servant is entitled to be paid weekly, a sufficient sum being deducted and retained for the coach-fare till the six months expire. Oaffney v. Werner, 2V.L.B. (L.,)6. Complaint for Wages not stated to have been on Oath — Act No. 198, Sec. 16.] — In a complaint for the recovery of wages under Act No. 198, Sec. 16, in which an order was made for the amount claimed, it appeared that neither in the sum- mons nor in the order was it stated that com- plaint was on oath. Held that order was bad, even though an affidavit stated that the com- plaint was made on oath. Order quashed. -Regina v. Pearson, ex parte Hall, 5 V.L.E. (L.,) 289; 1A.L.T., 42. (3) Liability of Master for Injuries to Servant. [a) General Principles. Where Master not Liable — Servant a Volunteer.] — If a servant volunteers to do work which his master had not required him to do, and which the servant never undertook to do, the relation- ship of master and servant does not exist be- tween them as to that work ; and if in doing such work the servant sustains injury from the imperfect or improper condition of machinery used in the work, or from other causes, the mas- ter is not responsible for such injury. Knox v. Stephens, 1 V.E. (L.,) 102; 1 A.J.R., 106. When Master not Liable — Conveying Servant to place of Work.]— Bateman v. Moffatt, 5 W. W. & a'B. (L.,) 125; 1 A.J.E., 10; L.E. 3 P.O. 115; 1 A.J.E., 12; post under Negligence — Actions— Evidence and other Matters. When Master not Liable.] — A workman is not entitled to recover against a shipowner for dam- ages sustained in his employ under circum- stances which would entitle a visitor to the ship to recover damages. M'Laehlan v. Ser- vice, 2 V.E. (L.,) 198; 2 A.J.E., 116. M., a labourer, employed on board a vessel as carpenter, while the vessel was loading, after dark, fell down an open hatchway near which no light was placed, and thereby sustained seri- ous injury. Held that the owners of the vessel ' were not liable. Ibid. Dangerous State of Ladder — What Necessary to Render Master Liable.] — In an action by a ser- vant for injuries sustained by him owing to the dangerous state of a ladder belonging to his master (a mining company), it is not sufficient for him to prove that he was in the employ of the defendants, and that he sustained injury from the dangerous state of a ladder which belonged to the defendants, and was used by him in his employ, but he must also prove that the defendants, or their deputy, were aware of the dangerous state of the ladder, and, wi^h such knowledge, neglected to repair it; or that the master knowingly employed incompetent persons to construct or fix the ladder. North Shenandoah Coy. v. Fallover, 4 A.J.E., 109. And see under Mining. Obvious Defect in Machine — Contributory Negligence.]— A servant was injured in his master's employ in working a machine which had a defect so far obvious that, by using reasonable means, he might have avoided the danger. Held that the master was not liable . Per Higinbotharn, J. — A servant in such cir- cumstances must make reasonable efforts to avoid danger, otherwise he may be held to con- tribute to any injury arising from the defect. Litton v. Thornton, 7 V.L.E. (L.,) 4. Neglect of Competent Foreman.] — Where a master appoints proper and competent persons to superintend and direct the work, and fur- nishes them with proper appliances for per- forming such work, if he do not personally interfere, he is not liable for injuries sustained by any of his servants in consequence of the negligence of any servant so appointed to super- intend and direct. Brown v. Board of Land and Works, 8 V.L.E. (L.,) 414, 429 ; 4 A.L.T., 103. Held, per Stawell, O.J., and Williams, J„ that the Board of Land and Works is not liable for injury caused to one of its engine-drivers owing to the neglect of a competent foreman in charge of one of the repairing sheds for locomo- tives, to make good a defect in a locomotive reported to him by such engine-driver. Held, per Higinbotharn, J., that the Board, having a general duty of supervision and control of rail- way officers cast upon them by law, are liable for a neglect of that duty by their officer, who was appointed to represent them in directing and superintending the repair which the engine required, such neglect having caused the injury to the driver ; that the question whether the officer so appointed to direct and superintend is in the position of a representative of the master so as to fix the latter with liability for his negligence is one of mixed law and fact, in determining which the jury may be guided by 895 MASTER AND SERVANT. 895 the definition given in the English "Employ erg Liability Act 1880." Also that the Board is liable, in such cases, not only for the supply in the first instance to the drivers, in a sound con- dition, but also for the continued maintenance of engines in a state in which they would not become dangerous. Ibid. Injuries to Servants in Mines.]— See under Mining. (6) Common Employment. Where Master Liable.]— B. was engaged by M. to carry wheat from S. to another place. B. was to take the wheat from M.'s mill at S., and in order to do so backed his cart up to a shoot down which the bags were shot. During the process of loading B. was injured by the negli- gence of M.'s men. Held that though B. was in M.'s employment, it was under a separate contract from the other men — a distinct agree- ment to carry goods. Bettis v. Maxfield, 1 A.J.R., 35. What is Common Employment — Liability for Injuries Caused by Negligence of Employer.] — C, a shipwright, was employed by a railway company to effect repairs on the line, and was conveyed in the company's trains to and fro from his residence to the scene of his labours. On one occasion C. was travelling to his residence after his day's work in one of the company's trains after dark, and there was no tail-light on the train, which was drawn by an engine which owing to the defective state of its wheels did not get under way as soon as it otherwise would. The train was late owing to the necessity of changing engines, the defective engine by which the train was drawn being substituted for a still more defective one, and the original engine started after the train and ran into it at an intermediate station, and thereby caused da- mage to T. It was proved that if a tail-light had been put on the train the collision might have been avoided, but owing to the defective state of the engine drawing the train, the collision was more serious than it would other- wise have been, because the train by reason of such defective state did not get under way sufficiently to lessen the shock from the engine behind. The absence of a tail-light was attri- butable to the negligence of the company's servants. Held that T. was a servant of the company in common employment with those who had neglected to attach the tail-light ; but, that though the collision could have been avoided if the tail-light had been affixed to the train, and if that had been the sole cause of the injury to T. the company would not have been liable for the default of T.'s fellow servants, yet since the disturbance of the time arrangement for starting was caused by the defective state of the engines, the company was liable, and that the aggravation of the injury to T. , caused by the defective state of the engine drawing the train, was evidence to go to the jury Of action- able negligence. Chandler v. Melbourne and Hobson's Bay Railway Coy., 2 V.R. (L.,) 71 ; 2 A.J.R., 1, 53. What is Common Employment.] — M., a work- man in the mine of a company was injured owing to the insecure fastening of a ladder which it was the duty of the manager of the company to see properly secured. Held that the manager was not a fellow servant of M. but was the representative of the company, which was therefore responsible for the negli- gence which caused injury to M. Band of Hope and Albion Consols v. Mackay, 2 V.R. (L.,) 158; 2A.J.R., 112. For acts of an incompetent servant, a master is. not responsible to a fellow servant, but he is in the case of a careless servant. C. was employed by W. as a servant, and was injured. The acci- dent was caused by the carelessness and negli- gence of Or., a, fellow servant, and there was evidence of the machinery being defective. C. sued W. and obtained a verdict, and the County Court Judge refused a motion for a nonsuit. Held, on appeal, that there was evidence to go to the jury and appeal dismissed. Chambers v. Willey, 3 V.R. (L.,) 17 ; 3 A. J.R., 30. III. Liability op Master foe Negligence ob Tortious Act of Servants. Where Master not Liable — Insufficient Evidence that Wrong Doers were in Defendant's Employ,]— Defendants, contractors for the formation of a. railway, were sued in trespass for damages to fences outside the line of railway. It was proved that men, as to whom general evidence was re- ceived, that they were called defendants* labourers, had committed the trespass com- plained of, but none of them were called, nor were the foremen or other persons examined to identify the men, or prove that they were in the defendants service. Held, that defendants were not liable for the trespass. Newcomen v. O'Grady, 2 V.R. (L.,) 214 ; 2 A.J.R., 123. Shipmaster — Liability for Injuries through the Negligence of the Crew.] — A shipmaster is only a fellow servant with the crew, and is not there- fore liable for injuries caused by negligence of the crew when the ship is in port. Clancy v. Harrison, 4 V.L.R. (L.,) 437. Nor for injuries to a passenger when the ship is at sea. Stackpoole v. Betridge, 5 V.L.R. (L.,) 302; 1 A.L.T., 43. Injury Caused by Servant Acting Outside the Scope of his Authority.] — A master is not liable for injuries caused by his servant while acting outside the scope of an authority given to him by his master. Heard v. Flannagan, 10 V.L.K. (L.,) 1. H. purchased from F. a load of hay out of a stack, and employed one R. to cut out and load the hay. R. cut out sufficient to form a load, went away some short distance, smoked his pipe, and then placed it in the pocket of his waistcoat, which contained some loose matches, and laid the waistcoat on the ground near the stack. He then went away to procure some lashing, and, during his absence, the heat of the pipe ignited the matches, and the stack caught fire and was destroyed. Held that smoking, being outside the authority given to R., H. was not liable for the loss of the stack. Ibid. For Fraud.]— £ee Principal and Agent. 897 MEDICINE AND MEDICAL PRACTITIONERS. 898 MAXIMS. Ignorantia Legis Neminem Excusat.] — For an instance where the Court was disposed to mitigate the force of this maxim in the case of a person who had prepared a transfer, and pleaded ignorance of th« Statute 11 Vict. No. 33, which forbids a person not being a barrister, solicitor, or conveyancer from preparing a con- veyance, &c, see In re Strong, ex parte Camp- bell, 4A.J.R., 150. Nova Constitutio Futuris Formam Imponere Debet non Prteteritis.] — Tommy Dodd Goy. v. Patrick, 5 A. J.R., 14. Post under Statutes — Construction and Interpretation — General Rules. Marriage of a Minor — Omnia Praesumuntur rite esse acta.] — Begina v. Griffin, ante column 287. And for another illustration of the maxim see InsJcip vrlnship, post column 1005. Caveat Emptor.] — Where a purchaser pur- chased an allotment which vendor purported to sell, but really obtained a transfer and certifi- cate of title to another allotment, entered into possession and built, and was subsequently evicted, Held, in an action for deceit, that, there being no evidence of fraud, the maxim caveat emptor applied. Hunt o. Johnson, 5 V.L.R. (L.,) 401 ; 1 A.L.T., 98. Actio Personalis cum Persona Moritur.] — See Buckland o. M' Andrew and Buchner v. Davis, ante columns 453, 454. Falsa Demonstratio non nocet — Position shown by Plan in Certificate of Title governs, Dimensions marked in Figures Excluded.] — Small v. Glen, 6 V.L.R. (L.,) 154, 157, 159 ; post under Transfer of Land— Certificate of Title— Conclusive Effect of Certificate. Falsa Demonstratio non nocet— Misdescription in Advertisement of Sale of Land.] — Sargood v. Henry, 5 A.J.R., 87; post under Vendor and Purchaser — Enforcement, Discharge and Re- scission — Specific Performance. Falsa Demonstratio non nocet — Description by Metes and Bounds not Qualified by Description of Area Included.] — Cunningham v. Plait, ante columns 353, 354. Qui prior est Tempore potior est Jure.] — Henty v. Hodgson, 1 W. & W. (E.,) 250; post under Mortgage — Several Mortgages. MEDICINE AND MEDICAL PRACTITIONERS. I. Registration of Practitioners, column 898. II. Liabilities and Powers of Practi- tioners, column 898. Statutes — Various Acts repealed by Act No. 158. " Medical Practitioners Act 1862" (No. 158,) repealed by Act No. 262. "Medical Practitioners Statute 1865" (No. 262.) I. Registration of Practitioners. Mandamus to Reinstate a Name on the Register —"Medical Practitioners Act 1865" (No. 26J2,) Sees. 5, 7.] — M., a duly qualified practitioner, had had his name erased from the register under Sec. 5, because he did not return an answer to a letter posted to his last address making in- quiries authorised by the Act under Sec. 7. It appeared that the letter never reached M. , but found its way back to the Medical Board through the "dead letter" department of the Post-office. Held, that the board, before, i^t could strike out a name, must be satisfied that such a letter has reached its destination, and that M. 's name was improperly removed.. Order for mandamus to restore M.'s name to the register. Begina v. Medical Board, 4 W.W. & a'B. (L.,) 139. Mandamus to Register Diploma.] — T. had obr tained in England thg diploma of the Royal College of Physicians which was erased on account of his advertising. He then studied at the University of Giessen, where he obtained the degree of M.D. The Medical Board of Vic- toria refused to insert his name on the register, alleging that the diploma was not in the usual form. Rule nisi for a mandamus refused, the Court intimating that the applicant should obtain other evidence from persons already re- gistered from that university as to the suffi- ciency of the diploma. Begina v. Medical Board, ex parte Thomas, 3 A.J.R., 81. Act No. 262, Sec. 9— Schedule III., para. 13 — Mandamus to Register.]— The Court will not grant a mandamus to register a medical practi- tioner in the absence of a specific demand by the applicant to be allowed to attend personally before the medical board. Semble, it is neces- sary for such applicant to prove that he has passed through a particular medical school or schools. In re the Medical Board, exparte Yee Quoch Ping and Bottrell, 1 V.L.R. (L.,) 112. II. Liabilities and Powers of Practitioners. Unlawfully Practising— Act No. 262, Sees. 2, 11 —Proof of Qualification— Act No. 158, Sec. 14— Criminal Charge — Admissibility of Evidence — N. was summoned and convicted under Sec. 1 1 of the Act No. 262 for "unlawfully pretending" to be a medical practitioner. N. proved by his own evidence that he had passed through a proper course of instruction, and had practised regularly since 1853 ; that in 1868 he sent docu- ments and evidence of these facts to the medical board, which refused them with an intimation that they should have been sent while the Act of 1862 (No. 158) was in force. Held by Williams and Barry, JJ ., (dissentiente Stawell, C.J.), that the board constituted under the Act No. 158 was the only body authorised to examine N.'s qualifications and grant him a diploma whicjh would exempt him from liability to penalties, and that not having proved before that board the matters specified in Sec. 14 of Act No. 158, his privilege to practise was lost by his delay, and as he had acquired no privilege under No. 158 he was not protected by Sec. 2 of Act No. 262 ; that this being a criminal charge his own evidence was inadmissible, but the majority of the Court being of opinion that N. could not K K 899 MEDICINE AND MED CAL PRACTITIONERS. 900 better his ease if it were remitted to the justices, conviction affirmed. Norris v. Smallman, 3 V.R.(L.,)25; 3 A.J. R, 32. Act No. 262, Sec. 11— Use of Name of Doctor of Medicine— Defective Conviction.]— A conviction under Sec. 11 of the Act No. 262 adjudging a penalty and costs for the use of the name of doctor of medicine by an unqualified practitioner is bad if it does not state to whom the costs are to be paid. Reginav. Hartney, ex parte Fischer, ,7 V.L.R. (L.,) 52 ; 2 A.L.T., 125. Negligence—" lunacy Statute" (No. 309,) Sec. 11 — Giving Certificate of Insanity.] — Before sign- ing a certificate under- Sec. 11 of Act No. 309, it is the duty of a medical man to examine the lunatic personally as well as to make inquiries. The question whether the examination made is a sufficient one is entirely for the jury, and the Court will not interfere with their finding. It is not the duty of the judge to put the question whether there was reasonable and probable cause for the giving of the certificate. Smith v. Jffla, 7V.L.R. (L.,)435. Medioal Practitioner — Not liable for Wrong Opinion as to Person's Sanity.] — A medical prac- titioner is not liable for the irregular proceed- ings of justices upon an incorrect certificate given by him as to the sanity of a person. Roberts v. Hadden, 4 A.J.R., 167, 181. A constable laid an information that a person who was wandering at large was deemed to be a lunatic and was not under proper care and control. The information added another fact not required by the "Lunacy Statute," viz., that the person was unfit to be at large. Upon this information a justice made an order re- quiring H., a medical practitioner, to visit and examine the alleged lunatic, and report upon the matters of the information. Instead of reporting upon these matters, H. reported (or certified) that the subject of the examination was a "dangerous lunatic." This not being the question to be referred to H., the justice should have ignored the report, but instead he made an order to bring the alleged lunatic before two justices, and he was committed under Sec. 8 of the Statute. Being subse- quently discharged as not having been a lunatic, he proceeded against H. for negligence in reporting him to be a dangerous lunatic. Held that, if the justice could have legally acted on the report, H. might have been liable, but that since the justice had no right to do so it was his act alone, and H, was not liable. Ibid, Fees— Who may Recover.]— A surgeon can re- cover fees in a medical case, but a surgeon who holds himself out as, or is in fact, and acts as a physician, cannot recover such fees. Southee v. KirTe.l W.&W. (L.,) 200. Act No. 262, Sec. 12— Recovery of Fees— Pro- hibition— Objection Taken too late.]— Justices had made an order for the payment of the amount of a medical practitioner's fee. On an order nisi for a prohibition, Held that under the Act the proof of registration as » legally qualified practitioner was a condition precedent to the recovery of his fees, but such an objec- tion must be taken before the justices at the proper time, and must be made a ground of the order nisi. Regina v. Shaw, ex parte Selim, 9 V.L.R. (L„) 201 ; 5 A.L.T., 70. Agreement for Remuneration for Giving Evi- dence as to Plaintiff's Condition in an Action in Respect of Injuries.] — A medical practitioner made an express agreement with his patient, who was plaintiff in an action for damages in respect of injuries, that he should be remuner- ated for giving medical evidence as to the con- dition of the plaintiff, whom he had examined for the purposes of such evidence. Held that he was entitled to recover on such agreement a larger sum than the witnesses' fees fixed by the " Common Law Procedure Statute 1865." Stod- dart v. Pinnoch, 10 V.L.R. (L.,) 22. Semble, that an agreement to take less than the amount agreed upon, in case the plaintiff should not succeed in the action, does not render the contract illegal. Ibid. MERCHANT SHIPPING. See SHIPPING. MERGER. Of Debt of Three Joint Debtors in Specialty Debt of Two.] — A., B., and O. were, as joint importers of tea, liable for the full duty on it. B. and C. entered into a bond with Her Majesty the. Queen to pay the full duty, with a condition that, if, after reciting that the duty had been lowered by a resolution of the Legislative Assembly, and that the duty so lowered had been paid, such resolutions were not confirmed, B. and C. should pay the full duty on the goods. The resolutions were not confirmed. In an action against A., who had not entered into the bond for the difference in duty [i.e., between the full amount and that paid,) Held that the simple contract debt of A., B., and C. was not merged in the special debt under the bond given by B. and C; that the creditor's liability on the bond was not co-extensive with his remedy in the simple contract debt; and that A. was liable. Judgment on demurrers to the plea for the Crown. Regina v. Bowman and Henty v. The Queen, 4 W,W„ & a'B. (L.,) Of Simple Contract Debt— Memorandum under Seal Providing for^Mortgage.]— A simple contract debt does not become merged where collateral security is _ given by a deposit of title deeds together with a memorandum under seal pro- viding that if the debtor be not immediately pressed for payment, he would, upon demand, execute an assurance to the creditor of the lands comprised in the title deeds, there being a proviso in the memorandum that nothing con- tained in it, or in any further assurance taken 901 MINING. 902 in pursuance of it, should prejudice any other security. Bank of Victoria v. M'Coll, 4 V.L.R. (L„) 163. Of Acceptance in Deed.]— A stock mortgage contained a clause that any "acceptances" given or to be given by the mortgagor or any other person to the mortgagee in respect to the amount secured, should in no way prejudice or affect the stock mortgage, and that the mort- gagee should have the same powers under the mortgage as if the acceptance had not been given,|andthat the acceptances should be deemed a further or collateral security with the mort- gage, so far as regards the rights or securities of the mbrtgagee thereupon. Held that this clause must be taken as amounting to an agree- ment between the parties, that the remedy upon a promissory note of the mortgagor then overdue should not be merged in the mortgage. Synnot v. Parkinson, 4 V.L.R. (L.,) 521. Of Simple Contract in Deed.]— See Abbott v. Commercial Bank, ante column 82. METROPOLIS. Powers of City Council as regards Buildings — "Melbourne Building Act" — Bye-law— Consulta- tion — Ultra Vires.] — It was enacted by a bye- law of the City of Melbourne, made under the " Building Act of the City of Melbourne" (13 Vict. No. 39,) that '* every dwelling-house shall be built with a clear frontage to a street, and no such dwelling-house shall be so built as to intercept the clear street frontage of any dwelling-house previously built." S. was sum- moned for building a house not fronting a street more than 20 feet wide. Held that if the construction of the bye-law were that a house could not be built at all unless it fronted a street, the bye-law was ultra vires; but Semble that the right construction was that every house within a reasonable distance from a street should front that street; also, that the bye-law did not apply to a house fronting a park, but only to a house fronting a street. Regina v. Call, ex parte Seamark, 2 V.R. (L.,) 124; 2 A. J.R., 67. Buildings— Person Building without Notice to Surveyor—" Melbourne Building Act," Sec. 10 — Treble Fees.] — M. commenced to excavate the foundations of a building within the City of Melbourne without having given the notice to the surveyor as. prescribed by Sec. 10 of the "Melbourne Building Act." He was con- ■victed and fined, but the treble fees to the surveyor were not imposed. The building was not erected so that the fees could not be ascer- tained. M. paid the fine and obtained a rule nisi for a prohibition. Held that the conviction was wrong as the penalty could not be inflicted without providing for the payment of fees; and that the rule for a prohibition was not obtained from the Court too late, though made after payment of the fine, and after the refusal by a Judge in Chambers in vacation to grant a .pro- hibition, the application to such Judge having been made before the fine was paid, since the application to the Judge was made in time, and the application to the Court was virtually to obtain the order refused in vacation, and must be considered as having been made in vacation. Regina v. Call, ex parte M'Donald, 2 V.L.R. (L.,) 137. MINING. i I. Mines, Minerals, and Interests in Mines. (i.) Mines and Minerals. (1) Management of Mines, (a) Regulation and Inspection, column 904. (6) Drainage of Mines, column 906. (2)' Mining on Private Property the subject of a Crown Grant, (a) General Principles, column 907. (6) Injunctions to Restrain Mining on Pri- vate Property and Practice tltereon, column 908. (3) Mining Boards, Officers and Bye-Laws, column 915. (4) Other Points, column 917. (ii.) Interests in Mines. (1) Claims. (a) Generally, column 918. (6) Marking Out and Application for Claims, column 921. " (c) Registration, column 923. (d) Frontage and Block Claims, column 925. (e) In what Events a Claim may be For- feited or deemed to be Abandoned, column 928. (/) Means of Enforcing Forfeiture, column 935. (g) Proceedings in respect of Trespass to a Claim, column 941. (2) Residence Areas, column 944. (3) Mining Leases. (a) Application for, Grant and Construc- tion of Leases, column 948. (b) Rights and Powers of Applicants for Leases and Leaseholders, column 953. (c) Forfeiture, column 957. (4) Miners' Rights. (a) Who may Hold, cofumn 959. (b) Privileges of Holders, column 959. (c) Considered as Conditions Precedent to Right to Sue in Various Cases, column 959. (5) Water Rights, column 965. II. Practice and Procedure in Mining Matters. (A) In Equity. (i. ) Injunctions to restrain Mining on Private Property, see column 908. (ii.) Injunctions Generally and Practice thereon, column 967. (iii.) Orders of Inspection — 'When and How Made, column 972. (B) Jurisdiction, Practice and Procedure in Warden's Courts and Courts of Mines. (1) Jurisdiction and Duties. (a) Jurisdiction, duties, Powers, and Liar' bilities of Wardens, column 974, (6) Jurisdiction, Duties, and Powers of Judges of District Courts, column S79. MS msTsa. m ■ (e) jurisdiction of Chief Judge, and Su- preme Court, column 982. id) Duties of Officers of the Court, column 982. ■ (2) Practice and Procedure in Warden's Courts and Courts of Mines, (a) In Warden's Court, column 983. (6) In Court of Mines, column 989. (3) Appeal and Reviewing Decisions. (i.) Of Warden. (a) Appeal to Court of Mines — Where it Lies and General Principles, column 992. (6) Conditions Precedent to be Observed on Appealing, column 995. (c) Practice on Appeal, column 999. (d) Stating Case for Opinion of Chief Judge or Supreme Court, column 1000. " (u.) Of Judge of District Court. (a) Special Case Staled by Judge of Court of Mines to Chief Judge on Appeal from Warden, column 1002. \b) Appeal from Court of Mines. (1) Where Appeal Lies, column 1004. (2) Statement of Case, Time for Appeal- ing and Practice on Appeal, column 1005. III. Mining Companies. (1) Formation, Incorporation, and Registra- tion of Company, (a) Registration, Incorporation and Consti- tution; column 1009. (6) Effect of Registration, column 1012. (2) Directors and Officers. (a) Directors, column 1012. (6) Managers, column 1016. (3) Rules and Articles of Association, column 1017. (4) Shares and Shareholders, {a) Shares, column 1018. (6) Shareholders— Who are, their Meetings and Rights, column 1021. (5) Contracts and Power to Mortgage, column 1023. . (6) Increase of Capital, column 1025. (7) Calls. (a) Making Calls and Liability Thereon, column 1025. (b) Enforcement of Calls. (i.) When Company is still in Existence, column 1026. (ii.) When Company is Wound up, co- lumn 1027. (8) Suits and Actions by and against Com- panies, column 1027. (9) Winding-up. (a) General Principles, column 1027. (6) Petition and Practice thereon, column 1028. (c) Official Agents and Liquidators — Their Appointment and Powers, column 1030. (d) Winding-up Orders, column 1032. (e) Contributories. (i. ) Who are, column 103& (ii.) Enforcement of Contribution, column 1036. (/) Calls— Enforcement of, column 1038. Statutes.'] — "Goldfielde Act," 21 Vict. (No. 32,) repealed by Act No. 291; 24 Vict. (No. Ill,) repealed by Act No. 291. , , "Milling Statute 1865" (No. 291.) " Mines Amendment Act 1867 " (No. 316.) "Mines Amendment ' Act 1870" (No. 372,1 Sec. 1 repealed by Act No. 409. " Mines Amendment Act 1872" (No. 446,) Sec. 31 repealed by Act No. 504. " Mines Regulation Act 1873 " (No. 480,) re- pealed. "Mines Amendment Act 1874" (No. 504.) " Regulation nf Mines Act 1877" (No. 583,) repealed by Act No. 783. "Drainage of Mines Act 1877" (No. 596.) " Regulation of Mines Act 1881" (No. 719,) repealed by Act No. 783. "Regulation of Mines Act 1883" (No. 783.) "Residence Areas Act 1881 " (No. 709.) " Mining Partnership Act" (No. 109, ) repealed by " Companies Statute" (No. 190.) "Mining Companies' Limited Liability Act 1864" (No. 228,) repealed by Act No. 409. Amending Acts, Nos. 324 and 354, partially repealed by Act No. 409. " Mining Companies Act 1871 " (No. 409.) "Amending Acts 1882 and. 1883" (Forfeiture of Mining Shares,) (Nos. 742 and 779.) I. Mines, Minerals, and Interests in Mines. (i. ) Mines and Minerals. (1) Management of Mines. (a) Regulation and Inspection. Breach of Rules by Company — Person Liable to Penalty— " Regulation of Mines Statute 1873," Sec. 5 (xi.)] — The word "owner" in Sec. 5 of the " Regulation of Mines Statute 1873" means legal manager, and the legal manager is the person liable to a penalty under that section, Sub-sec. xi. , for the contravention, in the case of a mine under the control of such company, of the general rules prescribed by the Act, unless he can show that all necessary preventive measures have been adopted against such contravention. Curthoys v. Kilbride, 2 "V.L.R. (L.,) 265. [Compare Sec. 8 of Act No. 783.] liability of Manager — Act Bo. 480, Sec. 5, Sab- sec. 8.] — An accident occurred in a mine causing bodily injury to miners working therein. The complaint was framed under Sub-sec. 8 of Sec. 5, "by not securing or making safe for persons, &c, a drive and excavation" — i.e., under the first branch of the concluding clause, and alleging a personal contravention by the man- ager. Held that he was not liable, no personal contravention having been proved; and Semite, the words mean in the " mine," and are not re- stricted to the drive. Gibson v. Chalk, 3 V.L.R. (L.,) 15. [Compare Sec. 8, Sub-sec. 10, of Act No. 783.] Where it was not urged in defence that the provisions of the Act No. 583 as to having the cages in use fitted with safety appliances were complied with, and the manager had told the directors that the apparatus was required, but had taken no further steps, Held that he was liable, as he had not taken "reasonable means to prevent the non-compliance." Stewart v. Berryman, 9 V.L.R. (L.,) 116. [Compare Sec. 8, Sub-sec. 17, of Act No. 783.] 905 MINING. 906 Accident in Mine — Action by Widow of De- ceased—" Statute of Wrongs 1865"—" Mines Regu- lation Act 1873," Sees. 2, 3, 5, 8.]— The action which, before the passing of the " Mines Regu- lation Act 1873," might have been brought by a miner injured in a mine, or by his executor for the benefit of his relatives, at common law or under the "Statute of Wrongs 1865," is governed by Sec. 8 of the former Act, and may, under that section, be brought for the benefit of the widow and children. The "Mines Regulation Act 1873" moreover, abrogates the doctrine that a master is not responsible to one servant for the act of another in the course of their common employment, as far as mining accidents are con- cerned. An action under the Act too, is suffi- ciently sustained by proof of the happening of the accident, unless the defendant can show how it happened, and that it was caused by something for which no one was to blame, or that it was the result solely of the deceased miner's neglect of the provisions of the Act, since the Act shifts the burden of proof. Kaye v. Ironstone Hill Lead G.M. Coy., 2 V.L.R. (L.,) 148. [Compare Sees. 4 and 17 of Act No. 783.] Accident in Mine — Contributory Negligence — Negligence of Fellow Servants — "Regulation of Mines Statute 1873."] — Where the accident to a miner has been caused by non-observance of the provisions of the "Mines Regulation Statute 1873," the owner is liable, even though the miner have been negligent, unless the non- observance of the provisions of the Statute were entirely attributable to such miner. But where the accident was not caused by non- observance of the provisions, the principles of the common law apply, except that the owner is expressly made answerable for the acts of a fellow servant of the injured miner, and con- tributory negligence on the part of the miner will be a good defence. Laurenson v. Count Bismarck G. M. Coy., 4 V.L.R. (L.,) 83. [Compare Sec. 17 of Act No. 783.] Drive or Part of Mine—" Regulation of Mines Statute 1873," Sec. 2.]— A drive which has been worked out and is left unused is not a "drive" or part of the "mine" within the meaning of Sec. 2 of the " Regulation of Mines Statute 1873." Laurenson v. Count Bismarck G.M. Coy, 4 V.L.R. (L.,) 83. [Compare Sec. 3 of Act No. 783.] Negligence of Person in Charge of Machinery —"Regulation of Mines Statute 1877."]— The "Regulation of Mines Statute 1877," Sec. 6, Sub-Bee. xx., as to negligence oi persons in charge of machinery in connection with the working of a mine, does not apply to the mere erection of machinery at a mine. Dunstan v. Stewart, 6 V.L.R. (L.,) 175. [Compare Sec. 8, Sub-sec. xxxi. of Act No. 783.] Management of— Signalling— Act No. 583, Sec. 6, Sub-sec. x.]— Where a mining manager had em- ployed as a means of communication from the top to the bottom, a mode of signalling by certain knocks with a hammer upon the centres of the top of the shaft, which was understood by the miners, and proved effective, Held that this was a sufficient compliance with the Act. Stewart v. Berryman, 9 V.L.R. (L.,) 116. [Compare Sec. 8, Sub-sees, xiii, xvi. of Act No. 783.] Sees. 8 (xxix.) and 16 of the " Regulation of Mines and Mining Machinery Act 1883" — Construction — " Platforms "] — Qucere, whether the word " plat- form" in Sees. 8 (xxix.) and 16 of the " Regula- tion of Mines and Mining Machinery Act 1883" means something attached to the ladder or to the side of the shaft. Campbell v. Parker's Ex- tended Coy., 10 V.L.R. (M.,) 1. Summons before Warden under Sees. 8 (xxix.) and 16 of the " Regulation of Mines and Mining Machinery Act 1883" — Vagueness.] — See S.C. post under Practice in the Warden's Court. Mining Accident — Act No. 583 (" Regulation of Mines,") Sec. 12.] — A miner was injured by a piece of timber intended to keep the pump-tube secure in the shaft, which had fallen from its position. The miner admitted that he had known of its being loose for nine months pre- viously, and had not given information of the fact to the manager. Held that the plaintiff had not been guilty of contributory negligence in not reporting as dangerous what had existed so long without occasioning injury. Eureka Extended Coy. v. Allen, 9 V.L.R. (L.,) 341. [Compare Sec. 20 of Act No. 783.] (6) Drainage of Mines. Lease from Crown — "Quartz Reef Drainage Act" (No. 153.)]— The Act No. 153 only applies to " claims." Where a person had obtained a decree before the warden under the Act, against a company holding a mining lease from Crown, for money due as contribution for draining their "claim," a rule absolute was made prohibiting further proceedings. In re Clow, ex parte Hewitt, 2 W. & W. (L.,) 160. [Compare Sec. 71, Sub-sec. xiv., of Act No. 291.] Contribution Towards — How Recovered — "Drainage of Mines Act 1877," Sec. 3.]— Con- tribution under the " Drainage of Mines Act 1877" (No. 596,) Sec. 3, may be recovered from the owner of a mine on the same reef, although the machinery used for drainage purposes is also used for mining purposes. Wheal Terrill Q.M. Coy. v. Irwin, 6 V.L.R. (M.,) 11 ; 1 A.L.T., 176. Order for Contribution — Duty of Warden — " Drainage of Mines Act 1877," Sec. 3.]— It is not imperative on a warden when making an order for contribution, under the " Drainage of Mines Act 1877," Sec. 3, to impose upon the owner of the machinery terms with regard to the efficient working thereof, with regard to the benefit of all parties. Ibid. 907 MINING. (2) Mining on Private Properly the Subject of a Crown, Or ant. {a) General Principles. Eight to Mine How Tar it Passes hy a Crown Grant.]— Per Molesworth, J.:— By the law of England, which is also the law of this country, all gold mines belong to the Crown ; and that though the Crown may have granted the lands containing them to a subject without reserva- tion, the gold under the grantee's land is not his, and neither he nor anybody else has a right against the Crown to take it. Millar v. Wildish, 2 W. & W. (E.,) 37, 43, 44. A grant of Crown lands under 5 and 6 Vict., cap. 36, made before the passing of the Act 18 and 19 Vict., cap. 55, does not transfer to the grantee the gold and silver that may be found under the land so granted unless the intention that such minerals should so pass is expressed by apt and precise words. Woolley v. Ironstone Hill Lead Coy., 1 V.L.R. (E.,) 237 ; affirmed on appeal to P.C. sub nom. Woolley v. Attorney- General, L.R. 2 App. Cas., 163. Bights of Owner to Restrain Mining without making Attorney-General a Party — Injury to Surface.] — The owner not being entitled to the gold can only restrain mining upon his land in so far as it causes real damage to the owner's use of the surface. Millar v. Wildish, 2 W. & W. (E.,) 37; Star Freehold Coy. v. Inkerman and Durham Coy., 3 W.W. & a'B. (E.,) 181 ; Astley United G. M. Coy. v. Cosmopolitan G. M. Coy., 4 W.W. & a'B. (E.,) 96; Attorney- General v. Scholes, 5 W.W. & a'B. (E.,) 164. But if the Attorney-General be joined in the suit, the owners may sue for an injunction to restrain the trespass, and for account of the gold. Lane v. Hannah, 1 W. & W. (E.,) 66 ; Attorney -General v. Gee, 2 W. & W. (E.,) 122 ; Attorney-General v. Boyd, 3 A.J.R., 18, 99, 130. Attorney -General v. Lansell, 1 V.L.R., (E.,) 59. If the owners are carrying on mining opera- tions under their own land, even if their motive be to obtain the gold to which the Crown is entitled, they may restrain other people wrong- fully carrying on similar works, and thwarting their own operations. Broadbent v. Marshall, 2 W. & W. (E.,) 115 ; Astley United G. M. Coy. v. Cosmopolitan G. M. Coy,, 4 W.W. & A'B. (E.,) 96; Western Freehold Coy. v. G. W. Coy., 4 W.W. & a'B. (E.,) 44; Woolley v. Ironstone Hill Lead Co., 1 V.L.R., (E.,) 237. Persons mining under license from the owners of private property are entitled to restrain mining by the owners or persons claiming through them. Newington Freehold G. M. Coy. v. Harris, 3 W.W. & a'B. (E.,) 174 ; Star Freehold Coy. v. Evans Freehold Coy., 4 W.W. & a'B. (E.,) 6. [Note. — The facts of all the above-mentioned cases are set out fully under the next heading.] Mining with Tacit Consent of Crown— Hot Illegal.]— Mining for gold upon private property ■with tacit assent of the Crown is not illegal so as to avoid contracts. Bonshaw Freehold G. M. Coy. v. The Prince of Wales Coy., 5 W.W. & a'B. (E.,) 140. Agreements as to Mining under Private land —Not Illegal.] — There is no illegality in agree- ments as to mining for gold on private property so as to enable the parties to avoid such agree- ments, the parties dealing remaining however subject to the Crown's right to the gold being at any time asserted. Ah Wye v. Locke, 3 A.J.R 84, 85. Mining Lease on Private Property — Plea of Illegality.] — C, the owner of private property, granted a mining lease thereof to P., and sued P. for breach of the covenants. P. pleaded that no consent of H. M. The Queen was given to the granting of the lease, and that the lease was thereby void and illegal. Held that it was quite consistent with the plea that C. might have had a good mining lease from the Crown, or a grant of royal mines, and that a plea of illegality must negative every hypothesis under which the con- tract could be legal. Clarke v. Pitcher, 9 V.L.E. (L.,) 128; 5 A.L.T., 17. Reservation of Gold and Auriferous Earth and Stone — Power of Grantee as regards Person Ee- moving.] — A grantee of Crown lands, with an exception and reservation in the grantof all gold and auriferous earth and stone, has no power to restrain a third person from removing gold and auriferous earth and stone from the land, not- withstanding that such person may be a tres- passer against the Crown. Garibaldi Coy. v. Craven's New Chum Coy., 10 V.L.R. (L.,) 233 j 6 A.L.T., 93. A., a Crown grantee of a freehold abutting on a street, applied for an injunction to restrain B. from milling for gold under the half of the street adjoining his land. A.'s grant expressly excepted and reserved all gold and auriferous stone and earth, and it was not shown that B. had extracted anything else. Held that A. could not obtain an injunction as he had shown no title to the auriferous stone and earth. VM. Semble, a tenant for life even subject to para- mount rights of the Crown is not entitled to the proceeds of gold raised from private property against a remainder man in tail. In re Dv- "re, 3V.L.R. (E.,) 21. (6) Injunction to Restrain Mining on Private Property and Practice Thereon. A Crown grantee died intestate, leaving an infant heiress-at-law. The brother of the grantee, without sanction of the Court, entered on the land on behalf of his infant niece, and granted a lease for gold-mining purposes. On a bill filed by the niece against her uncle and the lessees of the land, the Court granted an injunc- tion to restrain all mining operations, without prejudice to any question as to the prerogative of the Crown over the gold. Fvllerton v. Fullerton, 1 W. & W. (E.,) 224. Injunction against Mining on Private Property — Surface Damage.] — Bill by plaintiff who claimed by several mesne conveyances from a 909 MINING. 910 Crown grantee for injunction restraining de- fendants from encroaching on land and from mining thereupon or removing gold or auri- ferous material therefrom, and praying an account of gold and profits raised and made by defendant. Held, per Molesworth, J., on a demurrer, that an owner of private property might by injunction restrain a trespasser mining and taking minerals belonging to him the owner, but that the plaintiff as mere owner seeking protection and account of gold fails because the gold is in no way his but the Crown's; and as to the removal of underground earth by a tres- passer, that is not a subject of injunction unless real damage to the plaintiffs use of surface result from it, 'such as a sinking of the surface affecting the proper enjoyment of the land ; and that a general averment of irreparable damage unexplained is not sufficient. Millar v. Wildish, 2 W. & W. (E.,) 37. The plaintiffs claimed as assignees of a lease of land, the surface of which was reserved to the lessor. The defendants were owners of adjoining land, and also assignees of the rever- sion, and from shafts sunk upon their own land were encroaching upon and driving into the plaintiffs' mines and obtaining gold therefrom. On motion for an injunction, Meld that the undermining being in no respect attributable to the claims the defendants had as assignees of the lessor to the surface, it was simply a case of lessees, having legal rights, being encroached upon by adjoining owners from within their own ground ; and that the case was not distin- guishable from Millar v. Wildish. Motion refused. Star Freehold Coy. v. Irikerman and Durham Coy., 3 W.W. & a'B. (E.,) 181. Injunction to Restrain Mining on Private Land — Injury to Surface.] — In an information and bill by the Attorney-General and the owners of private land to restrain mining, the pleadings stated that irreparable injury was being done to the surface, setting forth the nature of the injury. Held, upon demurrer on various grounds, that the plaintiffs, as owners, were entitled to restrain the mining, not as under- ground injury, but as injury to the surface, as stated in the pleadings. Attorney- General v. Scholes, 5 W.W. & a'B. (E.,) 164, 170. Injunction against Mining Operations Interfer- ing with Plaintiffs' Operations.]— The plaintiffs were lessees of certain private property legally carrying on extensive underground works in their own land, and were thwarted and obstructed by the defendants illegally carrying on similar works in the same place. The plain- tiffs sought an injunction restraining defendants from carrying on mining operations under leased lands, and from working or continuing drives under such land. Held, per Molesworth, J., that if plaintiffs' real motive was to obtain .gold the Crown might stop them, but that their motive did not make their acts illegal, or de- prive them of the protection of the law; that the case was distinguishable from Millar v. Wildish on the ground that in that case the plaintiffs were using the surface only, and were not obstructed in the use of it by the defen- dants' works. Injunction granted. Broadbent v. Marshall, 2 W. & W. (E.,) 115. Exclusive Licensees from Owner of Private Pro- perty — Attorney -General not Joined.]— Plaintiffs and defendants held respectively licenses from one S., the owner of private property, to mine on parts of his property separated by a public road. The defendants mined under the road and encroached upon the plaintiff's land, and removed auriferous earth therefrom, and injured the plaintiffs' mine. The plaintiffs brought a bill against defendants and S. — the Attorney- General not being joined — praying for an in- junction restraining the defendants from driving or taking gold or auriferous earth; that S. might be restrained from receiving gold so taken; and for an account of gold so taken and of injury to the mine. Held, per Molesworth, J., that on the principle of Millar v. Wildish, the injunc- tion as to and account of gold raised could not be granted, the Attorney-General not being a party, and that on the principle of Broadbent v. Marshall the injunction to restrain the encroach- ment would be granted, as the defendants, working under plaintiffs' ground, would ob- struct the drives which the plaintiffs were con- templating, the principle of Broadbent v. Mar- shall being extended to exclusive licensees; that licensees actually mining on part of their land, and intending to mine on the whole, are pro- tected as to the whole; that subsequent mining by one rightfully entitled is protected against a prior wrongdoer; that measuring the damage to the works was properly the province of a court of law, and, as it was reducible to the loss of gold, the plaintiffs had no claim to it; that, as to the injunction against S., no relief could be granted against him, as he contracted to give what belonged to the Crown; and that plaintiffs, as exclusive licensees, need not, as against wrongdoers, prove licensor's title. Astley United O.M. Coy. v. Cosmopolitan G.M. Coy., 4W W. &a'B. (E.,)96. Exclusive Licensees — Mining under a Street — Injunction.] — The plaintiff company obtained a license from S., the owner of private property, to mine under his land. The defendant com- pany were owners of adjoining property, and were encroaching on the plaintiff company's land, and broke into their workings. The point of collision was under a street named M. street, and by some old Gazettes this was treated as a public street ; but it was included in the plaintiff company's license as being part of S.'s private property. On a bill for an injunction restraining the defendants from encroaching, Held, per Molesworth, J., that the street might be private property subject to the rights of the public, and that these rights, if they existed, were not sufficient to warrant the Court in withholding redress as between plaintiff and de- fendant ; that, following Astley United v. Cos- mopolitan Coy. , exclusive licensees from the owner of private property might restrain encroach- ments by wrongdoers although the municipal or Crown officers might interfere to protect the rights of the public. Injunction granted. Wes- tern, Freehold v. Great Western G.M. Coy., 4 W.W. & a'B. (E.,) 44. Crown— Prerogative of Crown— Royal Mines- Crown Grant — Reservation.]— The bill stated a grant from Crown 18th June, 1853, to C. & C. of a piece of land (A) with reservations ti2 911 MINING. 912 of land for public ways; of all sand, clay, atone, gravel, and indigenous timber ; of all materials for ways and bridges ; with right of removing and taking, and rights of ingress and egress for those purposes, but with no other reservation. By divers conveyances A and B, which was the subject of a Crown grant with similar reservations, had become vested in the plaintiff Woolley and another plaintiff upon trust for a partnership known as the Coliban Mining Company. The plaintiff company had mined upon the land and erected plant, but were not able to find the gold-bearing gutter running through the land. The bill sought to restrain the defendant company who were mining on land adjoining B from encroaching on B and taking gold from the gutter through B it had discovered, and the Attorney-General was made a defendant. Held on a demurrer by Attorney-General on the ground that plaintiffs were not entitled to gold as against the Crown, that it is the law in England that the Crown is entitled to all gold and silver mines against the world, and that its rights cannot be conveyed away except by express conveyance of these royal mines ; that the same law applied to rights of the Crown in Victoria, and that grant of lands did not pass the grant of these royal mines. The demurrer of the Attorney-General allowed with costs. Held on » demurrer by other defendants on ground of want of equity, that though the Crown was entitled to gold, yet that plaintiffs were entitled to an injunction against trespassers, and this part of demurrer was overruled. Woolley v. Ironstone Hill Lead G.M. Coy., 1 V.L.R. (B.,) 237. Licensees Entitled as against Licensors and Persons Claiming through Them.] — L. granted to . the N. Company an exclusive license to mine under freehold land of L. for all mines and minerals which might be found thereunder, with a right to sink shafts on paying compensa- tion. This license was duly registered. Sub- sequently to such registration, L. sold the land in question to H. , who again sold it to the S. N. Company. The latter commenced mining operations on the land. Held that the N. Com- pany, as exclusive licensees, had a title capable of being registered, so as to obtain priority against all subsequent registration by assignees of L. ; that the case was one based upon con- tract — the case of a licensee's contract against the owners of the reversion, and the owners of that reversion proceeding to mine in defiance of the contract — and injunction granted to restrain the S. N. Company from carrying on their works. The Newington Freehold G. M. Coy. Registered v. Harris, 3 W.W. and a'B. (E.,) 174. Licensees — Title from same Owner — Mortgagor — Injunction.] — The mortgagors and mortgagees of certain land granted the exclusive right to mine on certain property to the W. Company, who transferred the right to the plaintiff com- pany. The defendant company subsequently purchased the equity of redemption to the land from the mortgagors, and sank a shaft to mine. On injunction to restrain defendants, Held that as both derived title from the same owner, and as the encroachment was from without, the case fell within the principle of N. Coy. v. Harris. Injunction granted. Star Freehold Coy. v. Evans Freehold Coy., 4 W.W. & a'B. (E.,) 6. Injunction against Mining on Private Property— Attorney-General a Party — Eights to Gold,]— Bill and information by Attorney-General and H. and others as plaintiffs against G. and others seeking an account of gold taken, and an injunc- tion restraining defendants from trespassing or encroaching or taking gold. Certain land was granted by the Crown to one W. By an indenture this land was conveyed to certain of the plain- tiffs as trustees for the B. F. G. M. Coy., which was registered according to provisions of 24 Vict., No. 109. The plaintiff H. was manager of the company ; but the company itself was not a party, the other plaintiffs being the share- holders of the company. The defendants were the shareholders of another partnership com- pany, the A. & W. Coy, which had taken possession of certain land adjoining the plain- tiffs' under mining rights, and had encroached and taken gold from plaintiffs land. The pleadings alleged that the plaintiffs were mining with the consent of the Crown. Held, per Moles- worth, J., on demurrer that some of the plaintiffs, either the Attorney-General or the other plain- tiffs, could make some title to relief, and they had an equity as against the defendants; that here the Crown was rightly joined as co- plaintiff ; that the company stated an injury to them by improper removal of subsoil ; that whether the company or the Crown are entitled to the gold they may make common cause against the defendants for the prevention of the encroach- ment ; that there was no conflict of interest between the Crown and the plaintiffs, the plain- tiffs considering themselves as tenants at suffer- ance of the Crown ; that whether the removal of the gold was an irreparable injury to the plain- tiffs or not it was to the Crown which was joined as co-plaintiff ; that as to uncertainty whether the defendants are required to account to the Attorney-General or the co-plaintiffs, there is a continuing option in the Attorney-General when- ever he pleases to put forward a claim on the part of the Crown ; that the Attorney-General of Victoria and not the Attorney-General of England or the Commissioner of Crown Lands was the proper officer to file the information. Demurrer overruled. Attorney-General v. Oee, 2W.4W. (E.,)122. But where the pleadings alleged no consent of the Crown to past mining, nor any consent to apply the past or future proceeds of gold mining to the plaintiff's benefit, Held, on demurrers (distinguishing Attorney-General v. Gee), that the information and bill seeking to restrain min- ing on behalf of the plaintiffs as on the ground of surface injury, and on behalf of the Crown as on the ground of its right to the gold, and seeking account of the gold raised were multi- farious, there being no connection of interest between the Crown and the plaintiffs. Attorney- General v. Scholes, 5 W.W. & a'B. (E.,) 164. Suit by Attorney-General, a Corporation and Owners of Private Property — Joinder of Plain- tiffs.] — Molesworth, J., granted an injunction against mining on private property at the suit of the Attorney-General, a corporation and 913 MINING. 914 the owners of the freehold — all being joined as plaintiffs — but afterwards intimated that there had been a misjoinder of parties, and that the three parties could not join, each complaining of different injuries. Attorney -General v. Rogers, 1 V.R. (E.,) 132, 139; 1 A.J.R., 120, 149. Bill and Information — Mining under a Road — Account — Valuation High against Trespassers.]- — Information by Attbrney-General at relation of co-plaintiffs, and bill by owners of property, their lessees, and a company mining for gold under arrangement with lessees to restrain de- fendants holding adjoining claims from en- croaching on the land, and for an account of gold raised, and also to restrain defendants from mining under half a road the boundary of the freehold land. The pleadings alleged that the plaintiffs' mining was with the knowledge and consent of the Attorney-General. Held per Molesworth, J., that landlord and tenant may join in a suit for injury to soil, and that Attorney-General as representing the Crown may join in the suit for an injunction and account ; that the evidence of the alleged road being a road at all being insufficient, and it ap- pearing that the defendants and plaintiffs had made an agreement seven years previously not to mine within certain limits and boundaries inconsistent with the relief now sought as to half the road, the co-plaintiffs had no right to such relief even although Attorney-General might have. Injunction granted save as to half the road, and accounts decreed. On excep- tions to the Master's report, estimating the value of the gold at £607, Held, -per Moles- worth, J., and affirmed on appeal, that in such cases the valuation as against trespassers should be high. Attorney-General v. Boyd, 3 A.J.R. 18, 99, 130. Information by Attorney-General — Owners not being Joined as Plaintiffs — Defendant a No- liability Company.] — Information by Attorney- General, at the relation of owners of private pro- perty to restrain encroachment, and for order for inspection. The defendant company was a no- liability company. Interim injunction granted, on the ground of peculiar nature of defendant company, but Court intimated that as against any other defendant an injunction would not be granted unless the owners of private property were joined as plaintiffs by bill. Attorney- General v. Hustler's Consols Coy., 3 A.J.R., 70. Parties — Licensees — Licensor Necessary Party.] — Information by Attorney-General at rela- tion of W., and bill by plaintiff company and W. to restrain defendant from trespassing on certain land, and for an account of gold raised by him therefrom. Certain freeholders of the land had granted to the plaintiff company a license to mine under the land, and the plaintiff company had agreed with W. to allow him to mine under such land on tribute. Held that although the Attorney-General was a party, the freeholders and licensors were necessary parties —the injury to the land through the excava- tions, apart from the gold raised being an injury to the freeholders, and the injury by removal of the gold was partially an injury to the free- holders, the licensees having, under the license, to account to him for one-tenth of the gold, and in order to enable licensees to maintain suit they would have to show that they had an entire right to the gold raised. Liberty to amend. Attorney-General v. Lansell, 7 V.L.R. (E.,) 59 ; affirmed on appeal, 8 V.L.R. (E.,) 155, 173. Parties — Lessees — Gold Mining.] — Where a plaintiff is entitled to land by Crown grant, and leases it for mining purposes to lessees from week to week, intending to resume pos- session very shortly, and brings a suit to restrain a defendant company from encroaching, such lessees are necessary parties. Woolley v. Ironstone Hill Lead G.M. Coy., 1 V.L.R. (E.,) 237. " Mining Statute" (No. 291,) Sec. 16 — License from Council to Mine — Doctrine of ad medium filum via Applied.] — The plaintiff company were lessees from an owner in fee of certain land on the north of a proclaimed street, and had the permission of the Council of Sandburst to mine under the street. The defendant company were lessees of owners in fee of certain land on the south of the street, and had no such per- mission from the council. A collision between the companies took place under the street nearer the northern side of the street than the southern, and the defendants, by letting water flow from their reservoir, injured the plaintiffs' workings. On bill for injunction to restrain the defendant' company from mining under the street comprised in plaintiffs' permit, Held that, in accordance with the decision in Davis v. The Queen, the defendant company claiming from persons holding land adjoining the street had a paramount right to mine under the southern half of such street as against the permission given to the plaintiff company, but that under Sec. 16 of Act No. 291 the permission of the Council conferred title as to northern half against the defendants having no such permis- sion. Ordered that defendants be restrained from mining under northern half of the street. The Extended Hustler's Freehold Coy. v. Moore's Hustler's Coy., 5 A. J.R., 116. Mining Lease — Highway ad medium filum — Order for Inspection.] — W. was registered pro- prietor under Act No. 301 of a certain allot- ment, deriving his title from a Crown grantee. W. granted a mining lease to the plaintiff com- pany of the land, reserving to himself the use and enjoyment of the surface. This land was bounded on one side by a highway. The defen- dant company were mining lessees of land on the other side of the highway. The bill alleged that the defendant company had mined under the whole breadth of the street into the allot- ment; and plaintiff, in driving under the allot- ment, had broken into defendants' shaft on that allotment. The bill sought an injunction against mining under the allotment and under one-half of the street. Held that, as affidavit in support of bill did not set out lease so as to enable the Court to determine whether the highway ad medium filum passed to plaintiff company, the Court would refuse that part of injunction. Injunction ordered as to mining under allot- ment, and inspection granted with reference only to ascertain whether defendants were min- ing under it at the date of the order. Victoria United Mining Coy. v. Prince of Wales Coy., 5 V.L.R. (E.,) 92. 915 MINING. 916 But see Garibaldi Coy. v. Craven's New Chum Coy., 10 V.L.R. (L.,) 233, where the doctrine of Davis v. The Queen was overruled. Orders for Inspection under Private Property.]— Attorney-General v. Cant; Attorney-General v. Gee; Attorney-General v. Hustler's Consols Coy.; and Attorney-General v. Lansell; post under sub- heading Practice and Procedure— In Equity- Orders for Inspection. (3) Mining Boards, Officers, and Bye-Laws. Disbursements by Mining Boards under Bye- Laws— Salary of Officers— Act No. 115.] -G. was appointed an officer under a mining board and his salary was fixed but no bye-law was passed prescribing the duties of officers appointed under the Act No. 115, or for payment of such officers. The board, after employing G. for some time dis- missed him. A rule nisi was obtained for a mandamus to compel the board to pay to G. all salary due to date. Held that all fees necessary for the purposes of Act No. 115 can only be disbursed by a bye-law duly made, and that as no bye-law was passed there was no fund from which salary could be legally paid, and no salary legally due. Rule discharged. Gill v. Nicholas, 2 W. & W. (L.,) 3. Compare Sec. 71, Sub-sees, xiv., of Act No. 291. Mandamus to Surveyor to Survey Claim — Act No. 291, Sec. 47.] — A mining surveyor stands neutral between the parties, and his duties are purely ministerial. Where a surveyor, S., who was also registrar, refused to survey a claim on the ground that there was no certificate of regis- tration, and S. had refused to issue the certifi- cate because six persons held ten miner's rights, but it appeared that only six men's ground wa3 claimed, the Court granted a mandamus. Regina v. Stephenson, ex parte Black, N.C., 22. "Mining Statute 1865," Sec. 73.]— Sec. 73 of the "Mining Statute 1865" (No. 291,) giving the Governor-in-Council a power to cancel bye- laws, has a retrospective operation, and the title to a claim, pursuant to a bye-law, bad under the Act No. 32 was held validated by Sec. 73. Vivian v. Dennis, 3 W.W. & a'B. (M.,) 29. Infraction of Bye-laws — Police Magistrate may Entertain Complaint for— No. 291, Sec. 237.]— A police magistrate is competent to hear a com- plaint, under Sec. 237 of the " Mining Statute 1865,"for infraction of a mining bye-law. Regina v. Pohlman, ex parte Nkkless, 5 W.W. & a'B. (L.,) 31. Bye-laws under Sec. Ill of " Goldfields Act" (No. 32.)]— See. Ill of the "Goldfields Act," enacting that bye-laws made and published as therein directed, ' ' at the expiration of twenty- one days next after such publication, but not before, shall have the force of law throughout the district," apply to the event after which, and not to the area over which the bye-laws become operative; and a bye-law made for " a division of a district" is without " force of law throughout the district," and invalid. Where, therefore, C., under a bye-law made only for the R. division of the A district, marked off a claim in the R. division under a bye-law made for that division, and sued for encroachment Held that, the bye-law being invalid, C. could not maintain encroachment. Jenkinsonv. dim- ming, 1 W. & W. (L.,) 337. [But see Sec. 71 of Act No. 291, where power is given to Mining Boards to make bye-laws fop any division or part thereof.] Construction.] — Mining bye-laws should be construed according to rules which have been applied to Acts of Parliament by courts of justice. Lawlor v. Stiggants, 2 V.L.R. (M.,) 17. Construction — Condition Precedent.] — A bye- law which prescribed the conditions by which a valid title to a mining tenement might be obtained, contained in the middle of it a proviso containing exemptions from the foregoing con- ditions. Held that that which followed the proviso might be just as much a condition pre- cedent as that which preceded it. Beavanv. Rigby, 2 V.L.R. (M.,) 7. Retrospective Operation.] — Bye-laws have no retrospective operation ; a bye-law under which a man takes up his claim is that which governs his rights and liabilities. Bond v. Watson, i W.W. & a'B. (M.,) 85 ; for facts see S.C. post under sub-heading, Claim — Forfeiture. And see S.P. , Regina v. Clow, ex parte Oliver, 5 W.W. & a'B. (L.,) 89. Post under sub -heading, Claim, — Forfeiture Ultra Vires.] — A bye-law of a mining district, providing that no mining registrar "shall hold directly or indirectly except for the purpose of residence any claim or share" in his own dis- trict, is ultra vires of the Mining Board, the board having no power to exclude any individual from a public right ; and a, registrar is not thereby disabled from bringing a suit for a. claim in his own district. O'Mally v. Ward, 1 W. &W. (L.,)277. Bye-Laws Preserved by Sec. 2 of "Mining Statute 1865."] — The second section of the " Mining Statute 1865" shows an intention to preserve bye-laws apart from the eightieth. Longbottom v. White, 3 W.W. & a'B. (M.,) 35, Bye-Laws Preserved.]— Sees. 71 — 80 of the Act No. 291 continue the operation of all previous bye-laws, and continue the rights of the public holding miners' rights to insist on forfei- ture, and all obligations connected with and all liability to the forfeiture of such titles. Clerk v. Wrigley, 4 W.W. &a'B. (M.,) 74, 83. The principle of Critchley v. Graham (adjudi- cation necessary to enforce forfeiture) is para- mount to bye-laws, if the bye-laws are inconsis- tent with it. Barlow v. Hayes, 4 W.W. & a'B. (M.,) 67. " Mining Statute " (No. 291,) Sec. 80-Retro- spective Effect on Bye-Laws.]— Sec. 80 does not make valid and legal bye-laws which were pre- viously illegal and invalid. Where a warden made an order under clause 8 of Sandhurst Mining Bye-Law (No. 6,) that possession should 917 MINING. 918 be given to S. upon forfeiture of a claim, pro- vided that a sum of money, being value of the materials and work absolutely beneficial to the defendant J., were paid by S. to J. within forty- eight hours. Held that the bye-law was invalid, and the order made under it also invalid. Sayera v. Jaeomo, 3 V.R.(L.,) 132; 3 A.J.R.,66. Act No. 291, Se. 73.] — The words " interest in a claim" in Sec. 73 do not include the right to compensation for improvements on eviction, and therefore Sec. 73 does not give a bye-law pro- viding for compensation a retrospective validity . Beardon v. Sayers, 3 A. J.R., 126. Sandhurst Bye-Laws, Government "Gazette,' ' 1870, p. 287 ; and 1871, p. 1852— Act No. 291, Sec. 72.]— The approval of bye-laws by the law officers under Sec. 72 of Act No. 291 is not retrospec- tive, and a bye-law takes effect from the date of its allowance and approval by the law officers. Beardon v. Norton, 5 V.L.K. (M.,) 12. (4) Other Points. What is a Mine.] — See Reginav. Davies. Ante column 296. Mortgages of Mining Plant and Machinery- Act Ho. 109, Sec. 28.]— The word " mortgagees " was intentionally omitted from the latter part of Sec. 28 of Act No. 109, respecting registra- tion, and therefore where the mortgagee is in possession, a mortgage deed of mining plant and machinery does not require to be registered. Oriental Bank v. Carter, 1 W.W. & a'B. (L.,) 36. Existing Interests — Act Bo. 153 — Repeal of, by Act No. 291, Sees. 2, 80— Warden's Order under former Act.] — A summons dated 29th December, 1865, was taken out under the Act No. 153, returnable before a warden. The summons was adjourned to 26th January, 1866, upon which day the warden made an order for pay- ment of £12 forthwith, and £2 weekly till December, 1866. The Act No. 153 was repealed by the Act No. 291 from 31st December, 1865, but such "suits and proceedings" begun and pending at the time of the repeal as were brought for fees, the right to which had then accrued, were kept alive, and by the new Act mining boards were empowered to assess drainage rates, under which power some board would have to assess for a part of the year 1866, the reef covered by the warden's order. Held, on rule nisi for prohibition, that as the summons had been issued, attended, and adjourned before the 1st January, 1866, it was a "matter or thing law- fully had or done, " before the commencement of the repealing Act, and was therefore, by virtue of that Act " of the same force and effect to all intents and purposes as if no such repeal had taken place," and valid ; and rule nisi dis- charged. Megina v. Webster, 3 W.W. & a'B. (L.,) 17. Offences against Mining Statute — 21 Vict. No. 32, Sec. 122— Act No. 148, Sec. 4— Warden's Order.] — On a complaint of encroachment under 21 Vict. No. 32, a warden made the following order : — "Visited ground in presence of parties. Re- moved pick and shovel from claim, ordered dis- continuance until application for lease disposed of." A summons was taken out against the persons in occupation " for that they did retain possession, &c." after warden's order, and they were convicted. On motion for a rule nisi to restrain execution, Held that summons did not allege that defendants had been removed from land by warden, and disclosed no offence under Sec. 122 of Act No. 32, and that Act 148, Sec. 4, was not retrospective. Order absolute for pro- hibition. Ex parte Barclay, in re Pasco, 2 W. &W. (L.,)38. [Compare Sec. 240 of Act No. 291.] Offences against Mining Statute (No. 32,) Sec. 116 — Carrying on Business without a License — Onus of Proof.] — See M'Cormack v. Murray, ante column 431 ; and compare Sec. 235 of Act No. 291. (ii.) Interest in Mines. (1) Claims. (a) Generally, What may not he Taken as a Claim — Land Reserved for a Public Use or Purpose— 5 and 6 Vict. cap. xxxvi., Sec. 3 — No. 32, Sees. 3 and 4.] — A municipal council, by letter, requested the Government to allow certain land in the muni- cipality to be reserved for recreation and gymnastic purposes, for the inhabitants of the municipal district. An officer of the Crown Lands Department replied stating that the Governor-in-Council had approved of permissive occupancy being allowed of the land in question "to be used for recreation and gymnastic purposes." Held that this was a sufficient reservation of the land within the meaning of 5 and 6 Vict., c. xxxvi., Sec. 3, so as to prevent its being taken up as a mining claim under Sec. 3 of No. 32, being within the exceptions speci- fied in Sec. 4 of the latter Act. United Sir , William Don Coy. v. Koh-i-noor Coy., 3 W.W. &a'B. (M.,)63. And a suit for encroachment by one company driving for gold under the reserve from a shaft outside the reserve against a company simi- larly driving dismissed without costs. Ibid. [Compare Sec. 13 of Act No. 291.] Land Reserved for Public Purpose — Reservation from Sale.] — A reservation of Crown land from sale under the " Sale of Crown Lands Act 1860" (No. 117,) without a dedication of it to some particular public purpose, does not per se take such land out of the operation of the Mining Acts. Attorney-Ceneral v. Southern Freehold Coy., 4 W.W. & a'B. (E.,) 66. How Far Land held under Miners' Rights may be Reserved — Act No. 291, Sees. 13, 14.]— The Governor-in-Council cannot apply Crown lands previously held as a claim to public purposes under Sec. 13, but may under Sec. 14 except such lands from further occupation as a claim, and then use them without regard to the rights- of the claimholders. Wakeham v. Cobham, 1 V.R. (M.,)34; 1 A.J.R., 93. What Land may be Taken — Act No. 291, Sec. 5.] — Land unoccupied or land occupied under a claim, if liable to forfeiture, may be occupied 919 MINING. 920 as Crown land by a holder of miners' rights under Sec. 5 of the Act. Keast v. D'Angri, 4 A.J.R., 61. land under a Street.]— Land under a public road cannot be occupied as a mining claim under the Act No. 32 without .permission of the proper authorities, i.e., the Board of Land and Works or the District Road Board. House v. Ah Sue, 2 W. & W. (L.,) 41. [Compare Sees. 5 and 16 of Act No. 291.] What land may he Taken— Act No. 291, Sees. 3, 13.] — Where the locus in quo is a street, it cannot be taken up as a mining claim. Schon- feldl v. Bed, 1 V.L.R. (M.,) 1. Jurisdiction of Warden— Estoppel.]— B. took up part of a public street as a mining claim, and S. summoned B. before the warden for a declara- tion of forfeiture on the ground of non-working, and for possession. B. contended that the warden had no jurisdiction to adjudicate, as the ground was not capable of being so taken up. Held that it was a good defence ; and the injury being done to the public and not to individuals, that B. was not estopped from setting up that defence. Ibid. What land may he Taken— Subsoil of Residence Area — " Mining Statute 1865," Sees. 3, 13.]— Under the "Mining Statute. 1865 " the subsoil of Crown lands applied to any public purpose or held under a miner's right or business or other license (as contradistinguished from a lease) may be within the limits of a claim, and, unless excepted by the Governor-in-Council, be mined upon with impunity, so long as the surface- rights are not injured. A claim may therefore include a residence area, and such area may be mined under, subject to liability for disturbing the surface. Parade 6. M. Coy. v. Royal Harry Q. M. Coy., 2 V.L.E. (L.,) 214. A claim may be occupied under bye-law 29 of the Gippsland Bye-laws(1867), which includes in its area other lands than the subject of a warden's declaration of abandonment under bye-law No. 17, although such other lands have not been previously occupied under bye-law 17; but if the claim is of dimensions which can be taken only in unworked and abandoned grounds, it must, to be supported, be all in some way of that description. M'C. and party ob- tained a warden's order entitling them to possession of a certain claim marked POKL, and marked off and registered a claim, as for unworked and abandoned ground, consisting of an area marked ROMK including the lesser area POKL. The ground in ROMK in excess of POKL was either maiden ground or had not been the subject of the warden's adjudication. Held that M'C. and party were wrong in taking so much land, and that 'M'C. and party in a suit against them by B. might give up the untried ground if improperly taken and confine themselves to the abandoned ground (POKL) in resisting the suit. Bryson v. M'Carthy, 6 W. W. &a'B. (M.,)35; N.C.,18. How many Claims may he Taken up.]— Sand- hurst Bye-law(No.7,)Sec. 5, allowing the holder of one miner's right to take several single men's claims under it, is not ultra vires of the "Mining Statute 1865." Crocker v. Wigg, 5 W.W. & a'B. (M.,) 20. How many Claims may he Taken up— Act 291, Sees. 3, 7, 8.]— It is contrary to the spirit of the Act to allow an advantage as to original taking to be purchased by paying a multiplied tax. Sec. 3 of the Act does not enable a person to multiply himself or his powers by multiplying his miner's rights, and Ballarat Bye-laws (No. 3) does not amount to an express enactment to that effect. One man cannot apply for and obtain registration of and retain possession of five men's ground by obtaining five miner's rights, but after claims are taken up and regis- tered, Sees. 7 and 8 allow several miner's rights to be assigned to a purchaser from several partners. Cawley v. Ling, 6 W.W. & a'B. (M.,) 12. Seven men cannot, under Sec. 3 of the Act No. 291, effectually take up and be registered for more 1 than seven men's ground. Milne v. MoreU, 3 A.J.R., 21. How many Claims may he Held under a Transfer — Act Ho. 291, Sees 7, 8.]— Under Ballarat Bye- Law XL and Sees. 7 and 8 of Act No. 291, one man holding a miner's right may be a transferee of claims not exceeding fifty men's ground. Baker v. Wong Pang, 8 V.L.R. (M.,) 28 ; 4 A.L.T., 28. Interest of Holder of Miner's Eight in a Claim- Act Ho. 291, Sec. 3.] — The interest which the holder of a miner's right has in his claim is at the outside an estate at will, and an action of ejectment cannot be maintained for such an estate. Jennings v. Kinsella, 1 W.W. & a'B. (L.,) 47. Claim Taken up by Power of Attorney— Miner's Eight.] — A person not having a miner's right may give a power of attorney to a person to take up a claim for him, in anticipation of having it, as well as persons anticipating the acquisition of property. Keast v. D'Angri, 4 A. J.R., 61. Boundaries of Claims.]— Held under Maldon Regulations, Clauses 2, 3, 4, that claimholders are entitled to hold spaces between the reef and a line running parallel to its actual course straight or curved, and also entitled to follow the dips and angles of the said reef connected with it, though beyond 100 feet. Miller v. Fraser, 4 W.W. & A'B. (M.,) 29. [See now Sec. 71, Sub-sees. iii. of Act No. 291.] Width of Claim— local Court Eule— Act No. 291, Sec. 73.] — Alocal court rule was as follows:— " The width of claim from east to west shall be 200 feet, 100 feet on each side of the working shaft on the line of reef, and the holders of quartz claims shall be entitled to the dips and angles of all reefs found within the reef, and may follow the same to whatever distance they may dip, east or west." Held that this rule was not ultra vires, and that even if it were it would be cured by the retrospective operation of Sec. 73 of the "Mining Statute 1865" (No. 291. ) Vivian v. Dennis, 3 W. W. & a'B. (M.,) 29. 921 MINING. 922 Boundaries of Claim.] — In Rule V. of " Ballarat Rides 1856," under 18 Vict. No. 37, there are the words " claims upon all recognised leads or gutters shall be of indefinite width until such gutters or leads are found," &c. Held that the gutter is " found" when it is first struck in the successive claims by the claimholders who search for it there, and when struck it may generally be supposed that it will continue generally in its main course, and the finding is not postponed until it is found in every inch of its course in all its sinuosities. Rule VIII. provided that "In cases where the gutter or lead changes its course from the supposed one, the position of the original claims shall be changed accord- ingly, taking precedence according to their num- bers. " Held that the intention of the rule was to give the same persons who marked claims on the original lead in its original course the power to transfer those claims on it so as to accord with the whole of the actual course of the lead ; and that, therefore, a claimholder could not in proceedings before the warden, Under Sec. 77 of Act No. 32, dispossess adjoining claimholders on the basis that the lead had changed, and that measuring the new direction along its sinuosities would give the occupiers of claims more than their proper length of lead. Thomas v. Kin- near, 2 W. & W. (L.,) 221, 231, 239. Effect of Registration upon Size of Claim.] — The clauses 10, 11. 15, 16 of Ballarat Bye- Laws 3, show that the depth of lead assumed at the time of registration is conclusive, so that a claim cannot be enlarged or restricted upon the discovery of the mistake. Clauses 10 and 11 do not mean that depth of sinking should be distinguished from depth of lead as a test of quantity allowed. Milne v. Morell, 3 A. J.R., 21. Discrepancy between Plaint and Plan.] — Com- plainants subject themselves only to getting the smaller quantity as shown in the plan. Ibid. Title to Claim — Not Registered.] — Semble, per Molesworth, J. — A defendant cannot set up a title not duly registered at the time of the trial. Moore v. White, 4 A. J.R., 17. Title.] — A right to a claim based on possession is to be limited to one title. Where, therefore, a claimholder, afraid of an adverse title, took an assignment of such adverse title, and became registered as assignee thereof, Held that he thereby lost the protection of his previous title. Barton v. Band of Hope and Albion Consols, 6 V.L.R. (M.,)l; 1 A.L.T.,145. (o) Marking out and Applications for Claim. "Goldfields Act," Sec. 111.]— A bye-law of a mining district provided that " any person taking possession of any such claim shall do so by erecting, or causing to be erected, a post at each corner of the claim, such post to oe not less than three inches in diameter, to be firmly fixed in the ground, extending at least three feet above it, and to be kept erected during the •occupation of the claim." Held that the bye- law was reasonable, and within the powers given by Sec. Ill of No. 32 (Goldfields Act); that a non-compliance with it avoided the effect of taking possession; and that a claim couldbe lawfully taken possession of only by erecting posts in the places and of the dimensions and height set forth in the bye-law. Thompson v. Land, 3 W.W. & a'B. (M.,) 13. [Compare Sec. 3 and Sec. 71, Sub-sec. iv., of Act No. 291.] Shape of Claim to be Marked off.]— No. 7, Sec. iii., clause4, of the Sandhurst Bye-laws provided, "as far as practicable, all claims shall be marked off in a rectangular form, the length of the same in any case not to exceed twice the breadth;" and by clauses 16, 18, it was pro- vided that, as to special claims of a larger extent, any miners taking them up " must mark off the proposed claim in a rectangular form." Held that ground which could not be marked off in a rectangular form could not be the subject of a special holding under clauses 16, 17, and 18, though it could be held as an ordi- nary claim under clause 4. Boscrow v. Webster, 5 W.W. & A'B. (M.,) 64. Amalgamated Claim — How Marked Out.] — Several persons taking up ground of dimensions to which they are jointly entitled may take possession effectually under the Beechworth Mining Bye-laws of 19th November, 1869 (Nos. 5, 6, and 20,) by pegging and trenching the corners of the entire and not the separate single men's portion. Lightboumev. Stitt, 1 A.J.R., 71. Pegs in Street— Illegality.]— If bye-laws require pegs to be fixed for the purpose of marking out a claim and two corners of the claim are on a public street, although the fixing of pegs on such street may be illegal, yet persons fixing pegs as regards a mining claim can effectually take it up by so fixing them. Parade G. M. Coy. v. Victorian United M. Coy., 3 V.L.R. (E.,) 24. Going on Private Property to Mark Out.] — Under bye-law 3, clause 10, of the Castlemaine district, if the adjoining property to a claim, being private land, make the pegging out by the surveyor impossible, no title to the claim can be acquired under that bye-law. Talent v. Dibdin, 8 V.L.R. (M.,) 31. Act No. 291, Sec. 71, Sub-sec. iii. — Shifting Pegs to reduce Area to Proper Dimensions.] — A mining bye-law provided that "all claims should be marked out at the time of taking possession thereof by substantial pegs erected at each angle of the claim." W. and party took up a claim which was in excess of the area allowed by the bye-laws, and marked it out by four pegs, and subsequently shifted two of the pegs so as to reduce the area to the proper dimensions. Held that such shifting of the two pegs was not a good marking out under the bye-law, and was not a constructive taking possession of the claim under miners' rights. Barrington v. Willox, 4 V.L.R. (M.,)l. Marking out Claim pending Application for a lease — Warden's Decision terminates Pendency of Application — Act No. 32, Sec. 12— Orders-in- Council for Sandhurst, 30th August, 1859.] — 923 MINING. 924 Certain persons applied for a mining lease of certain land. The surveyor marked out the land and posted a notice of the application. Pending the application, M. and party entered on the land by virtue of their miners' rights, marked out a portion of it as a claim and worked it for a time, when they were warned off by the warden on the ground that their claim was on land "protected and exempted by the leasing regulations from occupation by any person during the pendency of the application for the lease." M. and party ceased working the claim, but made formal entries on it, and marked it out with pegs, which were preserved in their places until the surveyor's official pegs were officially moved. Nearly six weeks after M. and party had ceased working, H. and party first marked out a claim identical with that of M. and party, and pulled up the pegs of M. and party's claim. Before or on that day (22nd July) the pending application was refused, and on that day the warden gave directions to the surveyor to remove his official pegs and publish the notice that the protection or exemption of the land was withdrawn. The notice was pub- lished in the morning papers on the 23rd July, but the pegs were not removed till the 24th. H. and party marked out the claim afresh on the publication of the notice, but M. and party waited till the surveyor had withdrawn his pegs, when they immediately put down again the pegs of the claim which they had originally marked out. On case stated, Held, by the Supreme Court, that the extraction of the official posts was not necessary to terminate the pen- dency of the application, but that the act of the warden sufficed ; that the publication of the notice merely informed the public, generally that the land was open to occupation, and that M. and party were entitled to the claim, having been in possession and entitled at the time of the warden's decision. Hookway v. Muirhead, 1W. &W. (L.,)107. Marking out— Forfeiture of lease.]— Marking out a claim on the evening of the day on which the Gazette notice of forfeiture of a gold mining lease of the land marked out is published is a good marking out. Weddell v. Howse, 8 V.L.R. (M.,)44; 4A.L.T., 95. Notice of Application — Sandhurst Bye-laws.] — A notice of intention to take up a claim under the Sandhurst Bye-laws, signed by one of the intending claimholders for himself and nineteen others, is bad, and makes the title to the claim bad. Cruise v. Crowley, 5 W.W. & a'B. (M.,) 27. Semble, the notice of application should give some description of the locality in which the land sought lies. Ibid. Semble, that if a party properly marks an area of sixteen acres, and, without fraud, de- scribed it in the notice of application as twelve, and it was surveyed under the bye-laws of the district to sixteen acres, and the persons regis- tered were entitled to that quantity, a good title would be acquired to the sixteen acres. Ibid. (c) Registration. Irregular Registration of Amalgamated Claim.] — If the amalgamation of two claims is irregular under the bye-laws, the claimants are only thrown back upon their original titles under the separate claims, and their rights prior to- amalgamation revive. Parade G.M. Cay. v. Victorian United Mining Coy., 3 V.L.R. (E ) 24! How far Registration Essential to Title.] — Per Molesworth, J. — Semble: "I have some diffi- culty as to whether registration in the manner and within the time prescribed by the bye-laws is a condition precedent to title. I would rather say that a defendant cannot set up a title not. duly registered at the time of trial." Moore v White, 4 A. J. R, 17. Act No. 291, Sec. 7 — Amalgamated Claim — Appli- cation to Re-register.] — Mining Bye-laws (Bal- larat, 31st October, 1873) provided that the. width of a, quartz claim should not exceed 750 feet, and also for the amalgamation of claims, and re-registration as an amalgamated claim. Held that the registration of amalgamated claims was good, even although the width of the amalgamated claim was more than 750 feet; and that a verbal application to re-register made by the manager of a company with the consent of the parties interested was good. Donaldson v. Llanberis Coy., 9 V.L.R. (M.,) 21; 5 A.L.T., 54. Semble, that if the re-registration of the. amalgamated claim was bad, the company could not fall back on its former titles. Parade 6. M. Coy. v. Victoria United M. Coy., doubted. Ibid. Partnership — What Certificate of Registration should Contain.] — Semble, that it is not necessary' that a certificate of registration of a claim should contain the name of a company, being only a partnership, in addition to the names of the members. Cruise v. Crowley, 5 W.W. & a'B. (M.,) 27. Time for Registration — Beechworth Bye-Laws 1866, No. 4—" Mining Statute 1865," Sees. 5, 6, 7, 71 (xiii.,) 237.]— O. and others worked continu- ously on a claim for four days and registered at the end of that time. By No. 4 of the Beech- worth Bye-laws 1866, a claim ought to have been registered in two days from the time of taking" possession. Held that the omission to register did not avoid the taking possession by posts, &c. ; that, coupling the "Mining Statute 1865,"' Sees. 5, 6, 7, 71, Sub-sec. xiii., with the language of the bye-law, the omission would only deprive- 0. and party of the powers of Sec. 7 until regis- tration, and subject them to a pecuniary' liability under Sec. 237. Oxley v. Little, 5 W.W. & a'B. (M.,) 14. Under a similar bye-law it was held that registration within the time prescribed by the bye-law is part and parcel of the title, as that- is the time from which the obligation to work begins. Barker's G. M. Coy. v. Keating, 1 A.J.R., 55. Delay in Registration — Effect of.] — A delay in final registration under the Ballarat Bye-Laws (May, 1868) subjects the applicant to others getting before him, but not to having his title when registered defeated. Band of Hope mi Albion Consols v. Young Band Extended Cuy-r 9 V.L.R. (E.,) 37, 42. ' 925 MINING. 926 Omission to Comply with Bye-Laws — Acts of Compliance of Previous Holders.] — In 1874 Higgs and party were duly registered for a claim, and complied with the bye-laws. In March, 1875, H. applied to the warden to be put into posses- sion on the ground of forfeiture, and obtained an adjudication of forfeiture. In May,«1875, H. registered himself as owner of the claim by an independent registration, without reference to the previous registration of Higgs and party, but neglected to comply with a provision in the bye-laws with which Higgs and party had complied. In December, 1875, H. transferred to R., who obtained registration as transferee of H., but did not comply with the provision with which H. had not complied. B. applied for a forfeiture on the ground of the non-com- pliance. Held that R. could not avail himself of the acts of the antecedent registered owners (Higgs and party) as applicable to the claim which H. had registered afresh without any reference to Higgs 1 registration. Beavan v. .%ty, 2 V.L.R. (M.,) 7. (d) Frontage and Block Claims. [Note. — The system of frontage as distin- guished from block claims has been in great measure abandoned, but it still exists in some mining districts.] There are only two kinds of claims, viz., "frontage" and " block" claims. Every owner of a "block" claim has, equally with the holder of a "frontage" claim, a right to all gold within the boundaries of that claim. There is no such thing as a "block quartz claim," and holders of such claims have a right to gold found out- side the reef in the soil within their claim. Scottish and Cornish G.M. Coy. v. Great Gulf G.M. Coy., 2 W.W. & a'B. (L.,) 103. Sight to Work Lead passing through One Claim and returning to Another.]— If a lead return to the parallels of a frontage claim before passed, the return course of the lead is not public pro- perty, but belongs to the claimholder between whose parallels it lies, although he has before worked part of the lead from parallel to parallel. United Working Miners' G.M. Coy. v. Prince of Wales Coy., 5 W.W. & a'B. (M.,) 50, 55. Frontage Claim — Eights of Holder.] — A frontage claim subsists over its entire surface until narrowed under the bye-laws. The claimholder is entitled not only to the gold upon the lead in respect of which the claim is registered, but to all gold within the claim until so narrowed ; and when narrowed, to all gold at whatever depths within it as narrowed. St. George and Band of Hope Coy. v. Band of Hope and A Ibion Consols, 2 V.R. (E.,) 206, 216 ; 2 A. J.R. 81. The holder of a frontage claim may exclude from every portion of its area, persons who subsequently take up a block claim thereon. St. George and Band of Hope Coy. v. Band of Hope and Albion Consols, 2 V.R. (E.,) 206, 221 ; 2 A.J.R., 127. Frontage Claims — Priority — Ballarat Bye-Laws, December, 1859 (Mo. 20.)] — The W. company had a frontage claim on the F. lead, the A. company a frontage claim on a lead adjoining, and outside that of plaintiffs, and also a frontage claim on the W. lead. The leads were so near that the different frontage parallels intersected; The two companies worked on their claims and collided. The Judge of the Court of Mines found that the place of collision was on the W. lead, and held that as the F. lead was the senior, the A. company's rights should be subor- dinate to the W. company's right of following the gold upon the F. lead, and that at the point of collision the W. company might carry it on uninterrupted, accounting to the A. company for all gold taken out of the F. lead. On appeal. Held by the Chief Judge that the local Court regulations and bye-laws contemplated the existence of simultaneous rights to intersecting frontage claims, but omitted to give specific directions as to priorities ; that the prohibitions to interference with a frontage claim on a lead undefined, were not intended to apply to front- age claimants on other leads intersecting, but that priority of title depends upon which lead the gold is upon ; that there was a preponder- ance of evidence as to the collision taking place on the W. lead, and that the A. company had the better right. United Working Miners' Coy. v. Albion Coy., 4 W.W. & a'B. (M.,) 1. Registration of a Frontage Claim — Power to Exclude Others from Taking up Block Claims.] — The clause No. 21 of Ballarat Bye-Law 3 has the force of law ; and a person registering a frontage claim under No. x. of those bye-laws is entitled to the benefit of clause 21, and to ex- clude persons from obtaining registration for and occupying block claims within all parts of the surface boundaries or parallels of the front- age claim, without regard to the probability of the gutter or lead passing through. United Extended Band of Hope Coy. v. Tennant, 3 W.W. & a'B. (M.,) 41, 54. Similarly a residence area cannot be taken up on a, frontage area against the will of the owner of the latter. Warrior Coy. v. Cotter, 3 W.W. & a'B. (M.,) 81. Person Taking up a Block Claim where he ought to have Taken a Frontage.] — Under the 13th bye- law of a certain district it was provided that " claims on alluvial leads of a greater depth than 200 feet shall be worked as frontage claims." Held that the owners of a block claim before the discovery of an alluvial lead of a greater depth than 200 feet could claim the lead and the gold in it, and it was not necessary for them to take out " a frontage claim." Critchley v. Graham, 2 W. & W. (L.,) 71. " Goldfields Act," (No. 32)— 24 Vict. No. Ill, Sec. 11 — Frontage Claims — Boundaries.] — The A. com- pany were holders of several " frontage claims " on declared leads. These claims had been regis- tered, but no lead having been discovered within their parallels, no lateral boundaries had been fixed. No blame was attached to the A. com- pany in consequence of having unreasonably delayed the discovering the lead within any of their claims. McG. and party sought to take possession of "block claims" within the parallels of the "frontage claims." The Court of Mines granted an injunction restraining McG. and 927 MINING. 928 party from mining on the "frontage claims," and from completely registering block claims of which they had registered one. On appeal, Held that under the " Goldfields Act" (No. 32,) the holders of miners' rights were entitled to all gold in any land occupied as a claim, and though the bye-laws directed that claims were "to be worked on the frontage system only, they placed no restriction upon rights of the claim- holder to such gold ; that the bye-laws declared that registration was possession or equivalent thereto; that Sec. 11 of 24 Vict. No. Ill, ex- pressly met the legal difficulty of being in possession of land the boundaries of which were unknown ; that the A. company had thus inchoate rights as against McG. and party which were not displaced by McG. and party. Appeal ■dismissed. McQillv. Tatham, 2 W.W. & a'B. (L.,) 52. Semble, where lateral and parallel lines of a "frontage claim" have been fixed, no "block •claim " could be taken within such boundaries. Ibid. The S. company were registered for a " fron- tage " claim on the S. lead, but the course of the lead had not been ascertained throughout the claim. The Court of Mines had restrained Smith and others from mining within the com- pany's claim on the S. lead, and from applying for registration of " frontage claims " on the undefined leads within the boundaries of the company's claim. Held, on appeal, that the S. company were entitled to such an injunction, and appeal dismissed. Smith v. Scottish <£• Cornish Coy., 2 W.W. & A'B. (L.,) 121. Forfeiture— Frontage Claimant Taking Block Claim.] — The holder of a frontage claim, taking up a block claim on a part of his frontage area, does not forfeit all his rights to the remaining portion of frontage area although he does forfeit his rights to that portion of the frontage area ■comprised in his block claim. United Extended Band of Hope Coy. v. Tennant, 3 W.W. & a'B. (M.,) 41, 52. The G. company marked off a frontage claim ■on certain land which had recently been thrown open ; being opposed by others as to this frontage claim, it ceased to press for registration and ultimately took possession of a block claim com- prising the land in dispute. The defendants then applied to be registered for a block claim -comprising the land, and the G. company applied as under their frontage claim title to restrain registration by the defendants. Held, following United Extended Band of Hope Coy. v. Tennant, that the G.'s company taking possession of a block claim was a renunciation of the frontage •to the extent of such claim. Plaint dismissed Great N. W. Coy. v. Savers, 4 W.W. & a'B (M.,)64. Held, following United Extended Band of Hope Coy. v. Tennant, and Great if. W. Coy. v. layers, that persons entitled to a frontage claim taking up a block claim within its limits are •thenceforth entitled to the block claim as such ffi- Clerk v - Wrigley, 4 W.W. & a'B. (M.,) Abandonment of Frontage Claim by Taking Mock Claim.]— The taking possession of a block claim, within the parallels of his frontage claim by the holder of a frontage claim affords evi- dence of abandonment of that part of the frontage included in the block— evidence, more- over, to be taken most strongly against the claimholder so acting. McCafferty v. Cummins 5 W.W. & a'B. (L.,) 73, 79. Forfeiture of Frontage Claim by Taking up Block Claim.]— The taking up of a block claim within a frontage claim by the holder of the latter does not operate as a forfeiture of the entire frontage claim, but is a determination of the frontage interest in the land comprised in the block claim ; but, generally, where a space of ground included in frontage claims of two companies on two different leads, is taken up as a block claim by one of them, the other is not entitled to say that the taking of the block claim is effectual so as to determine the frontage interest of the company taking it, but ineffectual as against its own frontage claim. United Working Miners' G. M. Coy. v. Prince of Wales Cov 5 W.W. & a'B. (M.,) 50, 55, 57. Frontage Claim— Merging in Block Claim.]— Semble, that where the holder of a block claim acquires from another person a prior frontage claim over a portion of the block claim, the frontage title merges in the block title in the same manner as if the holder of the block claim had held the frontage claim at the time of tak- ing up the block claim. United Working Miners' G.M. Coy. v. Prince of Wales Coy., 5 W.W. & a'B. (M.,) 50, 57. (c) In what Events a Claim may be Forfeited or Deemed to be Abandoned. For Non-working.] — Clause 116 of Mary- borough Bye-laws, August, 1864, provided that "in all cases where the owner of any quartz claim or share therein shall not, within twenty- four hours after the expiration of the period of registration, cause work to be renewed on or in such claim, according to the usual course of proper and efficient mining, such claim or share shall be forfeited." Held that a com- pany which had sunk a shaft in a claim taken up and registered in a place where mining could only be carried on at a ruinous loss were never-, theless bound to work it; i.e., by draining the mine. Duffy v. Tait, 4 W.W. & a'B. (M.,) 17. Under Nos. 12 and 49 of the Beechworth Bye-laws a party may hold a claim for three months without working or forming a company. At the expiration of that time, without forming a company, they may hold and work, employing the number of men required by No. 12, becom- ing subject to the penalties provided in No. 6, and to forfeiture at the suit of the persons who obtained an order for such penalty, but not liable to be displaced without legal process; and their violation of No. 48 will further sub- ject them to the liability of being displaced by persons who have not previously obtained an order for penalty. Kilqour v. Flinn, 5 W.W. & a'B. (M.,) 32. Beechworth Bye-laws (Nos. 14, 19.)]— Beech- worth Bye-law (No. 14) directs that "a front- age claim on a sitpposed lead shall extend 65 929 MINING. 930 feet by a width not exceeding one mile," and "that the holder may defer working till the lead be discovered without rendering the claim liable to forfeiture, provided he has a miner's right," &c, and " shall, within forty-eight hours after the lead is discovered, and the claim laid off by the surveyor, commence and carry on work," &c. No. 19 provides that the owner of a frontage claim shall make applica- tion for a survey within sixteen days after discovery of the lead, but the case of a claim- holder residing more than ten miles from the surveyor's office is excepted. Held (1) That defendants, who had spoken to surveyor during the survey, after a lead had been discovered, but had not made any demand at the proper stage, or tendered survey fees, or done any work on the claim, which would have been numbered had it been laid off, had not been so negligent as to be deemed to have abandoned the claim ; (2) That provisional claimholders, living more than ten miles off, are not bound to call upon the surveyor to act under No. 19, but that any person interested is entitled to call upon the surveyor to mark off substituted claims, and that he should do so along a straight line to avoid overlapping, and taking measures to inform the shareholders of what he is doing; and, so soon as he lays off the substi- tuted claims, the successive claimholders not working become liable to penalties. Atwell v. Ryan, 6 W.W. & a'B. (M.,) 21. Forfeiture — By Neglect of Employee — Notice.] — The 44th bye-law of the Beechworth district, gazetted 25th June, 1869, provided " that the registered owner of a claim who has employed a person to represent him, or in connection with it, by contract or on tribute, should have notice served upon him before he incurred a forfeiture through the neglect, absence, or omission of such employee." A company entered into a sealed agreement with tributers for a period of six months ; but the company consented to the tributers abandoning their agreement, or, at all events, perfectly knew that there was no pros- pect of their executing it, and never urged them to do so. The company, during the six months for which the claim was let on tribute, regis- tered a three months' suspension order, and did nothing during, or at the end of such order, and thereby incurred a forfeiture. The person en- forcing the forfeiture did not serve any notice upon the company. Held that the forfeiture was not incurred through the neglect, absence, or omission of the tributers within the meaning of the bye-law so as to entitle the company to notice. And semble, that obtaining the suspen- sion order by the company would not operate by way of estoppel against the company's right to have notice given them, if the forfeiture had been incurred by the neglect, &c, of an em- ployee, &c. O'Sullivan v. Mysterious Quartz Q. M. Coy., 1 V.B. (M.,) 4 ; 1 A.J.B., 13. Under No. 7, Sec. 5, Sub-sec. 8 of the Sand- hurst Bye-laws a claim is liable to forfeiture if unworked for more than ninety-six hours. Crocker v. Wigg, 5 W.W. & a'B. (M.,) 20. How far Working on Adjoining Land shows an Intention to Work a Claim.]— Persons re- presented at time of suit by the defendants took up a certain frontage claim, and on 12th June, 1866, the defendants took up certain land, in- cluding that frontage claim, as a block claim (No. 345,) and were registered as holders, and in September, 1866, No. 345 and other detached, "blocks" were amalgamated. From June, 1866, the defendants had done nothing on the surface of No. 345, but had since September, 1866, worked on the other parts of the amalgamated block claim. The plaintiffs sought a declaration that the defendants had forfeited their right to No. 345, by not having worked' and continued to work No. 345 at and after the expiration of eight days from registra- tion in accordance with Ballarat Bye-laws (No. 14,) May, 1862. Held that the plaintiffs were entitled to the adjudication of forfeiture subject to the warden coming to the opinion on the evidence that the defendants had not within eight days of 12th June, 1866, worked efficiently on other land with a decided intention to mine No. 345, and with as great rapidity as to result as working on the claim itself might reasonably have; that although forfeiture makes the interest not void but voidable, the work on the amalgamated claim did not cure the previous forfeiture of No. 345, it not being necessary to commence the process for forfeiture, while the neglect, the cause of forfeiture, continues ; and that the warden could not impose a pecuniary penalty in lieu of forfeiture. Clerk v. Wrigley, 4 W.W. & a'B. (M.,) 74, 78, 82, 83, 84. The doctrine in the last-mentioned case as to forfeiture when work was done on adjoining land, with a decided intention to work on the claim, and with as great rapidity as to result as working on the claim itself might reasonably have, is not applicable where the adjoining lands are the property of different owners with a prospective contingent arrangement for their becoming the property of the same owner. Schonfeldt v. Beel, 1 V.L.B. (M.,) 1. Sandhurst Bye-law (No. 8,) Clause 5, of Sec. 4. — Number of Miners to be Constantly Em- ployed.] — The section of the bye-law required a certain number of miners to be constantly em- ployed. Held that the fact of the inability of the claimholder to keep down the water in the shaft with one horse, which compelled them to knock off some of the miners, was not an actus del to shield them from their liability to forfei- ture for not having the requisite number of miners constantly employed. Davis v. Bull, 3 V.B, (L.,)138; 3 A. J.B., 66. No. 10 of the Ballarat Bye-Laws continues the obligation imposed by No. 12, r. 14, of advancing a main drive, and unreasonable delay in so doing, is a breach of a duty imposed by the bye-laws, but is not a ground of forfeiture. United Extended Band of Hope Coy. v. Tennant, 3 W.W. & a'B. (M.,) 41, 52. Sandhurst Bye-law (No. 6,) Sec. 9 — Notice of Claim — Possession without Adjudication.] — In 1863 A. and party took possession of a claim and were registered as owners. In January, 1864, B. was by mistake registered as owner of the claim. A. and party worked the claim or protected it by registration till about April, 1865. In June, 1866, H. and party applied to 931 MINING. 932 know who was registered owner of the claim, and were informed that B. was. In July, 1866, H. and party summoned B. before the warden and obtained an order of forfeiture against him, and took possession of and worked the claim. On suit by A. and party to recover possession, Held that, under the 9th section of Sandhurst Bye-law No. 6, H. and party were not en- titled to take possession of the claim without giving notice to or summoning A. and party, and without obtaining a declaration of aban- donment by the warden as against A. and party. Hunter v. Aratraveld, 3 W.W. & a'B. Chum Coy. 10 V.L.R. (L.,) 233. Construction of Lease — Reservation of Free Access to Creek.] — In a Crown mining lease the land demised comprised a creek, but there was in a subsequent part of the lease a reservation of the creek, with liberty of access to the creek. J. entered into possession of and mined part of the creek as an alluvial claim. Held that as between the lessees in possession, as under the lease, and J., the creek was protected from occupation for the purpose of alluvial mining under » miner's right, such occupation not being based on any legal proceeding. Walhalla G.M. Coy. v. Jennings, 1 V.L.R. (M.,) 12. Labour Covenant.] — Per Higinbotham, J. — The labour covenant in a gold mining lease is the real consideration given for the lease, and should be strictly construed. Barwick v. Duchess of Edinburgh Coy., 8 V.L.R. (E.,) 70, 78; 3 A.L.T., 68. Lease Expired — Acceptance of Rent.] — A Crown lease was granted for a certain term, which, after various assignments, became vested in a bank. After the expiration of the lease, the bank, still holding possession by its agent, paid rent to a district treasury, which was received. Held that the acceptance of rent created no new interest. Durant v. Jackson, 1 V.L.R. (M.,) 6. Reversionary Lease — Act No. 291, Sec. 24 — Act No. 446, Sec. 3.] — During the pendency of a lease, W. applied for a lease of the same ground. Held that the Crown could not grant reversionary leases under Sec. 24 of Act No. 291, and that the provisions of Act No. 446, Sec. 3, did not apply to such a case. Ibid. Grant of Lease — Holders of Miners' Rights in Occupation at Time of Grant]— If a lease granted by the Governor comprises land then occupied by the holder of u, miners' right, the lease is quoad such land void, and no proceedings to set it aside are necessary. In a trespass suit by a company mining on land the subject of a lease under Act No. 291, against a company mining on the same land, the defendant com- pany relied upon a title derived from persons holding miners' rights and in occupation of the land at the time of the granting of the lease. Held, per MoUsworth, J., and affirmed on appeal, that there was no need for the defen- dants to seek relief against the lease by a cross bill, nor need the defendant move to set aside the lease by a writ of scire facias. Aladdin CM. Coy. v. Aladdin and Try Aqain G.M. Coy., 6 W.W. & a'B. (E.,) 266. Power of Crown to Grant a Lease under a Residence Area.] — C. was in possession under 953 MINING. 954 a miner's right of certain ground as a residence area. Subsequently J. applied for and obtained a mining lease from the Crown, embracing the ground so occupied as a residence area, and sued C. for trespass. Held that under Sec. 24 of Act No. 291 the Crown could not grant a lease of land comprising a residence area previously acquired. Jones v. Christenson, 7 V.L.R. (M.,) 6; 2 A.L.T., 149. (4) Bights and Powers of Applicants for Leases and Leaseholders. Application for Lease does not Protect Claim from Forfeiture — No. 291, Sec. 37.] — An applica- tion by a claimholder for a lease of the ground comprised in a claim does not, under No. 291, Sec. 37, protect the claim from a forfeiture in- curred either before or after the application, on the ground of abandonment, or breach of a bye- law. Smith v. Golden Gate G.M. Coy., 5 W.W. &a'B. (M.,)5. An application by a claimholder for a mining lease of the ground comprised in the claim, affords no exemption to the claim from the operation of mining bye-laws, nor will it protect it from forfeiture incurred by subsequent breach of such bye-laws. Perkins v. Hercutes G.M. Coy., 5 W.W. & VB. (M.,) 48. Protection afforded by Application for a lease — Act No. 291, Sec. 37.] — The concluding words of Sec. 37 show that all that is meant is that no taking up is good as against the lessees. The applica- tion for a lease is only a provisional title ; if refused it is just as if it had not been made. The protection is merely quoad the applicant for the lease. The applicant or any one else may take up a claim pending the application. Barker's G.M. Coy. v. Keating, 1 V.R. (M.,) 18; 1 AJ.R.,55. Refusal to Grant Order of Possession — Act No. 446, Sec. 3 — Certiorari pending Appeal.] — The pendency of an application for a mining lease is no ground for the warden's refusal to make an order of possession when the warden has decided that complainant is entitled to the order, and such order of refusal was quashed on certiorari under Sec. 3 of Act No. 446, even though an appeal to the Court of Mines was pending. Regina v. Orme, ex parte Droscher, 3 V.L.R. (L„) 343. Application for Lease Pending — Act No. 446, Sec. 3.] — The pendency of an application for a mining lease would not prevent the warden from putting a complainant seeking to enforce forfeiture of a claim into possession of the land comprised in such application if he declared the claim forfeited, leaving the complainant to meet the liabilities of Act No. 446, Sec. 3. Jolly v. Stephens, 5 A. J.R., 169. Application for Lease Pending — Act No. 446, Sec. 3— Act No. 291, Sees. 37, 180.]— E. and others were in occupation of a quartz claim, and M. and others brought a complaint against them for being in occupation of more than they were entitled to and seeking an order of possession. At the trial E. set up a defence that he and his party had duly marked out the land as applicants for a gold-mining lease under Sec. 37 of Act No. 291. Held that Act No. 446, Sec. 3, prohibits all means of acquiring a claim whilst defendants are applicants for a lease, and that the warden shouldnot have during that time put M. and others into possession ; but that the warden should not have dismissed the com- plaint, but should have adjourned it from time to time under Sec. 180 of Act No. 291. Hutche- son v. Erk, 3 V.L.R. (M.,) 1. Where persons proceeded before a warden to obtain a declaration of forfeiture of a claim for not working, Held that defendant's previously marking out the land for a lease was sufficient under Act No. 446, Sees. 3 and 4, to prevent an order for forfeiture unless default in complying with leasing regulations was proved. Constable v. Pigtail Coy., ibid, p. 7. Marking out a Claim during Lease— Dispos- session — Evidence — Jus tertii.] — C. marked out as a claim, land which was under lease to a mining company, and worked it. When the lease expired W. marked out the same land, pulled up C.'s pegs, put in his own, and took possession, while C. was working below. Upon plaint by C. against W. for trespass, Held, on question reserved for the Chief Judge, that the lease to the company was admissible as evidence against C. 's right to take possession, who could not mark out pending the lease ; that W. was justified in marking out over C.'s head without first obtaining the decision of a Court ; and that W. could set up the title of a third person to show the invalidity of C.'s title. Cooper v. White, 4 V.L.R. (M.,) 10. Time of Marking out a Claim stated Errone- ously — Subsequent Marking out for a Lease.] — B. pegged out land for two claims at 8 a.m., and on the same day, but later, G. pegged out the same land for a gold-mining lease, and next day applied for a lease. The day following his application B. applied for registration of his claim, stating in error that he had marked out at 8 p.m. instead of 8 a.m. G. sued B. for trespass for interfering with his land while the application for the lease was pending, and the warden admitted evidence by B. that his state- ment as to the time of pegging out was erroneous, overruled an objection on behalf of G. that the application being erroneous was invalid, and that B. therefore had no title, and held that B. was entitled to sue. On special case,Held, by the Chief Judge, that the warden's decision was right, that the statement in the application was an admission against B. which he could rebut by evidence ; and that the question of registration was not material, since the contest was not between two claimholders, but between a leaseholder and a claimholder. Greenhill v. Braidley, 4 V.L.R. (M.,) 5. Marking out Claim pending Application for a Lease.] — Land was marked out for a lease (by a person under whom the complainants did not claim, and whose application for » lease was ultimately refused, ) before the land was marked out for a claim by those under whom the defen- dants claimed, and while the application for a lease was pending. Held that the complainants as holders of miner's rights might insist, under 955 MINING. 956 Sec. 3 of Act No. 446, that the title of the defendants was bad as obtained during the ap- plication for a lease. Weddell v. Sowse, 9 V.L.R. (M.,)13; 4A.L.T..179. Bight of Applicant to Maintain Trespass.] — Trespass can be maintained under the provisions of Sec. 37 of the " Mining Statute 1865," by an applicant for a gold-mining lease, against a per- son who was not previously in lawful occupa- tion of the land applied for, who, after the date of the application for such lease, obtained as against the applicant a warden's adjudication of forfeiture as a claim of the land, the subject matter of the application for a lease, and pur- ported to enter upon the land under such adjudication, and continued thereon actually working. Rendall v. Hadley, 2 V.R. (M.,) 21 ; 2 A.J.R., 105. What Applicant for Lease must Prove to Maintain Trespass.] —An applicant for a mining lease, in order to maintain an action for trespass, pend- ing the application, must prove not only that he has marked out the ground, but that he has inserted advertisements in a newspaper as re- quired by the Orders-in-Council in force, and applicable for the time being ; and that the Orders-in-Council respecting publication by ad- vertisement are not void as being ultra, vires. Craig v. Adams, 3 W.W. & a'B. (M.,) 19. Trespass to land the Subject of an Application for a lease— Act No. 291, Sees. 24,37, 39.]— M., being in possession of a claim under a miner's right on the 10th August, 1871, applied for a lease of the claim and other land, and the warden re- commended that it should be granted. Before the matter was decided by the Mining Depart- ment, one B. obtained a declaration from a warden that part of the ground for which a lease was applied for was abandoned, and B. took possession. M. then issued a summons against B. for trespass, and the warden decided against B. ; but, on appeal to the Court of Mines, the decision was reversed, as M. had failed to prove that he had complied in all respects with the leasing regulations. Imme- diately after this decision, on 1st March, 1872, B. marked off the rest of the ground, and registered it under his miner's right. On 28th October, the Governor-in-Council issued a lease to M., who executed it on the 18th November. B. meanwhile had sunk a shaft. On 9th Decem- ber, M. sent notice to B. that he claimed under the lease, and subsequently two of M.'s servants entered and ejected B. , who sued to be put in possession, but lost his suit in the Court of Mines. On appeal to the Chief Judge, Held that although Sec. 37 of the "Mining Statute 1865" explains Sec. 24 of that Act so as to render an intruder upon land, an application for a lease of which is pending, liable if the lease be subse- quently granted, yet if the applicant had not complied with all the leasing regulations the intruder would not be so liable; that it was un- necessary for the applicant to sue every intruder before obtaining his lease, but quite sufficient if the intruder were liable to such action before the lease issued to him subject to it being brought after; and that Sec. 39, which autho- rises the Governor to issue leases to an appli- cant who has not complied with all the leasing regulations, does not prejudice a person who has obtained a lawful title in the meantime ; and appeal allowed. Bain v. M'Goll, 4 A. J.R., 62. Eight of Applicants to Mine— Act No. 291, Sec. 37.] — Persons applying for a lease of land occu- pied as a residence area are not entitled to mine upon the land pending the application for a lease, and are subject to an action for encroach- ment at the instance of the person occupying the residence area. Fahey v. Koh-i-noor Coy., 3 W.W. & a'B. (M.,) 4. Under the "Mining Statute 1865," Sec. 37, applicants for a mining lease are entitled to prevent other people mining, but are not authorised to mine themselves. Should they do so they are unauthorised trespassers upon public property. Attorney-General v. Sanderson, 1 V.R. (B.,) 18, 23 ; 1 A.J.R., 21. Expectation of a lease — Forfeiture of Prior lease— Act No. 291, Sees. 37, 43— Mining Regula- tions, 44-47.] — E. held a mining lease under the regulations, and S. applied, alleging a forfeiture for breach of a covenant, for a lease of the whole land to himself under rule 44. The Gazette an- nounced a forfeiture, and an intent to grant a lease to S. S. pegged out the land, but not regularly. Then R. marked out as applying for a lease, regularly marking out. R. then sued S. for trespass. Held that regulations 44-47 were not ultra vires, although they do not require a person pointing out a forfeiture to peg out as he would be required to in applying for a lease in the first instance under Sec. 37 ; but that S. 's expectation of a lease did not entitle him to mine on the land as against R. , and that R. was entitled jo damages to be impounded until he got a lease. Robertson v. Morris, 7 V.L.R. (M.,)l; 2AL.T., 109. Rights of Lessees.] — A bill will lie by a lessee in possession under a gold-mining lease granted by the Crown under Act No. 291, to restrain tortious mining on and removal of gold from the land so leased. Aladdin G.M. Coy. v. Aladdin Try Again United G.M. Coy., 6 W.W. & a'B. (E.,) 266, 279. Trespass to Land under Lease.] — A person who enters upon land held under a lease is liable for trespass if he enter upon the land and put up a fence thereon, even though he claim to act under the authority of persons who are transferees of the rights of a holder of a residence area, and of the holder of a miner's right of part of the land in question, where the holder of the residence area had abandoned his rights before the issue of the lease, and the holder of the miner's right was in possession unwarrantably as against the lessees under a lease issued to them before their present one. Extended Cross Reef Co. v. Creaver, 4 A.J.R., 10. Institution of Suit for Trespass to a Lease- Trustees having Let a Mine to Tributors — Posses- sion.] — The plaintiffs held land under a mining lease from the Crown and as trustees for a com- pany. The mine had been let to certain tributors who were in possession at the time of the institu- tion of the suit. The plaintiffs sought an injunction against the defendant company restraining them from encroaching and trespass, and an account 957 MINING. 958 of the gold to which the tributors were not par- ties, held that the plaintiffs could not maintain the suit under a plaint describing them as still in possession, although they might be entitled to some of the relief sought as reversioners under a plaint truly stating their position. Penistan v. The Great Britain Coy., 5 A.J.B., 18. Suit for Trespass by lessee whose Lease declared Forfeited — Company holding Land comprised in Forfeited Lease tinder Miner's Bights — Act No. 291, Sec. 37.] — A. was lessee from Crown of a gold- mining lease which contained proviso for for- feiture in case of breach of covenants. A. committed breaches of labour covenants, and lease was, by Gazette notice, declared to be for- feited, but Crown did not re-enter or take possession. The defendant company were mining on this land under colour of their taking posses- sion of it under miners' rights subsequently to the declaration of forfeiture. Bill by A. against the company to restrain it from trespassing and for account of gold raised. Held by Full Court [dissentiente Williams, J. , ) affirming Higinbot.ham, J., that as lease was not forfeited by the declara- tion, A. was entitled to maintain the suit. Injunc- tion granted and account directed. Per Higin- botham, J., the Attorney-General was not a necessary party. Bartoich v. Duchess of Edin- burgh Coy.,8 V.L.R. (Eq.,)70; 3 A.L.T.,68, 121. Eights of Holders of Mining Lease — As against Prior License under " Land Act 1865 " (No. 237,) Sec. 42, subsequently obtaining Fee Simple under Land Act 1869 (No. 360,) Sec. 313.] — D. was a licensee under the Act 237, Sec. 42, of certain lands, and applied to purchase them under the Act No. 360, Sec. 31. Pending his application the plain- tiff, a mining company, obtained a lease from the Crown for fifteen years, for mining purposes, of land which comprised D.'s; and there was a provision in the lease that portions of ground held by licensees were reserved, and that mining was not to be carried on so as to injure the sur- face of the same, except as provided by the conditions of the licenses. Afterwards D. ob- tained a grant from the Crown in fee in pur- suance of his application, and transferred to O. , who leased the ground to the defendant, a mining company, for mining purposes. Upon motion by the plaintiff to restrain the defendant from mining, Held, per Molesworih, J., that the plaintiffs had a right to mine (not injuring the surface) as long as D. was merely a licensee; but not after he had acquired the fee, although D. had then no right to the gold himself, nor had the defendants, but injunction refused. Upon appeal, Held, that by the mining lease and the grant in fee, the Crown had granted two dis- tinct estates to different persons within the same area, and that the defendant must be re- strained from mining for gold, though they would be at liberty to sink for any other pur- pose thangold mining, and in such a way as not to interfere with the plaintiffs mining, and appeal allowed. Alma Consols O.M. Coy. v. Alma Extended Coy., 4 A.J.R. 144. (On appeal,) Ibid, 190. (c) Forfeiture oj Lease. Lease Granted under Act No. 148 — Regulations under Act No. 291.]— Where a lease was granted under Act No. 148, Held that it was not subject to regulations afterwards published (under Act No. 291), so as to make a notice of forfeiture gazetted under them evidence that the lessee had forfeited his lease. Johnson v. Thomson, 6 W.W. & a'B. (M.,) 18. Voidable on Breach of Covenant — Ultra Vires — Estoppel— Act No. 291, Sees. 42,43, 45.]— A mining lease, under Sec, 24 of the " Mining Statute, 1865," in the form fixed by the regulations of 2nd March, 1866, contained the following pro- visions: — " If there shall be a breach of cove- nant (on the part of the lessee) these presents shall be voidable at the will of the Governor-in- Council ; and in case the Governor-in-Council shall declare these presents void, the term shall cease and the declaration be conclusive evidence of breach in all Courts." Semble, that this proviso is opposed to the policy of the ' ' Mining Statute 1865," and ultra vires; but Held that a lessee whohadexecutedsucha lease was estopped from objecting to the proviso, and that his term was effectually determined by such declaration without notice to him or evidence of any breach of covenant. Matt v. Peel, 2 V.B. (M.,) 27; 2 A.J.K. 133. "Mining Statute 1865," Sees. 42, 43, 45 — For- feiture of Lease — Whether Re-entry Necessary.] — A gold mining lease contained a proviso that, if there should be breaches of the covenants con- tained therein, the lease should be voidable at the option of the Governor-in-Council; and in case the Governor-in Council should, by writ- ing under his hand, declare the lease void, the term should determine both at law and in equity, and it should be lawful for H.M. to re-enter. Breaches of the labour covenants occurred, and the Governor-in-Council, by Gazette notice, de- clared lease forfeited, but no re-entry was made on behalf of Her Majesty. Held by the Full Court (dissentiente, Williams, J.,) affirming Higinbotham, J., that the declaration of for- feiture did not avoid lease till persons repre- senting Crown took some step to determine it; that lessees were in the position of persons whose leases are provided to be void on breach of covenant, which means voidable at option of lessor; that rights of Crown to rent, and lessee to possession, remained unchanged till some act was done by Crown. Per Williams, J., that the declaration of forfeiture per se determined the lease, and no further act on the part of the Crown was necessary. Barwick v. Duchess of Edinburgh Coy., 8 V.L.R. (E.,) 70, 85, 92; 3 A.L.T., 68, 121. Forfeiture — Re-entry by Crown.]— On the for- feiture of n, gold-mining lease, it is not compe- tent for aDy one other than the lessees to take the objection that the lease is not actually determined till re-entry by the Crown, and no one can mark out and take possession of the land before re-entry by the Crown without obtaining an adjudication by a competent Court in their favour. Wedddl v. Howse, 8 V.L.R. (M.,) 44; 4 A.L.T., 95. Forfeiture of Mining Lease — How Enforced — "Mining Statute 1865," Sec. 101.]— Under the "Mining Statute 1865," Sec. 101 (i.,) a warden has jurisdiction, if the complainant has a right to recover the leased land, to declare a for- feiture of such lease for non-compliance with 959 MINING. 960 the labour covenants; but the holder of a miner's right cannot enforce a forfeiture of a lease held by a defendant, such lease being in the form in the Gazette of 1871, p. 935, for non- performance of the labour covenants, until the lease has been legally declared forfeited by the ■Governor-in-Council under clause 21 of such lease. M'Millan v. Dillon, 6 V.L.R. (M.,) 15; 1 A.L.T., 203. 4. Miners' Rights. (a) Who may hold. Married Woman:] — Semble- that a married "woman is a person entitled to get a miner's right under the "Mining Statute 1865," and to take a claim under it, though such claim would at once become the property of her husband. Foley v. Norton, 4 V.L.R. (M.,) 13. Company Registered under the Mining Acts.] — See cases post, columns 960, 961, 962. (6) Privilege of Holders of. The holder of a miner's right is not entitled to mine under a public road without the permis- sion of the proper authority, viz. , the Board of Land and Works or District Road Board ; the authority of a warden is not sufficient. House v. Ah Sue, 2 W. & W. (L.,) 41. Eights of Holders of, to Enter on Crown land Alienated without Consent of Proprietor.] — See Regina v. Davies, ante column 296. Bights of Holders of, as Against Crown Lessees — To the Land and to the Gold.] — See Munro v. Sutherland, ante column 951 ; and post ' under Transfer op Land— Certificate of Title. Qucere, whether a title under a miner's right, liable to forfeiture from the omission to take one out, is restored by one being taken out before ■adverse proceedings. Summers v. Cooper, 5 V.L.R. (M.,) 22; 1 A.L.T., 46. {c) Miners' Rights Considered as Conditions Pre- cedent to Right to Sue in various Cases. Application for Certiorari — Act No. 291, Sec. 246.] — An applicant for certiorari to bring up ■a warden's order ousting him from a claim to be quashed, need not have a miner's right since that is not within Sec. 246, an application to be put in possession of a claim. Regina v. Heron, ex parte Bryer, 2 A.J.R., 110. Goldficlds Act (No. 32,) Sec. 90— Trustee and Cestui que Trust. ] — Separate miners' rights both for trustee and cestui que trust are not required under Sec. 90 of the Act. M'Dougal v. Webster, 2 W.W. & a'B. (L.,) 164. [Compare Sec. 246 of Act No. 291.] What is a Sufficient Holding under Act No. 32, Sec. 90.] — Where a plaintiff in equity held a miner's right at the time when his title to relief first arose, and also at the time of filing his bill, but had, during a portion of the interval, been without one, Held, that this was a sufficient compliance with the Act No. 32, Sec. 90. Nie- mann v. Weller, 3 W.W. & a'B. (E.,) 125, 132. Mortgagor Seeking Redemption.] — A mortgagor of mining shares, seeking redemption, is not liable to the necessity of holding a miner's right under the Act No. 32, Sec. 90. Niemann v. Weller, 3 W.W. & a'B. (B.,) 125, 132. See also S.P. Salmon v. Mulcahy, ibid, p. 139. Vendor and Purchaser— Specific Performance- Act No. 291, Sec. 246.]— As between vendor and purchaser of a mining claim it is not necessary that the purchaser should be the holder of a miner's right in order to enable him to sue in equity for specific performance, it being sufficient if the vendor have one ; and in the absence of evidence either way it will not be presumed that vendor had not a miner's right. Learmonth v. Morris, 6 W.W. & a'B. (E.,) 74, 85. Suit in Respect of Partnership— Act No. 32, Sec. 90.]— M. bought in March, 1865, a share in a company as a co-partner with defendants in a claim held by them under miners' rights. M. never obtained a miner's right until December, 1864. In December, 1862, his share was forfeited on account of arrears in calls. In 1865 M. sued the defendants, and prayed for a declaration of partnership in the mining claim, and for an account of profits. Held, by the Court of Mines, and affirmed, that the plaintiff's title to relief "first arose or accrued" in December, 1862, and that as he then had no miner's right he was not entitled to any relief. Mackeprang i. Watson, 2 W.W. & a'B. (L.,) 106. Suit in Court of Mines for Share in a Claim — Act No. 115, Sec. 11.]— J. purchased a share in a claim May, 1857, and took out a miner's right in November and December, 1858. J.'s share was declared to be forfeited. J. did not take out a right again until December, 1859, but took them out in the years 1860, 1861, and 1862. In 1862, J. filed a bill in the Court of Mines to have his right to a share declared, but the suit was dismissed on the ground that J. was not a holder of a miner's right when his right to sue accrued. Held, on appeal, that as appellant held a right when Act No. 115 was passed he was within the remedy of the Act. Appeal allowed. Jones v. Abraham, 2 W. & W. (L.,) 158. Suit by Company— Act No. 291, Sees. 2, 80— Act No. 32, Sees. 2, 3, 42, 53, 74, 93— Proceedings in Personam.] — Where in a suit by four trustees of a registered mining company (the G. company) and the G. company, as plaintiffs, against another company (the V. company), to set aside a sale of machinery as irregular, it ap- peared the trustees of the G. company had miners' rights at the time the seizure of ma- chinery took place, but the G. company itself had no such rights. Held that though under Sees. 2 and 80 of Act No. 291, and Sees. 2, 3, 42, 57, and 74 of Act No. 32, a holder of a miner's right might take up a claim as a trustee for, and confer equitable rights upon another not hold- ing one, yet that related to remedies in rem, as in the cases of Jones v. Abraham, Salmon v. Mulcahy, M'Dougall v. Webster, Niemann y. Weller, and not to remedies in a proceeding in personam like the present, where the plaintiff company, under cover of their trustees, sought redress against defendants, who tortiously sold 961 MINING. 962 under an execution against the plaintiff com- pany and purchased the claim; and that Sec. 90 of Act No. 90 did include corporation in the word "person"; that the plaintiffs were not entitled to sue in the present frame of the suit without producing a miner's right for the company. Volunteer Extended Coy. v. Grand Junction Coy., 4 W.W. &a'B. (M.,)6. Company Suing for Benefit of the Company- Consolidated Miner's Eight — " Mining Statute 1865" (No. 291,) Sec. 4.]— The B. company and two trustees, A. and B. , for it, summoned C. and others for encroachment upon their claim. The claim in respect of which the complaint was laid consisted of forty-four men's ground, taken up under miners' rights, and by divers assignments and transfers became vested in A. and B. as trustees for the B. company. There were pro- duced the following rights — (1.) Consolidated miners' rights to the manager of the company (representing two miners' rights) and a miners' right to A. and B. respectively. Held that the case was governed by the same principle as Volunteer Coy. v. Grand Junction Coy., and that the company were incompetent to sue for the benefit of the company, joined by persons pro- fessing to be trustees ; and that the consolidated miners' right taken out for two, in respect of u, claim originally held by forty-four, and being for a corporation holding no land save by trustees was not within Sec. 4 of Act 291, and did not aid the plaintiffs. Chixholm v. Band of Hope Coy., 4 W.W. & a'B. (M.,) 31. Company Suing — What Miner's Eights insuffi- cient.] — A. company and its trustees as co- plaintiffs, sued in the Court of Mines to restrain registration for a block claim within the claims of the company. The company never had a miner's right, but obtained a consolidated miner's right as for two men's ground only, in the name of its manager. Held not to be a sufficient miner's right to enable the company to sue. Great North-west Coy. v. Menhennet, 4 W.W. & a'B. (M.,) 62. Suit by Company — Eight to Belief — Miners' Eights what Sufficient.— In a suit by a company and persons who were trustees of ground for them, the company sought relief for encroach- ments on claims held by the trustees for them, and leased ground held by the company. No miner's rights were produced by the company, but the other plaintiffs produced miners' rights. Held that the miners' rights produced were sufficient to entitle the company to sue in the suit as framed, and to entitle them to obtain relief as to the leased ground, if otherwise entitled. Australasian Coy. v. Wilson, 4 A.J.R., 18. Application for Injunction under Sec. 203 of Act No. 291.]— A miner's right held by a person as trustee for a company where such person and the company are applicants for an injunction under Sec. 203 is not sufficient evidence of title. Grant v. Lawlor, 3 V.L.R. (M.,) 15. Suit by Shareholders.]— In a suit by one share- holder in a mining company, on behalf of him- self and all other shareholders except the defen- dants against the directors and trustees, it is not necessary that the bill should contain an averment that the plaintiffs held miners' rights when the cause of suit arose, though it will be necessary to give evidence thereof before final relief can be given. Lee v. Robertson, 1 W. & W. (E.,) 374, 390. Suit by a Company.] — A company registered under the "Companies Act" is "a person" within the meaning of the Acts requiring every "person" to have a, miner's right before he appear in an action on a claim ; and such com- pany is entitled to a miner's right whether it be, or be not necessary that each individual mem- ber of the company should personally hold a. miner's right as heretofore. In re Verdon, 1 W.W. & a'B. (L.,) 207. Suit by a Company — Consolidated Miner's Eight — " Mining Statute 1865" (No. 291), Sees. 4, 7, 8— Act No. 228.] — Plaint summons by the A. company against the G. company for encroach- ment. The A. company being a registered com- pany under Act No. 228, had no separate miner's rights, but a consolidated miner's right, repre- senting 1031 men. Held that Sec. 4 of No. 291 was consistent with companies registered under No. 228 being entitled, as well as others, to con- solidated miners' rights, such companies having power to manage their internal affairs like those of common partnerships ; and that Sees. 7 and 8 were not inconsistent with registered com- panies holding such a right ; and that the plaintiff company had sufficient miners' rights to enable them to sue. Albion Coy. v. St. George United Coy., 4 W.W. & a'B. (M.',) 37, 58, 59. Suit by Company — Shareholders Holding Indi- vidual Eights.] — -Where the shareholders of a company hold sufficient individual miners' rights, but no corporate miner's right has been taken out for the company, Held that Sec. 90 of Act No. 32 was sufficiently complied with, and that the corporate right for the company was not essential. Smith v. Scottish and Cor- nish Coy., 2 W.W. & a'B. (L.,) 121. [Compare Sec. 246 of Act No. 291.] Who may Maintain Suit for Trespass — Claim- holders suing with a Company not having a Miner's Eight.] — Registered owners of a claim under the Sandhurst Bye-laws having formed themselves into a company, sued with the com- pany for a trespass committed after incorpo- ration. The company had not a proper miner's right, so the individual claimholders obtained leave to amend by striking out the company as co-plaintiff. Held that registration being essential to a legal transfer by the Sandhurst Bye-laws, and there having been no registered transfer from the claimholders to the company, the claimholders could sue alone. Vallancourt v. O'Rorke, 1 V.R. (M.,) 43. Who may Maintain Trespass — Company not having Miner's Eight at time Trespass Com- menced.] — A mining company which held a miner's right at the time of the trespass in respect of which it was suing, was held entitled to sue under Sec. 246 of the "Mining Statute 1865," although it had no miner's right at the time the trespass actually commenced. Sea Queen Coy., v. Sea Quartz Coy., 4 A.J.R. 130. 963 MINING. 964 Some Complainants not holding Miner's Bights.] — B. and fifty-three others, under a warden's •order, took possession of tenement No. 1248 (being fifty-four men's {(round) and were regis- tered. Then A. and others came on the ground on 5th April, 1879, and worked it. B., for him- self and the fifty-three, applied the next day for the tenement as for thirty-three men, but was ■not registered up to 5th May, 1879. On 16th April the fifty-four miners' rights expired, and thirty-three only were renewed. On 24th April B. and the fifty-three sued A. for trespass, the plaint being heard on 5th May, when only thirty-three rights were produced. Held, that the warden could not make an order in favour of the complainants generally or in favour of the thirty-three holding rights. Bebro v. Bloomfield, 5 V.L.R. (M.,) 26; 1 A.L.T., 47. Some Complainants not holding Miners' Eights.] — In a complaint for encroachment brought in respect of damages to claim taken up as for eighty men, the warden or Court should ascer- tain the damages generally, and out of them award an amount in proportion to number of :ehares held by shareholders entitled to insti- tute proceedings by virtue of miners' rights. Critchleyv. Graham, 2 W. & W. (L.,) 71. In the case of a continuing trespass, as for an ■encroachment de die in diem for twelve days, if :some of complainants had miners' rights during part of time only, the warden or Court should ■divide the time, and give damages accordingly. Ibid. [Compare Sec. 101, Sub-sec. iii., of Act No. •291.] But where a company holding two rights as for forty-four men's ground, were suing with the trustees of the company holding individual rights, Held that the miners' rights held by the company were not sufficient to entitle them to sue, and recover for any part of their claim •or damages, and the trustees could not recover as co-plaintiffs pro rata. Chisholm v. United Extended Band of Hope Coy., 4 W.W. & a'B. •(M.,) 31. A company sued with A. and B., its trustees, in respect of trespass to a claim. The company and A. had miners' rights as for twenty-three twenty-fourth parts of the claim, but B. had no miner's right. Held that the warden might assess damages as for twenty-three twenty- fourths of the said claim, and declare that the company and A. entitled to possession thereof. Sea Queen Q.M. Coy. v. Sea Q.M. Coy., 4 A.J.R., 174. Act No. 291, Sees. 4, 5, 12, 246— Onus of Proof- Termination of the Eight before Suit.] — Act No. 291, Sees. 4, 5, in creating miners' rights • says affirmatively that they shall last as long as the tax is paid, and therefore by clear implica- tion no longer ; and the meaning of the words "save as against Her Majesty" only means that the Crown may even during the continuance of the rights revoke the titles. Sec. 246 only applies to persons neglecting to renew miner's rights as plaintiffs. The onus of proving that a defendant has a miner's right in ,1'orce at the time of the commencement of the suit lies upon such defendant ; the termination before the commencement of the suit of the miner's right under which the defendant previously held the claim, such right not having been renewed, terminates the defendant's interest in the claim as against the complainant. Lennox v. Golden Fleece and Heales Coy., 5A.J.K,., 18. Who may Enforce Forfeiture— Holders of Miner's Eights. — Claims to mine on Crown lands are dependent for their continuance or means of legal enforcement upon the renewal of miner's rights, but still are in the nature of permanent estates, and are not confirmed by that which is a means of renewal. Where, therefore, the holders of miners' rights sought for a declaration of forfeiture, Held that it was sufficient if they had miners' rights at the time of complaint, and immaterial whether they had taken them at the time of the forfeiture. Cleric v. Wrigley,iW.W. & a'B. (M.,) 74, 83, 84. See S.P. United Ex- tended Band of Hope Coy. v. Doyle, 5 W.W. & a'B. (M.,) 39. Who may Enforce Forfeiture — Holder of Miner's Eight — Sandhurst Bye-law (No. 7.)] — A holder of a miner's right for a full claim need not produce and prove a miner's right specially taken out for the ground of which he seeks possession as forfeited under Sandhurst Bye-law (No. 7.) Crocker v. Wigg, 5 W. W. & a'B. (M.,) 20. Possession of a Miner's Bight — When Pre- sumed.] — In a suit for encroachment the plain- tiffs only title stated in the case was possession of the ground before and during the acts of tres- pass complained of. Per the Chief Judge: — As nothing is said of a miner's right, I presume he had it for the period of the alleged trespass. Fahey v. Koh-i-noor Coy., 3 W.W. & a'B. (M„) 4. Entries in Eegister — Act No. 291, Sees. 49, 246.] — An entry in the registrar's book of miner's rights of persons taking up a claim is under Sec. 49 primd facie evidence only to show the existence of miner's rights in the person taking up as their qualification for so doing, not for the collateral purpose of showing that the plaintiffs had miners' rights at the time of the injury complained of such as to entitle them to succeed in their suit under Sec. 246. Cruise v. Crowley, 5 W.W. & a'B. (M.,) 27. Insolvent having Miner's Eight — Assignee need not have one.] — L., who had a share in a mining company's claim on a quartz reef, and who had a miner's right, sold, in December, 1861, his share to K., who had no miner's right, but was registered as^owner' of the share. L. became insolvent, and in January, 1862, his assignee was appointed. The assignee had no miner's right, and L.'s expired in February, 1862. In March, 1862, G. purchased the share from K., with notice that K. was only a trustee for L. Suit by L. 's official assignee against K.. and G. to have the sale to K. set aside ; to have K. declared a trustee for L. ; and to set aside the sale by K. to G. Held that it was unnecessary for the assignee to take out a miner's right, and that he could maintain the suit as against G. Goodman v. Kelly, 1 W. & W. (L.,) 332. 965 MINING. 966 Appropriation of Specific Ground — Costs.]— S., as the trustee for a company, held what had been twenty-five men's ground by different transfers at different times, under a consolir dated miner's right. This right expired, and was not renewed. S. also had another miner's right, which he had not appropriated before, and which he now appropriated to the ground to protect its forfeiture. Held that under Ballarat Bye-law 11 he might so appropriate it, although he might not have so intended when he took it out, but' the Court refused to give S. his costs because he had made such a puzzle of biia title. Fattorini v. Band and Albion Consols, 9 V.L.R. (M.,) 1 ; 4 A.L.T., 121. (5) Water Bights. "Goldfields Act" (No. 32,) Sees. 3, 76— Water Eight.] — S. and party and D. and party occu- pied adjoining creek claims, S. and party occu- pying a claim above that of D. and party. S. and party diverted water from the creek, and returned it charged with sludge into the creek by a tail race passing through D.'s claim. B., wishing to work a distant part of the claim, placed a dam in the race to divert the water, and consequently the water charged with sludge did not flow away from S.'s claim unless con- stantly cleared from sludge at the dam. Held, on case stated, that under Sec. 76, the warden has no jurisdiction to determine such a ques- tion, since the right interfered with is not a water right within Sec. 3. SchuUz v. Dryburgh, 2 W. &, W. (L.,) 224. [Compare Sees. 5 and 101, Sub-sec. 3, of Act No. 291.] Dam on Crown Lands — Watershed — No. 32, Sec. 3.] — The holder of a dam constructed on Crown land, under Sec. 3 of the " Goldfields Act " (No. 32, ) is not entitled to have, by virtue of the provisions of the Act, a right inconsistent with the common law, and is, therefore, not entitled to have the ownership of a watershed over the area of Crown lands from which the water would naturally flow to his dam, and which right he could only get by the express grant of the Crown. The Act protects him in, the ownership of, and against all direct injuries to the dam itself. Stevens v. Webster, 3 W.W. &a'B. (M.,)23. [Compare Sec. 5 of Act No. 291.] Dam on Crown lands.]— The holder of a miner's right is entitled to occupy Crown lands for a dam for domestic purposes, though not actually engaged in mining. M'Lean v. Wearn, 1 A. J.R., 152. Duty of Miners Using Streams.] — To a declara- tion for throwing sludge on the plaintiff's land, whereby it was injured, the defendants pleaded that, as holders of miners' rights mining on Crown lands, they used a stream flowing by those lands, and afterwards flowing through plaintiff's lands, for mining purposes and as an outlet for the water so used, and thereby the water so used became impregnated with earthy substances, whereby, &c. Demurrer, that it was incumbent on the defendants to do the acts complained of in such a maimer as not to injure plaintiff. Held that the plea disclosed no defence to the action. Campbell v. Ah' Chong, 1 V.R. (L.,) 25; 1 A.J.R., 35. License under No. 148, Sec. 11, to Divert Water — Priority Over Creek-right.]— A license pro- perly granted under Sec. 11 of No. 148, to divert water by race, &c, from a river, has superiority over a pre-existing creek right; and the holder of such a creek-right is not entitled to deprive the holder of such a license of any portion of the quantity of water specified in such license when the natural supply is insuffi- cient for both; sed quaere, whether the grant to the licensee, as between him and any other per- son having legal rights to the water of the river, the subject of the license, in the part of it through which the water is diverted, whether such rights be acquired before or after the grant, can stop the water to the extent pre- scribed in the grant, the section directing that the diversion by the licensee shall be to no greater extent than might be done by the licensee if owner of the land granted. Night- ingale v. Daly, 3 W.W. & a'B. (M.,) 7. [Compare Sec. 36 of Act No. 291.] Lease of Reservoir Granted under No. 148, See. 12, to Road Board with Right to Cut and Use Channels, Races, &e. — License under " Mining Statute 1865" to Another Person to Cut a Race from Creek within the Area — Application for Injunction.] — The Court refused an injunction to restrain the Crown from issuing a license under the " Mining Statute 1865" to cut a race in an area in which a road board had been granted, under Act No. 148, Sec. 12, the exclu- sive right of cutting races and channels for the purpose of collecting storm- water for a reser- voir of which the board had a lease. Shire of Ballan v. The Queen, 10 V.L.R. (E.,) 255; 6 A.L.T., 109. Foe Facts see S.C., ante column 326, Act No. 291, Sec. 101, Sub-sec. iii — Summons for Interfering with Water — Trespass.] — Under a summons before a warden for "interfering with and trespassing on the complainant's right to divert and use for mining purposes certain water by abstracting and diverting the same," the warden cannot go into the question of prospective injury to the complainant's right, or of trespass to the land occupied by the com- plainant's aqueduct. Hyndman v. Micke, 8 V.L.R, (M.,) 39 ; 4 A.L.T., 84. Regulation by Order of Council, 21st January, 1878, Clause 27— Notice of Transfer.]— Clause 27, providing for a notice of the transfer of a license to cut races to be given to the Minister of Mines, means that the notice should be given after the transfer is completed; and the refusal of transferees to accept a transfer when ten- dered prevents such notice being given, of which they cannot complain. Baw Baw Sluic- iiw Coy. v. Nicholls, 9 V.L.R. (L.,) 208;' 5 A.L.T., 73. 967 MINING. 968 II. Practice and Procedure in Mining Matters. (A) In Equity. (i. ) Injunctions to restrain Mining on Private, Property, see ante columns 908, 915. (ii.) Injunctions Generally , and Practice Thereon. Mining under a Street.] — Plaintiff's claimed the whole land in dispute under a frontage claim, and also part of the land, including half a street under a block claim. On motion for an injunction as to all the land, there was evidence of abandonment by the plaintiffs of all the land except as to the street, as to which the defen- dants had no colour of title ;■ the plaintiff's too had not obtained the consent of the Borough Council to mine under the street. Molesworth, J., granted an injunction as to the street only on terms of the plaintiff's submitting to a cross- injunction as to it. On appeal the Pull Court granted an injunction as to the street only without any such cross injunction. Sand of Hope and Albion Consols Coy. v. All Saints Coy., 2 V.R. (E.,) 83 ; 2 A.J.R., 37, 49. In a contest between two persons as to title, an assertion that defendants had not obtained from the proper authorities permission to mine underneath a street gives the plaintiff no title. The alleged power of intervention to prevent an unauthorised act, which power has not been exercised, cannot be set up by a trespasser who has not a shadow of title in himself against a person in prior occupation of the locus in quo. tit. Ceorge and Band of Hope United Coy., v. Band of Hope and Albion Consols, 2 V.R. (E.,) 206, 221 ; 2 A. J.R., 127. Act No. 291, Sec. 16 — Permission to Mine.] — Under Sec. 16 of Act No. 291, the permission of a municipal council given to plaintiffs confers a title as against defendants having no such per- mission only as to such half of the street as the plaintiff's may claim in accordance with the doc- trine of ad medium filum viae, and no further, when both plaintiffs' and defendants' own land adjoin the street. The Extended Hustler's Freehold Coy. v. Moore's Hustler's Coy., 5 A.J.R., 116. For facts see S.C., ante column 314. Holder of Amalgamated Claim — Medium filum viae.] — The plaintiff C. was legal owner of an amalgamated claim, in trust for himself and the K. company, which had been let on tribute to the plaintiff B. company. The defendant W. was owner of three freehold allotments within the claim, and the defendant company was his tributor. These allotments were bounded by a public road on one side. The defendant com- pany had driven under the road 75 feet into plaintiff's claim. On motion for injunction and inspection, injunction granted, but, as other means of information were open, inspection only through the aperture caused by plaintiff's breaking into defendant's drive granted. Band of Hope Coy. v. Williams Freehold Coy., 5 V.L.R. (E.,) 257. [But now see Garibaldi Coy. v. Craven's New Chum Coy., 10 V.L.R. (L.,) 223; 6 A.L.T. 93, where the principle of ad medium filum via& was overruled. User — Mining Claim— Reservation.] — If the case for the Crown depends upon public docu- ments and public user, the nature of the case renders minute and specific allegations by the applicant less necessary, and comparatively vague statements are sufficient to launch the bill and throw on the defendants the burden of contradiction by special allegation. By order of the Governor-in-Council, 1861, Crown, land was applied to a public use by being temporarily reserved from sale as a public park. The defendants in the first suit were mining upon part of the land under miners' rights which were not proved to have been granted before the date of the order-in-council. In the first suit there was no definite evidence of the alleged user of the land as a public park. On bill and information seeking to restrain the defendants from mining on this land, and on motion for injunction, Held, upon the above principle, that as the defendants had not met the necessity of special contradiction the Crown were entitled, and injunction granted. In the second suit defendants claimed under miners' rights issued before the order-in-council, and the allegations of the bill and information were met by distinct affidavits sworn by residents in the vicinity that the land had never been used as a public park ; that it was not'prior to 1861 used as a place for public recreation, and had been since used for grazing purposes. On a bill and information for a similar purpose, Held that the evidence given by defendants was strong enough to disprove public user, and that as the proclamation of reservation had been made under " Sale of Crown Lands Act 1860" (No. 117), that the reservation did not per se dedicate the land to any specific purpose, and was only a reservation from sale and did not take the land out of the operation of the "Mining Acts;" that as the defendants had for years before the order occupied the land for mining purposes, and had expended large capital in their mining operations, the Court would not interfere by injunction. Injunc- tion refused. Attorney-General v. Southern Freehold Coy. ; Attorney General v. United Hand-in-hand and Band of Hope Coy. : 4 W.W. & a'B. (E.,) 66, 78, 80, et seq. Who are Entitled to.]— Two adjacent mining companies entered into a written agreement de- fining, by reference to a plan, a common agreed boundary line, and mutually covenanted not to cross it . On the plan, this line extended beyond the then claim of either company. Subse- quently one company acquired land not pre- viously in the possession of either, and mined in it across the boundary line as drawn on the plan. The other company filed a bill to restrain such mining as a breach of the agreement, but alleged neither title to, nor possession of the locus in quo. Held by the Pull Court on appeal from an order for an interim injunction, that the plaintiffs, showing neither title nor posses- sion, were not entitled to an interim injunction ; and appeal allowed with costs, and defendants allowed their costs of opposing the granting of 969 MINING. 970 the injunction. Semble, that the acquiring the land by the defendants after the agreement was not a violation of it. The Band of Hope and Albion Consols v. The St. Oeorge and Band of Hope United Goy., 1 V.R. (E.,) 183, 188; 1 A.J.R. 174 ; 2 A.J.R. 127 (on appeal.) Proving Case different from that made by Bill.] — The plaintiffs by their bill and affidavits made a case of encroachment by means of particular drives, and upon motion for injunction and inspection, the case failed partially, and was ordered to stand over for further affidavits. On further hearing of motion plaintiffs tried to set up a different case of encroachment from that set out in bill. Held they were not entitled to do so, and motion dismissed with costs. Parker's Freehold United Q.M. Coy. v. Parker's United Coy., 7 V.L.R. (E.,) 16. Interlocutory Injunction — Acquiescence.] — The defendant Y.B. company sunk a shaft on the ground in dispute two years before suit brought, with acquiescence of the B. company, through which plaintiff company claimed, and mined without interference on part of B. company. Held on motion for injunction that there was such acquiescence on the part of the B. company as would disentitle it to relief, and the plaintiff company obtaining rights through the B. company was in the same position. If a person believes his land is encroached upon, he should ascer- tain what the boundaries are ; and if a person come near his boundary to sink a shaft, he should take immediate steps to assert his claim, and prevent encroachment. Motion refused. Band and Barton United Coy. v. Young Band Extended Coy., 7 V.L.R. (E.,) 162. Acquiescence — When no Bar to Relief.] — If a plaintiff, having reason to believe that defen- dant is engaged in a fraudulent mining encroach- ment, underground and difficult to detect, permits him to go so far that the injury is serious, but detection certain, the plaintiff is not by this sort of acquiescence disentitled to relief. Lane v. Hannah, 1 W. & W. (E.,) 66, 72. Account of Gold— How Taken.] — Held, per Molesworth, J., and affirmed on appeal, that the valuation of gold as against trespassers should be high. Attorney-Generalv. Boyd, 3A.J.R.,99, 130. For facts see S.C., ante column 913. Dispute as to Title— Duty of Court with Regard to Gold.]— Per Full Court.— Where there is in dispute a difficult question of title to auriferous land, the Court should, on an interlocutory application, endeavour to preserve the gold for the party ultimately succeeding. Band of Hope and Albion Consols v. Young Band Extended Q.M. Coy. 8 V.L.R. (E.,) 120, 125 ; 3 A.L.T., 125. Disputed Ground — Gold How Dealt with.] — An injunction was obtained ex parte against a " No Liability" mining company to restrain it from working on ground which was claimed by itself and the plaintiff company. The injunction was subsequently dissolved by the Primary Judge in Equity on the ground that it was obtained by misrepresentation; but the defen- dant company was ordered to keep an account of the gold taken by it from the land, the Primary Judge refusing the request of the plaintiff company for an order that the gold obtained by the defendant company should be paid into a bank. On appeal, Held, by the Full Court, that the plaintiff company was entitled to an order directing the surplus of the gold over and above the working expenses to be paid into a bank in the joint names of the managers of the plaintiff and defendant com- panies; that accounts of gold raised and work- ing expenses should be kept, the plaintiff com- pany having liberty at all reasonable times, at their own expense, to inspect the workings of the defendant company on the land in dispute. The form of the order was settled by the Court. Band of Hope and Albion Consols v. Young Band Extended Q.M. Coy., 8 V.L.R, (E.,) 120; 3 A.L.T., 125. Breach of Order — Per Confusionem.] —Where there was an order against a defendant com- pany that they might continue to work aurifer- ous land, the title to which was in dispute in the suit, on the terms of keeping an account of the gold extracted and of the working expenses, and paying into a bank named the surplus pro- ceeds of it, to abide the result of the suit; and the defendant company worked the land in dis- pute in conjunction with adjoining land of their own in such a way that the quartz from the two had been mixed, and gave in their accounts the approximate quantity of gold raised from the land in dispute, Held, per Molesworth, J., that there had been no substantial breach of the order; and that, if there had, the proper course was to apply to vary the order, or to proceed against the defendant company for contempt. Upon appeal, Held, by Full Court, that the defendant company had practically infringed the order, and defendant company ordered to pay into the bank the whole of the gold obtained from the quartz they had mixed. Band of Hope and Albion Consols v. Young Band Extended Q.M. Coy., 8 V.L.R. (E.,) 277, 283; 4A.L.T., 60. A. was working, under tribute from free- holders, mines under certain land, and B. was working mines under adjoining land. It was proved in evidence that B. had sunk a shaft on his own ground, and had thence driven into plaintiffs ground. From one level about 2600 tons of quartz had been raised and crushed at B.'s battery, but B. had, by blasting, prevented the discovery of the exact extent of encroach- ment and of gold raised. Held that there were sufficient facts to prove the trespass, and that an account 6f gold raised should be taken; all doubt to be taken most strongly against B. Attorney-Generalv. Lansell, 8 V.L.R. (E.,) 155, 161, 171, 174; 3 A.L.T., 87, 141. Encroachment — Account of Ore Raised and Gold Extracted.]— The Master in his report found that a certain number of tons of quartz were raised from the defendant's own mine and his en- croachment on plaintiff's, so many tons from encroachment and so many from defendant's mine, and found also total number of ounces extracted. Held that the proper inference was 971 MINING. 972 that the gold was procured from the tons of quartz proportionately. Attorney-General v. Lansell, 9 V.L.R. (E.,) 172, 178 ; 5 A.L.T., 71. Encroachment — Confusion of Gold Removed.] — Where a decree found an encroachment by the defendant on the plaintiffs mine, and directed an account of all gold, &c, removed therefrom, Held that the onus of showing confusion of the gold removed from plaintiffs and defendant's mines lay upon the plaintiff at the inquiry. Ibid. Witnesses Engaged in Encroachment.] — The evidence of witnesses engaged in an encroach- ment should be received as true so far as con- sistent and uncontradicted. Ibid. Action for Value of Gold Taken — Trespass under oona fide Belief of Right.] — There had been a previous action in ejectment in which plaintiff recovered, and now an action was brought in the nature of an action for mesne profits. It appeared that defendants were in under a claim of title ; that an injunction had been granted, and defendants were allowed to carry on the mining under certain conditions. The jury had found the gold taken to be of a certain value, and had allowed the expenses at a certain sum, giving plaintiff a verdict for the balance. On rule nisi to increase damages, Held that the cases of a wilful trespasser and a person in under bond fide belief of right being different, the damages had been correctly assessed. Rule discharged. Munro v. Suther- land, 5 A.J.R., 75. Trespasser — Not Allowed Cost of Mining.] — A wilful trespasser upon a gold mine will not be allowed the expense of raising the gold removed by him. Attorney-General v. Lansell, 9 V.L.R. (E.,) 172, 178. What a Breach of Injunction.]— Finishing work necessary to the stability or use of a mine, is not a breach of an injunction not to work it. Mulcahy v. The Walhalla G.M. Coy., 5 W.W. &a'B. (E.,)103, 110. What is a Breach of Injunction.] — The D. gold- mining company had obtained an injunction against the M. C. company to restrain an en- croachment. The D. company mined on private property. Subsequently to the granting of the injunction, B., one of the members of the M.C. company, purchased the interests of three of the persons who had constituted the D. company, and continued the mining. Upon motion by the D. company to commit B. for a breach of the injunction, Held that B. had committed no breach, and that to restrain him from exercising the rights acquired by purchase another suit would be necessary. Attorney-General v. Boyd, 4A.J.R., 103. Bill for Injunction — Defendant not Connected with Acts Complained of.] — Where a bill was filed against a mining company and its tributors to restrain undermining streets, and it was alleged that the tributors were mining under the streets with the knowledge and assent of the company, but the company was not distinctly stated to be the doer of the acts complained of, nor was it shown that it shared in the profits arising from them, a demurrer by the company was allowed. Mayor, &c, of Ballarat East v. Victoria United G.M. Coy., 4 V.L.R. (E.,) 10, 17. When Cross Injunction will he Granted.]— Mul- cahy v. Walhalla G.M. Coy., ante column 570. (iii. ) Orders of Inspection — When and How Made. Order to Inspect and Survey Mine.]— In a suit for an injunction to restrain defendants from trespassing on plaintiff's ground and removing gold therefrom, the Attorney-General, on behalf of the Crown, having been made a co-plaintiff with his consent after injunction obtained, on motion for an order for inspection, the Court ordered that the district surveyor might inspect the mine of the defendants and survey it, the plaintiffs undertaking to pay any damage or loss resulting to plaintiff through stoppage of his works. Attorney -General v. Cant, 2 W. & W. (E.,) 113. In a suit brought by Attorney-General and the owners of private property, the Court has jurisdiction to make an order for inspection. Attorney-General v. Gee, 2 W. & W. (E.,) 122, 131. Information hy Attorney-General — Owners of Private Property not Joined as Co-plaintiffs by Bill.]— On an information by the Attorney- General where the owners of the private pro- perty were not joined as co-plaintiffs by bill, an order for inspection was refused on the ground that no demand for inspection had been made by any one on behalf of the Crown. Attorney- General v. Hustler's Consols Coy., 3 A.J.R., 70. Order for Inspection — Mining lease on Private Property — Highway ad medium filum — Inspection Granted as to the Property Only.] — Where a com- pany were mining, under a mining lease from the proprietor, on private property which was bounded on one side by a highway, and alleged that the defendants, who were mining lessees of land on the other side of the highway, had mined under the whole breadth of the highway into their allotment, the Court granted an in- junction only as to mining under the allotment, and an order of inspection only to ascertain whether defendants were mining under it at the time of the order. Victoria United Mining Coy. v. Prince of Wales Coy., 5 V.L.R. (E.,) 92. Mining on Private Property— licensees— Attorney- General — Encroachment.] — In a suit by the At- torney-General and the licensees for gold-min- ing purposes of the owners of private property against an adjoining mineowner, for an alleged encroachment, a motion by the plaintiffs other than the Attorney -General, for inspection of the adjoining mine, was granted, to enable them to establish the fact of encroachment. Semble, that if the defendant had admitted the fact of encroachment, an inspection to ascertain the extent of encroachment would not have been granted upon such a motion, on the ground that the plaintiffs other than the Attorney-General had no interest in seeing what was the quantity 973 MINING. 974 of the injury done, their right being merely a license to work. Attorney-General v. Lansell, 6 V.L.R. (B.,) 134 ; 1 A.L.T., 177. Motion for Inspection — Boundaries on a Flan Attached to an Agreement — Error in Flan.] — The plaintiff and defendant company made an agreement by which certain boundaries were .fixed, and these boundaries were marked in an attached plan. These boundaries were imaginary lines and the plan was inconsistent with itself as to the course of those lines with reference to land marks, and showed a shaft in a wrong position. The plan had on it a description and bearing of imaginary lines accurately given. On motion for injunction to restrain encroach- ment, and for order for inspection, Held* that measurements from the accurate description in the plan were dominant over other measure- ments, no order for injunction, but order made for inspection to procure evidence of the true position of the alleged encroachment, with reference to the real boundaries. Band and AlbionCoy. v. St. George United Coy., 3 A.J.R., 20. Inspection.] — The plaintiff company were mining under land held on. lease from the Crown, and the defendant company on adjoin- ing freehold. The manager of the plaintiff company applied by letter for leave to inspect defendants' mine, and this was allowed. He made a second application, and an answer was returned that he might be at liberty to inspect if plaintiff company would give a bond not to flood defendants' mine. This was refused, and the defendant company continued to refuse inspection except on terms of a bond being given. The bill charged encroachment by de- fendants upon plaintiffs' land, which encroach- ment it was alleged the defendants justified by pretending there was a. road as boundary be- tween the adjoining lands of the plaintiffs and defendants, and that the defendants had a right to mine half-way under this road. Motion for inspection refused, the defendants having denied that they went as far as the road. United Hand and Band of Hope Coy. v. Winter's Free- hold Coy., 3 A.J.R., 59. "" Where other means of information were open to a party seeking an order of inspection, in- spection only granted through the aperture caused by plaintiff's breaking into defendant's drive. Band of Hope Coy. v. Williams Free- hold Coy., 5 V.L.R. (E.,) 257. For facts see S.C., ante column 967. Inspection— Working Machinery for Purposes of— Defendant not Bound to.]— An order for in- spection of a mine was granted upon the plain- tiff giving two days' notice, and with liberty to use defendant's machinery for descending and ascending the mine. After notice to inspect, defendant stopped working, and plaintiff was thereby prevented from descending t:o inspect at the time appointed. Upon motion for attachment, Held that under the literal terms of the order, the defendant was not bound to provide firewood or engines ; that such orders are based on the supposition that the mine will be working when inspection is to be made, and the Court could not make an order that defendants should go on working simply for the purposes of inspection. Motion dismissed. Attorney - General v. Lansell, 6 V.L.R. (E.,) 134: 1 A.L.T., 177. (B) Jurisdiction Practice and Procedure in Wardens' Courts and Courts of Mines. (1) Jurisdiction. {a) Jurisdiction, Duties, Powers, and Liabilities of Warden., In Cases of Encroachment — Act No. 291, Sees. 37, 101, Sub-sec. i.] — The warden has jurisdic- tion under Sec. 101, Sub-sec; i., to hear a case of trespass by entering upon land in possession as a claim or under a lease and erecting a fence; and Sec. 37 extends this jurisdiction to cases where a lease is being applied for, but has not, at the time of the trespass, been granted. Extended Cross Reef Coy. v. Creaver, 4 A.J.R., 10. "Mining Statute," Sec. 101 (i. and iii.)]— R. took up a business site nearer to a public road and to plaintiff's residence area than was per- mitted by the district bye-laws. R.'s site, though inconveniently near to plaintiff's resi- dence area, did not encroach upon it. Plaintiff summoned R. before a warden for a trespass, and sought to have him removed from his busi- ness site. Held that the jurisdiction conferred upon the warden by reference to that of the Courts of Mines under the "Mining Statute 1865" (No. 291,) Sec. 101 (i.,) was confined to cases in which two persons are litigating for the same land, &e., which they both claim; that Sec. 101 (iii.,) applying only to land used for mining purposes, which under neither No. 32 or No. 291 includes residence, did not confer juris- diction on the warden in this case; and that the warden had no jurisdiction in the matter. Rosales v. Bice, 1 V.R. (M.,) 1; 1 A.J.R., 13. Forfeiture — Mining lease.] — A warden has jurisdiction, under Sec. 101 (i.) of the "Mining Statute 1865," to entertain a complaint for for- feiture of a gold-mining lease for non-perform- ance of the labour covenants. M'Millan v. Dillon, 6 V.L.R. (M.,) 15; 1 A.L.T., 203. Forfeiture— Claim Taken up on Public Street — Warden has no Jurisdiction.] — Schonfeldt v. Bed, ante column 919. Act No. 291, Sec. 101, Sub-sec. iii., Sec. 177 — Non-payment of a Lien.] — H. was owner of land under a residence area license, and he died intestate, having given P. a lien over the land to secure payment of a debt. H.'s widow married E., and E. and his wife went into possession of the ground. P. sued E. and wife as executor and executrix de son tort to obtain a declaration that they had forfeited all right to the land. Held that the proceedings must be brought under Sub-sec. 3 of Sec. 101, and under Sec. 177, and if that were done the warden had jurisdiction to adjudicate upon the forfeiture for non-payment of the lien, and that E. and his wife could be sued jointly as executor and executrix de son tort. Fitzgerald v. Elliott, 5 A.J.R., 3. H H 2 975 MINING. 976 ActNo.291,Secs.l01,Sub-sec.iii.,177— Forfeiture of Shares in Company.] — The warden has no jurisdiction under See. 101, Sub-sec. 3, and Sec. 177 of Act No. 291, to declare shares in a company registered under Act No. 228, illegally forfeited, or to award damages for such forfeiture. Rule nisi discharged, calling on warden to state a case under Sec. 22 of Act No. 446. Neweyv. Garden Gully Coy., 5 A.J.B., 116. Jurisdiction as to Water Eights — Act No. 32, Sec. 76.] — See Schultz v. Dryburg, ante column 965 ; and compare Sec. 101, Sub-sees. iii. and vii. of Act No. 291. Matters of Contract — " Mining Statute 1865," Sec. 101, (vi.)] — The G. company, registered as a no-liability company, held a, claim adjoining the M. company, which was not registered. The M. company was divided into five shares, of which the G. company purchased two ; but it never obtained possession of the ground, the land was worked by the other partners, and the G. company never received any of the gold raised from the mine. P. sued the G. company and the three other owners of the M. company's mine to recover a sum due to him for work done for that mine before the two shares were sold to the G. company. The warden made an order for the sum. On rule nisi for a prohibition as far as regarded the G. company, Held that there was no contract with P., so far as the G. com- pany was concerned, and that the warden had no jurisdiction under the "Mining Statute 1865," Sec. 101 (vi.,) to enforce payment aa against it. Regina v. Philp, ex parte Granya Coy. , 6 A. L. T. , 13. Jurisdiction over Crown lands Temporarily Re- served — Act No. 291, Sec. 177.]— The warden is not deprived of his jurisdiction over Crown lands temporarily reserved by proclamation in the Government Gazette for public purposes where such Crown lands were, at the time of being so reserved, held under miner's rights. Waheham v. Cobham, 1 V.R. (M.,) 34; 1 A.J.R., 93. Trespass by Government Officials.] — A warden has jurisdiction in cases arising between the Government and parties claiming under miner's rights, as regards suits for trespass on claims against officials acting unlawfully on behalf of the Crown ; but has no jurisdiction in such suits against the Crown itself, unless named. Ibid. Act No. 291, Sec. 177 — Mining on Private lands — Partnership.] — W. proceeded by plaint before the warden against a company for money due to him on a mining adventure. This adventure was on private lands and the warden decided in favour of W. Held that the entire scope of Act No. 291 confined the general words in Sec. 177 to partnerships on Crown lands, and that, therefore, the warden had no jurisdiction over a partnership on private lands. Pride of the East G.M. Coy. v. Wimmer, 5 V.L.R. (M.,) 9. Partnership Claim — Act No. 32, Sec. 77.]— - Where a suitor alleged that he had originally been a partner, and was entitled to an undivided share in a claim from which he was kept out of possession, Held that the warden had power to hear and determine a complaint by a partner claiming an undivided share in the claim and to- put him into possession, and to decide the ques- tion of partnership. Kin Sing v. Won Paw, 1 W. & W. (L.,) 303. [Compare provisions of Act No. 291, Sec. 177.] Land under lease from Crown — Act No. 291, Sec. 177.] — Plaintiffs summoned defendant for trespass to land held under lease from Crown, and obtained an injunction. Defendant moved to dismiss injunction, and warden made an order refusing motion, with costs. Rule granted for certiorari to quash the order on the ground that the warden had no jurisdiction over land held under lease from Crown. Segina v. Smith, 3 A.J.R., 22. As to Abandonment and Forfeiture— No. 291, Sees. 71 (x.,) 177.]— The 177th section of the " Mining Statute 1865" shows an intention that wardens should have jurisdiction in all cases of disputed ownership of claims; and Sec. 71 (x.) does not make it necessary for the efficacy of a bye-law as to abandonment that it should point out a person to adjudicate, but that the Board may leave that duty to the ordinary officer. A warden, therefore, has jurisdiction under a bye-law as to abandon- ment without being expressly named in such bye-law. Longbottom v. White, 3 W.W. & a'B. (M.,) 35. As to Enforcing Forfeiture.] — It has never been decided that where the warden has no jurisdic- tion to enforce a forfeiture the Supreme Court will not interfere; but where the warden de- clared a forfeiture under a bye-law, which, though repealed, the Court held, was the bye- law governing the liability to forfeiture, cer- tiorari to quash the order was refused. Regina v. Clow, ex parte Oliver, 5 W.W. & a'B., (L.,) 89. To let Some of Several Complainants into Pos- session.] — A warden has jurisdiction in a suit by several persons seeking damages, and to be let into possession of ground, where some only of the complainants produce miner's rights, to assess damages as to such complainants alone, and to let them into possession. Sea Queen Q.M. Coy. v. Sea Q.M. Coy., 4 A.J.R., 174; Critchley v. Graham, 2 W. and W. (L.) 71. For facts of these cases see ante column 963. Power of Warden under Bye-laws.] — A bye-law provided that for non-working a claim should be forfeitable, and went on to provide that " it may be by any competent court declared for- feited." Held that under this bye-law the warden was allowed no discretionary power to refrain from enforcing forfeiture should the cir- cumstances appear to him sufficient to warrant such a decision as being equitable. Lawlor v. Stiggants, 2 V.L.R. (M.,) 17. Commitment by Warden — " Mining Statute " (No. 291,) Sees. 195, 197.]— Certain persons were 977 MINING. 978 brought before a warden by summons, charging them with having from a day named, contin- uously trespassed upon the claim, and praying amongst other things that the applicants might be ordered to remove therefrom. The warden decided that the " defendants " had trespassed on the claim, ordered them to pay damages and costs, and to remove from the claim. Defendants disobeyed the order and were committed. Held that the summons and order were bad as con- founding the jurisdiction under Sees. 195 and 197 of Act No. 291. Semble, per Molestoorth, J., that Sec. 195 authorises the warden to order a defendant in possession to deliver possession to the complainant, and to punish disobedience, irespectively of the power of transferring pos- session by his officer. In re Yung Hing, 4 A.J.R., 57. * Act No. 291, Sees. 5, 195 — Buildings and Fix- tures — Jurisdiction of Warden.] — A warden dis- missed a plaint seeking recovery of the posses- sion of a mining tenement : on the soil were erected certain buildings and fixtures belonging to the complainant. Held that the warden had no jurisdiction to deprive the complainant of the buildings and fixtures. Summers v. Cooper, 7 V.L.R. (L.,) 443 ; 3 A.L.T., 61. The Court will not restrain a warden from hearing a case on the ground of his having no jurisdiction, but will entertain the question of jurisdiction only after he has adjudicated. fiegina v. Warden at Donnelly's Creek, 3 A.J.R., 38. Plaint Summons Exceeding Jurisdiction hut Order made Valid.] — Where G. summoned M. before a warden praying for the cancellation of a certain assignment of an interest in a claim and for accounts, and the warden made an order cancelling the assignment only, Held that the order was valid in itself; and, even if did not strictly follow the summons, the summons might have been amended by striking out the relief sought as to accounts, which was in excess of the jurisdiction. Rule to quash the order discharged. Regina v. Smith, ex parte Mahony, 3 A.J.R., 48. Warden's Order— Bad as to Part— Necessity for Quashing.] — Where a warden's order gave pos- session to complainant of a claim declared for- feited, provided that a sum of money, represent- ing value of materials, &c, were paid to the defendant, and the complainant took possession without making the payment, Held that com- plainant could not and was not entitled to take possession until the bad part of the order (the proviso as to payment) was quashed. Sayers v. Jacomb, 3 V.R. (L.,) 132; 3 A. J.R., 66. Warden's Order Valid in Part and Invalid in Part — Invalid Part Quashed.] — Where a warden had made an order valid in part and invalid in part, the Full Court, on rule nisi to quash the invalid part, made the rule absolute, with costs. Regina v. Cogdon, ex parte Hartmann, 3 A.J.R.,118. Compelling Warden to do his Duty— Act No. 291, Sec. 166.]— Upon a special case from warden the Chief Judge made a certain direction which the warden from some misapprehension failed to enter up. Held that the warden's duty in such a case is judicial and not ministerial, and it was not a case for an order under Sec. 166, but for a mandamus to compel the warden to enter the direction. Regina v. Strutt, ex parte Lawlor, 3 V.L.R. (L.,) 2. Mandamus to Compel Warden to Hear and Determine Case.] — A mandamus to compel » warden to hear and determine a case was re- fused where the warden had heard it as to the individual defendants, but had struck out a company, on the ground that he had no juris- diction as regarded them, the Court holding that he had heard and determined the com- plaint. Regina v. Gaunt, ex parte Bahlman, 4 A. J.R., 114. Mandamus to Compel Warden to Carry Out Decree of Court of Mines — Proper Eemedy to Apply to Court of Mines.]— In re [Cogdon, ex parte M't>ermott, ante column 883. And see cases under Mandamus, ante column 883. Upon an application for mandamus to a warden, he has not, under Sec. 10 of Act No. 565 {"Justices' Amendment",) the same privi- leges as justices as to being able to file an answering affidavit without a fee. Regina v. Strutt, ex parte Constable, 3 V.L.R. (L.,) 186. liability to Pay Costs— Act No. 291, Sec. 166.]— Where a rule nisi for a warden to state a case is made absolute costs will not be given against the warden unless they are specially asked for in the rule nisi. Grant v. Lawlor, 3 V.L.R. (M.,) 15. Conclusive Nature of Warden's Decision — Act No. 32, Sec. 80.] —Where a warden has jurisdic- tion, and gives his decision, such decision is conclusive unless it is appealed from. Kin Sing v. Won Paw, 1 W. & W. (L.,) 303. [Compare Sec. 193 of Act No. 291.] Conclusive Nature of Warden's Decision — Act No. 291, Sec. 177.] — A warden's order, if not appealed from, is conclusive, and acts as an estoppel against a suit being brought by the same parties in respect of the same matter. Mulcahy v. Walhalla G.M. Coy., 5 W.W. & a'B. (E.,) 103, 115. See S.P., Constable v. Smith, 6 W.W. & a'B. (M.,) 58; N.C., 70. But a decision purporting to be a decision of the warden, but being in fact only a finding of assessors upon facts, and not accompanied by a judgment of the warden, is a nullity. Mulcahy v. Walhalla G.M. Coy., 2 A.J.R., 94. For facts see S.C. post column 989. The decision to be binding must be recorded under Sec. 193 of the Act No. 291. Mulcahy v. Walhalla G.M. Coy., 2 A.J.R., 94; Sim v. 979 MINING. 980 Eddy, 3 W.W. AaTJ. (L.,) 21; Early v. Barker, 1 W.W. & a'B. (L.,)32. For facts see post columns 988, 989. Conclusive Mature of Warden's Decision — Act Ho. 291, Sec. 193.] — S. proceeded by plaint before the warden, and reserved a special case for the Chief Judge, which was answered to the effect that S. was not entitled to relief unless he proved that he held a miner's right on a certain day. The warden then dismissed the plaint. S. then issued a fresh summons precisely the same as the first, seeking to have a new trial, supplying his former defect of evidence. Held that the decision given in the former case between the parties was a bar to the second proceeding; that the warden's omission to state any fact found, the warden merely giving an order as upon the fact, does not prevent the effect of such order being final. Semble, a com- plainant producing insufficient evidence is not entitled to a nonsuit. Summers v. Cooper, 5 V.L.R. (M.,) 42; 1 A.L.T., 115. (b) Jurisdiction, Powers, and Duties of Judges of District Courts. In Matters of Practice— Act No. 32, Sec. 70.] — The 70th section of the "Goldfields Act" (No. 32,) gives the judge of the Court of Mines power to grant only one re-hearing of a hearing or an appeal. Dennis v. Vivian, 1 W.W. & a'B. (L.,) 201. [Compare Sec. 170 of Act No. 291.] The Supreme Court will not issue a prohibi- tion to a Court of Mines where it has acted within its jurisdiction, although it may have decided wrongly. Regina v. Cope, In re Moore, 4 A.J.R., 113. Judge of Court of Mines — Pronouncing Decision Outside of his District.] — A judge of a Court of Mines, having heard a case within his district, afterwards, by consent of the parties, when within another district announced the decision he had arrived at and gave his reason. Held, per Privy Council, that there was no objection to such a proceeding, and that it could not form ground for a prohibition, and that if the judge, at the request or with the consent of the parties, allowed them to attend him out of the jurisdic- tion to hear his reasons and conclusions, there was nothing to prevent him, being after- wards within his jurisdiction, from giving his formal order formally signed to the proper officer to be duly recorded. Mulcahy v. Wal- halla CM. Coy., 2 A.J.R., 93, 95. Act No. 32, Sec. 27.]— The judge of a Court of Mines has no jurisdiction to hear and decide, outside the territorial limits of his Court, a motion for an injunction in a matter otherwise within the jurisdiction of his Court. James v. Higgans, 1 W.W. & a'B. (L.,) 51. [But now see Act 446, Sec. 8.] Act No. 32, Sec. 27— Equitable Matters— Work and labour Done.] — The jurisdiction of Courts of Mines is expressly limited to matters cognizable by a Court of Equity ; and a judgment for work and labour done given by a Court of Mines is wholly unauthorised. Wilson v. Broadfoot, 1 W. & W. (L.,) 214. [But now see Act No. 291, Sec. 101, Sub-sec. iv.] "Mining Statute 1865" (No. 291,) Sees. 101, 124, 129— Cross Belief— Demurrer— Certificate of Title — Cancellation.] — E. obtained in January, 1872, on behalf of himself and seven others, who were mining in partnership under the style of the Herald Company (which was never incor- porated,) a gold-mining lease of certain land. On 1st December, 1873, E. assigned his indivi- dual interest in lease to plaintiff G., and by the consent of the Governor-in-Council, lease was transferred to G. as trustee for the Herald Company, 17th February, 1874 ; in May, 1874, G. with consent of his co-partners, sold his indi- vidual interest to B. In 1873, one Atkinson sued E. for a small debt in a County Court, which bill alleged was paid, but in December, 1873, one Welsh purporting to act as attorney for Atkinson, obtained from Registrar of County Court a certificate of judgment, and that debt was unpaid, and signed final judgment. In January, 1874, Welsh issued a writ of fi. fa. upon the judgment, and E.'s interest in lease was sold by sheriff, the defendant Harvey be- coming purchaser, G. entering a protest against sale. The plaintiffs, the co-partners mining together as the Herald Company, remained in occupation of lease. On 9th February, 1875, the plaintiffs were served with an injunction of the Court of Mines, Sandhurst, in a suit wherein present plaintiffs were defendants, and defen- dant Harvey and defendant company, the Nell Gwynne Quartz Mining Company, were plaintiffs, and the present plaintiffs were restrained from mining on land. The plaint alleged that de- fendant Harvey was the registered proprietor of a leasehold estate for an unexpired term in land comprised in lease of January, 1872, and that defendant Harvey was a, trustee for defendant company. Bill prayed for sale to defendant Harvey to be set aside, a declaration that certificate of title issued to him was void and should be cancelled, and for an injunction to re- strain the defendants from proceeding] in Court of Mines. Held on demurrer, that Supreme Court has concurrent jurisdiction with Court of Mines ; that Equity Court has no jurisdiction to order certificate of title to be cancelled, the proper relief being to order holders to transfer ; ■ that Court of Mines had power to consider all matters put forward in bill, and to give cross- relief (Sees. 124 to 129). When Court will not grant other relief sought, it will refuse to re- strain proceedings in Court of Mines. De- murrer allowed. Ounn o. Harvey, 1 V.L.R. (Eq.,) 111. In Partnership Suits.] — A quartz crushing partnership is a mining partnership within the meaning of Act No. 32, Sec. 27, and a Court of Mines has jurisdiction over a suit concerning such a partnership, if such partnership be limited to a "gold-field" as defined by the Act. Harvey v. Rodda, 1 W.W. & a'B. (L.,) 21. [Compare Act No. 291, Sec. 101, Sub-sec. -to'.} 981 MINING. 982 "Goldfields Act" (21 Vict. No. 32,) Sec. 27— Boundaries.] — On a plaint in a Court of Mines for defining boundaries it turned out that the question in dispute was not really one of boundaries, but that one party denied the other's right in toto. Held that the jurisdic- tion of the Court of Mines being limited by Sec. 27_ of the " Goldfields Act," if the Court of Equity had no original jurisdiction in the matter, no more had a Court of Mines, and the equitable jurisdiction of defining boundaries being based on the admission that both parties are entitled to something, the case, in its then form, could not be entertained by a Court of Mines. Banks v. Granville, 1 W. & W. (L. , ) 158. [See now Act No. 291, Sec. 101, Sub-see. 11, where jurisdiction is given in all events.] Jurisdiction as to Production of Books.] — The Judge of a Court of Mines has no jurisdiction in a suit between two companies to order the defendant company to produce for inspection books of another company not a party to the suit. Park Coy. v. South Hustler's Reserve Coy., 8 V.L.E. (M.,) 37. Expunging Proof of Debt.] — Courts of Mines, which had vested in them by the "Mining Statute 1865" the powers possessed by commis- sioners of insolvent estates, have not by virtue of the "Insolvency Statute 1865," the power of expunging proofs of debt, that power not having been vested in the commissioners at the time of the passing of the " Mining Statute 1865," and the Court being unable to extend the jurisdiction conferred by that Statute. Reg'ma v. Skinner, ex parte Smith, 2 A. J.R., 107. Act No. 228, Sec. 33] .—By the Act No. 228, Sec. 33, Judges of Courts of Mines were given, in relation to mining companies being wound up under that Act, the powers possessed by the Chief Commissioner of Insolvent Estates, and at the time of the passing of the Act the Chief Commissioner did not possess the power of expunging proofs of debt. By the "Insolvency Statute 1869, " passed subsequently to the Act No. 228, the power of expunging proofs of debts was given to the Chief Commissioner. Held that the late Act could not incidentally extend the jurisdiction conferred by the former, and that Courts of Mines, therefore, had no juris- diction to expunge proofs of debts against a mining company being wound up under No. 228. In re The Barf old Estate O.M. Coy., 2 V.R. (L.,) 186. To Award Costs on Petition for Winding Up — Act No. 228, Sees. 29,30— Act No. 324, Sees. 3, 10— Act No. 291, Sec. 230.]— The Court of Mines has two jurisdictions, one under Act No. 291, Sec. 230, and the other under Acts No. 228 and No. 324, but those jurisdictions are separate and distinct. The Court of Mines has not, under the power to give costs under No. 291, juris- diction to award costs on a petition for winding up under Act No. 228 or No. 324. Regina v. Bowman, Ex parte Willan, 3 V.R. (L.,) 213, 3 A.J.R. 109. To Award Costs in 'Winding-up Order — Act No. 228, Sec. 31.]7-See Walker v. Jenkins post under III. Mining Companies : Winding Up— Wind- ing-up Orders. To Award Costs — Interlocutory Application.] — Act No. 291, Sec. 230, gives to a judge of the Court of Mines the power to award costs upon an interlocutory application. Watson v. Com- mercial Bank, 5 V.L.R. (M.,) 36. Mandamus to Courts of Mines.] — See cases ante, column 882 under Mandamus. Mandamus to Compel the Clerk of a Court of Mines to Issue a Certificate of Registration.] — See Regina v. Bartrop, ante column 883. (c) Jurisdiction of Supreme Court and of Chief Judge of Courts of Mines. Of Supreme Court.] — The Legislature, by creating the Court of the Chief Judge of Courts of Mines, and declaring its decision to be final as between the parties, in certain cases, has not deprived the Supreme Court of its jurisdic- tion in those cases, and the Supreme Court can- not refuse to hear a suitor who comes to ask its decision. M'Cafferty v. Cummins, 5 W.W. & A'B. (L.,) 73. And the jurisdiction of the Supreme Court is not ousted merely because the Chief Judge of Courts of Mines has already decided the point of law involved in the case. Ibid. Remedies for Encroachment.] — The remedies afforded by the " Mining Statute 1865," in cases of encroachment, are cumulative, and do not exclude the ordinary jurisdiction of the Supreme Court, that jurisdiction not being ousted by express terms or necessary intendment. Mul- cahy v. The Walhalla CM. Coy., 5 W.W. & A'B. (E.,) 103, 120. Imprisonment — Arrest Pending Rule Nisi for Prohibition.] — An order under See. 203 of the " Mining Statute 1865" was made by a warden upon an affidavit entitled, ' ' In the Warden's Court at Ballarat," and the defendant appeared, and made no objection to the affidavit being read. In showing cause against commitment for disobedience of the order, defendant for the first time objected that the affidavit was not evidence upon which the order could be pro- perly made, but the warden overruled the objection, and a warrant was issued. Before arrest, a rule nisi for prohibition was served on the bailiff, and the defendant was arrested before discharge of the rule. Defendant applied, under Sec. 221 of the Act, to the Chief Judge for dis- charge from arrest, but his application was refused on the ground that the Chief Judge had no jurisdiction to deal with the case of an arrest being made after a rule nisi for prohibition which was afterwards discharged. In re Clerk, 2 V.R. (M.,)ll; 2A.J.R., 48. (d) Duties of Officers of Court. Assistant Registrars — How they should Sign.] — Assistant mining registrars are given the powers of registrars, and should sign by their own names as assistant registrars, and should not, when they have done any business themselves, sign the name of the registrar. Thompson, v. Begg, 2 V.R. (M.,) 1 ; 2 A. J.R., 34. 983 MINING. 984 (2) Practice and Procedure in Warden's Courts and Courts of Mines. (a) In Warden's Courts. Summons — Vagueness — Objection to, When Taken— Act No. 291, Sec. 185, Schedule 20.]— B., claiming under a miner's right, sued the defendant company before the warden claiming possession of land "of which defendants were in illegal occu- pation." The counsel for defendants objected that the summons was too vague, and the warden gave leave to amend, which B. refused, and was then about to dismiss it when he stated a special case. Held that such summons showed jurisdiction, but that schedule 20 indicates that the objection to defendant's title should be in some degree pointed out, and that the summons was therefore too vague, and that the warden could hear the objection before the case was opened by B. 's counsel, and should have dis- missed it on B. 's refusal to amend. Barton v. Band of Hope and Albion Consols, 5 V.L.R. (M.,)18; 1 A.L.T., 30. Description of locus in Quo.]— As the Act No. 291 or the rules under it do not require particu- larity of description, the description of the locus in quo in a summons for encroachment — as plain- tiffs claim registered in the books of the Cres- wick division — is sufficient. Stephens v. Jolly, 5 A.J.R., 162. Summons to Enforce Forfeiture — Vagueness — Amendment — Act No. 291, Sees. 180, 185.] — A summons seeking to be put in possession of part only of an entire claim alleged to be improperly held, should define accurately the part sought ; and a summons omitting so to define it should be dismissed for vagueness and want of descrip- tion, unless the complainant, upon the warden's stating a disposition to dismiss it, had sought to amend, which the warden has power to allow under Sec. 185. Boscrow v. Webster, 5W.W. 6 a'B. (M.,) 64. Plaint Summons Exceeding Jurisdiction — Amendment.] — Begina v. Smith, ex parte Mahony, ante column 979. Plaint for Forfeiture — Not Showing under what Bye-law — Complainants Entitled to Show For- feiture under Bye-laws Applicable — Act No. 291, Sec. 185.]— A plaint seeking a declaration of forfeiture was apparently framed so as to seek forfeiture for non-compliance with a bye-law made subsequently to the taking up of the claim, and therefore inapplicable. The plaint, however, was very indefinite, and stated that the defendants had "failed to work for the space of seven consecutive days," and did not indicate which of several forfeitures for not working it was intended to enforce, or whether it was for non-continuance of bond fide working. Held, by the Chief Judge upon special case, that if no objection had been taken to the form of the plaint before the warden, the com- plainants were entitled to prove a forfeiture for non-compliance with such bye-laws as might be applicable ; and that, if the objection were taken, the plaint might have been amended under Sec. 185. Hooke o. Burke, 4 A.J.R., 122. Summons under "Regulation of Mines and Mining Machinery Act 1853" — Vagueness.] — A summons before a warden to recover damages for injuries sustained by complainant while working in defendant's mine ran as follows : — "For that the complainant on, &c, was em- ployed in and about the mine of the defendant at, &c, and whilst so employed was descending the shaft of the defendant at the said mine, and the complainant fell down the said shaft to a depth of one hundred feet, and had his legs and ribs broken, and suffered, &c, and was permanently injured, and the complainant says that such injuries were occasioned to him by reason or in consequence of the defendant having contravened and neglected to comply with the provisions of " The Regulation of Mines and Mining Machinery Act 1853." Held that such summons was bad for vagueness, since it did not allege which provision of the Act had been contravened or not complied with. Campbell v. Parker's Extended Coy., 10 V.L.R. (M.,) 1. The warden directed the plaint to be amended by adding at the foot the following: — "Sec. 8, Sub-sec. 29, by not having substantial platforms at intervals of not more than thirty feet in the ladder in the shaft used for descending the mine of, &c; and Sec. 16, in not having in connection with the shaft of the mine of, &c, securely fixed platforms at intervals of not more than thirty feet from each other in the ladder of the said shaft." Held that the sum- mons as thus amended was neither contradic- tory nor vague, since it gave the date of the accident, and referred to the sections relied on ; and that it showed jurisdiction in the warden. Ibid. Act No. 291, Sec. 185 — Amendment of Summons — Parties.] —A summons was taken out before the warden for the forfeiture of four claims stating the registration and amalgamation. There was such neglect in working them that the right to each and to them as amalgamated would be subject to forfeiture under certain bye-laws; but no amalgamation in fact was proved. Held that the warden could not on the summons as framed, adjudicate as to the forfeiture of any one claim, but that he might amend the sum- mons under Sec. 185, and then adjudicate as to one of them. Jolly v. Stephens, 5 A.J.R., 169. Summons including Different Causes of Action.] — If a summons includes different causes of action as to original defect of title, and of for- feiture, if the title were originally good, and at the beginning transposed the words ' ' in illegal occupation and forfeited" that is no objection to the summons. Weddell v. Howse, 9 V.L.R. (M.,)13; 4A.L.T., 179. Summons signed by Warden's Clerk in his Own Name, and not in Name of Warden.] — See Begina v. Strutt, ante column 127. Amendment of Plaint — Act No. 291, Sees. 180, 185.] — L. sued H. and others before the warden for trespass, and at the trial plaintiffs counsel sought to amend the plaint by changing the count for trespass and encroachment into one 985 MINING. 986 for ouster and exclusion. Held that such amendment was inconsistent with the summons, it appearing that L. and H. were mining as part- ners, and H. brought in the other defendants, and prevented L. from occupying the claim or any part, and that the summons should be dis- missed without amendment. Lindgren v. Halpin, 3 A.J.R., 107. Amendment of Summons — Act No. 291, Sees. 180, 185.] — The warden may amend a summons praying to be put into possession of surplus ground by altering it to one seeking a declara- tion of right, and may add co-defendants. Oxley v. Little, 5 W.W. & a'B. (M.,) 14. Parties — Act Ho. 32, Sec. 76.] — Where deceased persons or persons incapacitated from suing are made parties in a complaint before the warden under the Act No. 32, Sec. 76, that does not invalidate the proceedings, and it is not the proper course on appeal to the Court of Mines to reverse the warden's decision without preju- dice to fresh proceedings before him confined to the proper parties; but for the Court of Mines to amend the proceedings both before the warden and the Court by striking out such persons. Critchley v. Graham, 2 W. & W. (L.,)71. In complaints before warden under Sec. 76, all shareholders being holders of miners' rights and entitled to sue, or such of them as appear to the warden or Court sufficiently to represent such shareholders ought to be before the warden. Ibid. [Compare Sec. 180 of Act No. 291.] Parties— Act No. 32, Sees. 76, 77.]— C. and party summoned B. and party before a warden by a plaint showing title to a claim and de- manding possession, " for that complainants are entitled as owners of miners' rights to be put into possession of a certain claim, the same having been forfeited by you." It appeared that the land had been long abandoned by the V. company, but that their registration remained uncancelled. B. and party included M., but not the A. company. M., a member of the V. company, waived the warden's appearance on the land. The A. company claimed to appear and to be entitled to the land by two titles, both independent of the V. company. The warden found that land had been forfeited, and ordered possession to C. and party. Held that as be- tween B. and C. the A. company had no right to appear as a party and had no locus standi in the Appellate Court; the "parties interested" in Sees. 76 and 77 being the actual parties con- cerned. Band of Hope Coy. v. Critchley, 2 W. W. &a'B. (L.,)47. [Compare provisions of Sec. 180, Act No. 291.] Suit for Forfeiture— Parties.]— Moore v. White, Beavan v. Bigby, ante column 941. Necessary Parties— Act No. 291, Sec. 180.]— Where a summons is taken out to enforce a forfeiture the company for whom the defendants hold as trustees are not necessary parties under Sec. 180. Jolly v. Stephens, 5 A.J.R. 169. Person Made a Party without his Consent and without Notice.] — A person not having been summoned, and being accidentally present at the hearing of a suit, cannot, against his will, be made a party thereto; and a decision pronounced against him in such a case will not be binding on him. Where, on the hearing of a plaint before a warden against a company, the legal manager, who was present in court, was, not- withstanding his protest, made a party to the suit on the request of the complainant, and the warden pronounced a decision against him, Held that the warden had no jurisdiction so to act, and order quashed. Semble that if the warden had adjourned the case, after adding the manager as a party, thereby allowing him an opportunity of preparing a defence, it would have been equivalent to serving a summons upon him, and the warden's decision at such adjourned sitting would have been binding. Begina v. Sherrard, ex parte Fraser, 5 W.W. & a'B. (L.,) 80. Deciding whether One Defendant sufficiently Re- presents the Rest— Act No. 291, Sec. 180.]— At the hearing of a complaint before a warden for the forfeiture of a mining claim, one of the defen- dants appeared and stated that he appeared for himself and the other defendants, and he actually had authority so to appear from some of the defendants, who subsequently raised objections to his so appearing, and complained that they had not been served. Held that, under Sec. 180 of the "Mining Statute 1865" (No. 291,) it was for the warden to decide whether the defendant who appeared suffi- ciently represented all the parties interested. Begina v. Clow, ex parte Oliver, 5 W. W. & a'B. (L„) 89. Application to he Put into Possession of Surplus Ground— Parties— Amendment.]— Persons cannot join in an application to be put into possession of surplus ground, though their individual rights may be exactly parallel; and the warden is not justified in amending a summons by four into a summons by one by striking out the other three. Oxley v. Little, 5 W.W. & a'B. (M.,) 14. Service of Summons— " Mining Statute" (No. 291,) Sec. 180.]— Every defendant, in a proceed- ing before a warden to obtain possession of a mining claim, must be served with the summons either personally or by substitution, and there is no power in the warden, under Sec. 180 of the "Mining Statute" (No. 291,) to decide that a defendant not served is sufficiently repre- sented, and an order made by the warden in such a case cannot stand. Begina v. Heron, ex parte Bryer, 2 V.B. (L.,) 155; 2 A.J.R,, 110. Service of Summons — Insufficient in Point of Time.]— Where a summons had been served upon defendants to appear before a warden, and they all appeared and objected that the service was insufficient in point of time, not having been made four days before the day of appearance, Held that the objection was properly overruled. Begina v. Strutt, 4 A.J.R., 147. 987 MINING. 988 Order made against Defendants where One Unserved— Whole Order Bad.]— A warden has no jurisdiction to make an order for damages for trespass against a defendant who has not been served, and where no substituted service has been effected. And if such an order be made against such a defendant, and other defen- dants who have been served, the whole order is bad, as against the unserved defendant, and so must be quashed as against all the de- fendants. Regina v. Belcher, ex parte Gilbee, 4 A.J.B.,80, 110. Substituted Service of Summons.] — Although Sec. 180 of the Act No. 291 gives the warden a wide discretion, yet he has no power to make an order to substitute service before the return of the summons. Taylor v. Stubbs, 6 W. W. & a'B. (M.,) 19. S.P.— See Regina v. Ahehurst, 6 W.W. & B. (L.,)244, Substituted Service.] — A warden has no juris- diction to direct substituted service of a summons at the time it is issued, but only at the hearing. Regina v. Ahehurst, 6 W.W. & a'B. (L.,) 84. There is no provision made by the "Mining Statute" (No. 291, ) for a warden to dismiss a suit where the parties do not proceed with the summons. Regina v. Can; 6 W.W. & A'B. (L.,)240;N.C. 59. Order for Injunction— No. 291, Sec. 203.]— A warden is warranted in making an order under Sec. 203 of the ''Mining Statute 1865," to restrain encroachment, trespass, &c, upon affidavits. In re Clerk, 2 V.R. (M.,) 11 ; 2 A. J.R., 48. Injunction Orders by Warden — Act Ho. 291, Sees. 203, 204.]— A warden made, as under Sec. 203, an order enjoining the registrar from registering certain people for a claim, such order being without limit as to time. Held that the in- junction orders under Sees. 203, 204, are tem- porary or interlocutory, and should be limited as to time; but if the warden was making a final order or decree, coupled with an injunction to the registrar, such injunction should be per- petual. Semble the warden might amend if he thought the appellants interested under the cir- cumstances. Keast v. D'Angri, 4 A. J.B., 61. Injunction— Act No. 291, Sec. 203.]— Where notice of an application for an injunction under See. 203, of Act No. 291 , is given by more than one person, the warden should dismiss it on the non-appearance of any of the persona so giving notice. Grant v. Lawlor, 3 V.L.K. (M.,) 15; and see S.C., ante column 943. Order for Inspection— Breach " Mining Statute 1865". (No. 291,) Sees. 202, 207— Schedule 26.]— Where a warden made an order for inspection worded, " upon the application of W., of Balla- rat, claiming, &c.,"and S. the mining manager of the company, whose mine was to be inspected, obstructed and prevented W. from descending the mine, S. was convicted and fined under Sec. 207 of No. 291. S. appealed, urging that the order did not show facts bringing it within warden's jurisdiction, and that it was not made in the form given in Schedule 26. Held that the order was bad, and that the declaration of secrecy under Sec. 202 must be made before dis- obedience becomes an offence under Sec. 207. Conviction reversed. Spiers v. Whiteside, 4 W.W. & A'B. (L.,)91. Record of Warden's Decision — Act No. 32, Sec. 80.] — A warden gave decisions on various claims, and in each case signed a minute of the decision. On a separate sheet he made a further order imposing certain conditions on the parties in whose favour he had decided. Held that the warden should have signed the separate sheet as part of his decision, but the appellants were allowed to correct the defect in the minutes of the decision. Early v. Barker, 1 W.W. & a'B. (L.,) 32. For facts, see S.C., post column 998, and compare Sec. 193 of Act No. 291. Record of Warden's Decision — Act No. 32, Sec. 80.] — On a complaint before a warden, the war- den's decision was minuted under Sec. 80 of the " Goldfields Act" (No. 32,) as follows :— "Case dismissed, having been adjudicated on before. See 23rd October, 1865." On appeal to the Court of Mines the jurisdiction of that court was objected to on the ground that the case was dis- missed as having been previously heard. Held, on questions reserved, that the words " case dismissed " must be taken to mean that the case was "entertained and dismissed," and not dis- missed as not entertained, and that the Court of Mines had jurisdiction to hear the appeal ; and that this minute was not conclusive evi- dence, because it extended to the reason why the decision was pronounced, and was not an entry of the "decision" which alone is made conclusive under Sec. 80 of the Act No. 32. Sim v. Eddy, 3 W.W. & a'B. (L.,) 21. [Compare provisions of Sec. 193 of Act No. 291.] Warden Sitting with Assessors — "Mining Statute 1865 " (No. 291,) Sees. 212, 220.]— In both the cases of a hearing and rehearing before the warden, with or without assessors, it is, under Sec. 212 of No. 291, the decision of the warden only which forms the groundwork of an appeal, and Sec. 220 does not militate against this. If therefore a person is aggrieved with and appeals from the finding of the assessors only, that is an appeal on a question of fact, and the appropriate remedy is to apply to the warden for a new trial. Regina v. Brewer and WalhaUa Coy., 4 W.W. & a'B. (L.,) 124. Adjudication by Warden and Assessors.] — In a case as to forfeiture of certain claims there was an adjudication by the warden (October, 1865) dis- missing the summons, and in another case (April, 1866) as to the same land in which the parties were reversed, there was a finding by a majority of assessors, and order for dismissal. Held, per Molesworth, J., and affirmed, that the first adjudication was inconclusive, as it was not clear what land was really in debate, and that though the second adjudication was informal inasmuch as 989 MINING. 990 there should have been a judgment of the warden as to the facts based upon the finding of the assessors, yet it was such cogent evidence of the facts upon which it adjudicated as to be conclu- sive. Held, per Privy Council, that there was enough in the history of the case to make it clear as to the land in the first adjudication, and that the form of the decision made it conclusive under Sec. 193 of the Act No. 291 ; that as to the second adjudication it was informal alto- gether as not complying with Sec. 193 of the Act, and should have been a finding of the assessors followed by an adjudication of the warden on the law and facts, and that in its form it was in effect only a verdict not followed by a judgment, and therefore a nullity. Mulcahy v. Walhalla Coy., 5 W.W. & a'B. (E.,) 103, 123 ; 2 A.J.R., 93, 94. Affidavit.] — If an affidavit be entitled in a " Warden's Court" it is wrongly entitled, for the " Mining Statute 1865" does not apply the word " Court" to the place or manner of a warden's judicial acts; but the title may be treated as surplusage. In re Clerk, 2 V.R. (M.,)ll; 2A.J.R..48. When Copy of Entry in Register is Evidence — No. 291, Sees. 47, 49.]— The "Mining Statute 1865," Sec. 49, makes the copy of an entry in the registry, made by a registrar in books directed to be kept by the regulations under Sec. 47, prismA facie evidence of the truth of matters in the books stated; but such a copy will not be evidence under Sec. 49 unless it De shown that the book in which it was made was directed to be kept by the regulations under Sec. 47 . Cruise v. Crowley, 5 W. W. & a'B. (M.,) 27. Taxation of Costs— No. 391, Sees. 228, 230.]— A warden taxed costs as a lump sum, and not item by item in reference to any scale. Held that such taxation was good, it not being shown that the amount was greater than if costs had been taxed item by item. In re Slrutt, ex parte Lawlor, 3 V.L.R. (L.,) 1. (6) In District Courts of Mines. Parties.] — R. sued M. to establish a partner- ship in a claim. The plaint alleged that M. had contracted to sell more than his moiety to several persons, who were, with the exception of two named, unknown to R., and charged that the contracts for sale were void as to the excess beyond M.'s share, and should be re- strained. A decree was made affirming the partnership, and declaring M. trustee of the claim for the partnership. An objection was taken that the two purchasers named in the plaint should have been parties, but was over- ruled. On appeal, Held that they were not necessary parties, since, if the contracts were valid and binding, R. could not break them, but would have to proceed against M. ; and, if they were not binding, R. would have an option to proceed against M. alone; and appeal dis- missed, with costs. Miller v. Mgby, 2 V.R. (M„) 32; 2 A. J.R., 134. Parties.]— Sec. 101, Sub-sec. i. of the "Mining Statute 1865," which gives jurisdiction to Courts of Mines in cases of lands, in which some person other than the plaintiffs shall be or shall claim under miners' rights, &c. , to be entitled to be in the occupation or possession, does not mean that no person can be made a defendant who claims no right, &c. And in order to maintain a suit for forfeiture of a claim, the plaintiff need not show that the defendant either is, or claims to be, in possession of the claim. Thomp- son v. Begg, 2 V.R. (M.,) 1 ; 2 A.J.R., 34. Misjoinder of Parties— Act 291, Sec. 130.]— A plaint is objectionable, which comprises land held under different titles, and which joins as co-plaintiff parties not interested in all. Aus- tralasidn Coy. v. Wilson, 4 A.J.R., 18. Suit to Restrain Encroachment — Parties- Lessees and Tributors — Amendment — Act No. 291, Sec. 130.] — O. and seven others instituted a suit in the District Court of Mines to restrain encroachment, and for value of gold. The co- plaintiffs consisted of four Crown lessees and four tributors. The defendants moved for a. nonsuit, on the ground that either the four lessees were entitled to sue to the exclusion of the tributors, or vice versa. The district judge then went into evidence as to the time at which the encroachment took place, and finding it happened after the letting on tribute, amended the plaint under Sec. 130 of Act No.291 , by striking out the lessees as plaintiffs, and made a decree for the tributors. Held on appeal, that the relation of the two sets of co-plaintiffs was that of landlord and tenant, and that there- fore the eight might join as to the remedy by injunction, but not as to the account of value, because the gold would never be their common property ; that it was a case for amendment under Sec. 1 30,and that the District Court Judge acted rightly in postponing his discretion till all the facts were discovered. The Court feel- ing a doubt as to whether the tributors were now in possession, gave the appellant an oppor- tunity of giving evidence on the subject, but that not being exercised, the decree was affirmed. Osborne v. Elliott, 6 W.W. & a'B. (M.,)49; N.C., 20. Suit to Enforce Title to Claim — Parties.]— Morrison v. Hartley, ante column 941. Affidavit of Service — Interlineations not Verified —Not Sealed with Court Seal— No. 291, Sec. 111.] — An affidavit of service of a plaint summons was not sealed with the seal of the Court, and there were in it erasures and interlineations unini- tialled. Upon the case being called on in the Court of Mines, the defendant's solicitor took the objection as to the irregularity of the affidavit of service, but the judge refused to recognise him unless he appeared, stating that if he appeared such appearance would waive the irregularity. The solicitor thereupon appeared under protest, and a decree was made against the defendants. Upon appeal, Held that the objection was good, and decree reversed, with costs. Mitten v. Spargo, 1 V.R. (M.,) 22; 1 A.J.R., 69. Judge's Summons — Seal of Court — Act No. 291, Sec. 100.]— Sec. 100 of Act No. 291 applies only to process — i. e. , something by which the suit is advanced — and where a judge's summons under 991 MINING. 992 Sec. 35of Act No. 409, as to the rectification of the register of a mining company, was, by mistake, sealed with the seal of the Court of Insolvency. Held that the judge had jurisdiction to hear the case. Murphy v. Cotter and United Hand and Band Coij., 7 V.L.R. (M.,) 16; 3 A.L.T., 17. Trial by Assessors — Finding Contrary to Direc- tion — Act No. 32, Sec. 32.] — Where assessors found for a plaintiff in the face of a direction of the judge that there was no evidence to go to them, and that a verdict for the defendant should be entered, Held that the judge could not disregard the assessors' finding. Brinkman v. Holstein, 1 W. & W. (L.,) 368. [Compare provisions of Sec. 136 of Act No. 291.] Power of Judge to Settle Issues on Appeal from Warden— No. 291, Sees. 218, 137.]— The Judge of a Court of Mines has the like power of settlement of the question of fact to be tried by assessors on appeal under the provisions of Sec. 218 of the "Mining Statute 1865," which he would have in his original jurisdiction under Sec. 137. Brennan v. Watson, 3 W.W. & a'B. (M.,) 55. ^ Trial by Assessors — Issues.] — Semble, that where issues have been settled for trial by assessors, the parties should not be allowed in argument, to go outside those issues. Wearne v. Froggatt, 2 V.L.R. (M.,) 1, 6. When Injunction may be Granted — No. 32, Sec. 70 — Pending Appeal.] — Semble, per Stawell, C.J., that under Sec. 70 of the Act No. 32 "Ooldfields Act," a suit existing in the Warden's Court, and transferred to the Appellate Court, would support the issue of an injunction by the Appellate Court (Court of Mines), without the institution of any suit in that court for an in- junction. Dennis v. Vivian, 1 W.W. & a'B. (L.,) 201. [Compare Sees. 170, 171 of Act No. 291; and see also Sec. 219.] Injunction Granted on Insufficient Grounds — Act No. 32, Sec. 27.]— A Deputy-Judge of a Court of Mines granted an injunction outside of his territorial limits. The plaintiffs moved before the Judge of the Court of Mines to vary the injunction, and the defendants to dissolve it. The judge refused the application to dis- solve, considering that his deputy had jurisdic- tion, and did not grant the motion to vary ; but of his own motion made a fresh injunction sub- stantially similar to that granted by the deputy. On appeal from both decisions, Held that the injunction of the deputy should have been dis- solved ; and that the injunction granted by the judge was not warranted by the proceedings or materials before it, it not being regular to re- grant the injunction made by the deputy, or to make an order of the kind made when not asked for by the party in whose favour it was made, and both appeals were allowed. James v. Higgans, 1 W.W. & a'B. (L.,) 51. [Compare Sec. 101 of Act No. 291.] Order for the Payment of Money — Enforcement of Order.] — An order of a Judge of a Court of Mines as follows : — " £35 and interest at 10 per cent, on 24th June, 1862 ; and £35 and interest at 10 per cent, on 24th December, 1862. De- fendant to transfer his share on these condi- tions, and payment of the above; plaintiff to re- transfer ; and in default of the first or second payment, plaintiff to be entitled to sell his share by public auction or private contract, and pay the balance (if any) to the defendant," is an " order for the payment of money" within the meaning of the " Ooldfields Act" (No. 32,) Sec. 41, and an execution can issue under such an order. Lee v. Conway, 2 V.R. (L.,) 77 ; 2 A.J.R., 58. [Compare Sec. 146 of Act No. 291.] Disobedience to Decree — Act No. 291, Sec. 155 — Drawing up of Decree.] — A decree was made by a Deputy-Judge of a Court of Mines, and, on appeal to the Chief Judge, was varied. After the Deputy- Judge ceased to be Deputy- Judge, and after the decree had been varied by the Chief Judge, a decree was drawn up, dated with the date of the original hearing, but signed by the Judge of the Court, who had returned, thereby displacing his deputy. The defendant disobeyed the order, and was-summoned under Sec. 155 of the "Mining Statute 1865 " to show cause against commitment for disobedience, and raised the objection that the decree was impro- perly drawn up, and the judge allowed the objection, and dismissed the summons. On appeal from the order of dismissal, Held that the decision was right, since the decree must be signed by the judge who was judge at its date ; and appeal dismissed without costs. Vallancourt o. O'Rorke, 2 V.R. (M.,) 14; 2 A.J.R., 84. Evidence — Warden's Evidence.] — The verbal evidence of a warden as to an admission in an inquiry before him relating to an application for. a lease is admissible in evidence, although it is the warden's duty to report the evidence given before him to the office of the Minister. Wed- dell v. Howse, 9 V.L.R. (M.,) 13 ; 4 A.L.T., 179. Costs of a Co-defendant who asserts that he Claims no Interest.] — In a plaintagainstH.,B. was a co-defendant. Before the plaint, B. attempted to transfer to H., but B. appeared as a litigant, and before the warden stated that he claimed an interest and did not disclaim. B. was made a co-defendant in the appeal to the District Judge but was not examined. Held that the plaint could not be dismissed as against B. , and that B. had to pay half complainant's costs of the special case to the Chief Judge. Ibid. Taxation of Costs — Not Taxed by Judge at Hearing under Sec. 230 of Act No. 291, but by Clerk — Appeal not Certiorari the Remedy.] — Begina v. Quinlan, ex parte Sampson, ante column 125. (3) Appeal and Reviewing Decisions. (i.) Warden. (a) Appeal to Court of Mines — Where it Lies and General Principles. " Goldfields Act" (No. 32,) Sees. 84, 88— Where Appeal Lies from Warden.] — Where a warden refuses to give possession on a complaint de- manding such possession, there is no appeal 993 MINING. 994 under Sees. 84 and 88. of the Act against such refusal. Rule for prohibiting judge of Court of Mines from proceeding in a decision in such an appeal from warden made absolute. Power v. M'Dermott, 2 W. & W. (L.,) 241. Varying Decision — Reversing — Dismissing Ap- peal— " Goldfields Act," Sees. 84, 88.]— The 84th and 88th sections of the " Goldfields Act" (No. 32,) which give power to the Court of Mines to vary the decision of a warden, do not give power to reverse such decision, and the powers to enforce a varied decision of a warden are not to be impliedly inferred in cases of reversal, and the Court of Mines has not jurisdiction to en- force such a reversed decision. The Court of Mines is not justified in dismissing an appeal on the ground of imperfect jurisdiction arising from the fact that if the appellant succeeded the warden's decision would have to be re- versed, and no mode is provided by the Act by which the decision of the Court of Mines could be enforced. An application was made to the warden to put applicant in possession of certain ground which he alleged to have been aban- doned, and the warden refused the application. The difficulty as to enforcing the decision of the Court of Mines (in case of a reversal) was that the Court of Mines could not order possession to an applicant who had never been in possession. Bray v. Mullen, 1 W.W. & a'B. (L.,) 191. Where it lies.] — Where, in a complaint before him, a warden declines to make an order, there is no appeal to the Court of Mines under Act No. 32. The summons before the warden was for interfering with a water-right, and the warden dismissed the summons. Wardle v. Evans, 1 W.W. & a'B. (L.,) 188. " Goldfields Act" (No. 32.) Sees. 84, 88.]— On a complaint before the warden for encroachment, the warden found there had been no encroach- ment. Special case stated by Judge of Court of Mines as to whether he had jurisdiction to hear the appeal. Held that Sec. 84 grants an appeal from the warden to the Court of Mines, and empowers that Court to reverse or vary such decision, or to dismiss the appeal, and, if necessary, to order restitution; that Sec. 88 contains no express provision for the enforce- ment of a reversal of a decision appealed from; that if the Court of Mines should be of opinion that the complaint dismissed by the warden ought to have been allowed, and that the respondent had encroached, it would be com- petent for the Judge of the Court to order that possession of the part so encroached on should be restored, and that such an order might be enforced; Bray v. Mullen distinguished on the ground that in that case there was no previous possession by the appellants to the Court of Mines; Power v. M'Deimott and Wardle and Evans distinguished on other grounds. Tatham i>. M'Gill, 2 W.W. & a'B. (L.,) 113. [But now see Sec. 212 of Act No. 291, where provision is made for an appeal from » dis- missal.] Appeal from Warden and Assessors— Act No. 291, Sec. 212.] — Where a warden sits with assessors there is no appeal against the finding of the assessors on the facts. Under Sec. 212 the basis of an appeal is the warden's adjudication ; and the remedy in case of a misfinding by assessors is a new trial. Begina v. Brewer and Walhalla Coy., 4 W.W. & a'B. (L.,) 124. Per Privy Council — It may be true that no appeal will lie from a mere decision of the assessors, because that decision requires to be followed by an express finding and order of the warden by Sec. 193 of the Act No. 291 and in the form of Schedule 25. But if the decision is minuted as required the assessors' decision and the order become the decision and order of the warden, against which an appeal lies under Sec. 212. Mulcahy v. Walhalla Coy., 2 A.J.R., 93, 95. Under Sec. 212 an appeal lies from a decision of the warden and assessors. Moore v. White, 4 A.J.E., 17. Sum under £100 — Joint Mining Adventure.] — An appeal lies to a Court of Mines from the decision of a warden under Sec. 177 of the " Mining Statute 1865," in respect of a sum under £100, claimed as* accruing to the com- plainant from a joint mining adventure between complainants and defendants. Pride of the East G.M. Coy. v. Wimmer, 4 V.L.R. (M.,) 3. General Principles — Act No. 291, Sees. 212, 216.] — Appeals from wardens under the " Mining Statute 1865 " should be practically re-hearings. There being no distinct provision in Sec. 212 for appeals from the wardens being in the form of special cases collecting and stating the facts, appellants are entitled to a re-hearing to the extent of being allowed to prove another and different case to that proved before the warden ; .but they are confined to the grounds stated in the notice of appeal, subject to the relaxation of Sec. 216". Constable v. Smith, 6 W.W. & a'B. (M.,)58; N.C.,70. Where it Lies — Question of Jurisdiction of Warden.] — The Judge of a District Court has power to hear an appeal on the question of the warden's jurisdiction and to reverse the warden's order if made without jurisdiction. Pride of the East G.M. Coy. v. Wimmer, 5 V.L.E. (M.,) 9. For facts see S.C. ante column 975. Who Entitled to Appeal — Act No. 32, Sees. 76, 84.] — A person who has no right to appear before the warden as one of the " parties interested " within the meaning of See. 76, has no locus standi in the Appellate Court under Sec. 84. Band of Hope Coy. v. Critchley, 2 W.W. & a'B. (L.,)47. See S.C. ante column 985. [Compare Sees. 180, 212 of Act No. 291.] Per Molesworth, J. — " I rather think that persons who do not appear before the warden may appeal." Constable o. Smith, 6 W.W. & a'B. (M.,)58; N.C., 70. 995 MINING. 996 Plaint for Trespass — Assignment of Claim pend- ing Appeal.] — Between the hearing of a com- plaint before a warden for trespass to a claim and damages, and the hearing of an appeal to a Court of Mines against the decision of the warden dismissing the plaint, the complainants assigned their rights in the claim and the assignees had been registered. Held that the complainants had not by such assignment lost their right to proceed with the appeal. Herbert ■o. jtfiZZara, 6 V.L.R, (M.,) 13; 1 A.L.T. 202; sub mom. Herbert v. M'Millan. Per Molesworth, Chief Judge. — So far as the plaint sought damages and the appeal sought those damages and relief fromthecosts adjudged, there was no colour for the objection. There may be some as to the seeking a declaration of right and the removal of the defendants on the ground of maintenance or champerty. If the complainants assigned their interest in the claim and their right of action against defen- dants, I am inclined to say there would be nothing illegal in it. But if there were, it would not destroy the interest of the assignor, but prevent the acquisition of interest by the assignee. Ibid. (b) Conditions Precedent to be Observed on Appealing. Notice of Appeal for Trial t>y Assessors — What is Sufficient — No. 291, Sec. 217.] — A notice of appeal from the decision of a warden was headed " For Trial by Assessors," and set out the grounds of appeal ; but did not set out any question of fact or issue which the appellants required to be tried by assessors. Held, insufficient notice of trial by assessors, under the provisions of the "Mining Statute 1865" (No. 291,) Sec. 217. Brennan v. Watson, 3 W.W. & a'B. (M.,) 55. Notice of Appeal — Signature.] — The word "undersigned" does not require that the appel- lants should actually sign the notice ; it is suffi- cient if their names appear at the foot of the notice. Frayne v. Garr, 5 W.W. & a'B. (M.,) 12. The notice need not be signed by the appel- lants or as on their behalf. Kilgour v. Flinn, 5 W.W. & a'B. (M.,) 32, 37. A notice of appeal commencing "I the under- signed," and signed " M. attorney for D.;" was held sufficient. Dillon v. Matthews, 3 V.L.E. (M,) 5. And see Cock v. Sayers, post column 1006. A notice of appeal contained the names of the appellants in the body of the notice, and con- cluded, " yours, &c, F.C., attorney for and on behalf of the appellants above-named." Held that the names of the appellants should appear at the bottom of the notice, and that the signa- ture of the attorney "for and on behalf, &c." was not sufficient. Ryan v. Callaghan, 6 W. W. &a'B. (M.,)54; N.C., 23. Form of Notice of Appeal.] — A notice of appeal from a Warden's Court to a Court of Mines should describe the decision appealed from both by date and place, and the heading of the order containing the name of the place is not suffi- cient. Frayne v. Can; 5 W.W. & A'B. (M.,) 12. The date of the decision appealed from should be correctly stated ; as to stating the time when the appeal should be heard, if sittings of the District Court are not fixed and publicly an- nounced, a party should not by omitting the date of the hearing of the appeal be deprived of his right to appeal, but the date of the decision appealed from should be correotly stated in the notice of appeal. Kilgour v. Flinn, 5 W.W. & A'B. (M.,) 32, 37. Notice of Appeal— Form of.]— A notice of ap- peal was as follows :— "Take notice that B.R., T.W., M.R., and J.C., being desirous of appealing from a decision of, &c, intend to appeal to the Court of Mines to be holden at J. on the 9th of July next— i.e. to say, to the next Court of Mines in the mining district of B. at the sitting of such court, which next after the expiration of fifteen days from the making of the said decision shall be held at B. — against such decision." Held that the Court of Mines actually having been held on 10th July, the notice of appeal did not properly name the sittings of the court in which the appeal was to be heard. Ryan v. Callaghan, 6 W.W. & a'B. (M.,)54; N.C., 23. "Mining Statute 1865," Sec. 212— Fifteen Days— Nearest Sitting of Court of Mines to Place where Decision was Pronounced.]— Sec. 212 of the "Mining Statute 1865 " (No. 291,) provides that any person desirous of appealing from a warden's decision may do so to the Court of Mines of the same district, at the sitting of such Court which shall, within fifteen days next, be held nearest to the place where the decision was pronounced. Where a complaint was heard in the Warden's Court at F., in the C. district on 5th February, and the next sitting of the Court of Mines at F. was on the 15th February, within the fifteen days, and the next sitting to that in the C. district was at C, on the 6th of April, and notice of appeal to the Court of Mines, to be holden at C. , on that date, was given, and on the 15th February, application was made to the Court of Mines at F. to have the case set down for hearing at C. on the 6th of April, and re- fused, Held, on appeal, that the next sitting at F. being within fifteen days of the warden's de- cision, the appeal ought to have been to the next sitting but one at F., and the refusal to hear the appeal at C. was right. Vicary v. Row, 3 W.W. &a'B. (M.,)l. Heading of Notice of Appeal — Power of Amend- ment—Act No. 291, Sec. 133.]— A notice of appeal from a warden was headed "In the Court of Mines for the district of Heathcote"— there was no district of Heathcote. Held that the notice of appeal was bad, and under Sec. 133 of the Act the judge had no power to amend. Surch v. Brown, 7 V.L.E,., (M.,) 10; 2 A.L.T., 149. Substituted Service of Notice of Appeal— "Goldfields' Act" (No. 32,) Sec. 84.]— In an appeal summons, under Sec. 84 of Act No. 32, twenty-five persons were named, but only six were served, and no order had been made by the Judge of the Court of Mines under Sec. 84 as to substituted service upon those whom he con- sidered sufficient to represent all before the appeal was heard, the judge being doubtful of 997 MINING. 998 his jurisdiction to make the order at the hear- ing. Held that the Judge had power to make such order at the hearing. In re Rogers, ex parte Shean, 2 W.W. & A'B. (L.,) 84. [Compare Sec. 212 of Act No. 291.] Service of Notice of Appeal.] — Where on an appeal from the warden the appellants served notice on one of five parties (plaintiffs,) and served a copy upon the warden's clerk, which came to the warden's hands after the three days prescribed in Sec. 212, Held that it was in the discretion of the Judge of the Dis- trict Court to determine whether the party served sufficiently represented the co-plaintiffs; that in case of difficulty in serving the other plaintiffs if necessary, the warden should have teen served within the three days; and Semble that the service of the clerk at the warden's office would have been sufficient ; and that serving the appellants through an attorney with notice to produce a document at the hearing of the appeal, did not cure a defect in the service. Whitemcm v. M'Callan, 6 W.W. & A'B. (M.,) 28. Service of Notice of Appeal — Act No. 291, Sees. 171, 212.] — The power of an attorney in a war- den's court ceases upon the decision, so that he does not represent his client to receive notice of appeal. Sec. 212 does not. authorise service upon the authorised agent of a respondent, but the Court, not having heard counsel on both sides, was unwilling to express an opinion as to the necessity of personal service. Respondents have a right to be heard to object to defective service and to cross-examineor give evidenceupon controverted facts as to service. Objections to the hearing of an appeal as to service of notice stand on the same footing as preliminary objections to hearing of a suit as to service of summons, and may be the subject of a special case to the Chief Judge under Sec. 171 of the Act. Murphy v. Neil, 6 W.W. & a'B. (M.,) 45; N.C., 19. Service of Notice of Appeal — Act No. 291, Sec. 212 — Act No. 446, Sec. 19.] — Service of notice of an appeal upon an attorney by leaving the same with an inmate of his private house is not good service under the Acts. Lawlor v. Ghrant, 3 V.L.R. (M.,) 12. Affidavit of Service.] — Where an affidavit, stating that the respondent could not be found and that notice of appeal had been served on the warden, was intituled "A. plaintiff v. B. defen- dant." and not "A. appellants. B. respondent," Held that the service was bad. Mole v. Williams, 3 A.J.R., 21, 22. Notice of Appeal and Deposit — Enlargement of Time by Consent — "Mining Statute 1865," Sec. 212.] — The time for notice of appeal and deposit under the " Mining Statute 1865," Sec. 212, and the Act No. 446, Sec. 18, may be enlarged by verbal consent of the parties. Conway v. Louc- hard, 10 V.L.R. (M.,) 6 ; 6 A.L.T., 120. Notice of Appeal — May lie Waived.] — The enforcement of the notice of appeal is a mere right of the parties and may be waived. Crocker v. Wigg, 5 W.W. & a'B. (M.,) 20, 22. Computation of Time— No. 291, Sec. 212.]— The last day for giving notice of appeal from a, Warden's Court under No. 291, Sec. 212, fell on a Sunday, and the notice was given on the Monday following. Held that, in the absence of express provision, Sundays and holidays could not be excluded from the computation of the time; and notice held bad. Regina v. Macoboy, 1 V.R. (L.,) 26; 1 A.J.E., 37. Production of Minutes of Decison— " Goldfields Act," Sec. 80.] — On an application to assess several claims under the " Drainage of Quartz Reefs Act" (No. 153,) the warden made his decision in each case, and signed a minute of each decision. On a separate sheet he made a further order, imposing conditions on the owners of the machinery for pumping. The owners of one of the claims appealed to the Court of Mines, but gave no notice of their appeal to the other claimholders. On the appeal, the copy of minute produced by the appellants was that which was furnished to them under the Act No. 32 (" Goldfields Act,") viz., a copy of the "decision" entered in each case without the separate "conditions" imposed on the owners of the machinery. On questions stated under No. 32, Sec. 80, Held that the objection as to the non-production of a copy of the minute of the warden's decision would be best met by allowing the appellants in such a case as the present to correct the mistake, arising as it did from the warden's inadvert- ence; permitting the production of a proper copy of the minute of the decision; and, if necessary, adjourning the Court for that pur- pose on such terms as the judge might think equitable. Early v. Barker, 1 W.W. & a'B. (L.,) 32. And see Sim v. Eddy, ante column 988. Production of Warden's Decision — Act No. 291, Sec. 213.]— The production of the warden's de- cision under Sec. 213 is a. condition precedent, and is not like the notice of appeal, the enforce- ment of which, as a mere right between the parties, may be waived. The judge should not decide in an appellant's favour without the pro- duqtion of the certified copy, but he may exer- cise a reasonable discretion as to the period of the hearing at which he requires its produc- tion. Crocker v. Wigg, 5 W.W. & a'B. (M.,) 20, 22. [N.B. — So much of Sec. 213 which provides for the production of the certified copy of the warden's decision has been repealed by Sec. 21 of Act No. 446.] Production of Certificate of Decision— Act No. 291, Sec. 213.]— Where the appellants produced a copy of warden's decision and of his order, having his signature at the bottom, and then a certificate "That the above is a true copy of the minute of my decision in the above-named case," which was signed by the warden, Held that it was not a certificate of the "minute of the decision and of the order thereon" within the meaning of Sec. 213, and that the warden's register should not have been received at the hearing for the purpose of complying with the section. Whiteman v. M'Callan, 6 W.W. & a'B. (M.,) 28. 999 MINING. lOOf* (c) Practice on Appeal. Reversing or Varying Decision of Warden— "Gold- fields' Act," Sec. 84.]— The jurisdiction of the Court of Mines under the " Ooldfields' Act," Sec. 14, to "reverse or vary" the decision of a warden, cannot be limited by the form in which an appellant seeks, and the clerk issues an appeal summons. Ex parte Clarke, 1 W. &W. (L.,)209. An appellant issued a summons to show cause why the decision against him should not be "reversed" only, andnot "reversed or varied;" the respondent in the Court of Mines attended, and first asked leave to have the summons altered by inserting the words "or varied," and the appellant protested against the alteration as beyond the judge's jurisdiction, but did not withdraw, but entered into the merits of the case, and the Judge of the Court of Mines gave judgment increasing the amount awarded by the warden against the appellant. Held that the jurisdiction was given to the Judge by the Act and not by the words of the summons ; that the appellant's proper course was to have paid the costs of the appeal and withdrawn, and that the judge had jurisdiction throughout, and that there were no grounds for a prohibition. Ibid. [Compare Sec. 213 of Act No. 291.] Reversing and Affirming Warden's Decision.]— If in a complaint under Act No. 32, sec. 76, the warden finds a joint trespass against all of certain persons against whom complaint is brought, and awards damages as against all, and the Court of Mines finds that some only par- ticipated in the trespass, the Court should not reverse wholly, but should reverse in part or affirm in part. Critchley v. Craham, 2 W.&W. (L.,) 71. Dealing with Warden's Decision.] — B. com- plained against K.., before a warden, thatK. had marked out 100 yards of land, being only entitled to eighty, and B. applied for surplus. The warden ordered that K. had forfeited the twenty yards of land and ordered possession of same to be given to B. K. appealed to the Court of Mines. The judge held that he could not strike out adjudication of forfeiture, and directed assessors to find for K., and reserved a question for the judges of the Supreme Court as to whether his direction was right. Held, that the matter for the Court of Mines to determine was whether the subject matter of the complaint and that of warden's adjudication were the same ; not whether the grounds on which the warden had arrived at his decision were formally or technically right; that he ought to have heard the evidence, and determined whether the adjudication should have been varied or otherwise dealt with. Kirk v. Barr, 2 W. W. & A'B. (L.)44. Copy of Complaint— No. 446, Sec. 20.]— Under the Act No. 446, Sec. 20, the copy of the com- plaint delivered to the Court of Mines on an appeal from a warden need not be certified, but a copy must be delivered, and it is not sufficient to present to the clerk of the Court of Mines an affidavit of service of a summons containing the complaint, unless the appellants at the same time aver that they present it as a true copy of the complaint, and the Court of Mines cannot, if this be not done, receive preliminary evidence that the copy in the affidavit is a true copy of the complaint. Hok John v. Yung Hing, 4 A.J.R., 173. Bight to Begin.]— The appellant has the right to begin on an appeal by way of special case from a warden to the District Court of Mines. United Claims Tribute Coy. v. Taylor, 8 V.L.R (M.,) 19; 3A.L.T., 147. The complainant in the court below has the right to begin in the District Court, the appeal being practically a rehearing. Mole v. Williams. 3 A.J.R., 21, 22. Right to Begin.] — Semble. The appellant, whether plaintiff or defendant, has the right to begin. Stevens v. Webste7-,3W.W. & A'B. (M.,)23. Costs in Appeal — Warrant Issued in Excess- Act No. 291, Sec. 220.]— The Judge of the District Court ordered the A. company to pay £47 costs to the B. company in an appeal before him from the warden. The B. company drew out of court the £10 deposited as security for the appeal, and then issued execution for the whole £47. On summons to set aside the execution as excessive the judge made an order to that effect. Held that that was the correct remedy, and appeal against the order dismissed. Sea Q.M. Coy. o. Sea Queen Coy., 5 A. J.R., 112. Parties— Act No. 291, Sec. 212.]— In an appeal from the decision of a warden, it is sufficient if the parties to the proceedings in the Warden's Court appealed from are before the Court of Mines. Early v. Barker, 1 W.W. & a'B. (L.,) 32. Parties to Appeal— Act No 291, Sec. 212.] — A Judge of a Court of Mines has jurisdiction to order that an appellant's name be struck out from all proceedings in his Court, and that all such proceedings be set aside as against him, or for some part of- such order, when, from the circumstances, it appears that the appellant did not authorise litigation in his name, and was not aware that he was a litigant till execution under the decree was levied upon his goods. M'Leod v. Whitfield, 2 V.R. (M.,) 17 ; 2 A.J.R., 104. (d) Stating Special Case for Opinion of Chief Judge or Supreme Court. Stating Special Case — Time for— Warden's Order when Made — Act No. 446, Sec. 23.]— A warden at the close of a case before him announced his intention of making an order in favour of the complainants, and was then asked by the defendants to state a special case on certain questions of law, but the warden entered up his order and refused to state the case, on the ground that, having made his order, it was too late to state a case. On appeal, Held that for the purposes of the " Min- ing Statute 1865,"and Sec. 23 of the "Amendment Act" (No. 446,) the warden's order is made when he announces his intention to make it ; and that the application to state the case was made too late. Regina v. Thomson, ex parte Costin, 4 V.L.R. (L.,) 512. 1001 MINING. 1002 Order made within Ten Says after Refusal to State a Case.] — Semble, that if a warden make an order within ten days after an application to state a special case for the opinion of the Chief Judge has been made and refused, such appli- cation having been made and refused before the warden made any order, the order made within the ten days will be bad. Ibid, Act No. 291, Sec. 194 — What may he the Subject of a Special Case.] — Semble, there may be special cases on appeal under Sec. 194 as to the admis- sibility of evidence. Palmer v. Chisholm, 5 A.J.R., 169. Questions of the preponderance of evidence are not fit subjects for a special case ; i.e. , inferences as to the fact of abandonment, these should be determined by the warden himself. Small v. Dyer, 5 W.W. & a'B. (M.,) 1. For facts see S.C., ante column 935. Sight to Begin.] — Upon a special case stated by the warden under Sec. 194 of the ' ' Mining Statute 1865 " (No. 291,) the complainant in the court below has the right to begin. Fahey v. Koh-i-noor Coy., 3 W.W. & a'B. (M.,) 4. No Appearance for Either Party.] — Upon a special case stated by the warden being called there was no appearance for either party. The Chief Judge directed a written opinion to be forwarded to the warden by whom it was stated. Anderson v. Coyle, 3 W.W. & a'B. (M.,) 10. No Appearance of Complainant.] — A warden was about to decide against complainants, but at their request stated a special case to the Chief Judge. At the hearing of the special case the complainants did not appear. The Chief Judge heard the case nevertheless and answered the questions on the undisputed facts. Reardon v. Norton, 5 V.L.B. (M.,) 12. Setting Down Special Case — No Appearance of Complainant — Rehearing.] — A special case stated by a warden for the opinion of the Chief Judge, arrived on the morning of the first day of the sittings of the Chief Judge. Held that it was rightly set down for hearing at those sittings ; and that both parties ought to be prepared to proceed with the case, and the case being argued in the absence of the complainant, who had not instructed counsel, a motion for a rehearing was refused with costs. Fattorini v. Band and Albion Consols, 8 V.L.R. (M.,) 41 ; 4 A.L.T., 94. Costs.] — No costs will be given on special case stated under Sec. 194 of the " Mining Statute 1865 " for the opinion of the Chief Judge. Ibid. [But see Sec. 25 of No. 446 ("Mining Statute 1865 Amendment Act 1872,") allowing the Chief Judge to exercise his discretion as to costs. Ed.] Special Case Remitted to Warden — Power of Warden to take Additional Evidence— Act No. 291, Sec. 194.] — Where a question in a special case has been answered, and the case has been remitted to the warden for his opinion on the facts, there is nothing to prevent the warden taking additional evidence on the question as left to him. Clerk v. Wrigley, 4 W.W. & a'B. (M.,) 74, 84. Effect of Answer of Chief Judge to One Ques- tion — Other Points Open.] — Where the Chief Judge has given an answer to a question, viz. , that miners' rights should have been produced, the appellant may then apply to the warden for a rehearing to produce further evidence. Per Molesworth, J. — "Virtually my answer was decisive only as far as it went ; all other points were left open. The Privy Council has decided that upon questions submitted by special case, the case remains open for adjudication by the original Court notwithstanding my answers thereto — to be inferred from Smith v. Harrison, 3 A.J.R., 44." Summers o. Cooper, 5 V.L.R. (M.,) 42, 44, 45 ; 1 A.L.T., 115. Special Case — Answer by Chief Judge— Fresh Evidence — Discretion of Warden — Appeal.] — It is a matter of judicial discretion for the warden, whether, after an answer is given by the Chief Judge to a case stated by him, he should take fresh evidence or allow an amendment, and, Semble, that there is no appeal from the exer- cise of such discretion. United Claims Tribute Coy. v. Taylor, 8 V.L.R. (M.,) 19. Evidence — Affidavits Filed after Special Case Stated.] — The Chief Judge will not, on the hearing of a special case from a Court of Mines, stated on an appeal from the warden, receive affidavits filed after the special case has been stated, but will answer the special case as it stands. Conway v. Louchard, 10 V.L.R. (M.,) 6; 6 A.L.T., 120. (ii.) Of Courts of Mines. (a) Special Case Stated by Judge of Court of Mines to Chief Judge on Appeal from Warden. Special Case — What is a Proper Point for.] — The question whether a Judge of a Court of Mines has power, after the dismissal of an appeal, to grant an application by one of the appellants to have his name struck out of the case, and all the proceedings set aside as against him, is not a proper point for the transmission of a special case to the Chief Judge under the " Mining Statute 1865," Sec. 171, since it does not arise on the hearing of any suit or appeal. McLeod v. Whitfield, 2 V.R. (M.,) 17 ; 2 A.J.R., 104. Objections to the hearing of an appeal as to service of notice and preliminary objections to the hearing of a suit as to service of summons may be the subject of a special case under Sec. 171. Murphy v. Neil, ante column 997. What Special Case should State.]— The proper office of special cases, under Sec. 171, is to state facts, and ask the opinion of the Chief Judge as to the law only ; not to substitute the Chief Judge for a judge or warden to decide facts upon a balance of evidence. Keast o. D'Angri, 4A.J.R., 61. Special Case Stated by Judge of Court of Mines under Sec. 171 of Act No. 291.]— Where a special 1003 MINING. 1004 case, under Sec. 171, embraced many questions of fact, and the evidence set out was compli- cated and conflicting, the Chief Judge refused to answer it, not thinking that questions of fact were warranted by the section. Australasian G.M. Coy. v. Wilson, 4 A.J.R., 18. Where defendants consented to a case being stated by the Chief Judge upon appeal from the warden, and assisted in the drawing up of the case, and expressed no intention of calling evidence, they were not allowed afterwards to call evidence. Begina v. Cope, in re Moore, 4 A.J.R., 113. Nonsuit — Points not Distinctly Stated — Act No. 291, Sec. 171 — No Reason Given by Judge.] — In a case for the opinion of the Court stated by Judge of Court of Mines, the case did not state the nonsuit points distinctly, and where the case set out the whole of the evidence and asked the question, " Whether the respon- dents had, by the evidence adduced and set out in the case, established a, case which would entitle them as against the appellants to " certain relief, — Held that the nonsuit points should , have been set out succinctly, and case remitted to be re-stated. Thomas v. Kinnear, 2 W. & W. (L.,) 221. In a case stated by a Judge of the Court of Mines, upon appeal from the warden, the case set out the evidence given verbatim. Per Moles- worth, J. — " This way of asking the propriety of a nonsuit, not showing in some degree what is the supposed defect in the plaintiffs case accord- ing to the judge's view, is inconvenient." Long- bottom v. White, 3 W.W. & a'B. (M.,) 35. Where a Judge of the Court of Mines stated a special case to the "Judges of the Supreme Court" and not to the "Supreme Court," JMdthat as it purported to be a " special case" and to be stated under sec. 70 of the " QoldfieUs' Act " it was well stated. Kirk v. Barr, 2 W.W. & a'B. (L.,) 44. [Compare Sec. 171 of Act No. 291.] Costs — Power of Supreme Court to Award on Special Case from Court of Mines.] — Semble,tha,t on a question reserved under the "Ooldfields Act," No. 32, Sec. 70, by the Judge of the Court of Mines, on an appeal from the warden in the form of a special case for the opinion of the Supreme Court, the latter Court should not give costs. JevMnsonv. Gumming, 1 W. & W. (L.,) 337. [But now see Sec. 25 of Act No. 446.] Act No. 446, Sec. 25— Refusal of Judge of Dis- trict Court to Make any Order except Recording the Opinion of the Chief Judge as his Decree.]— A special case, on an appeal from the warden, was stated to the Chief Judge, on which he delivered his opinion. The District Court Judge then read the opinion and declared it to be his decree, and refused to make any further order. On rule nisi for a mandamus, Held that the applicants must draw up an order from the decree (i.e., the opinion of the Chief Judge, ) and if the Judge refused to sign the order, they might apply for a mandamus. Rule refused. Per Fellows, J., that the hearing of a case must be completed before any question is stated for the Chief Judge. Ex parte Sea Queen Q.M. Coy., 5 A. J.R., 77. Question not Answered may he Put Again.] — Where, in a special case under the Act No. 446, from a District Court of Mines, upon appeal from a warden, several questions are put to the Chief Judge, one of which questions is not at the time material, and is not answered, such question may be asked again in another special case after a further hearing in the Court below; and where, under such circumstances, the Judge of a District Court of Mines refused to state a case, the Chief Judge made absolute an order to compel him to do so. Talent v. Dibdin, 8 V.L.R. (M.,) 31. Compelling Judge to State Special Case — Act No. 291, Sec. 171.] — A rule compelling a Judge of a Court of Mines to state a special case on an appeal from a warden to his court, was granted where the warden, on a plaint for trespass to a claim, had decided for the plaintiff company and not for an individual co-plaintiff, who had no recent miner's right. Sea Queen Coy. v. Sea Quartz Coy., 4 A.J.R., 130. Compelling Judge to State a Case — Point of Law not Raised at the Trial— Act No. 446, Sec. 24.] — A rule was granted compelling a Judge of a Court of Mines to state a special case, on an appeal from a warden, as to the questions whether the burden of proof as to the defen- dants' possession of a miner's right was on the complainant or the defendants, and whether the termination of the defendants' miner's rights terminated their interest in their claim; but not as to a question of law which did not arise at the hearing, the Chief Judge observing that if a judge decided a case on points of law not raised during the trial proceedings might be taken to set his judgment aside. Lennox v. Golden Fleece and Heales United Q.M. Coy., 4 A.J.R., 154. (6) Appeal from Court of Mines. (1) Where Appeal Lies. No appeal lies from the Court of Mines to the Supreme Court in a matter before the Court of Mines on an appeal from the warden, but the Judge of the Court of Mines should state a special case for the opinion of the Supreme Court, as provided for in Sec. 70 of the Act No. 32. Schultz v. Dryburgh, 2 W. & W. (L.,) 127. [Compare Sees. 170 and 171 of Act No. 291.] Dismissal of Summons for Commitment — No. 291, Sees. 172, 155.] — An appeal will lie under Sec. 172 to the Chief Judge from an order of a Court of Mines dismissing a summons for commitment under Sec. 155 of the "Mining Statute 1865." Vallancourt v. O'Rorke, 2 V.R. (M.,) 14; 2 A.J.R., 84. When Appeal "Saved" by "Mining Statute 1865," Sec. 2.] — In a suit in a Court of Mines in 1861 a decree was made for the transfer to the plaintiff of defendant's share in a claim as 1005 MINING. 1006 security for a debt, with power of sale, but no sale was ever held, and nothing was done in the matter. Plaintiff, in 1871, took out a summons in the Court of Mines for execution against the defendant for the amount due under the decree, with interest from the date of the decree. The summons was dismissed, and plaintiff appealed. Held that this appeal in a case under the " Ooldjields Act" was a suit commenced before the passing of the " Mining Statute 1865," and was kept alive by Sec. 2 of that Act so as to permit of the appeal ; and that execution should now issue on the decree, but with interest for six years only. Lee v. Conway, 2 V.R. (L.,) 77 ; 2 A.J.R., 58. Order Granting New Trial — "Mining Statute (No. 291,) Sec.172.]— The subsequent words of Sec. 172 make » distinction between orders on applica- tion for a new trial and other orders. In cases of new trial being granted the section provides for appeal only after the decision on the re- hearing. Appeals only are allowed where the merits are concluded, and an order for a new trial is not such an order as concludes merits. Watson v. Morwood, 3 A.J.R., 21. From Order Winding-up a Company.] — There is no appeal from the Court of Mines to the Chief Judge from an order made by the Court of Mines winding up a company under Act No. 228. Perseverance Q.M. and A.O.M. Coy. v. Bank of N.S. W., 4 W.W. & a'B. (M.,) 21. Act Ho. 297, Sec. 172 — Winding-up Order under Act No. 228, Sec. 28, Act No. 324.]— Per Privy Council— The words of Sec. 172 of the Act No. 291 providing for appeals to the Chief Judge from Courts of Mines are wide enough to em- brace an appeal by the shareholders of a mining company against an order made by a Judge of a Court of Mines for winding up a company upon such a proceeding as that prescribed by the 28th and following sections of Act No. 228, and the Amending Act No. 324. Colonial Bank v. Willan, 5 A. J.R., 53 ; L.R., 5 P.C., 417. [Contrast Sec. 71 of the " Ooldjields Act," 21 Vict. No. 32.] (2) Statement of Case, Time for Appealing and Practice on Appeal. What Must Appear in Case— Objection How Taken.] — Before a Judge of the Court of Mines, under the Act No. 32, Sec. 71, can state a case for appeal, it must, under that section, appear on the case that the parties could not agree. The non-appearance of this requisite is fatal to the jurisdiction of the judge to state, and of the Supreme Court to hear such a case. But if notice of appeal and security for costs have not been given, or other requisites have not been complied with, the non-appearance of such re- quisites does not justify the Court in acting against the maxim : — " Omnia prcesumuntur rite esse acta donee probetur in contrarium. " At most their absence affords grounds for an ap- plication to the Court to strike the case out of the list if, on affidavits, it can be shown that the requisites are absent in fact. Inskip v. Inskip, 3 W.W. & a'B. (L.,) 24. [Compare Sec, 172 of Act No. 291.] Case Stated Imperfectly — Omission of Evidence given Below — Act No. 291, Sec. 172.]— A case stated by the Judge of a Court of Mines omitted evidence, which one of the parties alleged was given in the Court of Mines. Held that the Chief Judge could not control the Judge of the Court of Mines, and that if he refused to intro- duce evidence into the case, the Chief Judge had no power to deal with it ; and the Chief Judge refused to allow the case to be supple- mented by affidavit that such evidence was given, or to remit the case to be re-stated. Mitten o. Spargo, 1 V.R. (M.,) 22; 1 A.J.R., 69. Stating Case on Appeal under Sec. 172 — Evi- dence not Set Out Satisfactorily — Rehearing.] — The Chief Judge will direct a rehearing where facts material to the decree do not appear to have been made the subject of evidence, or where the evidence being set out he cannot arrive at a conclusion. Shaw v. Coster field CM. Coy., 1 V.R. (M.,) 7; 1 A. J.R, 17. Practice in Stating Case — Time for Transmis- sion.] — Where a special case stated by a Judge of the Court of Mines sets out the facts suffi- ciently clearly so as to leave no doubt as to what the facts really are, so that the Court can infer facts to warrant conclusions of law; but does not set out the facts verbatim, the Court will not direct a rehearing. Semble — Where an appeal case is not trans- mitted within the time required by the 172nd Section of the " Mining Statute 1865," and the case stated that the time was extended, upon an objection that the time had not been pro- perly extended, the Court is to infer in favour of the appeal, that the order was properly made when the objection is not sufficiently proved by affidavit. Lewis v. Pearson, 4 W.W. & a'B. (M.,) 23. Result of Removal of Judge of District Court — Act No. 291, Sec. 172.]— The "Judge of the Court" in Sec. 172 means the Judge for the time being. Where a Judge of a District Court made an order against which an appeal was pending, and was removed to another district during the pendency of the appeal, Held that his successor was the proper person to state the case under Sec. 172. Brennan v. Watson, 6 W.W. & a'B. (M.,) 1. Appeal not Set Down in Time.] — Where an appeal case was not forwarded within the proper time, and the only order made for enlargement appearing on the case was one made by the judge after he was removed from the district, no order was made on the appeal. Ibid. Notice of Appeal — Signature by Attorney's Clerk— Act No. 291, Sec. 172.]— A notice was signed "H.C. by his attorney, J.R.H." H. did not sign, but his clerk, R., did. Held that the notice was sufficiently signed. Cock v. Sayers, 3 A. J.R., 63. Waiver of Objections to Notice of Appeal.] — The enforcement of the notice of appeal is a mere right of the parties, and may be waived. Crocker v. Wigg, 5 W.W. & a'B. (M.,) 20, 22. And for form of notice of appeal under Sec. 212 see ante column 995. ii 2 1007 MINING. 1008 Transmission of Special Case — No. 391, Sec. 172.]— Under Sec. 172 of the "Mining Statute 1865" (No. 291), the Judge of a District Court of Mines has a discretion as to the extension of the time within which a special case in an appeal to the Chief Judge is to be transmitted, and no appeal will lie from its exercise. He has, moreover, the power of rescinding or varying the order extending the time, and no appeal will lie from the exercise of his discretion in this case either. Collins v. Hayes, 5 W.W. & a'B. (M.,) 24. Enlarging of Time for Transmission of Special Case — Attorney cannot Consent to, when Cause is out of Court.] — A client is not bound by his attorney's consent to the enlargement of the time for transmission of a special case on appeal to the Master-in-Equity, when the cause is out of court by virtue of the provisions of Sec. 172 of the "Mining Statute 1865." Odgers v. Waldron, 1 V.R. (M.,)26; 1 A.J.R., 71. Enlargement of Time for Transmission of Case — Bo. 291, Sec. 172.] — The power conferred by Sec. 172 of the "Mining Statute 1865" (No. 291,) upon the Judge of a District Court of Mines to direct a further time for the transmission of a special case on appeal to the Master-in-Equity, must be exercised before the original or extended time has expired. Ibid. Extending Time for Appeal.]— After the time limited for appeal by Sec. 172 of the "Mining Statute 1865 " from a Court of Mines to the Chief Judge has expired, a Judge of a Court of Mines has no power to extend it. Central Q.M. Coy. v. Morgan, 4 A.J.R., 174. Time for Appeal — From what Time it Runs.] — Per Holroyd, J. — The time within which an appeal from the decree of a Court of Mines may be made might be held to run from the day on which the decree was settled, though I am myself inclined to think, that it should run from the date of the pronouncing of the decree. Regina v. Quinlan, ex parte Sampson, 10 V.L.R. (L.,) 102; 6 A.L.T., 8. Appeal from Warden Carried through Court of Mines to Court of Chief Judge — Eight to Begin.] — Where an appeal from a Warden's Court which has passed through the Court of Mines, is pend- , ing before the Court of the Chief Judge, it must be dealt with in the same manner as if it had come before the Chief Judge without the inter- vention of the intermediate court ; and as the decision of the inferior court is supposed to be right, the duty of showing it to be wrong lies on the appellants, who must therefore have the right to begin. Stevens v. Webster, 3 W.W. & A'B. (M.,) 23. Parties — Representatives.]— Under Sec. 131 of the " Mining Statute 1865," the Chief Judge may, on appeal to him from a Court of Mines, decide whether some of the defendants below, who were served with notice of the appeal, sufficiently represent all the defendants ; and it is not necessary that defendants who did not appear in the court below should be served. The Chief Judge has, moreover, the same dis- cretion as the District Judge as to proper repre- sentations, and on appeal may review the dis- cretion of the District Judge in the matter. Thompson v. Begg,2 V.R. (M.,) 1 ; 2 A.J.R., 3. Evidence — Point not Taken Below.] — On an appeal to the Chief Judge it was contended that there were houses built on a machinery area which had been undermined. The point was not taken in the court below. Meld that the Court could not regard the plan annexed to the case for the purpose of deciding whether houses were in fact so built. Vivian v. Dennis, 3 W.W. & A'B. (M.,) 29. Objection not Taken in Court Below.] — At the hearing of a plaint by a shareholder, seeking to upset the forfeiture of his shares for non- payment of a call, no objection was taken by him in the Court of Mines to the regularity of the meeting at which the call was made, and no attempt was made to amend the plaint and put it in issue. On seeking to raise the objection on appeal, Held that the objection could not then be raised, and plaint dismissed without prejudice to the question of the regularity of the meeting. McLennan v. Myrtle Creek Coy., 1 V.R. (M.,) 39 ; 1 A.J.R., 157. Appeal from Court of Mines to Chief Judge — Evidence.] — Per Molesworth, J. — "The judge's notes of evidence are only to be taken with reference to the arguments urged before me and made the ground of appeal. The" parties are not to object that they did not show evi- dence of something as to which objection was not taken." Barker's Q.M. Coy. v. Keating, 1 A.J.R., 55. Appeal from Court of Mines — Increase of Dam- ages.] — An appeal from the Court of Mines opens the whole case, and the Appellate Court may increase the amount of damages. United Working Miners' Coy. v. Prince of Wales Coy., N.C., 71. Rehearing.] — A rehearing should be decided according to the law at the time of the rehear- ing. Semble, that a decree which was right according to the law at the time it was made should not be reversed because the law is altered by a retrospective Act coming into operation between the two hearings. Shaw v. Costerfidd G.M. Coy., 1 V.R. (M.,) 7; 1 A. J.R., 17. ■ Accounts— Act No. 291, Sees. 173, 174.]— Al- though the order of the Chief Judge is final, yet it is contemplated in Sec. 174 that the case may be sent back to the District Court for its officers to work out ministerially the decree of the Appellate Court. Accounts sent to be taken by the District Court. Albion Coy. v. St. George United Coy., 4 W.W. & a'B. (M.,) 37, 60. Act No. 291, Sees. 173, 174, 175— Taking Ac- counts — When it may not he Done.] — The taking of accounts is not a purely ministerial proceed- ing — it is quasi judicial, therefore, since the Judge of the Court of Mines must conclude the hearing before making a decree, leaving nothing more to be done than what is purely ministerial, he cannot take accounts in a suit after having 1009 MINING. 1010 made his decree. Where, therefore, the Judge of a Court of Mines made a decree directing accounts and payment of what should be found due, and proceeded, after his decree was con- firmed by the Chief Judge, to take the accounts, a certiorari was granted. Regina v. Rogers, 5 W.W. & a'B. (L.,)206. Act Mo. 291, Sec. 174— Duties of District Court Judge as to Decree of Chief Judge.] — In a pro- ceeding by plaint the judge dismissed the plaint, but the Chief Judge, on appeal, made an order in favour of the plaintiff. The District Judge refused an application for the enforce- ment of the decree on certain grounds which he had no right to take cognisance of. Held that under Sec. 174 of the Act the decree of the Chief Judge should be entered as a decree of the District Court and be acted on accordingly, and that the judge could exercise no discretion as to its propriety, his duties being only minis- terial ; but the proper mode of redress is not an appeal to the Chief Judge against the dismissal of the summons to enforce, though the Court will entertain an appeal on the order for costs made upon the dismissal. Bain v. M'Coll, 5 A.J.R, 17. Costs of Appeal— Act No. 291, Sec. 173.]— Where a suit might have been dismissed in the Court of Mines as wrongly framed, but there had been a miscarriage on two other points appearing in the case but not argued, the appeal was dismissed without costs. Banks v. Oranville, 1W.4W. (L.,) 158. For facts see S.C., ante column 44. III. Mining Companies. (1) Formation, Incorporation and Registration of Company. [a) Registration, Incorporation and Constitution. Notice of Particulars— Copy of Rules— 18 Vict. (No. 42,) Sees. 2 (vi.) and 3.] —The notice of par- ticulars and the copy of rules, which by Sees. 2 (vi.) and 3 of the "Mining Companies' Act," 18 Vict., No. 42, must be given to the Clerk of Petty Sessions by persons forming a company under that Act, need not be separate documents if all the particulars which should appear in the notice of particulars are comprised sub- stantially in the wording of the rules themselves. In re Harrison, 1 W. & W. (L. , ) 47. [Compare Sec. 6 of Act No. 409.] "Declaration — "Copy of Rules "—18 Vict. No. 42 Sec. 2 (vi.)] — A mining association under the Act No. 42 cannot be " a company within the provisions of the Act " unless the " declaration " and the "copy of rules" mentioned in Sec. 2, Sub-sec. 6 of the Act have been registered in accordance with the provisions of that section as two separate documents. Carter v. Watson, 1 W. & W. (L.,) 222. [See provisions of Sec. 6 of Act No. 409.] Act No. 42, Sees. 2, 6— Act No. 56, Sec. 8.]— The terms of Sec. 2 of 18 Vic, No. 42, are mandatory, and Sec. 6 of the Act having been repealed, the mode of correcting errors provided by that section no longer exists, and the effect of Sec. 8 of 21 Vict., No. 56, is limited in its application to companies formed under that Act, and cannot be extended to companies formed under No. 42. Oriental Bank v. Casey, 1 W. & VV. (L.,) 229. S.P.— See Carter v. Watson, 1 W. & W. (L.,) 222. [Compare Sec. 6 of Act No. 409.] Irregular — Non-compliance with Acts — Members not Protected.] — C, a member of a mining asso- ciation, pleaded to an action by W. for a debt incurred "for and on behalf of the association," as to part of the debt, that it was incurred by the association as a company duly formed under the " Mining Companies Act," 18 Vict., No. 42; and as to the rest of the debt that C, by merely holding shares in the company, had authorised only the lawful acts of the company, and that the acts out of which the later debt arose, were acts " done by the company without C.'s privity, and after it had ceased to be a company under the provisions of the Act" 18 Vict., No. 42, by the operation of Sec. 7 of that Act. It was shown that the association had not complied with some of the provisions of the first sections of the Act 18 Vict., No. 42 or Sec. 65 of the Act No. 56, viz., a copy of the " Rules of the Association " had been registered, but no ' ' deed notice, or other document whatsoever ; " that the shareholders having held themselves out to the public as partners, and having incurred a partnership debt, and not having formed a com- pany in accordance with the provisions of the enactment, could not avail themselves of its exemption, and that creditors were not to be deprived of their right of enforcing payment of the partnership debt from any of the partners, and that C. was liable for the whole debt. Carter v. Watson, 1 W. & W. (L.,) 222. S.P.— See Oriental Bank v. Casey, 1 W. & W. (L.,) 229. Memorial— Act No. 109.]— If the memorial required by the Act No. 109 be in the form • required by that Act, a mining company may be "registered" under that Act, although the memorial does not truthfully set forth the facts required in it by the Act. In re Mackenzie, 1 W. & W. (L.,) 135. Memorial-No. 228, Sec. 9.] -Where the memorial of a mining company has not been filed with the clerk of the "nearest" Court of Mines under No. 228, Sec. 9, Held that the omission was fatal to a summons in which the official agent sued a shareholder for contribution. Wooller v. Carver, 3 W. W. & a'B. (L.,) 1. [Under Sec. 6 of Act No. 409 the memo, must be lodged with the Registrar-General.] Act No. 228 — Registration.] Under the "Mining Companies' Limited Liability Act 1864" (No. 228,) the incorporation of a mining company is to be effected by registra- tion with the clerk of the Court of Mines for the district in or nearest to that in which it 1011 MINING. 1012 carries on its operations; but not necessarily with the clerk at the place within the district at which such court sits nearest to the com- pany's operations. The Attorney -General v. The Prince of Wales G.M. Gov., 5 W.W. & a'B. (E.,) 208, 219. Certificate, Evidence of What— How Binding.] — The certificate of incorporation of a com- pany under the Act No. 228 is conclusive evidence of the prior assent of the share- holders to registration, as well as of all other preliminaries to registration; and the cer- tificate of registration may be given stating the memorial of registration to have been lodged at a prior date, and such certificate will be evi- dence of prior incorporation at that date. Ibid, pp. 221, 222. Registration — Certificate.] — A mining company or any other person may obtain a certificate of its registration as often as it or he pleases on payment of the proper fee. Regina v. Green, 5 W.W. & A'B. (L.,) 202. Evidence of Registration — Certificate Signed by Deputy-Registrar Sufficient — Act No. 409, Sec. 10.] — Begina v. Walters, ante column 139. Execution of Deed of Association— So Estoppel against Proving Defective Registration.] — Reeves v. Greene, ante column 138. Certificate of Registration — Act No. 409, Sees. 6, 7, 8, 10, 116, 118— No liability Company— Non- payment of 5 per cent, of Capital at Time of Regis- tration.] — A plaintiff no-liability company was registered regularly and upon a proper statutory solemn declaration of its legal manager that 5 per cent, of its subscribed capital had been paid up at the time of registration, which statement proved to be false. Held that although Sec. 10 makes the certificate conclusive evidence of registration, and Sees. 6, 7, and 8 make a regis- tration conclusive evidence of incorporation, yet Sec. 118 provides that the 5 per cent, shall be paid up and a declaration made to that effect, and not that the declaration shall in any way supply the want of fact alleged in it ; and that a no- liability company under Act No. 409, having an assignment of a lease under Act No. 291, suing for trespass or injury upon the leased land may be defeated by a defendant showing that one-fifth of its capital -was not paid up at the time of its registration. Park Coy. v. South Hustler's Re- serve Coy., 9 V.L.E. (M.,) 4; 4 A.L.T., 135. Company for Mining on Private land — May he Incorporated under Act No. 228.]— A company formed for the purpose of mining for gold upon private land may properly be incorporated under Act No. 228. Bonshaw Freehold G.M. Coy. v. Prince of Wales Coy., 5 W.W. & a'B. (E.,) 140, 152. [Compare Sec. 5 of Act No. 409.] A company mining on private land may be incorporated under No. 228, since the general words of Sec. 2 of that Act are not to be limited by those in Sec. 25. Davies v. Cooper and Adair v. Cooper, 2 V.R. (L.,) 95; 2 A.J.R., 62. Title of Company — "Mining Companies Act 1871," Sees. 9, 118— limited.]— Sees. 9 and 118 of the "Mining Companies Act 1871" do not render it necessary for a company incorporated under that Act to have the word " Limited" added to its name. Clarence United Coy. v. Goldsmith, 8 V.L.R. (M.,) 14; 3 A.L.T., 147. Amalgamation of Companies.] — See cases ante columns 139, 140. (b) Effect of Registration. Registered Company — Whether it Represents former Partnership.] — A party was registered as owners of a claim under the title of the " W. Coy." Eight of the party entered into an agree- ment with other parties to form a new company to work the claim upon certain terms. Shares in the new company were given to some of the original party ; some were reserved presumably for others of such party ; and some of the party were completely excluded from the new com- pany, which was duly registered under No. 228 as, a new company. On a suit by the company for encroachment on the claim, Held that the company did not represent the partnership or the excluded members of the partnership, and had no title to maintain the suit. Warrior Coy. v. Cotter, 3 W.W. & A'B. (M.,) 81. liability for Debts Incurred before Incorpora- tion — Acts Nos. 109 and 228.] — A company formed under the Act No. 109 (''Mining Partnerships Act") as the M. Coy. (Limited), incurred a debt to I., and then became incor- porated under the Act No. 228 ("Mining Com- panies Limited Liability Act 1864") as the M. Coy. (Registered), and took over the assets of the company. I. sued the corporation for the debt of the company, and obtained a verdict subject to a motion for a nonsuit. Held that the Act No. 228 did not alter the remedy or redress possessed by a creditor from that which he possessed before the Act; and that what- ever the remedy was which a creditor possessed under the Act No. 109, that remedy existed under the Act No. 228; and that, it being difficult to say what that remedy was, the best course was to nonsuit the plaintiff and let him begin de novo as against the company existing before incorporation, in the manner he might be best advised. Irving v. Minerva G.M. Coy., 3 W.W. & a'B. (L.,) 78. (2) Directors and Officers. (a) Directors. Appointment of Directors — Rule Providing for an Extraordinary Meeting to Set Aside Resolution of Annual General Meeting.]— A rule providing for the rescinding, at an extraordinary meeting, of resolutions passed at the general annual meeting does not apply to rescinding the ap- pointment of directors elected at such annual meeting. Schaw v. Wehey, 1 V.R. (L.,) 205; 1 A.J.R., 161; Aberfeldie G.M. Coy. v. Walters, 2 V.L.R. (E.,) 116. See ante column 142. Election of Directors — Quorum — Adjournment of Meeting.] — See Old Welshman's Reef Coy. v. Bucirde, ante columns 142, 143. 1013 MINING. 1014 Election of Directors — Proxies Improperly Ad- mitted.] — Highettv. Sun Q.M. Coy. Post column 1022, 1023. Qualification of Directors — Payment of Calls by Promissory Notes.] — Umphelby v. Wilkie, 5 A.J.R., 108; ante column 143. Qualification— Forfeiture of Shares.] — Reeves v. M'Cafferty, ante column 153. Continuance in Office.] — See Schmidt v. Garden Oully Coy. and M' Lister v. Garden Gully Coy., ante columns 138, 142. And see Barford Estate G.M. Coy. v. Klingender, ante column 148. Powers of— How far Consent Decree Sanctioned by Directors Binding on Company.] — The plaintiff and defendant companies (A. and G.) were the holders of adjoining frontage claims on the W. lead. The defendant company (G.) measured from the datum peg. The plaintiffs were entitled as assignees of adjacent block claims, and the defendants to similar block and frontage claims intersecting the frontage claims of both on the W. lead. A collision having occurred, and a compromise having been discussed, it was agreed to have the boundaries settled by an amicable suit, and consent decree in the Court of Mines, and by » decree, conformable with one initialled at the meeting of the companies, two lines, A, B, B, C, meeting at B in an obtuse angle, were fixed as the boundary. The direc- tors of the G. company reported upon these arrangements, which were well-known to the shareholders of both companies, and the report was adopted. The A. company brought a plaint alleging encroachment by the G. company, and seeking relief. The deed of association of the 6. company required the consent of a general meeting to any contract exceeding £1000, and the matter in dispute was valued at £1050. Held (1) that the provisions in the deed did not refer to " a bargain" but to a " contract" in a limited sense, and that the directors' powers to dispose of the property were not controlled thereby except as to purchase and hire of machinery ; (2) that the consent decree was binding on the G. company as sanctioned by the directors, the manager, and the solicitor of that company, and relief granted as prayed. Albion Coy. v. St. George United Coy., 4W,W, *A'B. (M.,) 37, 51, et seq. Power to Bind Company — Incurring Debt and Borrowing Money.] — See In re Tyson's Beef Coy. and Colonial Bank v. Loch Fyne Coy., ante column 147. Overdraft Sanctioned by Quorum — Cheque Signed by One Director, but Amount Passed by Board of Directors.]— Bank of New South Woks v. Moyston Junction Coy., ante column 147. Powers of— Borrowing Money.]— Duly ap- pointed directors of a mining company can act as agents for the company for the purpose of borrowing money. Bank of New South Wales v. Undaunted G.M. Coy., 1 V.R. (L.,) 146; 1 A.J.R., 131. Guarantee Given by Directors — Power to Bind Company.]— The directors of a mining company gave a guarantee as follows : — "We, the under- signed directors of the New Ringwood Antimony Mining Company, Limited, in consideration of the Bank of Victoria having, at our request, transferred to an account opened by us in the name of the New Kingwood Antimony Mining Company, Limited, the sum of £804 6s., stand- ing in the name of M. as liquidator of the above company, do hereby guarantee the Bank of Victoria from all lpss or damage the bank may sustain in respect of any action M. may take against the bank for having parted with the fund standing in his name as liquidator of the company to us the directors of the said company. " By the regulations of the company the directors were empowered to give a guarantee for an overdraft. Held that the guarantee was beyond the power of the direc- tors under the regulations, and under the " Mining Companies Act" (No. 409,) and that the money having been already transferred when the guarantee was made, there was no considera- tion for it. White v. Bank of Victoria, 8 V.L.R. (M.,)'8; 3 A.L.T., 90. Quorum of Directors not Fixed — Contracts not Vitiated thereby.]— By rule 22 of a com- pany's deed of association the directors were bound to appoint a quorum. Before a quorum was so appointed certain of the directors apparently acting as a quorum entered into a contract with the plaintiff. After the contract was entered into the quorum was fixed. Held that the contract was landing; that the direc- tors having full authority to appoint a quorum, and having acted as if they had done so, the plaintiff was entitled to assume that they had done that which they ought to have done and to act accordingly. Anderson v. Duke and Timor G.M. Coy., 1 A.J.R., 161; 1 V.R., (L.,) 203. Property of Company — Demand for, by Attorney whose Authority was not Signed by a Quorum of Directors or by Manager.] — In an action of detinue for the recovery of books and other property belonging to a mining company, it appeared that the authority to the company's attorney to make the demand was not signed by a quorum of directors or by the manager qua manager. Held that the evidence of authority to make the demand was insufficient. Aladdin and Try Again Coy. v. Schaw, 2 V.R. (L.,) 18; 2 A. J. R., 20. Power of Directors to let on Tribute — " Mining Companies' Limited Liability Act 1864 "— " Mining Companies' Act 1871," Sec. 134—" Mining Statnte Amendment Act 1872" Sec. 7.] — All companies registered under the " Mining Companies Limited Liability Act 1864" (No. 228,) and not registered as "no liability" companies under the Act No. 409 ("Mining Companies Act" 1871,") are by virtue of Sec. 124 of that Act brought under Part I. of the Act ; and therefore Sec. 7 of No. 446 (" Mining Statute Amending Act 1872,") prohibiting the making of tribute agreements except with the consent of the share- holders, applies to such companies. Regina v. M'Dougall, 3 V.R. (L.,) 66 ; and Tommy Dodd Coy. v. Patrick, 5 A.J.R., 14, overruled. Chun Goon v. Reform G.M. Coy., 8 V.L.R. (E.,) 128, 151; 3A.L.T., 137. 1015 MINING. 1016 " Mining Companies' Act 1871" (No. 409,) Sec. 131.]— See. 131 of Act No. 409, which prohibits letting on tribute without the sanction of the shareholders, only applies to a lease of a mine on tribute. Ibid at p. 150. Sale of Property by Director — Acquiescence of Plaintiff.] — A mining company incorporated under Act No. 228, being in embarrassed circum- stances, sold great quantities of ore to its legal manager. The sale was made by the directors without the knowledge of the shareholders. The Act No. 228 and the deed of association of the company required sales to be by the directors, not by the shareholders. Subsequently one of the shareholders, who, at the time of the sale, had been a director, brought a suit to avoid the sale or make the defendant liable for the difference between the price given and what plaintiff asserted to be the true price, on the ground that the sales were unjust to the shareholders ; that defendant, as manager, knew the true value of the ore that he sold on behalf of the company to himself at too low a price ; and that the share- holders had no knowledge of his being the pur- chaser. Held that since the Act No. 228 and the deed of association of the company required sales to be by the directors, and the plaintiff was at the time of the sale one of the directors who assented thereto, he had acquiesced in the sale and was debarred from suing to impeach it, and bill dismissed with costs as against the defendant manager. Youl v. Lang, 1A.J.R., 9. Power to Sell Real Estate.] — Where directors sold real estate belonging to a mining company without the authority and sanction of the com- pany in a general meeting, Held that by the terms of the deed of association such sale should have received such sanction, and being made without such sanction it was voidable, and the directors were liable for the fair value of the land. Reeves v. Croyle, 2 V.R. (E.,) 42; 1 A.J.R., 109; 2 A.J.R., 13. Authority to Sell — Extraordinary Meeting, Act No. 409.]— Under the Act No. 409 the sanc- tion of an extraordinary meeting is not necessary to the sale of part of the property by the direc- tors. Directors of a company offered to sell part of a company's property (water rights) under a contract which had a condition that the sale should be sanctioned and authorised by an extra- ordinary meeting of the company. A resolution was passed at such meeting authorising the sale of the property, but not specifying the particular contract. Held that the condition had been substantially complied with. Baw Baw Sluicing Coy. v. mekoUs, 9 V.L.R. (L.,) 208 ; 5 A.L.T., 73. Acquiescence by Shareholders — How far it ratifies Acts of Directors otherwise Ultra Vires.]— Creswick Grand Trunk Coy. v. Hassall, ante column 148. liability of Directors making Dividends out of Capital.] — Where the directors of a mining com- pany in contravention of a rule in the deed of association made dividends partly out of profits and partly by encroaching on the capital, Held that neither the company nor a shareholder had any remedy against the directors, as the act was not shown to be fraudulent. Beeves v. Croyle, 2 V.R. (E.,) 42 ; 1 A.J.R., 109; 2 A.J.R., 13. [But now see Sec. 49 of Act No. 409.] liability for Hasty and Improvident Sale — For loss of Gold and Calls Received by Manager — For Loss of Books of Account.] — Beeves v. Croyle, ante columns 144, 145. liability of Retiring Directors.] — Beeves v. Croyle, ante column 145. Personal liability of Directors-Cheque Honoured by Bank by their Authority.] — Colonial Bank v. Cherry, ante columns 143, 144. On Joint and Several Promissory Notes.] — McMullen v. O'Connor, ante column 144. liability of Promoters for Secret Profits made on Formation of Company.]— Benjamin v. Wymond, ante column 141. Power of Director to Enforce Forfeiture.] — A person, being a shareholder or director of an incorporated company, is not precluded from enforcing a forfeiture incurred by such com- pany for breach of a bye-law ; though he may be accountable in equity for so doing. Smith v. Golden Gate G.M. Coy., 5 W.W. & a'B. (M.,) 5. A director of a company who has obtained, while acting as such director, information as to the period when its miners' right would terminate, is not estopped, after he has ceased from acting as such director, from instituting a suit to obtain possession of its mining claim. Lennox v. Golden Fleece and Heales United Q.M. Coy., 4 A. J.R., 154. But see Harrison v. Smith, ante column 143. Directors' Powers and Liabilities — Payment of Manager's Costs of Litigation — Payment to Officer of more than he could Legally Claim.] — Hardy v. Wilson, ante columns 146, 149. (&) Managers. Appointment of Manager — Need not be under Seal— Act No. 228.]— The appointment of the manager of a mining company registered under the Act No. 228, is not an "office," but a "situation" under a contract for service, and need not be under the corporate seal of the company. The sealed articles of association of a company registered under the Act provided that one P. should be the first official manager ; that the company should last seventeen years ; and that a general meeting should have the power of removing the manager from, and electing a new person to fill the "office" of manager, and P. signed the memorial required by Sec. 9 of the Act to be filed for incorporating the company, and at the first general meeting resigned, and W. was elected and appointed manager. This appointment was not under the corporate seal. W. convened an extraordinary general meeting, as manager, to resolve on an increase of capital, and the meeting was held and the resolution carried. In pursuance thereof the company sued a shareholder in the County 1017 MINING. 1018 Court for calls of increased capital. The com- pany was nonsuited, and appealed. Held, on appeal, that W.'s position was not an "office," but a mere "situation" under a contract for service ; and that his appointment was good though not made under seal ; and appeal allowed. Royal Standard G.M. Coy. v. Wood, 3 W.W. & a'B. (L.,) 85. Liability of Member for Contract Made "by Agent — " Mining Companies Act 1864 Amendment Act," Sec. 9.] — A member of an unincorporated mining company is, under See. 9 of the " Mining Companies Act 1864 Amendment Act" (No. 324,) not liable upon a contract made by the manager or agent of such company to whose appoint- ment he did not consent, and to whom he has given no authority in writing to contract. Itenwkk v. Barhas, 2 V.L.R. (L.,) 269. Power of Manager to Contract for Necessaries — Act No. 409, Sees. 21, 40.]— Sec. 21 only gives » manager authority to bind the company for necessaries up to £50, and a manager has no authority to bind the company to a larger amount except by express authority given by the hoard of directors. M'lver v. Duke Coy., 5 V.L.R. (L.,) 449. Authority of Manager — Agreement by Manager to Let on Tribute.] — The manager of a mining company, incorporated under the Act No. 228, has no inherent authority to bind the company by an agreement for letting a portion of its land on tribute. Chun Goon v. Reform G.M. Coy., 8 V.L.R. (E.,) 128, 148, 149; 3 A.L.T., 137. ;(3) Rules and Articles of Association. Where one of the rules of a company, regis- tered under Act No. 228, was ultra vires, Held that that did not vitiate the rest. Solomon v. Collingwood Q.M. Coy., 4 W.W. & a'B. (L.,) 128. Chairman of Meeting at which Rules were Made Estopped from Objecting to Form of Meet- ing.] — See S.C., ante column 159. Validity of Rules.] — Rules and articles of » mining company incorporated under Act No. 228, whether made before or after incorpora- tion, are valid only so far as they are not incon- sistent with the Act, and rules cannot be made for winding-up otherwise than as the Act pro- vides. Creswick Grand Trunk G.M. Coy. v. Hassall, 5 W.W. & a'B. (E.,) 49, 81. And see S.P., Tommy Dodd Coy. v. M'Clure, 1 V.L.R. (L.,) 237. A mining company registered under the Act No. 228 cannot, under Sec. 39 of the Act, make rules providing for forfeiture of shares. Nolan v. Annabella Coy., 6 W.W. & a'B. (M.,) 38; N.C., 19. For facts, see S.C., ante column 153; but now see Sec. 54 of Act No. 409. Power of a Company under Act No. 228 to Make Sules for Forfeiture.]— Even where a deed of association of a mining company under Act No. 228 has been signed before incorporation, such a company has no power to make rules for the forfeiture of shares, and any acts by direc- tors under such rules are unauthorised. Jenkins v. Speed, 6 W.W. & a'B. (L.,) 255 ; N.C., 67. But where a company registered under Act No. 228 made rules in its articles of association executed after registration providing for for- feiture in a way not exactly following, but still not directly contrary to the provisions of the Act, Held that the rules so made were valid. Sham v. Costerfield Mining Coy., 1 V.R. (M.,)7; 1 A.J.R., 17. Rules made at Meeting of Shareholders — Proxies Admitted Illegally — Rules Invalid.] — Highetl v. Sun Q.M. Coy., 4 A.J.R., 119. See S.C., post columns 1022, 1023. Rules can only under Sec. 39 of the Act No. 228 be altered after incorporation by an extra- ordinary meeting duly convened. Al G.M. Coy. v. Stackpoole, 4 A.J.R., 170. [Compare Sec. 58 of Act No. 409.] Rules can only be made by a mining company after incorporation at extraordinary meeting. Ballarat and Chiltern G.M. Coy. v. Cleeland, ante column 160. A company registered under Act No. 228 cannot make rules as to extraordinary meetings. Tommy Dodd Coy. v. M'Clure, 1 V.L.R. (L.,) 237. Rules for Continuance in Office of Directors.] — The provisions of the articles of association of a mining company registered under Act No. 228, and the regulations thereunder, are invalid if not in accordance with the terms of the Act. A rule for the continuance in office of directors formore than ayear is invalid as in contravention of the implied provisions of Sec. 39 of the Act. Schmidt v. Garden Gully Coy., 4 A.J.R.,*66, 137. For facts, see S.C., ante column 138. Misrepresentations in Prospectus — Liability of Promoters for.] — Benjamin v. Wymond, ante columns 136, 137. Variance between Prospectus and Articles of Association.] — Bowman v. Homan, ante column 137. (4.) Shares and Shareholders. (a) Shares. Allotment of— Tribute Companies.]— A mining company, registered under Act No. 228, adver- tised on 15th August that shareholders in the company would have shares in two tribute companies to be formed in proportion to shares they held in the original company, if the scrip were left on 24th August. G. purchased 200 shares in the company on 18th August, and left the scrip with the company. On 26th August G. sold his shares in the original com- pany, and, on applying for the tribute shares, they were refused. The tribute companies were 1019 MINING. 102O not registered until 5th September. G . brought an action against the original company for not allotting tribute shares, and obtained a verdict. On rule nisi for a nonsuit, Held that the tribute companies having been formed before G. sold his shares, the sale did not carry the tribute shares, and that the action was rightly brought against the original company. Rule discharged. Gordon v. Golden Fleece Gov., 3 V.R. (L.,) 195 ; 3A.J.R.,80. Transfer of Shares — Fictitious Person.] — A shareholder was sued for contribution in respect of shares in a mining company, and it appeared that three months before the company was wound-up he had transferred his shares and procured registration of the transfer to one John Smith, of Latrobe-street, Melbourne. Thetransfer purported to be accepted and signed by John Smith, of Latrobe-street. On winding up the company, John Smith could not be found or heard of in Latrobe-street. Held that it was not to be presumed that John Smith was a fictitious person, since it would be in effect to prove that defendant was guilty of forgery. Simpson v. MuUaly, 2 V.R. (L.,) 56; 2 A. J.R., 45. Transfer of Shares— Evidence of.]— Reefs Q.M. Coy. v. Bennett, ante column 155. Transfer by Blank Form of Assignment.] — Atkin- son v. Lansell, ante column 157. Issue of New Shares — Fraud — liability of Trans- feree.] — See Creswick Grand Trunk Coy. v. Bowell, ante columns 155, 156. Transfer to Escape Payment of Calls.] — An absolute transfer made to a third person, though made to avoid payment of calls, is not per se mala, Me. Sleep v. Virtue, 2 V.R. (L.,) 29 ; 2 A.J.R. 20. Transfer of Shares — Setting Aside Sale of — Miner's Right.] — Where L., a holder of a miner's right, and an insolvent, before sequestration transferred shares to K. as a trustee, who had no miner's right, and K. sold to G., who had notice of the trust — Held that L.'s official assignee in setting aside the sale to G. need not have a miner's right and need not show that the alienation was fraudulent under the Insolvency Acts. Goodman v. Kelly, 1 VV. & W. (L.,) 332. And see also as to the transfer of shares, the cases collected under VIII. Winding-Up— Con- tributories. Rectification of Register — Act No. 409, Sec. 35 — Practice.]— Proceedings under See. 35 to rectify the register of shares, by having a shareholder's name inserted as a transferee, may be taken by summons, or in any way consistent with sub- stantial justice, and the judge has jurisdiction to hear a case though no plaint is filed. Murphy v. Cotter and United Hand and Band Coy., 7 V.L.R. (M.,) 12; 2 A.L.T., 150; 3 A.L.T., 17. Forfeiture of Shares.] — Provisions for forfeiture are regarded as exceptional, and to be strictly construed. Nolan v. Annabella Coy., 6 W.W. & a'B. (M.,) 38; N.C. 19; and see S.C. ante column 153. Validity of Forfeiture — Qualification of Director — Mode of Entering Forfeiture.]— Seeves v. M'Cafferty, ante columns 153, 154. And see Smith v. Garden Gully Coy. Ibid. Power of Company to Make Rules as to Forfei- ture.] — See Jenkins v. Speed, ante column 1018. Notice of Forfeiture— Formality of.]— Wood v. Freehold Q.M. Coy., ante column 154; Marshall v. Creswick Grand Trunk Coy., ante column 154; Cushing v. Lady Barkly Coy., ante column 155. Forfeiture— How it Affects liability for Calls.]— So long as a shareholder's name remains on the register he is liable for calls; the absolute forfeiture of his shares does not relieve him. Guthridge v. Gippslander Coy., 5 A. J.R., 161. Forfeiture under Articles of Association.]— A company registered under Act No. 228 by articles of association executed after registra- tion provided for the forfeiture of shares in a manner not exactly following, but still not directly contrary to the provisions or policy of the Act. C, a shareholder, who had executed the articles, had his shares forfeited for non- payment of a call. Upon suit by his official assignee to have the forfeiture set aside, Held that the forfeiture made under the articles of association was valid, notwithstanding that the company was registered under the Act No. 228. Shaw v. Costerfield M. Coy., 1 V.R. (M.,) 7; 1 A.J.R., 17. Forfeiture — Non-payment of Call.] — The part- ners in a mining claim incorporated themselves into a company. It was provided by the rules of such company that the company should take over the liabilities of the partnership, and dis- charge them out of the first profits received; that a bill of sale should be given by the com- pany, upon request of certain creditors, as security for a debt owing to them; and that the ■ shareholders shpuld contribute the capital by such instalments as the directors should appoint. The bill of sale, though requested, was not given, and instead the directors made a call to pay the debt, for non-payment of which all the plaintiffs' shares were forfeited. Held that the directors had power to make the call for the purpose of paying the debt; and that the forfeiture was not impeachable on the ground that the call was improper. M'Leman v. Myrtle Creek Coy., 1 V.R. (M.,) 39; 1 A.J.R., 157. Forfeiture— Non-payment of Calls— Act No. 228 —Act No. 409.] — Held, per Barry and Williams, JJ. (dissentiente Fellows, J.,) that the Act No. 409 is not retrospective as to companies regis- tered under Act No. 228, so as to authorise a forfeiture in accordance with Act No. 409 for non-payment of calls made under No. 228. The Tommy Dodd Coy. v. Patrick, 5 A.J.R., 14. But it was Held in Chun Goon v. Reform G.M. Coy., 8 V.L.R. (E.,) 128, 151 ; 3 A.L.T., 137; 1021 MINING. 1022 that all companies registered under the Act No. 228, and not registered as No Liability Com- panies under Act No. 409, are, by virtue of Sec. 124 of Act No. 409, brought under the operation of Act No. 409, Part I., Sees. 1-58. Dividends on Shares.] — Per Molesworth, J. — The profit of mining shares, as between persons successively entitled, goes to the person en- titled when the dividend is payable, not when the gold is raised. Shaw v. Wright, 2 W. & W. (E.,) 57, 71. Mortgage of Shares — Once a Mortgage always a Mortgage.] — The principle once a mortgage always a mortgage applies to shares in mining companies, and must be followed out with such allowances as the character of the case may require. A new rule is not to be created for this species of property. Niemann v. Weller, 3 W.W. & a'B. (E.,) 125, 137, 138. For facts see S.C. ante column 153. (6) Shareholders — Who are, their Meetings and Rights. Person not Executing Instrument of Association not liable for Calls — Act Mo. 56, Sec. 3.] — An allottee of shares in a mining association regis- tered under the "Mining Association Act 1858," who has not executed the instrument of associa- tion, can not be sued by the director of the association for calls due under the instrument, inasmuch as Sec. 3 of Act No. 56 provides that "the instrument shall be subscribed by each member." Farran v. Bowman, 1 W. & W. (L.,) 150. Who is a Shareholder— 18 Vict. No. 42, Sec. 14.] — A person who has made a written applica- tion for, and is the holder of, shares in.a mining company, is a "shareholder of the shares sub- scribed for" within Sec. 14 of No. 42, although he may not have subscribed the instrument of association of the company. Melville v. Hiqqins, 1W.&W. (L.,)306. Mining Partnership — Act No. 109— Who are Shareholders.] — A person may be a shareholder in a mining company under Act No. 109 even though such "holder" of shares has not executed deed of association. Farran v. Bowman, and Melville v. Higgins distinguished. Maconochie v. Woods, 2 W. & W. (L.,) 249. [But now see Sec. 13 of Act No. 409.] Act No. 228, Sec. 3— Shareholder not Signing Deed of Association.] — L. applied for shares and enclosed £30. Twenty-five were allotted to bim, and £5 was returned, but L. did not sign the deed of association. Held that although the Act No. 228, Sec. 3, does not contem- plate the execution of the deed as essential, yet as it appeared that both L. and the company contemplated the signing of u, deed as essential to constitute L. a member of the company and L. had not signed, he was not a shareholder and was not liable for calls. Guid- ing Star Coy. v. Luth, 4 W.W. & a'B. (L.,) 94. [Compare Sec. 13 of Act No. 409. Evidence of Membership — Payment of Call to a Duly Authorised Agent.] — Ogier v. Smith, N.C., 3., see ante column 160. liability of for Calls.] — See post under sub- heading Calls. Meetings — Notice to Call Extraordinary Meeting —Act No. 228, Sec. 23.]— Sec. 23 providing for the calling of an extraordinary meeting means that the meeting shall be convened fourteen days at least after the last insertion of advertise- ments ; and therefore where a meeting was convened twenty-four days after the last inser- tion, Held that it was duly convened. Robin Hood Coy. v. Stavely, 4 W.W. & a'B.(M.,) 26. [Compare Sec. 41 of Act No. 409.] Increase of Capital — Notice of— Act No. 228, Sec. 24.] — The provisions of Sec. 24 are only directory and not mandatory, and therefore where a defendant in an action for calls objected that no written notice of the increase of capital was made according to the provisions of that section, Held that he was liable. Ibid. Notice of Meeting— Act No. 228, Sec. 23.]— The notice of meeting under Sec. 23 of Act No. 228 should be a fourteen days' notice, and therefore a meeting called six days after notice has been advertised is an irregular meeting. M'Lister v. Garden Gully Coy., 5 A. J.R., 152 ; L.R., 1 App. Ca. 39. Meeting Irregulary Called.] — A rule of a mining company provided that if the manager neglected for four days to call a meeting after a requisition to that effect had been delivered, then a majority of the members might call ODe. Held that the act of the requisionists in calling a meeting within the four days was not validated by the manager's subsequent neglect. Aberfeldie G.M. Coy. v. Walters, 2 V.L.R. (E.,) 116. Notice of Meeting.] — No need to prove actual knowledge on part of a shareholder. Cushing v. Lady Barkly G.M. Coy., ante column 150. Meetings — Notice.] — Where the rules of a mining company do not prescribe any mode of summoning a general meeting, such meeting- must be summoned by serving the individual shareholders with separate notices thereof. Charlton v. Barkly Reef G.M. Coy., 3 V.L.R. (L.,) 101. Meeting of Shareholders — Not Authorised to Pass Resolutions as to Sale, when Advertisement only Refers to Winding up.]— Hick v. Havilah G.M. Coy., ante columns 149, 150. Right to Vote— Neglect to Pay Calls, How it Affects.]— Aberfeldie G.M. Coy. v. Walters, ante column 150. Reception of Proxies.]— Where the rules provide for proxies being received, they must be received. Hick v. Havilah G. M. Coy. , ante columns 149, 150. Act No. 228, Sec. 39 — Meeting of Shareholders — Proxies— Calls.] — The " Mining Companies Act"' (No. 228,) Sec. 39, empowers a "majority in. 1023 MINING. 1024 number and value of the shareholders" to make rules. At a meeting at which eight only of thirty-seven shareholders were present, but thirteen others were represented by proxies, rules were made authorising proxies, and the same meeting elected directors, who subse- quently sued for calls. Held that since proxies cannot be allowed till provided for by the rules, there could be no valid meeting held with proxies present till rules were passed authoris- ing them, and that consequently the meeting was informal and the rules invalid, as also the election of directors, since to enable proxies to be present the rules authorising them would have to be passed by a regular meeting of a majority in number and value of the share- holders; and that the election of directors being invalid, the calls made by them were invalid also, and could not be recovered, and that the execution of the deed, containing the rules, by the defendant, such deed not having been executed by the other shareholders, could not bind him. Higlietl v. Sun Q.M. Coy., 4A.J.R., 119. [See Sees. 43, 58 of Act No. 409.] Meetings — " Mining Companies Act " (No. 409,) Sees. 41, 43, 58 — Proxies.] — Where a notice of an extraordinary meeting under Sec. 41 had been duly given pointing out the several objects of the meeting, Held that a proxy could be admitted under Sec. 43 in order to constitute the majority necessary under Sec. 58 for the purpose of making rules. Robertson v. Weddell, 5 A.J.B., 115. Bight to Inspect Book of Account — ''Mining Companies Act 1871," Sec. 38.] — A minute-book containing minutes of the proceedings of the directors of a mining company, and including the accounts of the company as brought before the directors and passed for payment, is not a "book of account" within Sec. 38 of the "Mining Companies Act 1871," and is not, therefore, open to the inspection of shareholders under that section. James v. Thomson, 10 V.L.R. (L.,) 125; 6 A.L.T., 12, sub nom. Thompson v. James. Eight of Shareholders to Impeach Rules.] — Schmidt v. Garden Gully Coy., ante column 150. (5) Contracts and Power to Mortgage. Power to Make Promissory Note.] — Semble, that a mining company incorporated under the "Mining Companies Limited Liability Act 1864" has no power to make a promissory note or bill of exchange. M' Mullen v. O'Connor, 5 W.W. & a'B. (L.,) 200. Contracts hy Company— How far Person Con- tracting with a Company Bound to Inquire into Regularity of Proceedings.]— Anderson v. Duke and Timor G.M. Coy. and Commercial Bank v. M'Donald, ante column 151. Tribute Agreement — " Mining Statute Amend- ment Act 1872" (No. 446,) Sec. 7.]— The provision in Sec. 7 of Act No. 446, prohibiting certain mining companies from entering into a tribute agreement, unless with the sanction of a general meeting of the shareholders, makes it incum- bent upon a person entering into such an agree- ment with the manager or directors to inquire whether such sanction has been duly given. ChunGoon v. Reform G.M. Coy., 8 V.L.R. (E.,) 128, 151; 3 A.LT., 81. And Sec. 131 of Act No. 409, which prohibits letting on tribute without the sanction of the shareholders, only applies to a demise of the land. Ibid., p. 151. Company — Registered under No. 228 — Power to Mortgage — Past Debt.] — A mining company, re- gistered under the Act No. 228 (" Mining Com- panies Limited Liability Act,") possesses only the powers given by that Act; and in conse quence is unable to mortgage its plant, &c, for a past debt, the Sees, of the Act (21, 25) relating to mortgaging only giving (power to mortgage for present advances. M'Kean v. Cleft im the Rock G.M. Coy., 5 W.W. & a'B. (L.,) 42. [Compare Sees. 47, 48, of Act No. 409.] Mortgage to Secure Past Debt — liability.]— It is not competent for a mining company regis- tered under the Act No. 228 to mortgage its plant and tools of trade to secure a past debt, and if they do give such a mortgage they cannot be held liable to pay the amount of the debt, either upon an express or an implied covenant in the mortgage deed. Commercial Bank of Australia v. Grassy Gully Coy., 2 V.R. (L.,) 23. 2A.J.R., 18. [Compare Sees. 47, 48 of Act No. 409.] Mortgage— Act No. 228.]— Where a mining company incorporated under the Act No. 228 mortgaged their plant, &c, by bill of sale, and part of the consideration expressed in thebill had been previously advanced ; but the residue was advanced subsequently to the bill being given. Held that the mortgage was valid. Commercial Bank v. M'Donald, 2 V.R. (L.,) 211; 2 A.J.R., 120. [Compare Sees. 47, 48 of Act No. 409.] Resolution Authorising Borrowing— Act No. 228, Sec. 25— Future Advances.]— A resolution of an extraordinary meeting of a mining com- pany, authorising the directors to borrow, and execute necessary securities, would (but for the Act No. 228 Sec. 25, repealed by No. 409) authorise a mortgage to a bank for a past over- draft and future advances; such mortgage is good as to future advances, and, in subsequent dealings, the bank is at liberty to apply the receipts from the company, to repayment of the past debt. United Hand-in- Hand and Band of Hope Coy. v. National Bank of Australasia, 2 V.L.R. (E.,) 206. [Compare Sees. 47, 48 of Act No. 409.] Bill of Sale— Act No. 409, Sec. 48.]— A bill of sale given by a mining company over certain property is binding against the company under Sec. 48, although no extraordinary meeting was called to authorise it. Campbell v. Hassan, 5 A. J.R., 135. 1025 MINING. 1026 And a bill of sale sealed by the company's seal is binding under the Act No. 409, sec. 48, although not affixed in the presence of two directors as required by the rules. Newey v. Rutherford, 3 V.L.R. (L.,) 340 ; see ante column 230. (6) Increase of Capital. Notice of— Act IT o. 228, Sec. 24.] — The provi- sions of Sec. 24 as to increase of capital are only mandatory and not directory, and there- fore where a defendant in an action for calls objected that no written notice of the increase of capital had been given according to the pro- visions of that section, Held that he was liable. Bobin Hood G.M. Co. v. Stavely, 4 W.W. & a'B. (M.,)26. [Compare Sec. 45 of Act No. 409.] Eules Increasing Capital after Incorporation — Calls — " Mining Companies Statute," No. 228, Sec. 39.] — By Sec. 39 of the "Mining Companies Statute" (No. 228,) rules can only be altered after incorporation by an extraordinary meet- ing duly convened. When therefore the capital of a company was increased by a rule made at an extraordinary meeting not duly convened, Held that the company could not sue for calls made in respect of such increased capital. The AX G.M. Coy. v. Stackpoole, 4 A. J.R., 170. [And see Sec. 44 of Act No. 409.] (7) Calls. [a) Making Calls and Liability thereon. Calls to he Paid on an Impossible Day.] — Where a notice was advertised to the effect that "unless calls were paid on Thursday, 31st June, " shares would be forfeited, Held that the notice was insufficient as fixing an impossible day. Wood v. Freehold United Coy., 1 V.R. (E.,) 168 ; 1 A.J.R., 173. Notice of Making Calls.] — See Solomon v. Collingwood Q.M. Coy.; Clunes and Blackwood Coy. v. Coulter ; and Goldsbrough Mining Coy. v. M' Bride, ante columns 157, 158. Making of Calls— When Made.]— Calls are made when the resolution is passed, not when the call is payable. Hodgson v. Fermoy G.M. Coy., ante column 158. And see Gushing v. Lady Barkley G.M. Coy., ante column 158, as to verbal direction as to time and place of payment. Making of Calls — Directors must he Duly Elected and Qualified.]— Highett v. Sun Q.M. Coy., ante column 1023; Barf old Estate G.M. Coy. v. Klingender, ante column 148. It is not enough that a call be made by directors de facto, the directors to be competent to make such a call must be directors de jure as well. Schmidt v. Garden Gully Coy., 4A.J.R, 66, 137. Payment of Call.] — See Umphelby v. Wilkie, ante column 159. Object of Call— Payment of Debt.]— Directors have power to make a call for the payment of a debt. M'Lennan v. Myrtle Creek G.M. Coy., ante column 1020. liability for Calls — Transferee Cannot Object to the Invalidity of Forfeiture.]— Jones v. Star Free- hold Coy., ante column 160. And see Guthridge v. Gippslander Coy., ante column 1020; and Creswick Grand Trunk Coy. v. Howell, ante column 156. (6) Enforcement of Calls, (i. ) Wlien the Company is still in Existence. Act No. 409.]— Act No. 409 is not, except as to winding up, retrospective, and does not apply to companies registered under No. 228 so far as the provisions for enforcement of calls are concerned. Regina v. McDougal, ex parte Baillie, 3 V.R. (L.,) 66 ; 3 A.J.R., 40. But see Chun Goon v. Reform G.M. Coy, 8 V.L.R. (E.,) 128, 151 ; 3 A.L.T., 137; in which it was held that all companies registered under Act No. 228 and not registered as a No Liability Company under the Act No. 409 are by virtue of Sec. 124 of the Act No. 409 brought under the operation of that Act, Part 1, Sees. 1-58. Act No. 228, Sec. 39— Liability for Calls.] — Where rules were passed at a meeting, not duly convened in accordance with Sec. 39 of Act No. 228, authorising the increase of capital, Held that the company could not sue for calls in respect of such increased capital. TheAl G.M. Coy. v. Stackpoole, 4 A. J.R., 170. Act No. 409, Sees. 52-56.]— The justices have jurisdiction where a suit is brought before them to enforce the payment of calls within twelve months after the call is made, the sixteen days' limit in Sec. 52 only applying to suits in the County Court, and though shares are forfeited under Sec. 54 for non-payment within a fort- night, yet the liability for calls remains until the shares are sold under Sec. 55, the forfeiture not being final as there may be a redemption under Sec. 56. Guthridge v. Gippslander G.M. Coy., 5 A.J.R., 161. liability of Shareholder — " Mining Companies Act 1871," Sees. 52, 54.] — So long as the name of a shareholder in a mining company appears on the register of shareholders he is liable to have payment of calls not more than twelve months old enforced agaiust him by justices, though the calls be more than fourteen days old, jurisdiction in the matter being given to justices by Sec. 52 of the "Mining Companies Act 1871" (No. 409), and Sec. 54 of the same Act not operating to forfeit the shares by non-payment of calld, but leaving the directors an option of suing for calls instead of enforcing the forfeiture. Regina v. M'Gregor, ex parte Wilkinson, 6 V.L.R. (L.,) 167, 2 A.L.T., 4; sub nom. Ex parte Wilkinson. Duties of Justices on Complaints for Calls.] — On a complaint for calls it was contended as a defence that the statutory provisions, as to notice of a meeting to increase capital in respect of which the calls accrued, had not been com- plied with, and the justices acceded to this and 1027 MINING. 1028 dismissed the complaint. Held that they ought not to embarrass themselves with such considera- tions. Creswick Grand Trunk Coy. v. Rowell, 2 A.J.R., 35. Including Calls in One Complaint — Act Ho. 267, Sec. 73.] — The Court held an objection that there must be a separate complaint for each call and a separate order fatal. Ogier i>. Ballarat Pyrites Coy., 4 W.W. & a'B. (L.,) 245. But in Guthridge v. Gippslander G.M. Coy., 5 A.J.R., 161 ; and in Regina v. McGregor, ex parte Wilkinson, 6 V.L.R. (L.,) 167, 2 A.L.T., 4; the Court held a company might sue for several calls under one complaint. (ii. ) When Company is Wound-up. Suit for Calls by Liquidators and Official Agents.] — See cases collected post columns 1038, 1039. (8) Suits and Actions by and against Companies. Suit by — Appearance — Appointment under Seal.] — Where an incorporated mining com- pany (under the " Mining Companies' Act 1871") is complainant in a Warden's Court, it must appear either by a barrister or an attorney appointed under seal, though it is not necessary that such appointment should appear on the face of the summons. Clarence United Coy. v. Goldsmith, 8 V.L.R. (M.,) 14 ; 3 A.L.T., 147. Company Suing in a Name Different from its Registered Name.] — Iredale v. Guiding Star G.M. Coy., ante column 162. But now see Act No. 409, Sec. 9. Service of Plaint upon Company — "County Court Statute 1869," Sec. 122— "Common law Procedure Statute 1865," Sec. 91.] — Service upon a mining company registered under the Act No. 228, of a plaint summons, may, under the joint operation of the "County Court Statute 1869," Sec. 122, and the " Common Law Procedure Statute 1865," Sec. 91, be effected by service upon the manager, even though he be not at the registered office of the company as required by Sec. 14 of Act No. 409. Porter v. Leviathan Coy., 2 V.L.B. Hassall, 5 W.W. & a'B. (E.,) 49, 81. Rules made by a company registered under Act No. 228 providing for winding-up otherwise than as the Act contemplates are uttrd vires. A valid resolution to wind up can only be adopted at an extraordinary meeting summoned in accordance with that Act. Tommy Dodd Coy. v. M'Clure, 1 V.L.R. (L.,) 237. [Compare Sec. 59 of Act No. 409.] A company registered under the Act No. 228 cannot be wound-up under the "Companies Statute 1864." In re Collingwood Q.M. Gov. 5 W.W. & a'B. (E.,) 190. Act No. 228— Act No. 409, Sec. 112— Voluntary Winding-up.]— A dividend due by a company upon shares improperly forfeited is a debt for which a shareholder can sue, and the existence of such a debt owing by the company prevents its being wound up voluntarily under Sec. 112 of Act No. 409. Tommy Dodd Coy. v. M'Clure. 1 V.L.R. (L.,) 237. (5) Petition and Practice. Proof of Debt Incurred by Directors — Authorisa- tion of Company not Necessary.] — The directors of a mining company incurred a debt to a bank, which, upon the winding-up of the company, proved its debt in the Court of Mines. The official agent and other creditors [opposed the proof on the ground that the debt had been incurred by the directors without the sanction of the general body of the shareholders. On rule nisi for a certiorari to quash the order allowing the proof, Held that it was premature to object to proof of the debt, and that the ultimate battle might yet be fought on the question whether this debt should be paid as against the general body of the creditors. In re Tyson's Reef Coy., 3 W.W. & a'B. (L.,) 162. Debt for which Shareholders may Sue — What is — Dividend.] — See Tommy Dodd Coy. v. M'Clure, supra. What Constitutes a Good Debt.]— The A. Bank had made advances to a company, and, with the sanction of a meeting of shareholders not regularly convened under Sec. 23 of the Act, transferred this overdraft to the C. Bank. The C. Bank presented a petition for the winding-up of the company. Held, by the Privy Council, reversing the Supreme Court [Regina v. Bowman, ex parte Willan, 3 V.R. (L.,) 258; 3 A.J.R., 22,] that the overdraft so transferred constituted a good debt, it not being incumbent on the C. Bank to show that all proceedings of the mining company and its shareholders inter se had been strictly regular before it advanced the money. Colonial Bank v. Willan, 5 L.R. P.O., 417; 43 L.J. P.C., 39; 5 A. J.R., 53. 1029 MINING. 1030 Stale Demand— Act No. 345, Sec. 93— Act No. 409, Sec. 71.] — In December, 1873, a bank recovered a judgment in the County Court against a company, and in August, 1878, re- moved such judgment to the Supreme Court under Sec. 93 of the Act No. 345, and issued a writ of fi.fa., which was returned unsatisfied. In September, 1878, the bank petitioned for the winding up of the company, but the District Judge dismissed the petition on the ground that the removal did not revive the judgment. Held that the combined effect of Sec. 93 of Act No. 345, and of Sec. 71 of Act No. 409, was that the removal to the Supreme Court did not create a new debt, but was only a means of enforcing a remedy for the original debt, and that, therefore, the petition was not based upon a judgment obtained within the previous year (as under Sec. 71 of No. 409,) and was properly dismissed. Commercial Bank v. Hope Tribute Coy., 5 V.L.E. (M.,) 1; followed in Watson v. Commercial Bank, 5 V.L.R. (M.,) 36; 1 A.L.T., 94. Signature of Petition.] — It is not necessary for creditors petitioning for a winding-up order to sign the petition when the petition is verified by affidavit. Osborne v. Gaunt, 3 A.J.R., 47. [Compare Sec. 62 of Act No. 409.] Act No. 409, Sec. 61— Proof of Service of Peti- tion.] — An order was made for winding up a company; it did not appear that seven days' notice of the application had been given, except that the order recited that it was made upon reading the affidavit of a person who swore he had served the company. Held that the order was bad, that proof of service could not be made by affidavit under Sec. 61. Garrett v. Creeth, 5 A.J.K., 36. Act No. 288, Sec. 38 — Service of Notice of Petition.]— Service of notice of petition under Sec. 28 of Act No. 228 at the office of a company which has become defunct is good service. Colonial Bank v. WUlan, 5 L.R., PC, 417, 5 A.J.R., 53; overruling Begina v. Bowman, ex parte WUlan, 3 V.R. (L.,) 258; 3 A.J.R., 22. Service of Notice of Petition— Act No. 409, Sec. 15 — Company Defunct — Publication in " Gazette."]— Where a company has delivered up all its books and papers to the Clerk of the Court of Mines, and its name plate is removed from the door of the registered office, it may for all prac- tical purposes be deemed to be defunct, so as to justify publication of notice of petition for winding up in the Gazette under Sec. 15 of the Act No. 409, even although the registration of its office has not been cancelled. Begina v. Leech, ex parte Tolstrup, 5 V.L.R. (L.,) 494; 1 A.L.T., 109. Service of Petition.] — A petition for the winding up of a mining company is sufficiently served by being served at the place registered as the office of the company in the office of the Registrar-General. Smith v. Australian and European Bank, 8 V.L.R. (M.,) 23; 4 A.L.T., 26. Costs — Jurisdiction of Court of Mines to Award — Act No. 228, Sees. 29, 30— Act No. 324, Sees. 3,10— Act No. 291, Sec. 230.]— Begina v. Bowman, ex parte WUlan, see ante column 981, and see Walker v. Jenkins, post column 1033. (c) Official Agents and Liquidators — their Appointment and Powers. Appointment of liquidator— Proxies — Act No. 409, Sec. 74.] — Where after a company had been wound up, one person holding proxies for two creditors constituted the meeting of creditors for the appointment of a liquidator. Held that the appointment of a liquidator by that person was good. Begina v. Cogdon, ex parte Hasker, 3V.L.R. (L.,)88. The appointment of a liquidator at a meeting of creditors composed of one person holding proxies for two creditors is good. Begina v. Leech, ex parte Tolstrup, 5 V.L.R. (L.,) 494. Appointment and Removal of Liquidator — Sanction of Court— Creditors' Meetings — Act No. 409, Sees. 74-78.] — A liquidator cannot be ap- pointed except by the sanction of the Court under Sec. 75, and should only be removed after he has had an opportunity of being heard both by the creditors in their meeting and before the judge whose sanction for his removal is re- quested ; the effect of Sees. 74-78 is that the sanction of the Court is required for his removal. Where a meeting of creditors appeared to be a fraudulent scheme to substitute one liquidator who was not to give security in place of one who had given security, and to carry out such a pro- ject against the wishes of another creditor who had a larger interest than those who actually voted, the Chief Judge affirmed the district judge's refusal to sanction the removal of the old liquidator and the appointment of a new one. Rigby v. Hasker, 5 V.L.R. (M.,) 32 ; 1 A.L.T., 88. Appointment of Liquidator of a Mining Com- pany — Judgment for Work and Labour Done — 18 Vict. No. 42, Sec. 14— No. 56, Sec. 63.]— A Court of Mines, by virtue of Sec. 14 of No. 42, may, upon judgment recovered in the County Court against a mining company, and upon complaint of a creditor that such judgment is unsatisfied, appoint a liquidator, but See. 63 of the Act No. 56 does not give such court jurisdiction to pro- nounce judgment against a mining company " for work and labour done and materials sup- plied, and for interest due and payable upon an account stated;" and such a judgment is not a judgment on the basis of which, if unsatisfied, a liquidator to wind up the company can be appointed by the Judge of a Court of Mines. The proper course is for the judgment to be recovered in the County Court, and for the Court of Mines to appoint the liquidator. Wilson v. Broadfoot, 1 W. & W. (L.,) 214. Power to Sue for Capital Subscribed for— 18 Vict. No. 42—11 and 12 Vict. c. 43, Sec. 11.]— B. was appointed, by order of the Court of Mines, a liquidator of a company. O'F. was a sub- scriber to and shareholder in the company. B. sued O'F. by summary plaint before magistrates for " the balance of subscribed capital due from 1031 MINING. 1032 O'P., which sum did not include any call." Held, reversing the magistrates, who had non- suited the plaintiff, that the suit being for capital and not calls, and as the manager of the company could not have sued for capital, the cause of action arose after B.'s appointment; and, as proceedings were instituted within six months, B. was entitled to sue. Nonsuit set aside. Verdict for plaintiff. Broadfoot v. O'Farrdl, 2 W. & W. (L.,) 102. [Compare the provisions of Sees. 98-101 of Act No. 409.] Power to Sue for Calls.] — See cases post column 1038, under Calls — Enforcement of. Official Agent— Eight to Sue for Accounts — Act No. 324, Sec. 6.] — A mining company, regis- tered under the Act No. 228, and mining on private property alienated from the Crown, was ordered to be wound up. R. was appointed official agent. Previous to the order for wind- ing-up, the company had been sequestrated by order of the Court for breach of an injunction. B. brought a suit against the directors and managers of the company charging them with misappropriation of the gold raised and other assets, with mutilating and concealing account- books, and with improper payment of dividends to certain shareholders out of borrowed moneys and not out of profits; and praying for accounts, declaration, and enforcement of liability. Held, upon demurrer, for want of equity in B., by Full Court, affirming Mole&worth, J., that B., as official agent, had a right and an equity to bring the suit, under the Act No. 324, Sec. 6, in his own name, as representing the company, and that the sequestration was no bar to his right, the assets of the company not having come into the possession of the sequestrators. Beeves v. Croyle, 6 W.W. & a'B. (E.,) 302. [Compare provisions of Sec. 89 of Act No. 409.] Mining Company— Act No. 228, Sec. 33— Duty of Official Agent as to Resisting Proof of Debts — As to Enforcing Contributions from all Shareholders.]— Bill by S. and five other share- holders in the B. company against the manager, other shareholders, and C, the official agent, alleging proof by defendant shareholders of debts not really due, and collusion between such shareholders and C, and seeking a declara- tion that such proof of debts should be ex- punged, and that defendants should be liable to contribute. Held, on demurrer, that Sec. 33 of Act No. 228 does not expressly direct that official agents shall have the same powers and duties as official assignees under " Insolvent Acts" Nos. 17 and 19, and those Acts did not impose on assignees the duty of resisting proof of debts, and that a case of eollusive omission was not proved against C. to subject him to the jurisdiction of a Court of Equity as for a breach of trust ; that the Court had no power to enforce contribution ; and that where the defendants had had their debts allowed by a District Court of Mines, and no appeal was made, a Court of Equity has no jurisdiction to review such allow- ance. Demurrer allowed. Semble, an official agent conclusively enforcing contributions from some, and omitting to do so in case of others, would be ground for a Court of Equity to com- pel him to bear the loss, and perhaps to enforce contributions. Smith v. Seal,\Z A.J.B., 8. [Compare Sec. 95 of Act No. 409.] Powers of Liquidator's Successor — No. 324, Sec. 8.] — Under Sec. 8 of the "Mining Companies Limited Liability Amendment Act" (No. 324,) a suit for contribution which has been commenced by an official agent may be continued by his successor, without entering any suggestion of the change. Selfe v. Simpson, 2 V.B. (L.,) 99 ; 2A.J.R..63. [Sec. 8 of Act No. 324 has been repealed and re-enacted by Sec. 80 of Act No. 409.] Official Agent — Contract by.] — A contract by an official agent appointed under Sec. 6 of the Act No. 324, to give a person whom he is suing for contribution time until the proceedings against the other shareholders have been determined is not ultra vires, and the succeeding official agent may, by virtue of Sec. 8 of the Act, sue on the contract. Hasher v. Schlesinger, 4 A.J.R., 186. (d) Winding-up Order. County Court Judge's Order — 18 Vict., No. 42, Sees. 2 and 3.] — An order for winding-up a mining company made by a County Court judge, appointing a creditor to sue for unpaid calls under Act No. 42, Sees. 2 and 3, omitted the words " and to do all other acts which may be necessary to carry out the provisions herein con- tained." Held that it was a sufficient compliance with the Act to render the appointment of a creditor good, and to entitle him to sue for calls. In re Harrison, 1 W. & W. (L.,) 47. [Sec. 90 of Act No. 409 gives the liquidator power to sue for calls.] Order based upon County Court judgment — 18 Vict., No. 42, Sec. 14.] — B. recovered judgment against the A. company, for goods delivered, in the County Court, and an order was made by the Court of Mines, based upon that judgment, winding up the A. company, and appointing B. liquidator ; B. then sued W. for a debt due in respect of his shares and recovered a verdict in the County Court. The order for winding up was based upon an affidavit showing that an office copy of judgment had been served on the manager, and that judgment had been unsatis- fied for seven days, but no process or warrant of execution had issued. Held that the judgment of the County Court was such a judgment as is contemplated in 18 Vict., No. 42, Sec. 14, and that Sec. 14 contemplates that process and not judgment should be served in order for such judgment to be the basis of a winding-up order, and that as no process had been served and seven days could not have elapsed since service of process, the order was invalid, and B. was not entitled to sue. Wilson v. Broadfoot, 2 W. & W. (L.) 96. [Compare Sec. 60 (ii.) of Act No. 409.] 1033 MINING. 1034 Conditional Order Bad under Act No. 228, Sees. 30, 31.] — An order for winding up a mining company directing the company to pay a debt or give security by a day named ; and by which in default of making payment or giving security the company was ordered to be wound up, is bad, the " Mining Companies Limited Liability Act 1864" (No. 228,) Sees. 30, 31, not authorising a conditional order ; and an official agent ap- pointed by such an order cannot sue the share- holders for contribution. Haigk v. Hart, 3 W.W. &a'B. (L.,)123. [N.B.— Sec. 64 of Act No. 409 does not give the judge power to make an order as for pay- ment of debt, but authorises him either to grant the prayer for winding up or to dismiss the petition.] Act No. 228, Sees. 30, 31 — Evidence Necessary to give Jurisdiction.] — An order by the Judge of the Court of Mines winding up a com- pany was made " upon hearing the petition herein and the order made herein, and upon reading the affidavit of H. and upon hearing the petitioner's attorney." The liquidator appointed sued a shareholder in respect of unpaid capital, viz., his contribution towards his shares in "additional capital," and recovered from a magistrate an order for payment. Held, on appeal, that, there being no evidence of the sanction of the majority in number and value for the increase of capital, as required by Sees. 30 and 31, the order for winding up was bad, as it made no attempt to show the matters neces- sary to give jurisdiction. Magistrates' decision reversed. Campbell v. Carver, 4 W.W. & a'B. (L.,) 48. [Compare Sec. 64 of Act No. 409.] Order Good as to Part — Bad as to Part.]— It is beyond the jurisdiction of a Judge of the Court of Mines to give costs in the order for winding up a mining company under the Act No. 228, Sec. 31; but where such an order gave costs and was otherwise valid, the Court treated the part giving costs as surplusage, and allowed the rest to stand. Walker v. Jenkins, 1 V,E. (L,,)9; 1 A.J.R., 25. Where an order for winding up was bad on its face as showing no jurisdiction, a second order was allowed to be made without an order to set aside the first order, the petitioner being held justified in treating the first order as a nullity. Reeves v. Bowden, 6 W.W. & a'B. (L.,) 218; N.C., 17. An order to wind up a mining company under the Act No. 228, recited that a judgment had been recovered against the company; that execu- tion had been issued, but not satisfied ; that the judgment creditor presented a petition to wind up, setting forth the facts already recited ; that the company had been duly served with the petition and did not appear ; but the order did not recite the anterior proceedings at length. Held that the order set out sufficient facts to show jurisdiction. Davies v. Cooper; Adair v. Cooper, 2 V.R. (L.,) 95; 2 A.J.B., 62. See Sec. 66 and Sched. V. of Act No. 409. Signature of Judge to Order — Evidence Statute, Sec. 54.] — The Court can take judicial notice, under Sec. 54 of the "Evidence Statute" (No. 197,] of the signature of the Judge of a District Court of Mines to an order for winding up a mining company under Sec. 31 of No. 228, where the judge has merely signed his name, without describing himself as " Judge of the said Court of Mines." Walker v. Jenkins, 1 V.R. (L.,) 9 ; 1A.J.R. 25. Order in Schedule V. of Act No. 409, Sec. 66, for What Intended.] — The form of winding-up order in Schedule V. of the "Mining Companies Act 1871" (No. 409,) is intended for cases in which the company is petititoner or appears. On appeal, Held that such an order may be made exparte, and if made in the scheduled form is on its face unobjectionable, although it does not show any notice to or appearance by the com- pany wound up. United Hand-in-Hand and Band of Hope Coy. v. National Bank of Austral- asia, 2 V.L.R. (E.,) 206 ; on appeal, 3 V.L.R. (E.,) 61, 69. Order under " The Mining Companies Act 1871" (No. 409.] — A judgment creditor of a mining company obtained an order to wind it up under the Act No. 409; but no liquidator was ap- pointed. Subsequently, by an orderof the same court, the first order was discharged, and nothing more was done under it. Held that if the winding-up order was irregular the Court that made it could set it aside ; and that, as- suming it to be irregular, since neither the creditor nor any one else had taken any steps under it for the appointment of a liquidator, the right of the company to sue in Equity remained. On appeal, Held that such an order may be made exparte, and if in the scheduled form it is on its face unobjectionable, although it does not show any notice to or appearance by the com- pany, and decision of Court below affirmed. Ibid. Informal Order — Setting Aside.] — Where an order was made by a District Court Judge winding up a company and objections were taken: — (1) That the petitioning creditor, a bank, was not a creditor, the directors not having authority to contract the debt ; (2) That sufficient notice of the application was not given, — the Court granted a rule absolute in the first instance to bring up the order on certiorari. Regina v. Hackett, exparte Oolden Gate Coy., 3 A. J.R., 73. A good winding-up order under the Act No. 409 is the common property of all the creditors and cannot be discharged on the consent of the petitioner. United Hand-in-Hand and Band of Hope Coy. v. National Bank of Australasia, 2 V.L.R. (E.,) 206, 210. Order Bad — Laches in Moving to Set it Aside.] — Winding-up orders only terminate the operations of companies, and their existence is an obstacle to other creditors entitled to obtain such orders doing so. Where, therefore, an order was im- properly obtained, but list of creditors and con- tributories had been settled and it was generally acted upon for two months, when a contributory with full knowledge of the fact applied to set it. 1035 MINING. 1036 aside f the Court refused to set it aside on the ground of his laches in applying. Watson v. Commercial Bank, 5V.L.R. (M.,)36; 1 A.L.T., 94. Appeal from Winding-up Order — Act No. 291, Sec. 172— Act 409.]— Though Act No. 409 con- tains no express provision for appealing from ■winding-up orders, yet it does impliedly in con- junction with Act No. 291— Semble, that the limit of time (ten days) in Sec. 172 of No. 291 is not binding in the case of a person affected by an order procured without notice to him. Ibid. It will require a very strong case of irregu- larity in obtaining the order, and an application should be made with great promptitude, to set aside a winding-up order when it has been made by the proper judge and extensively acted upon, other enforcements of rights suspended, and much trouble and expense incurred under it. Smith v. Australian and European Bank, 8 V.L.R. (M.,)23; 4 A.L.T. 26. (e) Gontributories. (i.) Who are. Where Liability to Contribute arises — Juris- diction of Justices, Limitation to.] — The liability of shareholders in respect of contributions upon the winding-up of a mining company under the Act No. 228, arises immediately the winding-up order has been made, and the period of limi- tation of the jurisdiction of justices to order payment begins to run from that time. Hart v. Garden, 5 W.W. & a'B. (L.,) 213. [See Sec. 94, Sub-sec. i. of Act No. 409.] Where Liability to Contribution arises— Bo. 228, Sec. 36.] — The commencement of the winding-up of a mining company under the Act No. 228, Sec. 36, dates from the presentation of the pe- tition, and not from the date of granting the order; and a shareholder who has parted with his shares between the presentation of the pe- tition and the granting of the order is liable to contribute in respect of such shares. Beeves v. Millsom, 1 V.R. (L.,) 15; 1 A.J.R. 28. [Compare Sec. 94, Sub-sec. i., of Act No. 409.] Executors of Deceased Shareholders — No. 228, Sec. 37.] — Under See. 37 of the' " Mining Com- panies Limited Liability Act 1864" (No. 228,) executors of a deceased shareholder cannot be sued at petty sessions for contribution in respect of shares held by their testator at the time of his death in a mining company registered under the Act and being wound up under it. The section confines the power to enforce payment of con- tribution to the case of present shareholders only, and it cannot be extended to the repre- sentatives of a deceased shareholder. Cooper v. Bath, 2 V.R. (L.,) 136; 2 A.J.R., 86. [But see now Sub-sec. ii. of Sec. 94 of Act No. 409.] Liability of - Past Shareholder— Question for Magistrates J— Sec. 36 of No. 228 enacts that past shareholder! of a mining company shall not be liable to contribute unless present shareholders are unable to pay or cannot be found. In an action by the official agent of a mining company against a past shareholder for contribution, it is a question of fact for the decision of the magistrates whether the present shareholders of the company could or- could not be found. Beeves v. Ninham, 1 V.R. (L.,) 100 ; 1 A. J.R., 90. [There appears to be no analogous enactment in Act No. 409, the contributories being defined in Sec. 94.] Liability of Transferor— Transfer of Shares not Registered.] — A shareholder in a mining company incorporated under the Act No. 228, had paid his calls by allowing, under an arrangement with the manager, a debt due to him by the company for goods to stand against the amount of calls, and had subsequently transferred his shares bond fide. The transfer was executed by him, and transmitted to the directors for registration with the necessary fee ; but the directors, With- out due cause, omitted to register the transfer. The company was wound up, and the official agent sued the shareholder for unpaid capital on his shares. Held, that the defendant was not liable as a shareholder as regards the shares transferred. O' Donovan v. O'Farrell, 5 W.W. & A'B. (L.,) 169. [Act No. 409, Sec. 94, Sub-sec. i., only re- gards as contributories those who at the time of presentation of the petition are registered shareholders.] Transfer of Shares — Liability of Transferor.] — A shareholder cannot, when the company is unable to pay dividends and calls are due by surrendering his shares, escape liability to con- tribution, even though the transfer be bond fide, and recognised by the company. Beeves v. Highett, 1 V.R. (L.) 110 ; 1 A. J.R., 84. S. P. Beeves v. Bonneau, 1 A. J.R., 116. And the fairness and bona fides of the trans- fer are matters for the magistrates acting as jurymen to consider. Beeves v. BonneaUy 1 A.J.R., 116. Transfer of Shares — Cessation of Liability.]— In the absence of any proof of a rule of a mining company registered under Act No. 228, that transfers are not to be recognised until passed by the directors, a shareholder who has trans- ferred his shares, such transfer having been accepted by the transferee more than three months before the petition for winding up, but not having been passed by the directors till within that period, ceases to be liable for con- tribution from the date of the transfer. Jones ison, 2 V.R. (L.,) 96 ; 2 A.J.R., 63. (ii.) Enforcement of Contribution. Issuing Distress Warrant under No. 228, Sec. 38 — Affidavits.] — A justice, before issuing a distress warrant for contribution under Sec. 38 of the " Mining Companies Limited Liability Act" (No. 228,) without a summons to show cause, must be satisfied that the money was required for the payment of the company's 1037 MINING. 1038 debts ; and the affidavit in support of an applica- tion for a rule nisi to compel a magistrate to issue such a warrant must state the proceedings in the Police Court, it not being sufficient to state that the magistrate was satisfied that the money was required for payment of the debts. Regina v. Gaunt, 1 A.J.R., 36. [Compare Sec. 101 of Act No. 409 as to pre- sent provisions for enforcing contribution.] Distress for Calls— Mo. 228, Sec. 38.]— A dis- tress warrant for non-payment of calls under Sec. 38 of the " Mining Companies Act" (No. 228,) cannot be issued without the previous issue of a summons upon the shareholders to show cause. Smith v. Cogdon, 4 A. J.R., 76. S.P.— See Bradley v. Creeth, 4 A.J.R., 92. [Compare Sees. 95—102, of Act No. 409.] Contribution, Suing for— Unpaid Calls— Condi- tion Precedent.] — On the winding-up of a mining company, certain calls previously made re- mained unpaid, and the official agent sued the holder of the shares, on which the calls were unpaid, for contribution. Sec. 36 of the Act No. 228 provides that no contributions shall be recovered by the official agent exceeding the amount unpaid on shares. Held that suing for the unpaid calls was not a condition precedent to suing for contribution ; that the company being in liquidation, an action for calls would be improper ; that it was impossible that defen- dant could be vexed by a, second action for calls ; and that the official agent might recover the amount unpaid as for contribution. Simp- son v. Hunt, 2 V.R. (L.,) 54 ; 2 A. J.R., 44. . [Compare Sees. 90, 94, and 95 of Act No. 409.] Suit by Official Agent for Contribution — Title to Sue.] — Where an official agent of a mining com- pany incorporated under the " Mining Com- panies Act" (No. 228), who was appointed under a winding-up order made under the "Amending Act" (No. 324,) Sec. 6, sued for contribution and did not expressly allege that the company was registered under the Act No. 228, Held, on demurrer, that such an allegation was not necessary, Hasher v. Schlesinger, 4 A.J.E., 186. Settling List of Contributories — Objection to Winding-up Order— Act No. 409, Sec. 97.]— On an application to settle the list of contributories under Sec. 97 by the liquidator of a mining company, an order to wind-up which has been made, the judge ought not to entertain objec- tions to the validity of the order for winding- up. Regina v. Trench, ex parte McDougal, 6 V.L.R. (L.,) 309; 2 A.L.T., 60; sub nom. Ex parte McDougal. Notice to Contributories— Act No. 409, Sees. 96-99.]— Although Sec. 99 as compared with Sees. 96-98 seems to require contributories to pay on a past day and before list of contribu- tories has been settled, yet if the contributory has had reasonable notice he must pay. The list of contributories was advertised under Sec. 96 on 16th September, and the order for pay- ment under Sec. 98 was made 18th October. On 19th October, notice was served upon the contributory (H. ) requiring him to pay within ten days after 16th September in accordance with the provisions of Sec. 99. On 29th Octo- ber the liquidator applied to a magistrate for a distress warrant, which was refused. Held that H. having had a longer notice than that prescribed by the Act was liable, and rule absolute for a mandamus to compel issue of distress warrant granted. Regina v. Cogdon, ex parte Hasher, 3 V.L.R. (L.,) 88. Suit for Contribution — No Set-off.]— W. was sued by B., the official agent for contribution, and set-off a promissory note for £205 due to him by the company and unpaid. SembU that there could be no set-off under Act No. 228, and Held that even if there could be the justices had no jurisdiction in the matter of a set-off for £205. Wynne o. Barnard, 5 W.W. & a'B. (L.,) 35. [-See Sees. 100 and 101 of Act No. 409.] (/) Calls — Enforcement of. Who may Sue for.] — The official agent of mining company registered under the Act No. 209 is the proper person to sue for calls due on shares when the company is being wound up, and he may recover summarily before justices. In re Mackenzie, 1 W. & W. (L.,) 135. Suing for Calls.] — A mining company which has been wound up before the date of a sum- mons requiring a shareholder to pay calls, cannot be made plaintiff in the summons Regina v. Gaunt, ex parte Turner, 2 A.J.R., 106. Suing for Calls — " Mining Companies Statute 1871" (No. 409), Sec. 105]— A mining company in course of being wound up under the "Mining Companies Statute 1871 "- cannot sue for calls. The proper person to sue for such calls is, by virtue of Sec. 105 of the Statute, the official liquidator. Great Northern Coy. v. Maughan, 4 A. J.R., 161. Suing for — limitation — 11 and 12 Vict. Cap. xliii., Sec. 11.] — An order was made, under 18 Vict. No. 42, See. 14, to wind up a mining company, and the person appointed to wind up the com- pany sued the shareholders summarily before justices for calls. An objection was raised that the limitation of six months in "Jervis' Act" (11 and 12 Vict. cap. xliii.,) Sec. 11, applied, and that the complaint upon which the summons was founded, not having been made within six calendar months from the time when the calls became due, the calls could not be recovered summarily before justices. Held (dissentiente Molesworth, J.,) that the calls sued for were sub- stantially the same thing and might have been recovered in the same summary manner by the manager of the company during its existence, and therefore that the period of limitation (six months) which began against the manager ran on against the person appointed to wind up, and that the latter could not sue after the former j j 2 1039 MISTAKE. 1040 would be barred. Melville v. Higqins, 1 W. & W. (L.,) 306. [But see Sec. 90 of Act No. 409.] Recovery of Calls — liquidator — " Mining Com- panies Act 1871 " (Ho. 409), Sees. 52, 90.]— Upon the winding-up of a mining company registered under theAct No. 228, the official liquidator may, under Sec. 90 of the " Mining Companies Act 1871," recover in a County Court calls made by the company before winding up in the same manner as the manager of the company might have done had the company continued, and he is not subject to the limitation imposed on the latter by Sec. 52 of the latter Act, of suing within fourteen days after the call is made. Hasher v. Bride, 4 V.L.R. (L.,) 460. Payment of Calls cannot be Enforced in Equity.] — In a suit by the official agent of a company seeking to recover calls due on shares in the names of the directors and manager, or in those of their nominees, Held that the payment of calls could not be enforced in a suit in Equity. Reeves v. Croyle, 2 V.R. (E.,) 42, 48 ; 2 A J.R., 13. Enforcement of Payment of Calls Recovered by a Company before it was Wound Up.] — A company obtained a judgment in 1869 for calls, in 1870 it was wound up, and an official agent ap- pointed. Judgment was signed, and execution issued in 1871, but there was no entry of a suggestion of the appointment of the official agent. Held that the omission was fatal, and that the execution should be set aside. Bar- fold Estate G.M. Coy. v. Davies, 2 V.R. (L.,) 154; 2A.J.R, 97. Where a, shareholder has paid certain calls to the directors he cannot be compelled to pay them a second time to the official agent. Reeves v. Brown, ante column 159. MISTAKE. Concurrent Jurisdiction of Equity.] — M. and Y. being in partnership, agreed to divide their land on the assumption that M. 's portion was worth £700 more than Y. 's, and that Y. should in the division of assets, get the whole benefit of this excess^ The portions were valued, and M.'s portion appeared to be worth £655 10s. more than Y.'s. Y. purchased from M. part of his share for £461, and on the deed of partition being executed, M. paid to Y. the balance of the £655 10s. On suit by M. to have the mis- take rectified, and offering to take back the land conveyed to Y. upon a proper adjustment, Held, on demurrer to the bill, that a court of law could not do justice to the parties, and that it was a proper question of mistake in which Courts of Equity had concurrent jurisdiction. Affirmed on appeal, chiefly on the ground of M.'s lien on the overpaid purchase-money. Mansonv. Yeo, 1 W. & W. (E.,) 155, 187, 189. Relief against, when Granted.] — Equity only in- terferes in a case of mistake where two parties acting together are honest or each believes the other to be so. In re Oipps Land Steam Navi- gation Coy., ex parte Chuck; 1 V.L.R. (E.,1 141. Relief against, when Granted.]— At an auction sale B. purchased lot No. 139, and also lot No. 140; but, at the time of sale, agreed to let P. have lot No. 140. The clerk, by mistake, drew up memos, of agreement giving P. lot 139, and B. lot 140, and conveyances were prepared accord- ingly. B. entered into possession of lot No. 139 and built upon it, and P. entered into pos- session of lot 140. Afterwards P. conveyed by deed lot No. 139 to two purchasers, one of whom took possession of the corresponding portion in No. 140 and B. similarly sold a house on lot No. 139 to a purchaser, but the conveyance was of a portion of lot No. 140. B.'s vendee sued P.'s vendee to have the conveyances rectified and ejectments restrained. Held that not- withstanding the want of privity the plaintiffs were entitled to relief on the ground of mistake, and that plaintiffs were entitled to their proper lot, No. 139, upon showing title to and con- veying lot No. 140 to the defendants. Suther- land v. Peel, 1W.W.4 a'B. (E.,) 18. Mistake of Vendee and Ms Principal as to lots Purchased— The Fault of the Vendee, but Unin- tentionally Contributed to by Vendor — Specific Performance Refused at Suit of Vendor.]— Clarke v. Byrne, 3 A.J.R., 20; post under Vendor and Purchaser — Enforcement, &c. — Specific Performance. Relief against, when Granted.] — L. was in occu- pation of a residence area under the Ballarat Bye-laws, which in December, 1865, the defen- dant applied to have put up for sale. L. trans- ferred to W. in February, 1866. In July, 1866, the land was advertised for sale in the Govern- ment Gazette, the value of the improvements being stated at £50, that being their value at a valuation made in February; but W. had, in the meantime, in ignorance of the proceedings to sell the land by the Government, spent £400 in improvements. The defendant bought the land in August, 1866, at the upset price. He paid this at once, and also £50 for the improve- ments, and obtained the Crown grant. On the evidence, it appeared that the defendant and the Crown were ignorant of the increased im- provements, both thinking the improvements were worth £50. On a bill and information by the Attorney-General against the defendant, praying that the sale and the grant to the de- fendant purchaser might be set aside on the ground of mistake, Held that the sale was made and the grant issued on a mutual mistake, and the sale and the grant ordered to be set aside. Semble, that the Crown is entitled by information to redress injuries to others, as well as to itself from the wrongful consequence of its own mistakes. Attorney-General v. Belson, 4 W.W. & a'B. (E.,) 57. ' Relief against, when Granted. ] — Plaintiff having two estates, 6a and 1b, and intending to sell 1b ; by mistake the other was put up for sale, and the defendant, knowing it to be the most 1041 MONEY CLAIMS. 1042 valuable, purchased it. He did not take posses- sion of it, but asserted his rights to timber re- moved from the other estate, and subsequently his conduct was not straightforward. Upon bill by plaintiff seeking a reconveyance of the estate, and containing an offer to convey all the other to the defendant, Held, per Molesworth, J. , that there was no mutual mistake, but that plaintiff was entitled to the reconveyance upon paying defendant his purchase-money with interest at 8 per cent., and his costs of suit. Upon appeal by plaintiff, appeal dismissed with- out costs. Ashley v. Cook, 6 V.L.R. (E.,)204; 2A.L.T., 2, 50. Rectification of Deed on Ground of Mistake.] — See cases under Deed, ante column 357. In Issue of Crown Grant.] — Where concealment or mistake as to the issuing of a Crown grant is alleged in the pleading, it should have reference to the mind of the Governor himself, and he, personally, should be described as deceived or mistaken. S. made an application to purchase Crown land, which was refused on the ground that it was auriferous ; H. then applied for a mining lease, and a notification of the intention to grant it was published. A company, formed with H.'s consent, commenced to work the land, and afterwards S., knowing this, renewed his application to purchase, which was granted by the Crown Land department in ignorance of the application for the lease. On information by the Attorney-General setting forth the facts, and seeking to set aside the Crown grant as issued to S. in mistake, a demurrer was allowed. Attorney-Oenera.1 v. Sanderson, 1 V.R. (E.,) 18 ; 1 A.J.E., 21. For meaning of word " error" in the " Trans- fer of Land Statute " see cases post under Transfer op Land (Statutory). "Mistake or Error " — Ground for Prohibiting or Quashing- Orders of Justices.] — See cases, ante columns 774, 775. Rectification of Order — To meet Event not in the Contemplation of Both Parties — Mistake on One Side only.] — See Williamson v. M'Ravey, ante column 734. MONEY CLAIMS. (1) Money Lent, column 1041. (2) Money Had and Received, column 1042. (3) Money Paid, column 1047. (4) Account Stated, column 1047. (1) Money Lent. Action for — Where it will not Lie.] — An action for money lent will not lie for money lent by one player to another for the purpose of gamb- ling, though it be admitted that the game was not an illegal one. Ritchie v. Eckroyd, 5 W.W. & a-B. (L.f) 98. (2) Money Had and Received. Action-at-Law against Trustee who has Appro- priated Trust Money to Use of Cestui que Trust.]— Y. paid money to G., his attorney, to be divided among Y . 's creditors, who should sign a composition deed. F., a creditor, did not sign, but applied to Y. for payment of a divi- dend under the deed. Y. told G. to do so. G. did not pay, Y. then applied to G. for an ad- vance, and G. said, "There is F.'s money; it would not be right to give that;" and refused to give it on the ground that he was a trustee for F. F. brought an action for money had and received against G. The County Court Judge refused to nonsuit, and entered a verdict for plaintiff. Held, on appeal, that G. had in fact appropriated this money for the use of his cestui que trust, and he could be sued at law. Appeal dismissed. Oresson v. Foster, 2 W. & W. (L.,) 187. Against a Warden — Money Paid in "to Abide Event of Appeal."] — M. and others were sued by B. and others for a mining encroachment before the defendant as warden. The defendant de- cided in favour of B. , and ordered certain sums to be paid. M. gave notice of appeal, and on the same day B. issued an execution, and some of M. 's goods were seized under it, along with the mine. M. then went to the warden's clerk and paid into court a sum of £150 to stay the execution, and received a, receipt from the clerk. Execution was then withdrawn from the mine, and from M.'s individual property. The appeal was allowed as to M. , but dismissed as to others, and the warden made an order for payment out of court of the £150 to B. and others. M. sued the warden for money had and received, and on an account stated. Held that M. was not entitled to succeed, the £150 being paid in "to abide the event of the appeal," and the inference being that M. and the others went together to take common luck in the appeal, and if B. succeeded against any of M.'s party he was entitle'd to the money. Morganti v. Bull, 6 W.W. & a'B. (L.,) 134. For Illegal Purpose — Payment of a Larger Divi- dend to One Creditor than to the Others.] — At a meeting of creditors of a firm of L. and H., it was arranged that H. should be allowed to pur- chase back the estate by a composition of 8s. in the £. The defendant bank, as creditors, re- fused to assent unless H. should pay them 15s. in the £. H. consented to this, and gave the bank bills at 12 months, D. becoming surety. D., to secure himself, obtained an absolute conveyance of some of H.'s land. H. paid the bills, ob- tained a reconveyance from D. and then sued the bank for the amount of the bills. Held that if H. had paid the amount into a bank, he would be entitled to a verdict, he would not have been in pari delicto with the defendant bank, but having paid the bills without com- municating with D. and without pressure was not entitled to the verdict. Rule absolute for a nonsuit. Harris v. National Bank, 6 W.W. &a'B. (L.,)261; N.C. 72. Action by Cestui que Trust against Trustee — Trusts not Closed.] — In an action by a cestui que trust, who had obtained advances from his 1043 MONEY CLAIMS. 1044 trustees, and had executed a deed assigning to them his interest in monies coming to him under the trusts, upon trust to repay them- selves, and also to pay any prior encumbrances, and to pay the balance to him, the cestui que trust put in the deed as evidence of his claim. Held that since the action ought to have been brought on the deed, and the trusts were not closed, the plaintiff by putting in the deed and showing that the trusts were not closed, had nonsuited himself. Evans v. Nicholson ; Merry v. Nicholson, 2 V.R. (L.,) 80 ; 2 A. J.R., 59. Action by Receiver in an Equity Suit.] — An administratrix who had settled her share of an intestate's estate by a marriage settlement, de- posited large sums belonging to the estate at interest in a bank, and obtained advances on the security of her share. In a suit in connection with the intestate's estate a re- ceiver was appointed of the estate ; but the administratrix never drew out the money from the account of the estate, nor handed it to the receiver, who did not, consequently, formally re-deposit such money, but the money was treated as the money of the receiver, and a large portion of it was transferred to his account, and the receiver's account was over- drawn to the extent of a portion transferred to a suspense account. The bank subsequently claimed a lien on the residue for the overdraft. The receiver sued the bank for money had and received. Held that the transfer by the bank, together with certain letters which passed be- tween the bank and the other parties, were sufficient to fulfil in this case the requirements of this form of action, viz. , an ascertained debt due by th.e administratrix to the receiver, an equal or larger debt due to the administratrix by the bank, and an agreement that the bank should be the receiver's debtor, instead of that of the administratrix; that there was no quasi estoppel preventing the bank from denying that it held to the use of the receiver; and that the bank was entitled to charge bank interest on the receiver's overdraft, though at a greater rate than it allowed on the deposit. Ware v. London Chartered Bank, 2 A.J.R., 70. Action Lies to Recover Money Erroneously Paid by Garnishees.] — Beauchamp v. Nathan, ante column 63. Deposit Money Paid to Government for Lease of Turnpike — Failure of Consideration — breach of Contract.] — Martin v. Board of Land and Works, ante column 205. When Maintainable.] — R. applied to K. for a loan, and K., not being in funds, drew an accommodation bill on R., and, in order to enable him to discount the bill, he handed R. certain shares to be deposited with the person who would advance the money. L. discounted the bill for R. , who deposited the shares with him as security not only for that advance, but also, in violation of the agreement with K., to cover any other bills L. might discount for R. The bill was twice renewed, and during the currency of the last renewed bill, L. discounted two drafts for R. at his request, which were dishonoured. L. sold the shares and appro- priated part of the proceeds to pay the drafts, and retained the balance till the bill became due, when he sued K. for the difference be- tween the balance of the proceeds of the shares and the amount of the bill. K. obtained leave to appear, but took no further steps, and even- tually paid the difference. K. then discovered how L. had dealt with the shares, and sued for trover and conversion, with a count for money had and received, and a verdict was returned on the first count for L., since K. had not proved a right of property or possession at the time, not having offered to redeem ; but on the second count K. recovered damages. On rule nisi to reduce damages, Held that K. was not seeking to recover money voluntarily paid, and was not bound in the action on the bill to plead payment to the extent of the proceeds of the securities, since that would have been to recog- nise and condone the improper conversion by L., and that the action for money had and received was maintainable, and rule discharged. King v. Levinger, 2 A.J. R, 113. Clerk of Petty Sessions — Excessive Fees.] — Where M., a clerk of Petty Sessions, had acted tortiously in receiving more money as fees than he was entitled to claim, Held, reversing the Judge of the County Court, who had nonsuited the plaintiff C, who had sued M. for money had and received, that, the payment not being & voluntary one, the excess could be recovered by C. , and that as the amount was very small it was unnecessary to proceed against the Crown. Cobb v. Munce, 3 A. J.R., 46. When Maintainable — Money Paid for Illegal Purpose not Carried Out — Duress.] — A. had a claim against the Government which he was unable to get paid, and S. offered to use his influence with the Minister, in whose department the matter was, if A. would authorise him to stop £500 out of the amount to be recovered under the claim ; the £500 being intended as a bribe to the Minister. A. thereupon executed a bond for the sum, and gave S. a power of attorney to draw the money from the Treasury when it should be payable. The £500 was not used as a bribe, the Minister having left office, and three years afterwards the Government recognised A.'s- claim, and the money for it was voted. S., meanwhile, had lodged the power of attorney at the Treasury, and refused to allow A. to obtain the money without paying the £500, and eventually A., in order to obtain the money, paid S. the £500, and recovered a verdict for it as money had and received to his use, it having been paid under compulsion. On the rule for a nonsuit S., for the first time, raised the plea that according to A.'s own showing the money had been paid for an illegal purpose, and that the evidence did not show compulsion. Held that the money was recover- able, since the illegal purpose had not been carried out ; that since S. was able, under the power of attorney and the forms of authority to receive the money in use at the Treasury, which power and forms were executed by A., to prevent A. from receiving any of his claim, the parties were not on an equal footing, and there was oppression on the part of S. ; and that A. might contradict the deed which asserted that there was a debt due from him to S.; and rule for a nonsuit discharged. Armitage v. Smith, 4 A.J.R., 175. 1045 MONEY CLAIMS. 1046 Plea under Sec. 51 of " Police Offences Statute 1865 " that contract was by way of gambling must negative every other hypothesis save that of, illegality. Miller v. Harris, 1 V.R. (L.,) 91; 1 A.J.R., 83; post under Practice and Plead- ing — At Law — Pleading — Plea — Generally. When it Lies.]— B. owed S. £15, and E., S.'s trustee in insolvency, sued E. in the County Court for that sum. Before trial B. informed E. that he had a claim against S. and it was agreed that B. should pay E. £7 10s. as in full. B. then gave E. a cheque for the amount. When he gave the cheque he had funds to meet it, but before the cheque was presented he had given several other cheques, and in the result there were insufficient funds to meet the one given to E. E. without notice to B. sued him in the County Court and recovered a ver- dict for £15 and costs. Execution was issued but was not satisfied as B.'s goods were claimed under a bill of sale. It was then discovered that B. had funds in the bank, and a judge's order was obtained attaching the £15 and costs, and the amount was paid to E. B. sought to get it back and recovered a verdict in the County Court. On appeal, Held that B. had no cause of action and could not sue for money had and received. Ecroydv. Bennetto, 4 A.J.R., 150. Auctioneer — Grantor of Bill of Sale Selling in a Way that was not Authorised.] — D. granted L. a bill of sale over certain goods to secure bills of exchange which were afterwards dishonoured. The bill provided for D. retaining possession of the goods (the stock-in-trade of D. 's business), and selling the goods in the ordinary course of business, accounting to L. for the proceeds. Before the bills of exchange became due D. sent the goods to an auctioneer for sale by auction, and they were sold notwithstanding a notice from L. that he claimed the proceeds. L. sued the auctioneer for money had and received, and in trover. Held that D. 's only interest in the goods was to keep possession of them until de- fault in payment, the property being in L. ; and that the authority given to sell did not bar L.'s action, because the goods were not sold in the ordinary course of business. Verdict entered for plaintiff. Lochhart v. Gray, 5 A. J.R., 178. Payment under Garnishee Order by Mistake.] — A party paying money under a garnishee order which has been made upon a mistake as to facts, cannot recover such money unless the order has been set aside before action brought. Par- tridge v. National Insurance Coy. of Atistralasia, 2V.L.R. (L.,)203. R. recovered judgment in the Supreme Court against John P. for £78 16s. 2d. One James P. held a policy of insurance from an insu- rance company over certain premises which had been recently burned down. R. went to the secretary of the company, asked if John P. was entitled to the sum insured, and the secretary, in mistake, replied that he was. It was then arranged that the company should consent to a garnishee order for the amount of the judgment debt, and an order was made dated 5th May, 1876. R. had in the September preceding, assigned the judgment to P. The company paid the amount of the judgment to their solicitors, who paid it, less the garnishee's costs, to R.'s attorney, who paid to P., after deducting his own costs, a balance of £69 2s. 2d. , by the direction of R. On 10th May it was discovered that James P., and not John P., was the person insured ; and on 17th June a sum- mons was issued to set aside the order, which was rescinded on 22nd June. The company had ( however, on 19th May, sued P. for the money paid them under the garnishee order, and recovered a verdict. P. appealed on the ground that they should have been nonsuited, since the money had been paid under a judg- ment of the Supreme Court, and there was no privity between P. and the company. Held that there was privity between the parties, since P. stood in the same position as R. ; but that th e garnishee order being still in existence at the time the company sued formed a bar to the suit, since it assumed that the company had money liable to satisfy the judgment, and it was not competent for the company to deny the truth of the assumption till they took steps to have the order set aside; and appeal allowed. Ibid. When Maintainable — Over-payment by Mistake.] — A shire owed K. a debt, and by inadvertence the shire secretary wrote out a cheque for more than the sum, and K. received it, and without examining it gave it to B. to cash, and B. gave him only the amount for which the cheque was intended to be drawn. Four months afterwards the shire discovered the error and sued K. for the balance for money had and received and for money paid. The jury found that K. had re- ceived only what was due to him, but had taken the cheque as cash. Held that the shire could recover from K. Shire of Butherglen v. Kelly, 4 V.L.R. (L.,) 119. By Mistake — Purchaser giving too High a Price.] — A purchaser, who is misled by an erroneous statement by the vendor as to the total cost of goods bought by him into giving a. higher price than he otherwise would, may recover the difference between the two prices in an action for money had and received, although he may have had before him materials from which the correct total cost of the goods could be computed. Grimwood v. Smith, 6 V.L.R. (L.,) 433. Excessive Rates Paid under Protest — Action for Money Had and Received does not Lie.]— Belfast Road Board v. Knox, 1 W.W. & a'B. (L.,) 133. Post under Rates— Other Points. Money Entrusted to Defendants to Pay a Dividend— Revocation of Authority before Pay- ment.] — The directors of a company declared a dividend and placed the amount necessary to pay it to the defendant's credit upon trust to pay the dividend. Before payment, the com- pany, in general meeting, rescinded the resolu- tion to pay a dividend, although the dividend had been advertised. Held that the company was entitled, on counts for money had and received, to repayment of the amount, and that a promise by one or two of the defendants to pay dividends to some of the shareholders on a condition which was not performed was ineffec- tual as a defence. United Hand and Band Coy. v. M'lver, 7 V.L.R. (L.,) 471. 1047 MONEY CLAIMS. 1048 Money Paid by Principal to Agent as Deposit Honey on Purchase of Land — Repudiation of Pur- chase by Principal (the Purchaser.)] — 'See Allison v. Byrne, 3 V.R. (L.,) 155; 3 A.J.R., 67. Post under Principal and Agent— Rights and Liabilities of Principal and Agent inter se. — General Principles. (3) Money Paid. Sub- tenant — Landlord — Distress.] — Wherever a plaintiff, in consequence of a dealing with the defendant, has been forced to pay a debt for ■which the defendant was primarily liable, the money so paid is money paid for the defendant's use. T., a landlord, leased land to E. for five years. E. subleased to N. during the term for the remainder of the term. E.'s rent being in arrear, T. distrained on N.'s sheep and sold them to N., and the bailiff also sued N. on a promissory note given for the rent, which N. paid. Held that the money paid being the plaintiffs (N.), it was immaterial whether it was paid in purchase of the goods, or merely to release and get them back, and the plaintiff was entitled to sue E. for the money so paid as money paid to his use. Noyes v. Ellis, 3 V.L.R. knowing that title deeds of C. were in W.'s hands, but not that they were held as security, and without inquiry of W., subsequently made advances to C. , and took a legal mortgage of the lands comprised in the deeds, which mortgage was duly registered. Held thatG.'s registration did not give him priority over W. ; and as G. was aware of the deposit with W. he could not claim as a purchaser for value without notice. White v. Hunter, 5 W.W. & a'B. (E.,) 178. See S.C. under Deed, ante column 355, and as to priority dependent on registration see Fraser v. Australian Trust Coy., columns 355, 356. Mortgages of Several Properties— Second Mort- gage to Different Persons — Principle of Division.] — A. mortgaged X to B. ; B. sub-mortgaged X and mortgaged Y to C. to secure £40,000 ; B. then made a second submortgage of X to D. to secure £30,000, and a second mortgage of Y to E. to secure £8000. C. became mortgagee in possession of X and received certain payments out of sale of stock, and sold X, there being from the pro- ceeds a surplus after paying his debt ; and sold Y to D. for £18,000. In a suit for adjustment of the rights of the mortgagees, Held that C. should be paid his debt out of X and Y rateably according to their respective values, and that surplus of the proceeds of each should be paid to D. and E. respectively. White v. London Chartered Bank of Australia, 3 V.L.R. (E.,) 33. Consolidation — land under " Transfer of land Statute " (No. 301) — Land not under Act.] — L., being registered as proprietor of land under , No. 301, mortgaged it to the defendant, and by several mesne transfers the land became vested in the plaintiff as registered proprietor subject to the mortgage. The defendants held another mortgage from L. over land not under the Statute and claimed to consolidate the two mort- gages. Held that a mortgage of land under No. 301 cannot be consolidated with a mortgage of land not under the Act. Qreig v. Watson, 7 V.L.R (E.,)79; 3 A.L.T., 13. 1055 MORTGAGE. 1056 V. Stock Mortgages and Mortgages of Wool. See under Lien, ante column 840. VI. Rights and Liabilities of Mortgagors and Persons Claiming through them. Purchase of Equity of Redemption — Effect of, as to Indemnifying Mortgagor.]— There is no im- plied contract for the purchaser of an equity of redemption at a sheriffs sale to indemnify the mortgagee (sic/ sed quaere "mortgagor"!) against the mortgage debt. The defendant bank had made advances to a company secured by deposit by way of equitable mortgage of the com- pany's lease, and also by promissory notes given byplaintiffs assuretiesforthecompany. The bank recovered judgment against the company and at a sheriffs sale under execution of the judgment purchased through a trustee for the bank the lease of the company's land, subject to the lien of the bank. On a motion to restrain the bank from levying execution on a judgment recovered in an action on the promissory notes, Held that the principle of an implied contract for indemnity could not be extended to the purchaser of an equity of redemption at a sale under an execu- tion. Robertson v. Bank of Victoria, 4 W. W. & a'B. (E.,) 85. Mortgage of Equity of Redemption — Suit to Set Aside — Misrepresentation — Onus Probandi.] — In a suit by a mortgagor (lately an insolvent) to set aside on the ground of misrepresentation or mutual mistake a release by the official assignee of the mortgagor's equity of redemption, for ac- counts against the mortgagees, and in effect to have the benefit of a subsequent resale by the releasee's purchaser, it appeared that the official assignee had in the release admitted the truth of the representations made to him, and that the mortgagee had thereafter taken a conveyance from him of all the estate vested in him under the insolvency. Held that the onus probandi was upon the mortgagor, who was primd facie bound by the admission under seal of his vendor, the assignee, to prove the falsehood of the representations, and not upon the mort- gagees to establish their truth. Brougham v. Melbourne Banking Corporation, L.R. 7 Ap. Cas., 307 : overruling Molesworth, J., 6 V.L.R. (E.,) 214. Release of Equity of Redemption.] — Where a mortgagor, in consideration of the mortgage debt, releases the equity of redemption to the mortgagee, the parties should be regarded, until the contrary is shown by the party im- peaching the release, as on the ordinary footing of vendor and purchaser. Brougham v. Mel- bourne Banking Corporation, L.R., 7 Ap. Cas., 307. Right of Mortgagor to Set Aside Release of Equity of Redemption.] — Where a release of an equity of redemption was made by the official assignee of an insolvent mortgagor, who subse- quently, after obtaining his certificate, obtained from the assignee a conveyance of all his interest in the insolvent estate — Held, that assuming the release to be voidable, an equity to set it aside was an equitable interest in the property to which it related, and therefore was part of the estate vested in the official assignee. The mortgagor, therefore, under his conveyance from the official assignee, obtained a locus standi to maintain the suit. Brougham v. Melbourne Banking Corporation, L.R., 7 Ap. Cas. 307, con- firming Molesworth, J., 6 V.L.R. (E.,) 214. Action by Mortgagor— Consent of Mortgagee- Transfer of land Statute, Sec. 94.] — In an action of ejectment by a mortgagor of land against the representative of his mortgagor, the objection that no consent of the plaintiffs mortgagee to the bringing of the ejectment, as required by Sec. 94 of the " Transfer of Land Statute," has been stated or proved may be cured by amend- ment, and cannot therefore be taken on appeal. Such an objection, moreover, is not one of which the Judge of the County Court is bound to take notice unless raised by the parties. Griffin v. ■ Dunn, 4 V.L.R. (L.,) 419. Mortgagor in Possession after Default.]— A mort- gagor in possession after default is a tenant at sufferance and not a tenant at will. Ibid. Mortgagor of Mining Claim— Right to have Rent Paid to Preserve the Lease.]— A mortgagee of a mining leasehold, in possession, is bound to pay the rent to save mortgage leasehold from for- feiture, .being entitled to charge the mortgagor therewith. If the property be not worth the rent he should at all events give it up to the mortgagor. Where, therefore, such a mortgagee paid the rent for some time, and after decree for redemption wrote to the mortgagor for advice as to whether he should continue to pay the rent or not, and the mortgagor having declined to advise the mortgagee, who was at the time largely overpaid, discontinued to pay the rent, and the lease became thereby forfeited. Held per Molesworth, J., affirmed upon appeal, that the mortgagee was liable to make good to the mortgagor the value of the lease at the date of forfeiture. United Hand-in- Hand and Band of Hope Coy. v. National Bank of Australasia, 6 V.L.R. (E.,) 60. On appeal, Ibid, 198; 1A.L.T., 181. Action by Transferee of Mortgagor for Use and Occupation — Mortgagee not in Possession— Act No. 301, Sees. 93, 94.]— See Louch v. Ball, 5 V.L.R. (L.,) 157; 1 A.L.T., 10, under Transfer or Land (Statutory) — Mortgages. Right to Title Deeds.]— When mortgage-money is due, an offer by the mortgagor to pay it, if the mortgagee will first deliver up the title deeds, is not a good tender, and will give the mortgagor no right of action against the mort- gagee for non-delivery of the deeds or for then 1 loss. The mortgagor must offer absolutely, and without any condition, to pay the mortgage debt due in order to make a good tender. Armstrong v Robinson, 8 V.L.R. (L.,) 17. An action for the non-delivery of the deeds, or for their loss, will not lie at law before pay- ment of the money due. Ibid. Mortgagor having Redeemed when Entitled to Writ of Assistance or Habere against Tenant of Mortgagee.] — Slack v. Atkinson, 6 V.L.R. (E.,) 32; 1 A.L.T., 113, 139. Post under Practice, &c. — Equity — Writs. 1057 MORTGAGE. 1058 VII. Rights and Liabilities of Mortgagees and Persons Claiming through them. (a) Rights and Powers. Interest — How Accruing — Apportionment.] — Per Chapman, J. — Interest on mortgage securi- ties is considered to accrue de die in diem, and the rule as to apportionment is not defeated by its being in fact payable half-yearly or quar- terly. It is not analogous to rent, and, there- fore, needs not the aid of the English Statute to render it apportionable. In re Mitchell, 1 W. & W. (E.,) 167, 171. Bight of Equitable Mortgagee to Interest — Rate when Interest not previously demanded.] — National Bank v. Clark, ante, column 1052. Interest— Agreement to Seduce Acted Upon.] — Where a mortgage is overdue, a verbal bargain between mortgagor and mortgagee to reduce the rate of interest, acted upon for some time, is binding in equity ; and this applies also as between the mortgagor and the executors of a mortgagee. Leiois v. Levy, 2 V.L.R. (E.,) 110. Receipt by Executor of Part Payment of Prin- cipal.]— One of the executors of a mortgage, having reduced the rate of interest payable by the mortgagor, and having also received part payment of the principal, Held {dubitante cnrid) that the principal sum was in part dis- charged. Ibid. Accounts — Mortgagee — Improvements.] — Where a mortgagee knows of a defect in his title, and that a sale through which he claims is unreal, and that the person entitled to redeem never acquiesced in the sale, he will not generally be entitled to be allowed for improvements, but will not be charged with income of mortgaged land so enhanced by improvement. Per Moles- worth, J. Slack i: Atkinson, 1 V.L.R. (E.,) 335. But Held by Pull Court on appeal, that as the person entitled to redeem had to a certain extent misled the defendant by his conduct, the defendant mortgagee was entitled to credits and allowances in respect of increased price and improvements, and that the accounts should be taken on that basis. Atkinson v. Slack, 2 V.L.R (E.,) 128. Mortgagee in Possession — Costs of Proving Expenditure in Improvements.] — A mortgagee in possession owning land adjoining the mort- gaged premises erected buildings running over both properties, a thing he was not warranted in doing. Held not entitled to his costs in the Master's office of proving the amount of expen- diture in substantial improvements. Stack v. Atkinson, i V.L.R. (E.,) 195. Mortgagee in Possession of Mine — Expenses of Unproductive Mining.] — Where a mortgagee had mined extensively, and, as to a large part of the mining, without profit, but had mined judiciously, and to a great extent following out work commenced by mortgagor, and the decree directed that he should account as a mortgagee in possession should, in regard to wilful default, Held that he was entitled to the expenses of unproductive mining and prospecting. United Hand-in-Hand and Band of Hope Coy. v. National Bank of Australasia, 4 V.L.R. (E.,) 173. Power of Mortgagee in Enforcing Securities.] — A mortgagee is entitled to make the best of his securities and to enforce them in such order as he may think fit. Walpole v. Colonial Bank, 10 V.L.R. (E.,) 315, 325; 6 A.L.T., 147. And where the security was a mortgage of a policy of life assurance which was to be void in the event of the assured 's suicide except to the- extent of the interest of a bovA fide assignee, provided notice was given within a certain time, Held, per Molesworth, J., and affirmed, that the mortgagee was not bound to embark in litigation with the company to recover the policy-moneys before compromising with the company; and, per the Full Court, that the mortgagee was under no liability to see that the notice required was given. Ibid, pp. 325, 334. For facts see S.C., ante column 724. Power of Mortgagee to Enforce Security — Ad- ministrator Pledging Assets for Purpose of Carry- ing on Trade with Mortgagee's Knowledge — Mortgagee Barred.] — Swan v. Seal, ante column 437. Power of Sale — To Whom it Passes.] — Where a mortgagee dies before exercising a power of sale, such power passes to his personal and not his real representative. J.A.S. was mortgagee of certain land with a power of sale. J.A.S. died in England intestate in November, 1861. P.R.S. was devisee of the heir-at-law of J.A.S., and proved the will, and obtained administra- tion in England to J. A. S.'s personal estate. O. was appointed agent of P.R.S. by power of attorney, inter alia, to take out administration to the estate of J.A.S in the Australian colo- nies. O., without taking out administration, sold the mortgaged property to S. , who ob- tained possession, and then sold to the defen- dant H. 0. absconded without accounting to F.R.S. for purchase-money. The plaintiff W. obtained administration in Victoria of the per- sonal estate of J.A.S., as attorney under power of P.R.S., in December, 1865, and, in conjunc- tion with P.R.S., brought a suit against C, the mortgagor, for foreclosure, making H. a co- defendant in order to dispossess him and avoid his alleged title. Held that the power of sale could not be exercised by F.R.S., or his- attorney under power, until taking out ad- ministration in Victoria, such power passing to- the personal and not to the real representative, and that the sale by O. must be set aside, because if P.R.S. himself had sold to S. he might, on obtaining administration in Victoria, disaffirm his own acts and maintain the suit. Walduck v. Corbelt, 4 W.W. & a'B. (E.,) 48. Power of Sale.]-^Semble, that a power of sale- under a mortgage deed, exercised by a sale to a. trustee for the mortgagee, cannot be exercised', a second time ; at any rate, not without a fresh 1059 MORTGAGE. 1060 demand of payment. United Hand-in- Hand and Band of Hope Coy. v. National Bank of Australasia, 2 V.L.R. (E.,) 206, 219. Power of Sale — Whether it Passes to a Sub- Mortgagee.] — Qucere, whether a power of Sale passes to a sub-mortgagee, see Slack v. Atkinson, 1 V.L.R. (E.,) 335, post column 1068. Power of Sale — Demand — Wrongful Sale — Laches of Mortgagor.]— H., in 1874, deposited scrip of 200 mining shares held by him with the defendant bank as a security for an over- draft, constituting the manager his attorney to •sell shares when default was made in moneys secured, and pay out of proceeds money secured, and hold surplus on trust for the mort- gagor. Verbal requests for payment were made in January and February, 1875; and in February, 1875, the manager wrote to H. stating that shares had been sold, which was not the case, they having been transferred by a fictitious sale to a nominee of the bank. In January, 1877, the bank sold 125 shares for a large sum; and in February, 1877, plaintiff, believing that the bank still had the shares, ■demanded them, when the manager offered to give up the balance of the shares on payment of the amount due. The shares were subsequently sold, and the plaintiff, having in February, 1878, tendered the amount due, which was re- fused, in August, 1878, brought a bill for redemption, seeking to set aside sale. Held, per Molesworth, J. — (1) That the bank had not proved a sufficient demand for the pay- ment as would warrant it in selling, even if whole number of shares had remained unsold. (2) That the bank had no right to sell unless it could in 1877 restore all the shares to the plaintiff, or until there was an adjustment of their relations as to 125 shares really sold ; that mortgagor being poor was entitled to con- sideration, and was guilty of no laches or acquiescence so as to bar his right. Decree for payment of equivalent value of the whole num- ber of shares with dividends, shares to be treated as of their value at the date of institution or of ■decree. On appeal affirmed chiefly on the ground that transfer by bank to nominee and the false statement of a sale having been made rendered the subsequent real sale invalid. De- cree varied by charging bank with interest on value from February, 1878, till date of decree instead of dividends, on the ground of the plaintiff's laches. Hicks v. Commercial Bank of Australia, 5 V.L.R. (E.,) 228 ; 1 A.L.T., 60. Semite, per Molesworth, J., it is not a sufficient demand for a bank official to require verbally a customer to pay his debt and talk of power of sale being exercised, unless he sends him away under the impression that the sale will be pro- bably effected without further notice. Ibid, p. 234, Sale under Power — Proceeds Deficient.] — A mortgagee sold under his power of sale and did not realise the whole amount of his mortgage debt, and then sued the mortgagor on the cove- nant to pay. Held that the mortgagee can set all his remedies in operation at once and was entitled to sue. Pattinson v. O'Mara, 3 V.L.R. (L.,) 103. Powers of Sale— Several.] — Per Molesworth, J.— Mortgagees having several powers of sale over different lands comprised in different mortgages are not authorised in exercising them in one sale. Per Williams, /.—Courts of Equity may sanction such a sale where the mortgagee clearly proves that the sale so made has been more beneficial to all parties concerned than a sale in separate lots would have been. The onus of proof is on the mortgagee. Eoss v. Victorian Permanent Building Society, 8 V.L.R. (E.,) 254 265, 271; 4 ALT., 61. Power of Sale — Mortgage of land under General law and under Act No. 301.]— A. mortgaged to a building company land under the general law, and land under the Act No. 301. The mort- gagee sold the whole land as a lot and under one sale. Held, per Stawell, C.J., and Holroyd, J,, that, there 'being » great difference in the manner of disposing of the proceeds of land mortgaged under the general law and under the Act, and the Act containing special clauses as to payment of the purchase money and as to title, the combination and selling in one sale of land subject to different mortgages some under the Act and some under the general law was im- proper. Boss v. Victorian Permanent Building Society, 8 V.L.R. (E.,) 254, 269, 275 ; 4 A.L.T., 61. Mortgage of Personalty — Notice of Default sent through Post — Mortgagee Selling Goods after Tender of Amount Due.] — M. gave S. a mort- gage over goods with a proviso for redemption, S. being at liberty to sell on making a demand in writing personally or through post office, and on mortgagor failing to pay. The notice in writing never reached M., though there was evidence that it had some days prior to the sale been duly posted. S. seized the goods and sold them, but before the sale M. tendered the amount of the debt, which S. refused. M. sued S. for trespass and detinue. Held that the notice sent was sufficient, and that S. was justified in seizing the goods ; that S. was not warranted in selling the goods after tender of the amount due. Verdict for defendant on first count ; for plaintiff on second count. Damages £300, the value of the goods as fixed by plaintiff and not controverted. Mills v. Smith, 3 A. J.R., 111. Mortgagee in Possession — Seizure of After- acquired Property of Mortgagor.] — D. mortgaged all the stock, &c. , depasturing on a station, and his interest in the station, to P. The mortgage deed contained a clause providing for seizure by P. of all working horses, bullocks, &c, on the station, and all so found upon the station in lieu of or in addition to those at date depastur- ing and used thereon in default of payment. Default was made in payment, and subse- quently to the default D. purchased 350 head of cattle, and put them on the station. Eight months afterwards P. entered into possession, and seized the 350 head of cattle. On suit by D.'s official assignee, Held that D. not having objected at the time of seizure, the seizure by P. completely divested the equitable title sought to be enforced, and bill dismissed. Qoodman v. Power, 1W.4W. (E.,) 96. 1061 MOKTGAGE. 1062 Subsequent Mortgagee Selling Property Pre- viously Mortgaged to Another.] — M., owner of one share in a mining company, mortgaged it to P., to secure a loan. M. remained with the other shareholders in possession of the whole mining property. M. then, without the con- sent of P., joined in a mortgage with the other shareholders of all the mining property, in- cluding the share mortgaged to P., to a bank, with power of sale over the whole. The bank sold, and P. sued the bank in the County Court and recovered judgment. On appeal, Held that the judgment was wrong, it not appearing from the case that the bank had done anything whereby P. was in a worse position as a co- shareholder with the purchaser from the bank, than he would have been in as co-shareholder either with the bank or their mortgagors. Bank ofAustralasiav. Platt,\ W. & W. (L.,) 212. Purchase by Mortgagee under the Power of Sale.] — A purchase by a mortgagee of mortgaged property, sold either under the power of sale or in execution of a decree against the mortgagor Company (obtained collusively between the mortgagee and directors) does not operate to vest an absolute title in the mortgagee. National Bank of Australasia v. United Hand-in-Hand and Band of Hope Coy., L.R., 4 App. Cas. 391. Bight to Distrain for Rent on Mortgage.] — A mortgagee is not entitled to treat the mortgagor as a tenant unless there be a special provision to that effect. Where, therefore, a mortgage deed provided that the mortgagor should be a tenant-at-will to the mortgagees, and should pay rent in the shape of redemption moneys, and that the mortgagees should have power to distrain, and the covenant for quiet enjoyment was omitted, Held that the mortgagees might distrain for rent. Moore v. Lee, 2 V.R. (£.,) 4;2A.J.R, 16. Costs Between Mortgagees — Mortgages of Several Properties— Second Mortgages to Different Persons — Costs of Suit between 1st and 2nd Mortgagees.] — A. mortgaged X to B.; B. sub- mortgaged X, and mortgaged Y to C; B. then made a second sub-mortgage of X to D., and a second mortgage of Y to E. In a suit in New South Wales between C. and E. caused by B.'s misconduct, C. recovered some of his costs from E., but had to abide some of his costs. On a bill brought by D. for an adjustment of rights, Held that C. was entitled to charge as against I), all costs properly incurred in re- sisting the suit in New South Wales not re- coverable against E. in that suit. White v. London Chartered Bank of Australia, 3 V.L.R. (E.,) 33. . Insolvency of Mortgagor — Release of Estate — Sight of Mortgagee to full Amount Due.] — The in- solvency of the mortgagor and the subsequent release of his estate from sequestration does not extinguish the mortgage debt, but the mort- gagee is entitled to claim the amount due to him on his security. Hodgson v. Young, 6 A.L.T., 117. Mortgagee in Possession — Mortgagor Agent of Mortgagee.]— R. mortgaged his estate to F. & Co. The rents of R.'s estate were reserved in wheat and sent to R. & Co., who separated the wheat into two lots, distinguishing between what was due to R. and what was that of the tenants. R. being embarrassed, and not being able to pay the instalment of the debt falling due, agreed to collect the rents as F. & Co.'s agent. One of the firm said to him, "As you are not able to pay this, I shall now require you to act as our agent in receiving the rent in money and wheat as it falls due;" and to this R. agreed, and handed in a list of what was due from tenants and his rent- roll. R. also gave evidence that he had agreed to receive the rents for F. & Co., the money as soon as received, and the wheat as soon as possible after it was received to be disposed of by F. & Co. to the best advantage ; but R. did not use the word " agent" in describing himself or his firm, on their undertaking to receive the rents for F) & Co. R. became insolvent, and his assignee took the wheat. In an action for trover by F. & Co. , a verdict was returned for plaintiffs, and upon rule nisi for a new trial, Held that R. had become agent for F. & Co., and that his acts were their acts as mortgagees in possession ; and that the verdict should be upheld. Flower v. Webster, 1 W. & W. (L.,) 380. (6) Liabilities. Mortgagee in Possession, Who is] — Where a plaintiff in a redemption suit reads from his answer an admission by which it appears that the defendant collected certain rente as agent for the mortgagor, the plaintiff cannot treat him as to those rents as mortgagee in possession. Slack v. Atkinson, 1 V.L.R. (E.,) 335. Accounts by Mortgagee in Possession — Receipts by Mortgagor as Agent for Mortgagee.] — Where a bank was mortgagee in possession and the mort- gagor received rents and profits as its agent in decree for an account of bank's receipts with wilful default, the bank was only charged with the mortgagor's receipts as its agent only so far as he had paid them to the bank. Dallimore v. Oriental Bank, 1 V.L.R. (E.,) 13. For facts see S.C. post columns 1067, 1068. Mortgagee in Possession — Interest.] — A mort- gagee in possession is not chargeable with interest on his receipts if, when he took posses- sion, an arrear of interest was due to him, unless by setting up a title adverse to the mortgagor he has lost the immunities of an ordinary mortgagee. National Bank of Australasia v. United Hand-in-Hand and Band of Hope Coy., 3 V.L.R. (E.,) 61 ; L.R. 4 App. Cas. 391. Liability of Mortgagee Exercising Power of Sale.] — A mortgagee exercising his power of sale, has some of the liabilities of a trustee. United Hand-in-Hand and Band of Hope Coy. v. National Bank of Australasia, 2 V.L.R. (E.,) 206. Liability of Mortgagor Exercising a Power of Sale in Contravention of Terms of "Transfer of Land Statute" as to Notice.] — The mortgagee in such a case is liable to be charged with the value of the land at the time of sale, or at the time of decree, at the mortgagor's option. M'Donald v. Mowe, 4 A.J.R., 134. For facts see S.C. under Transfer of Land (Statutory) — Mortgage. 1063 MOETGAGE. 1064 Mortgagee Selling — How far a Trustee for Mortgagor.] — Per Holroyd, J. — A mortgagee is only a trustee of the surplus purchase money when the property is sold. He sells to the best advantage to himself, and is not obliged to con- sult the advantage of the mortgagor so long as he keeps within the terms of his power. Ross v. Victorian Permanent Building Society, 8 V.L.R. (E.,) at p. 273 ; 4 A.L.T., 17, 61. Mortgagee in Possession — Receipts.] — A mort- gagee is accountable, not merely for his actual receipts whilst in possession of the mortgaged property, but also for whatever is received by those to whom he transfers possession under an arrangement inoperative to transfer title, and in derogation of the rights of the mortgagor. National, Bank of Australasia v. United Hand- in-Hand and Band oj Hope Coy., L.R. 4 Ap. Cas. 391. Sale by Mortgagee — Liability of Mortgagee.] — A mortgagee is chargeable with the full value of the mortgaged property sold, if from want of due care and diligence, it has been sold at an under value. National Bank of Australasia v. United Hand-in- Hand and Band of Hope Coy., 2 V.L.R. (E.,) 206 ; 3 V.L.R. (E.,) 61, 70 ; L.R., 4 Ap. Cas. 391. Mortgagee in Possession—Redemption— Accounts — Wilful Default.]— By a decree made 18th May, 1874 (reported 5 A.J.R., 47) the plaintiff was declared entitled to redeem a house and pre- mises, and ordinary mortgage account was directed with wilful default. Evidence was given to show that an adjoining house of similar nature brought during the same period higher rents than those received by mortgagee. The Master surcharged the defendant with half the difference received from two houses respec- tively. On exceptions to report, Held that Master was right in charging defendant with additional sums as to rent he might have re- ceived before October, 1863, at which time de- fendant had regarded himself as absolute owner, but he should not be so charged after that date. On case coming on for further directions as to costs, Held that, where a mortgagee claiming to be absolute owner resisted the right to redeem and failed, the plaintiff mortgagor was entitled to his costs down to and inclusive of original hearing, and defendant mortgagee entitled to his costs of the account and hearing on further directions. Mouatt v. Mackenzie, 1 V.L.R. (E.,) 73. Accounts — Sale by Mortgagees — Bill for Account during Currency of Promissory Bote.] — The de- fendants (mortgagees) sold under a power of sale contained in their mortgage deed, partly for cash, and partly by means of promissory notes. F., to whom the equity of redemption had been assigned during the currency of two of the promissory notes, filed a, bill for an account and payment to him of any surplus, alleging in the bill that the money received and the amount of the current notes would exceed the money owing on the mortgage security. Held, on demurrer, that the bill was premature and that P. had no equity, the bill not being framed as a bill of discovery to protect future rights, and not alleging that the plaintiff had offered to pay what might be due to the mort- gagees. Fenton v. Blackwood, 1 V.R. (E.,) 124 • 1 A.J.R., 104. Account — Mortgagee Dealing with Property so as to lessen its Value.] — B. and others mortgaged certain station property to C, and mortgagors and mortgagee joined in selling the mortgaged property to a company, and the purchase-money was paid partly in cash, partly in debentures and partly in paid-up shares, which were all retained by the mortgagee as security for the debt. By an agreement made between the company and the vendors certain concessions were to be made by the vendors in the event of the property not being of the value represented, and shortly after the sale the company repre- sented that the property was of less value than was stated, and demanded a concession. B. assented to one concession, but on a further concession being demanded by the company absolutely refused to assent thereto. C, how- ever, agreed to the concession, and made an agreement with the company by which he gave up some of the debentures and paid-up shares to the company, and assented to the dividend on the rest of the paid-up shares being deferred until a dividend of seven per cent, should be paid on the ordinary shares. On bill by B. against C. seeking for inter alia the ordinary mortgage account, and for an account of what C. ought to have received from the company on behalf of B. but for the second concession, Held that the second concession, so far as it affected B. being unauthorised, C. should be responsible for it, and should not be entitled as a set-off against his responsibility to any advantage which B. might indirectly derive from the arrangement. Bell u. Clarke, 10 V.L.E, (E.,) 283, 300. Accounts were taken before the Chief Clerk in pursuance to the decree. On appeal from the Chief Clerk's decision in taking the accounts, Held that C. must be charged with the value of the paid-up shares and debentures as they were at the date of the second concession. Ibid, p. 304. VIII. Foreclosure and other Remedies for Non-payment. Mortgage of Land under " Transfer of Land Statute " (No. 301)— Sees. 84, 85, 98, 99.]— Where land is mortgaged under the Act No. 301, fore- closure is to be sought under the provisions of Sees. 98 and 99, and not in the old way by a suit in Equity. Greig v. Watson, 7 V.L.R. (E.,) 79, 84 ; 3 A.L.T., 13. Rights of Equitable Mortgagees.] — The proper remedy in Equity, of an equitable mortgagee by deposit of title deeds, is a sale and not a fore- closure. Bank of Victoria v. Cozens, 1 W.W. & a'B. (E.,) 93 ; White v. Hunter, 5 W.W. & A'B. (E.,) 178, 185. Against an Infant.] — An infant foreclosed is entitled to a day to show cause notwithstanding " The Trustee Act 1856." Bank of Victoria v. Cozens, 1 W.W. & a'B. (E.,) 93. 1065 MORTGAGE. 1066 Parties.] — Where in a suit by the assignees of a mortgagee of a lease against the assignees of *he mortgagor and the mortgagor, for an account and payment or foreclosure, A. , one of the as- signees, and G.and M.,two othersof theassignees of the mortgagor, claimed antagonistically under different assignments, Held that A. and G. and M., though claiming antagonistically, might be made defendants, and a decree was made for an account, &c; and that on the "defendants or one of them paying, &c. ; the plaintiff should transfer, &c; but that in default of the defen- dants or any of them paying, &c. , the defendants be all foreclosed." Tuckett v. Alexander, 1 W. &W. (E.,) 87. Mortgagor in Possession Receiving Rents .be- tween Ascertainment of Amount due by the Master and Time Fixed for Payment and Reducing Amount due by Mortgagor.] — Where a plaintiff mortgagee in possession had obtained a decree in a. fore- closure suit, and between the time, of ascertain- ment of amount due by the Master and the time fixed for payment, received rents, and the amount due by the mortgagor became thereby -reduced. Held, on motion, that the proper course is to refer it backtotheMaster to ascertain the amount due and to fix a new day for pay- ment — in this case fixed at three months from -finding of amount due by the Master. Payne ■o. Keogh, 2 W. W. & a'B. (E.,) 30. Foreclosure Granted notwithstanding Irregular Proceedings in the Master's Office.] — Where under a foreclosure decree the Master had reported the amount due and fixed the day for payment, . and in arriving at the amount due had credited the mortgagee with interest prospectively down . to day for payment, and had debited the mort- gagee, who was in possession, with the amount that would probably be received for rents down to that day, on a motion for an order for foreclosure absolute, default having been made in payment at time appointed, the Court, while questioning the propriety of the course pursued, made the order absolute, inasmuch as the mortgagor had not appeared to object when the report was confirmed. Australian Trust Coy. v. Colonial Bank of Australasia, 2 W.W. & a'B. (E.,) 105. Interest Allowed where Foreclosure Suit is Undefended.] — Where a foreclosure suit is unde- fended the Court has power to allow the mort- gagee compound interest. Ronald v. M'Pherson, 1 A.J.R., 105. Mortgagee in Possession carrying on a Sheep Station after Decree for Redemption — Motion for Foreclosure.] — In a redemption suit the Master found a certain sum due and an order was made on further directions that plaintiff might redeem within six months, and if default was then made should stand foreclosed. During this time the mortgagee being in possession of the premises, a sheep station, carried it on. Default having been made in payment, a motion for foreclosure was dismissed by Molesworth, J., but Held by Full Court that a reference to Master should be ordered to inquire whether the amount due had been decreased in the six months, and if it had not beenj then order absolute for foreclosure would be granted. Dallimore v. Oriental Bank, 3 V.L.B..(E,)203 Practice— Enlargement of Time for Payment.]— Defendant had been ordered to pay amount due within six months or be. foreclosed. Defendant stated that the land was highly auriferous, that he had formed a company to work it, and had a large claim pending against the Govern- ment. Plaintiff filed no affidavit in opposition. Time enlarged for three months, on terms of de- fendant paying all costs within a month; in- terest to run in the meantime. Wills v. Ogier, 2A.L.T., 1. IX. Redemption. (a) Eight to Redeem. When Mortgagor Entitled.]— Defendant pro- mised to subscribe £100 towards the erection of a church, ;and a committee .appointed raised £40 by subscriptions. Defendant then pur- chased the land as for £140 paid partly by cash, partly by bills. In order to raise funds for the erection, D. discounted a promissory note of £315 signed by the committee and endorsed by him, and by a bill of sale granted the land to the committee as for the £40 received. It was agreed that the bill of sale should not be executed till the promissory note was met. Defendant having met the bills for the purchase money of the land, had it conveyed to. him absolutely. The promissory note was dis- honoured, and defendant mortgaged the land to secure advance of £500, out of which he satisfied the promissory note, and handed the surplus to the treasurer of the committee. The committee demanded a conveyance, which de- fendant refused, except on terms of being in- demnified against his liability under the mortgage deed, and afterwards paid off the mortgage, had the mortgage transferred to himself and brought ejectment against the com- mittee. On suit for redemption by committee, and for restraint of ejectment proceedings, Held that plaintiffs were entitled to redeem, on pay- ing defendant the principal and interest of the mortgage debt, and interest to himself on that sum, to date, cost of insurance and of eject- ment proceedings. Bulling v. Bryant, 1 W. & W. (E.,) 121. Right of Redemption as Affected by Priority of Registration of Mortgage Deeds.] — Fraser v. Australian Trust Coy., ante column 356. When Barred — Laches — Acquiescence.] — In May, 1866, P. left with B. shares of P.'s in a mining company, transferred into B.'s name, as security for the payment of P. 's acceptance due in November, 1866. The acceptance was dis- honoured at maturity. B. retained the shares and paid calls upon them. Subsequently divi- dends were paid upon the shares, which B. re- ceived in excess of the amount of his debt. No communication took place between P. and B. from December, 1866, to January, 1871, when P. demanded an account and transfer of the shares, which B. refused. On bill for redemp- tion, Held that P. was entitled to redeem, and was not barred by laches or acquiescence. Port v. Bain, 2 V.B. (E.,) 177 ; 2 A.J.R.,129. Not Barred by laches.]— B., being embarrassed and unable to pay certain calls which were due on mining .shares held .by. him, transferred the £ K 1067 MORTGAGE. 1068 shares into the name of W., in consideration of' W. lending him enough to pay the calls. After the transfer W. paid ca.lls on the shares, which ■were low in value, for some years. Subsequently .the shares rose, and on the whole yielded in dividends more than was due by B. to W. W. died, and her executors published the usual ad- vertisements calling on those who had claims against the estate to give notice of their claims. Of these advertisements B. took no notice, but subsequently brought a suit for redemption of the shares against W. 's executors. There was evidence to show that the original transaction was a mortgage. Held, that B.'s neglect for several years to assert his claim, notwithstand- ing the advertisement by W.'s executor, did not bar him, but that his conduct disentitled him to costs. Bryant v. Saunders, 2 V.L.E. (E.,) 225. Dismissal of Suit to Redeem by Purchaser of Mortgagor's Interest at Sheriff's Sale— Subsequent Suit by Mortgagor, who had become Purchaser's Assignee — Decree in First Suit no Bar.] — Murphy v. Mitchell, ante column 408. Beneficiaries under a Voluntary Settlement — Accounts by Mortgagee in Possession — Receipts by Mortgagor as Agent for Mortgagee— Par- ties — Practice— Trustee out of Jurisdiction.] — . D., by one entire contract, purchased on 4th March, 1863, freehold and station pro- perties from C. and B., and mortgaged same to C. and B. to secure purchase-money. Some of these stations were never delivered to D.; C. and B. sub-mortgaged to a bank. D. subsequently, in 1863 and 1864, mortgaged other lands not in the sale to C. and B., and C. and B. sub-mortgaged these to the bank. On 31st May, 1864, the bank entered into possession of property as mortgagee, D. at that time signing a letter stating he had given possession to the bank of the various station properties including those of which he had never received possession himself, and acted as the bank's agent till 1867, when he was displaced. On 1st October, 1870, D. executed a voluntary postnuptial settlement, by which he granted the equity of redemption in all his mortgaged: properties to one Gilbert in trust for his wife's appointee, and in default of appointment upon certain trusts for his wife and children. On 1st June, 1871, D.'s estate was sequestrated and Goodman appointed assignee. C. and B. assigned all their interest to the bank, and Goodman released the equity of redemption vested in him as assignee to the bank; in Goodman's release certain lands mentioned in certain paragraphs of the bill were not comprised. On 22nd March, 1874, D.'s estate was released from sequestration. The defendant trustee, Gilbert, was out of the juris- diction. Held, in a redemption suit by the beneficiaries under the settlement, that they were only entitled to redeem lands not com- prised in Goodman's release, the settlement being void as against Goodman as to the rest; that it was not necessary for Gilbert to sue as a co-plaintiff or to be served; that Clark, a mort- gagee who was not a defendant, was not a necessary party to a suit in which parties were litigating as to the equity of redemption. Ac- counts decreed against the bank as mortgagee in possession, for wha$ it had received, or might have received, but for wilful default, but the bank only charged with D.'s receipts as its agent only so far as he had paid them to the bank. Dallimore v. Oriental Bank Corporation, 1 V.L.B. (B.,) 13. Who May Redeem,] — Where an insolvent, after obtaining his certificate, took a conveyance from the official assignee of all his interest in the insolvent estate, which comprised, among other things, an equity of redemption, which had been released by the assignee, but about which there was a dispute, Held that the insol- vent had, by his purchase, obtained the right to redeem. Brougham v. Melbourne Banking Corporation, 6 V.L.E. (B.,) 214, 225; 2 A.L.?., 81. Vivum Vadium — Absolute Sale of Equity of Redemption by Mortgagor by Letters of Mortgagee Agreed to be Regarded as a Second Mortgage.]— See Mouattv. M'Kenzie, ante columns 1050, 1051. Suit by Second Mortgagee against Prior Mort- gagee—Person Seeking to Redeem not Really a Mortgagee— Ho Right to Redeem— Estoppel.] — Ettershank v. Zeal, ante column 414. Creditor Purchasing from Official Assignee of an Insolvent Heir-at-law of Mortgagor — Cham- perty.]— C. mortgaged to A. for £500 by several mesne assignments, and the mortgage became the property of D. All these assignments treated the £500 as due. D. sub-mortgaged to Q. for £200. Q. sold all his interest in it to defendant for £300 by a deed which recited that £300 and no more was due to Q. The defendant sold the land in fee to S. absolutely for £367. S. mortgaged the property to a building society as for £480 advanced, and fur- ther charged the property with a sum of £120 advanced to him by the society. O, the original mortgagor, died intestate before any assignment was made, leaving an infant son (J.C.) his heir-at-law. J.C. became insolvent in 1866, and Shaw became his official assignee. In July, 1866, plaintiff, who was a creditor of J.C.'s, purchased the insolvent estate from Shaw. In December, 1866, the building society ejected plaintiff and sold to X., who mortgaged to a building society. X. sold the equity of redemption to defendant. On a bill by plaintiff against defendant to redeem, Held that the sale to S. was a sham and void ; that defendant re- purchasing the equity of redemption subjected the estate to plaintiffs rights through J.C. as if he had never sold to S. ; that J.C. being in pos- session of the hotel at the time plaintiff pur- chased from Shaw, and the plaintiff being a creditor interested in making the most of J.C.'s estate, his bill was not champertous, and he was entitled to redeem. Qucere, whether a power of sale would pass to a sub-mortgagee like Q. Slack v. Atkinson, 1 V.L.R (E.,) 335 ; Atkinson v. Slack, 2 V.L.R. (E.,) 128. (b) Suits for Redemption, Offer to Redeem — Demurrer.] — On a demurrer to a bill for the sale of mortgaged lands on the ground that the bill contained no offer to redeem, it appeared that plaintiffs could not have a partition ; and, the offer to redeem being 1069 MORTGAGE. 1070 merely formal, the demurrer was overruled. Hunter v. Buthdgei 6 W.W, & a'B. (E.,) 331, 357 j N. C, 61, 74. Practise in.] — The defects or omissions in a bill framed to set aside a mortgage may be sup- plied from the answer, so as to enable the Court to pronounce a decree for redemption. United Hand-in-Hand and Band of Hope Coy, v. .National Bank of Australasia, 3 V.L.R, (E.,) J61, 67, Beneficiaries of Voluntary Settlement Seeking Redemption — Trustee out of Jurisdiction — Not Necessary to Join Him as a Co-plaintiff or to ■Serve Him with Bill.]— See DaUimore v. Oriental Bank, ante columns 1067 3 1068. A mortgagee is not a necessary party to a suit where parties are litigating as to the right to equity of redemption. Ibid. Practice — Exceptions to Master's Report — Special Agreement— Accounts.] — Where, in a suit for redemption in which a decree has been made, a motion was made by plaintiff for an order directing the Master to review his report and receive evidence as to an alleged agreement to depart from the ordinary course of dealing between mortgagor and mortgagee as to the appropriation of payments, Held, on the motion and on exceptions, that such agreement should be distinctly stated in writing in the office by way of objection, surcharge, or otherwise; and evidence thereof should be tendered to the Master, otherwise the Court cannot, upon ex- ceptions, re-open the matter. Boss v. Victorian Permanent Building Society, 9 V.L.R. (E.,) 59. Decree — Date for Redemption— How Fixed.] — It is usual in a decree for redemption to direct payment of the money in six months from the Sate of the report finding the amount due. Where the case was complicated, and there was a hearing upon further directions, the six months were increased from the date of the report and not from the hearing on further directions. Jamieson v. Johnson, 2 V.R. (E.,) 26; 2A.J.R.,7. Decree for Redemption— Where Bill Impeached the Mortgage and did not Pray to Redeem.]— In a suit to set aside a sale and to have mortgaged property recognised, the bill impeached the mortgage, but did not pray to redeem. Held, by the Full Court, affirming Molesworth, J., that if upon the pleadings there are facts neces- sary to maintain a redemption suit, a decree for redemption will be granted, although the only case made by the bill is the invalidity of the mortgage and subsequent dealings, and no redemption is prayed by it. Upon appeal to the Privy Council, Held that although a mort- gagor is not entitled to a decree for redemption on a bill which impeaches the mortgage securi- ties and contains no prayer for redemption, yet such rule does not apply when the issues dis- closed by the pleadings are not merely mortgage or no mortgage, but whether the defendant, by means of his acts subsequent to the impeached mortgage, had ceased to be mortgagee and had become absolute owner, and also whether the mortgagee's advances on the footing of the mortgage had not been more than satisfied by his receipts, ■ the bill praying for an account; and offering to allow to the mortgagee all just credits. United Hand-in-Hand and Band of Hope Coy. v. National Bank of Australasia, 2 V.L.R. (E„) 206 ; on appeal 3 V.L.R. (E.,) 61; on appeal to Privy Council, sub nomine National Bank of Australasia v. United Hdnd- in-Hand and Band of Hope Coy., L.R. 4 App. Ca., 391. Construction of Decree— Order Directing Mort- gagee out of Possession and Purchaser from Him in Possession to Give up Possession.] — An order of the Court directing a defendant mortgagee out of possession, and a po-defendant, an equit- able purchaser from the mortgagee in possession, to give up possession to the mortgagor, does not impose upon the mortgagee the active duty of giving up possession, but only means that he shall let the mortgagor take possession without obstruction. United HandAn-Hand and Band of Hope Coy. v. National Bank of Australasia, 4 V.L.R. (E.,) 259, 270. Decree Directing Certain Accounts to be Taken — Report Made in Pursuance of such Decree—. Exceptions.] — A decree directed redemption in the ordinary way, directing accounts to be taken of the mortgage debt and of the receipts of the mortgagee as mortgagee in possession. The decree also noticed the fact of a release by G-., the official assignee of the mortgagor of the equity of redemption to the defendant bank (the mortgagee) as affecting other rights, but as in no way affecting the mortgage debt. The Master reported a certain sum due to the de- fendant bauk as mortgage debt without noticing the effect of the release of the equity of redemp- tion upon such mortgage debt. Upon exceptions to the report based upon the release by 6. accepted by the bank as discharging all moneys owing to the bank up to the date of the release, Held, by the Full Court, affirming Molesworth, J. , that it was not competent for the Master to consider the release by G. as operating in any way as a discharge of the mortgage debt, and that any such objection to the account on the ground of the release should have been taken by appeal from the decree and not upon excep- tions to a report which had followed the decree consistently. DaUimore v. Oriental Bank, 3 .V.L.R. (E.,) 56. Who Entitled to Mortgage Money.] — The per- sonal "representative of a deceased mortgagee is entitled in equity to the mortgage-money, but the mortgagor is entitled to redeem upon pay- ment to the real representative. Walduck v. Colgin, 5 W.W. & a'B. (E.,) 1, 5. Deceased Mortgagee — To Whom the Mortgage- money may he Paid.] — A payment of principal and interest, when due, to the attorney under power of the real representative of a deceased mortgagee, if out of the jurisdiction, is good, though such attorney has not taken out ad- ministration to the estate of the mortgagee and misappropriated the money ; but such payment made before the money is due is invalid. Ibid, A mortgagor, to save forfeiture, may make a strict legal tender or payment of the mortgage- 1 07 1 MORTGAGE. 1072 money either to the real or personal representa- tive of the deceased mortgagee. But where the liioney has not been paid or tendered on the Say for payment, i.e., on the day when there was constituted a duly appointed agent of the real representative — and a legal forfeiture has been incurred, the mortgagor can then only wait and make a valid payment to the personal representative of the mortgagee. Walduck v. Dane, 5 W.W. & a'B. (E.,) 8. 13. • - Interest — Eight of Mortgagee to After Tender of Principal and Interest.] — A mortgage con- ■tained a covenant for payment of interest by «qual quarterly payments, so long as the prin- -oipal remained unpaid. After- the day fixed for payment of principal, and between two of the quarterly days for payment of interest, six months' notice to redeem was given. At the end of the six months principal and interest to date were tendered, and refused by the mort- gagee, who insisted on his right of interest up ioihe next quarterly day of payment. On bill to redeem, Held that the amount tendered was sufficient, and that the mortgagor was entitled to his costs of suit ; that interest stopped from •the day of tender, but that the mortgagee was .entitled to all interest on the sum tendered ■actually obtained by the mortgagor after tender. .Conroy v. Mason, 2 V.R. (E.,) 93; 2 A. J.R. 46. What is a Good Tender.] — See Armstrong v. Jlobinson, ante column 1056. 1 Interest.] — D. , an administrator, entitled bene- ficially to one-third of his wife's land, and hold- ing the other two-thirds on trust for his children, borrowed money from the defendant bank and -expended it in improving the whole of the pro- perty, which he mortgaged to the bank as security for the loan. The bank advanced the money and took the mortgage, with notice of ,the children's interest. On suit by the children ,for redemption, Held that the plaintiffs were entitled to be let into possession of or to receive two-thirds of the rents of the improved value .of the land upon payment to the bank of two- thirds of the money advanced by the bank, with interest at eight per cent. , and not at rate fixed in the mortgage, and that defendant bank should do everything to vest the legal estate in 4;he two-thirds of- the -land in the plaintiffs. Droop v. Colonial Bank of Australasia, 8 V.L.E. (E-,)7. . [Note. — The parties consented to and acted -upon a suggestion by the Court that the land -should be sold.] Costs — Mortgagee Claiming as Absolute Owner.] — Where a mortgagee claiming to be absolute owner resisted right to redeem and failed, Held that mortgagor was entitled to his costs down to and inclusive of original hearing. Mouatt v. Mackenzie, 1 V.L.K. (E.,) 73; for facts see S.C. ante column 1063. Costs.] — In a suit to have an absolute con- veyance declared a mortgage, for redemption .and accounts, the defendant by his answer offered to allow redemption, though he had pre- viously claimed to hold absolutely. Held, that on a decree being-made for redemption, plaintiff mortgagor was entitled to his costs of suit up to decree, and defendant mortgagee to his costs subsequant thereto. Pickles v. • Perry, 4 V. L. R (E.O 66.. Mortgagor's Costs.] — A mortgagor filed his hill to redeem. The mortgagee resisted, on the ground of a sale and subsequent purchase by him. By the decree the sale was declared void, and the plaintiff entitled to redeem. • Held th&t the mortgagor was therefore entitled to his cos* . up to the decree. Slack v. Atkinson, 4 V.L.R (E.,)195. Costs.] — Where a mortgagor, seeking to re- deem land alleged to have been sold by the mortgagee, proved that the alleged sale was, on technical points, invalid, but his bill con- tained charges of fraud and collusion against the mortgagee and the purchaser, which were totally unfounded, Held that, though entitled to redeem he should pay the costs of the mort- gagee and of the purchaser. Boss v. Victorian Permanent Building Society, 8 V.L.R. (E.,)254; 4 A.L.T., 17. Costs of Mortgagee — On Further Directions.]— By the decree in a suit to set aside a sale by the mortgagee and to redeem, the mortgagee was ordered to pay costs up to the decree. Accounts were directed, but no day was fixed for re- demption. On further directions after report finding a balance due to the mortgagee in pos- session, Held that the costs subsequent to the decree should follow the ordinary rule in a redemption suit. Jamieson v. Johnson, 2 V.R. (E.,)26; 2A.J.R..7. Costs of Mortgagee.] — Where a mortgagee, who has improperly exercised his power of sale, has been paid off before a suit in substance for redemption was instituted, the rule that a mort- gagee is entitled to his costs will not apply; and if, after decree for redemption, he resists the redemption in the Master's office, he will have to pay the costs subsequent thereto. United Hand-in-Hand and. Band of Hope Coy. v. National Bank of Australasia, 4 V.L.R. (E.,i 173, 192, 193. Mortgagee's Costs.]— In a suit for redemption in which the mortgagor succeeded, upon taking the accounts a balance was found due to the mortgagee. Held that the mortgagee was en- titled to his costs in the Master's office and on further directions. Slack v. Atkinson, 4 V.L.R. (E.,) 195. Costs— Of Mortgagee.]— In a redemption suit against a mortgagee in possession, a decree was made in favour of plaintiff with costs, and he then agreed to pay the mortgagee a sum named by the mortgagee. The mortgagee withdrew from the agreement, and insisted upon accounts. In the accounts brought in both parties claimed a balance. The Master found in favour of the mortgagee, but for a smaller sum than that claimed, but for a larger sum than that agreed upon at first. Held, upon further directions, that the mortgagee should have hia costs subse- quent to the decree. Murphy v. Mitchell, 6 V.L.R. (E.,) 140; 2 A.L.T., 28. 1073 NE EXEAT COLONIA. 1074 Costs — Mortgagee with Notice of Claims.] — A bank took a mortgage over an entire property, in which the plaintiffs, as next-of-kin, were jointly interested with the mortgagor as ad- ministrator, and beneficially entitled in his own right, with notice of the plaintiffs' claims, and persistently litigated with them, and set up defences which failed. Held that the bank should pay the costs of the suit, . except of a charge of fraud in the bill which failed; and i^frat the plaintiffs must pay so much of the 'Bank's costs as were attributable to resisting such charge. Droop v. Colonial Bank of Aus- tralasia, 8 V.L.R. (E.,) 7. Costs.] — A mortgagee who, in a redemption suit, sets up and fails to prove an absolute title to the mortgaged property, and is then found to have been, at the date of suit, overpaid as mortgagee, will not only not be entitled to his costs of suit, but may have costs given against him. National Bank of Australasia v. United Hand-in-Hand and Band of Hope. Coy., L.R. 4 App. Ca., 391. Costs.] — A mortgagor paid off part of the principal to one of several executors and ten- dered the remainder, which the other executors refused, insisting that the whole sum was due. On bill for redemption, a reference was made to the Master-in-Equity, who found that the sum tendered was all that was due. Held that, though the plaintiff had thus sustained the sub- stance of his bill, yet he and the defendants having been guilty of irregularities in the pay- ment off of the part, no costs should be allowed to either side. Lewis v. Levy, 4 V.L.R. (E.,) 106. NAVIGATION. Negligent Navigation of River.] — Fergusson v. Union Steamship Company. See post under Bites. Negligent Navigation at Sea.] — See post under Shipping. NE EXEAT COLONIA. The writ ne exeat colonid may issue for costs before taxation. Musson v. Bourne, 1 W. & "W. (E.,) 1, 4, 5. An order for the issue of such writ may be made by a single Judge in Chambers ; and the writ may be issued on such order without drawing up any order of Court. Ibid, p. 6. Though the sum for which the party be arrested be in the body of the writ, it should be " endorsed in words at full length," as an intimation to the sheriff. Ibid, p. ti. The omission of such endorsement may be amended by the Court. Ibid. Service of Copy — Supreme Court Rules, Cap. x., Rule 20.] — It is not necessary to serve the , defendant with a, copy of the writ ne exeat colonid. Simpson v. Goold, 1 "W. & W. (E.,) 245, 247. "Where the order for the writ of ne exeat colonid is obtained from a Judge in Chambers, a formal order to the officer for its issue should be drawn up. Ibid, p. 248. Application to Set Aside— Discharge of Defen- dant.] — On application to set aside a writ of ne exeat colonid the defendant will not be dis- charged on his own affidavit denying that there is any balance due to the plaintiff. Ibid. Per Chapman, J. — " If upon the face of the bill and answer, it can be ascertained that it is almost certain there will be no balance due to the plaintiff on taking the accounts, then the Court will discharge the defendant. There is another course frequently adopted, which is, that if the Court is satisfied after answer that the defendant has been arrested for too large an amount, the Court will, upon application being made for the purpose, reduce the amount endorsed upon the writ, and allow the security to be taken for the smaller amount." Ibid. Return of the writ.]— The return which the ordinary form of the writ ne exeat colonid requires the sheriff to make under seal is con- fined to the security taken by him, and not to the mere return of the writ of arrest, which is in the usual form corpus cepi. Ibid. Discharge from Arrest.] — "Where a defendant has stated in writing that he intends to leave the colony, the Court will not discharge him from arrest under the writ, merely on his affi- davit that he never did intend and does not intend to leave the colony. Ibid. Motion to Set Aside — Defendant Leaving Colony in Ordinary Coarse of Business and Returning Again in Time for Payment.] — In the suit accounts were decreed and defendant ordered to pay into court j£700 within three months. The deferi- dant was captain of a vessel, and was leavinpj Melbourne in the vessel on a voyage to New- castle. The plaintiff obtained a writ ne exeat colonid, and the defendant gave his bond as bail. Defendant's affidavits stated that the vessel he was in command of was trading between Melbourne and Newcastle, and that he would be in Melbourne before the time for payment, of the £ 700 had elapsed and before final taking of accounts. "Writ and bail; bond set aside. Smith v. Knarslon, 3 A. J.R., 103. . 1075 NEGLIGENCE. 1076 NEGLIGENCE. 1. What amounts to, column 1075. 2. Parties liable, column 1076. 3. Hallways, column 1078. 4. Actions. (a.) Under the Statute of Wrongs, column 1079. (6.) Evidence and other Matters, column 1080. 5. Contributory Negligence, column 1082. 6. Liability of Master for Negligence of Servant. — See Master and Servant. 7. In Management of Mines. — See Minks, ante columns 904-906. 8. In Construction and Maintenance of Hoads, fyc. — See Local Government, ante columns 854-863. 9. Liability of Solicitor for Negligence. — See Solicitor. 1. What Amounts to. Of 'Bus Driver — Contributory Negligence.] — For circumstances under which a 'bus driver was held guilty of negligence for getting off the seat to look after a horse that had fallen, and not keeping the reins, and a passenger who got out of the 'bus whilst it was in motion and was injured, was held not guilty of con- tributory negligence. See Melbourne Omnibus Company v. Thomas, N.C. 15. Of Licensed Carrier — " Licensed Carriage Stat. 1864" (No. 217) Sec. 14.]— The disregard of the provisions of Sec. 14, of Act No. 217, forbidding more than one person to be carried on the box of a coach is not conclusive proof of negligence as against the owners in the case of an acci- dent. Robertson v. Carmody, 1 V.B. (L.,) 6 ; 1 A. J.E. 24. Adjoining Houses — Lateral Support.] — Where W. was sued for negligently excavating so close up to P.'s house as to cause the fall of the house and consequent injury, Held that, it appearing from the evidence that P.'s house was substantially built, and that the house fell partly through its own weight and partly through its not being shored up, that the fall was to be attributed to the superincumbent weight of the house and that therefore the plaintiff was not entitled to recover, being only entitled to the support of the land in its natural state. Piper v. Walsh, 5 A.J.E., 13. Negligence consists in doing that which a person ought not to do, or omitting to do that which he ought to do, in disregard of the rights of another. Fergusson v. Union Steamship Company, 10 V.L.E. (L.,) 279, 286; 6 A.L.T., 120. See also Lewis v. M'Mullen, ante column 84. Negligence of Sheriff in Levying Under fi. fa.] — Smith v. Colles, 2 V.E. (L.,) 195; 2 A.J.E., 117, post under Shbriff. Neglect of Statutory Duty in Maintaining and Bepairing Eoads, Bridges, &c] — See coses under Local Government, ante columns 854-863. Negligence by Bankers as Gratuitous Bailees — Theft by Clerk.] — Lewis v. M'Mullen, ante column 84. 2. Parties Liable. Collateral Negligence of Persons Employed.] — Per Stawell, C.J. — If the injury arises from the collateral negligence of persons employed, they, and not the employers, are liable, unless the employers actually interfere. Badenhop v. Mayor of Sandhurst, 1W.W.4 a'B. (L.,) 136, 141. Liability of Corporation for Injuries Caused by Negligent Mining under Streets under which Per- mission to Mine has been Given.] — See S.C., ante column 859. Person Undertaking a Duty — Independent Contractor.] — A landlord, at his tenant's request, undertook to renew the roof of the house, and employed a contractor to do the work. During the progress of the work injury was done to the tenant's goods by. a sudden and very heavy rain, and the absence of suffi- cient precaution in carrying out the work. Held that the landlord was liable for the injury- Meyers v. Easton, 4 V.L.E. (L.,) 283. Corporation Undertaking Eepair of a Bridge — Independent Contractor Employed to Make a Side Eoad.] — Bossence v. Shire of Kilmore, ante column 862. Obstruction on Eoad — Materials Left by a Contractor — Corporation Liable.] — Bell ■». Shire of Portland, ante column 859. Contractor — Sub-Contractor.] — P. contracted with a borough to repair streets, 4c, under a contract which required him to light and fence obstructions, and which forbade Ms sub-letting the contract without consent. P. sublet a part to W. without consent, and W. failed to light and fence, whereby B. fell over the obstruction and suffered injuries. Held that P. was not liable in an action by B. for W.'s negligence. Phillips v. Byrne, 3 V.L.E. (L:,) 179. Construction of Eailway — Liability of Contractor for Injury done through Sparks from Engine— " Public Works Stat., No. 289," Sees. 77, 138— Act No. 344, Sec. 71.]— T., the owner of a farm, sued a railway contractor in the County Court for injuries caused by C.'s negligence in using a locomotive so that sparks issued therefrom and caused the injuries. The County Court Judge directed the jury that the Act No. 580, which authorised the construction of the railway, did not authorise the use of the locomotive in its construction, and the jury found for the plaintiff. Held on appeal that the "Public Works Stat." (No, 289) impliedly authorised the use of locomotives by the Board of Land and Works, and therefore by its contractors, and that Sec. 71, of Act No. 344, also gave the authority more expressly ; and that C. was not liable except upon proof of negligence in not using all reasonable precautions. Case to be reheard. Topham v. Christie, 5 V.L.K. (L„) 3 J6 ; 1 A.L.T. 43. 1077 NEGLIGENCE. 1078 Contractor Erecting Hoarding — Sub-contractor.] — A contractor who has been allowed to enclose a part of a street with a hoarding for the pur- pose of carrying on building operations, and of depositing building materials, is absolutely responsible for the use of such hoarding, and of a gate constructed in it, in such a manner that no injury shall result to the public. When, therefore, a passer-by was injured through the negligent use of the gate by an independent sub-contractor, who had under- taken to supply the defendant (the contractor ■who had been allowed to erect the hoarding) with building materials, Held that the defend- ant was liable for the injury occasioned. Evans v. Martin, 6 V.L.E. (L.,) 176; 2 A.L.T., 7. Public Body — Statutory Authority.] — By accepting the authority given to it by a statute to do acts, which, without such authority, ■would constitute a public nuisance, a public body undertakes an obligation to use all the •care necessary to protect the public from injury, and cannot, by employing an inde- pendent contractor to do the acts, relieve itself irom this obligation. O'Brien v. Board of Land and Works, 6 V.L.E. (L.,) 204; 2 A.L.T. 22. The Board of Land and Works let a contract to H. and G. to cart waterpipes, and deposit ihe^ in streets to be named. H. an! Or. received instructions to deposit pipes in a cer- tain street, but in doing so left one of them lying partly on the paved crossing of that street and another. Over this pipe the plaintiff fell and sustained injury thereby. Held that the Board of Land and Works, and not the contractors, was liable. Ibid. Although the Board of Land and Works is a public body, discharging statutory duties, it is liable for the improper execution either by the Board or its agents of works constructed in discharge of those duties by which injury is occasioned. Victorian Woollen and Cloth Manufacturing Company v. Board of Land and Works, 7 V.L.E. (L.,) 461 ; 3 A.L.T., 65. Accidental Fire Spreading to .Neighbour's Land — liability.] — It is the duty of any person who originates or brings any matter, animate or inanimate, attended with danger on his ground to keep it within bounds : but no duty is cast upon a landowner to keep within bounds, and from spreading into a neighbour's land a fire which is raging on his land through no fault of his own. Batchelor v. Smith, 5 V.L.E. (L.,) 176; 1 A.L.T., 12. Careless Use of Fire.] — A person lighting a fire on his own land does it at his own risk, and notwithstanding that he uses diligence to prevent it spreading he is answerable for the mischief it may cause, and the question of his diligence does not require to be considered. Sheehan v. Park, 8 V.L.E. (L„) 25 ; 3 A.L.T,, 98. Corporation Succeeding to Liabilitiei of its Predecessors.]— Dummelow v. Mayor etc. of St. Kilda, ante column 860. 3. Railways. Negligence — Extinguishing Lights — Contributory Negligence.] — B., a female passenger, arrived in Melbourne by train twenty minutes before midnight, her luggage having been sent on by a previous train. B. was informed that she must go and identify the luggage, and after waiting in the waiting room till 12.18 she went to the parcels office and on her return the station lights were extinguished and she fell and was injured. Held that the defendants were guilty of negligence, it being their duty, if the station was kept open after midnight, to inform persons on the station that the lights were going to be extinguished; that B. was on the station with the leave of the defendants and was guilty of no contributory negligence. Black et uxor v. Board of Land and Works. 1 V.L.E. (L.,) 12. Swing Gates at a Highway — Contributory Negli- gence.] — A boy entered by one of the swing gates at a railway crossing, and instead of crossing directly in a line with the footpath by which he had entered the gate, he crossed the line diagonally towards the footpath on the other side of the line and was run over and killed. Held that there is no obligation on the part of a railway company to place men at the swing gates to warn crossers, except perhaps where a sudden curve, a hill or building inter- cepts the view of the line, and that crossers cross at such places at their own peril and must take proper precautions. Eule absolute for nonsuit. Oallogly v. M. and H. B. U. Rail- way Company, 1 V.L E. (L.,) 58. Board of Land and Works — IJnlighted Railway Station — Injury to Person Accompanying Pas- senger.] — S. was accompanying a passenger to a night train. He took a ticket for the pas- senger, crossed the line at the ticket office end and saw the passenger off. He then proceeded along the platform in order to depart by a public crossing at the other end ; but, in the darkness, he fell into the ashpit and was injured. At the ticket office end there was a lamp, but at the opposite end none. S. did not return by the way he came because a train was approaching that end. Verdict for S. Eule nisi for a new trial, or to enter a nonsuit on the grounds (1) that defendants were not liable to be sued in this action ; (2) that there was no duty or contract as regarded S. obliging defendants to light the place where the acci- dent happened; and (3) that there was no evidence of negligence to go to the jury. Held that the fact that the Board was a public body acting as trustees did not exempt them from liability, that they were not public officers, that the Board was under an obligation as regarded S., that the question of negligence was one for the jury, and rule discharged. Sweeney v. Board of Land and Works, 4 V.L.E. (L..) 440. Dangerous Track — Friend of Passenger Injured — Duty of Board of Lands and Works.] — The pro- prietors of a, railway owe a duty to the friends of a passenger going to a station to see him off or to meet him, where such a practice is 1079 NEGLIGENCE. 1080 allowed by the proprietors, to protect th,em from any dangerous place which may exist, not only in the regular approach to the station, but also in any other approach which is allowed to be commonly used by persons going to and from the station. And this duty extends to a person not a friend of a passenger, but accom- panying friends going to meet a passenger. Langton v. Board of Land and Works, 6 V.L.R. ersse v. Smith, 4 V.L.R. (L.,) 201. 2. Under other Statutes. "Criminal Law and Practice Stat. 1864," Sec. 34 — Assaulting a Police Officer in the Execution of This Duty.] — Where a constable comes up after an assault has been committed, it is his duty, under Sec. 56 of the "Police Offences Stat. 1865," if required by the person assaulted, to ^arrest the offender; and if such offender for- cibly resist, he may be convicted, under Sec. 34 of the *' Criminal Law and Practice Stat. 1864," of assaulting a peace officer in the -execution of his duty, Regina v. Buxley and Walsh, 8 V.L.R. (L.,) 15; 3 A.L.T., 96. Act No. 233, Sec. 178 — Destroying Dividing Fence.]— Under Sec. 178 of the Act, malice is -essential to the offence of destroying a di- viding fence. Trotman v. Shanhland, 7 V.L.R. (L.,) 16. Unlawfully and Maliciously Destroying a Fence — .Jurisdiction of Justices.] — See Williams v. Clauscen, 6 V.L.R. (L.,1 29, ante columns 746, 747. Forcible Entry and Detainer— 5 Rich. II., Stat. 1, •Cap. 7.] — See Jiegina v. Templeton, ex parte Moore, ante column 754. " Criminal Lair and Practice Stat. 1864," Sec. 194— Poisoning DogB.] — To constitute poisoning a dog an offence under Sec. 194 of the "" Criminal Law and Practice Stat. 1864," malice against the particular dog poisoned must be shown, and if the evidence only shows •an intention to poison dogs in general, no ■offencd within the meaning of the section has been committed. Regvna v. Puckle, ea parte White,2 V.R. (L.,) 63; 2 A.J.R., 57. Bakers' and Millers' Stat. 1865," (No. 243,) See. 11— Selling Bread Without Weighing it — Sale by Servant.] — See Regina v. Panton, ex parte Ed mends, ante column 75. Under " Fisheries Act."] — See ex parte Tobias, ante columns 458, 459. Under "Abattoirs Stat.," No. 856, Sec 36 — Being in Possession of Skin with Defaced Brand.]— .See Smith v. M'Oann, ante column 2. Under " Gunpowder Stat."]— See Gunpowder. Under "Hawkers and Pedlers' Stat. 1865"— Hawking Without a Licence.]— .See Sanson v. Tweedale, ante column 495. Under "Public Health Stats."]— See Health (Public.) Under " Land Acts."]— .See Land Acts. Under "Licensing Acts."] — See Licensing Acts. Under " Market Stats."] — See Markets. Under "Pawnbrokers' Stat."]— See PAWN- BROKERS. Under " Pounds Stat."] — See Pounds and Impounding. Within Jurisdiction of General Sessions."] — .See Sessions. Under "Thistli Prevention Acts."] — See Thistles. Evasion of Tolls.] — See Tolls. Under "Shipping Acts."] — See under Ship- ping — Registration. Harbouring Deserter— 17 and 18 Vic, Cap. 104, Sec. 267.]— .See Regina v. Clark, ex parte Doyle, , 5 V.L.R. (L.,) 440 ; 1 A.L.T., 105. tost under Shipping — Nationality. Under "Harbours and Passenger Acts."] — .See ante under Harbour Tbust, and post under Shipping — Passenger Ships — Ports, Harbours, &c. Against Eailway Bye-Laws.] — .See Public Works. Under " Trade Marks Stats."]— Sea Trade. Under " Customs Acts."]— See Rlvenue. Under " Scab Acts."] — See Animals. Offence Against " Gold Fields Act," No. 32, Sec. 116 — Onus of Proof — Carrying on Business Without a Business Licence.] —M'Cormach v. Murray, ante columns 430, 431. Offences Against " Local Government Act."— See Local Government. 3. Punishment of Offences and Jurisdiction of Justices. Act No. 265, Sec. 8— Act No. 22, Sec 8^- Obstructing Street by Exposing Goods for Sale— Non-removal of Goods After Notice— Forfeiture.] — OFFENCES IN WHICH JUSTICES HAVE JURISDICTION. 1115 Sec. 8 of Act No. 265, provides two indepen- dent punishments for two distinct offences ; the one being a conviction for obstructing the street by exposing the goods for sale ; the other forfeiture of the goods when not removed after six hours' notice; the conviction for the first offence need not precede a forfeiture of the goods exposed and not removed. Although no power is given by Sec. 8 of Act No. 265 to justices to forfeit, yet (dubitante, Williams, J.) the power may be inferred from Sec. 8 of Act No. 22 (" Interpretation Act.") It is sufficient if an owner authorise his servant to expose the goods for sale, and if any part of the goods are exposed for sale, the justices may infer that a portion of the goods in cases not opened to view were similarly exposed. Regina v. 0' Flaherty, ex parte Winter, 9 V.L.E. (L.,) 14; 4 A.L.T., 147. "Police Offences Stat. 1865," No. 268, Sec. 16, Sub-sec. 7 — Conviction — Second Offence — Act No. 630, Sec. 6.] — Defendant had been previously convicted of an offence under Sec. 16, Sub-sec. 7, of Act No. 265, and was convicted of a second like offence, and under it sentenced to pay J310. The Court of General Sessions quashed the conviction on the ground that it had been made under Sec. 16, Sub-sec. 7, of Act No. 265 (which left the justices no jurisdic- tion as to the amount of the penalty, but compelled them to inflict a penalty of ,£10 for a second offence.) Sec. 16, Sub-sec. 7, of Act No. 265 was repealed by Act No. 630, Sec. 5. On appeal to the Supreme Court, Held that the conviction was good. Dobson v. Sinclair, 8 V.L.E. (L.,) 69; 3 A.L.T., 106. Conviction for — Compensation — " Police Offences Stat. 1865." Sec. 17, Sub-sec. 1.] — A conviction under Sec. 17, Sub-sec. 1, of the " Police Offences Stat. 1865," is not bad, because it does not also award compensation to the person aggrieved, since the provision for the award of compensation and the penalty are quite dis- tinct. Stewart v. Finnegan, 4 V.L.E. (L.,) 93. Conviction for Trespass — Penalty— Lighter Penalty in the Alternative.] — In convicting for wilful trespass, under Sec. 17, Sub-sec. 7, of the "Police Offences Stat. 1865," the justices have no power to award an alternative lighter penalty in the ease the defendant should quit the premises trespassed upon within a certain time. Regina v. Synnot, ex parte Main, 6 V.L.E. (L.,) 35. Jurisdiction of Justices when Ousted by Question of Title, and Claim of Right.] — Regina v. Webster, and other cases, ante columns 745, 746, 747. Order for Delivery of Stolen Property — "Police Offences Stat. 1865," Sees. 19, 32.]— An order for the delivery of stolen property under Sec. 19 of the " Police Offences Statute 1865," can- not be enforced by the justices making an order for payment of the value of such property under Sec. 32 of that Act! Regina v. Templet on, ex parte Rea, 4 A.J.R., 116. 1116 and a on' habeas corpus In re Rogers, 7 Act No. 265, Sec. 26— Jurisdiction to Add Hard Labour to Imprisonment.] -Justices have no- power, under Sec. 26, to add hard labour to imprisonment in default of payment, prisoner so sentenced was ordered to be discharged. V.L.R. (L.,) 449. (Sec. 26 is repealed by Act No. 502, "Judi- cature Act 1874.") Conviction — Act No. 265,. Sees. 26, 68.]— Under Sec. 26 the conviction must order, irt> default of immediate payment, commitment to prison as an alternative, and must be com- plete in itself, and Sec. 63 does not apply to Sec. 26, so as to control or supplement it. Regina v. Crotty, ex parte Gavin, 9 V.L.E. (L,)6; 4A.L.T., 147. " Police Offences Stat. 1865," No. 265. Sec. 32— Limited " Trover" Jurisdiction.] — A. assigned his- stock to N. by bill of sale. N. sold part of it, viz., 2 cows to K. K\ demanded the cows from A., who refused to give them up. The- justices made an order for delivery of the cows. Upon an order nisi for prohibition, Held that, by Act No. 265, the magistrates had a wider- jurisdiction than, as was contended, between assignor and assignee only, and had not exceeded their jurisdiction. Order discharged^ Regvna v. Barnard, 4 W.W. & a'B. (L.,) 249. Followed in Longford v. Meldrum, 4 A.J.E., 21. Inability to Obey Order of Justices.] — S. had in. his possession goods of M., and was summoned under Sec. 32 of the "Police Offences Stat. 1865" for illegal detention of the goods, and an order was made that S. should deliver the goods before a certain date. Before the date fixed an order was made by other justices, at the suit of S., against M. for payment of cer- tain moneys due, and in default a, distress- warrant was issued, and on the date fixed for delivery up of the goods under the first order a, constable executed the distress warrant, and took possession of the goods. M. summoned S. for disobedience of the order for delivery of the goods, and the justices who had made the order fixed the value of the goods, deducted, the amount of the distress warrant, and ordered, payment of the balance to M. The justices fixed the value of the goods arbitrarily without taking evidence, and when sold they realised about half of the value so fixed, and S. paid the difference between what they realised and the amount of the distress warrant to M. Ott- rule nisi for » prohibition against the order directing payment of the difference between the value fixed by the justices and the amount of the distress warrant, He Id that the order was • wrong, and that S. had not disobeyed the order directing delivery up of the goods, but was unable to comply with it owing to the distress warrant. Regina v. Wyatt, ex parte Strettle,. 4 A.J.E ,25. Act No. 265, Sec. 32— Illegal Detention of Pro- perty — Order.] — On a complaint under Sec. 32T of No. 2K5, the defendant set up a counter- ' claim, which the justices allowed to a certain^ 1117 OFFENCES IN WHICH JUSTICES HAVE JURISDICTION. 1118 amount, and ordered the goods to be delivered upon tender to defendant of a seaman's advance note for such amount.. On dis- obedience a further order was made for the value of the goods. Held that the first order was bad, and that the second order based upon it could not stand; and that the order should have been made for delivery upon payment of the counter-claim in money. Begina v. Maries, em parte O'Day, 5 A.J.R., 71. Under Sec. 32 of the Act the value of the goods is to be determined by the same justice who heard and determined the original com- plaint, and the same justice must make the order for costs. Begina v. Call, ex parte Barber, 3 V.L.R. (L.,) 346. Illegal Detention— Order for Delivery or Payment of Value — Amendment — Costs — " Police Offences Stat. 1865," Sec. 82.] — Justices have no authority on a complaint, under Sec. 32 of the " Police Offences Stat. 1865," for illegal deten- tion of goods, to make an order for delivery up of the goods, and also, in default, pay- ment of their value ; but, in drawing up the formal order, there is nothing to prevent the justices omitting that which is in excess of their jurisdiction, and making the order for delivery only. If they award costs in such order, the Court may amend by striking out the part relating to costs. Regima v. Miller, ex parte Dreher 8 V.L.R. (L.,) 157 j 4 A.L.T., 12. Indecent Exposure— Punishment— " Police Of- fences Stat. 1865," Sec. 36.] — On a conviction, under Sec. 36 of the "Police Offences Stat. 1865," for indecent exposure, justices may inflict the additional punishment of whipping, without further evidence as to the prisoner's age than their own conclusions. It then lies upon the prisoner to show that he is under the age mentioned in the Statute. Begina v. Benson, ex parte Tubly, 8 V.L.K. (L.,) 2. But a single justice, not being a poliee magistrate, has no power when adjudicating under Sec. 36, Sub-sec. 5, to inflict a whipping under Act No. 399, Sec. 33. Purcell v. Nimmo, 3 V.E. (L.,) 233 ; 3 A.J.K., 112. Sentence for Unlawful Assault— Act No. 833. Sec. 88.] — Morrison v. Clarke, ante column 753. Assisting in and Managing a Lottery — "Police Offences Stat. 1865," Part 2, Sec. 63— Act Ho. 424, Sees. 2, 17.]— C. was convicted and fined for assisting in and managing a lottery con- trary to the provisions of the Act No. 424 {"Police, Offences Stat. 1865" Amendment Act,) Sec. 2, and of Sec. 31 of the "Police Offences Stat. 1865," and on appeal to the General Sessions the conviction was affirmed subject to the opinion of the Supreme Court, on the points as to whether there should have been an adjudication of distress to bring the penalty under Sec. 31 of the " Police Offences Stat. 1865" before proceeding to imprisonment; whether before C. could be imprisoned he should, be summoned to show cause, and whether there was evidence, that any one was beneficially interested in the scheme. Eeld that it was unnecessary to consider the third point, because the fact that tickets were sold, showed that some one was beneficially interested ; that since the necessity for issuing a_ summons could not arise till after the con- viction, the question in no way affected the conviction; and that as to the first point of - Section 2 of the Act No. 424 was to be con- sidered, as contained in Part 2 of the " Police Offences Stat.," the objeotion failed because Sec. 63 of that Statute authorised the course pursued ; but that since the Act No. 424 made itself part of the "Police Offences Stat." generally, and not of Part 2, the justices could not award, as under Sec. 63, imprisonment in default of payment, without an intervening distress, and the conviction must be quashed. Cooe^ Hing v. Kabat, 4 A.J.E., 118.. Acting as Banker and Croupier at a Common Gaming-house — Penalty — " Police Offences Stat. 1866," Sees. 43, 63.]— Defendants were convicted, under " Police Offences Stat. 1865," Sec. 43, of having acted as banker and croupier respec- tively at a common gaming-house, and were adjudged to forfeit and pay the sum of £20 each, and each conviction then proceeded as follows : — To be paid immediately, and also to be paid and applied according to law, and the said sum not having been paid immediately, we, in the exercise of our discretion — which discretion we hereby exercise— adjudge the said defendant to be imprisoned. . . . for the space of three calendar months, unless the < said sum shall be sooner paid. Held that the justices had power under Sec. 63 of the same Act to adjudge immediate imprisonment upon default of immediate payment without inter- vening distress, and that the convictions were good. Ex parte Fat Tack, ex paite Ah Poon, 6 A.L.T., 37. Costs.] — Held, also, that the justices had a discretion, under Sec. 63, to award or not to award costs. Ibid. Hearing Separate Summonses Together.] — Three summonses in the same terms issued against three defendants for assisting in managing a certain lottery, were heard together, and the ' defendants convicted. On rule nisi for a pro- hibition, Held that the summonses were rightly • heard together. Regima v. Sturt, ex parte Ah Tack, 2 V.L.R. (L„) 103. Penalty — Method of Enforcing.] — Where a statute, "Sale of Poisons Act 1876," authoris- ing the infliction of a penalty, is silent as to the mode of levying for the penalty, distress must precede imprisonment. Jiegma v.' Shillinglaw, ex parte Chine and Ah Sen, 6 A.L.T., 161. Vagrant Act, 16 Vic, No. 22, Sees. 2, 6— Power to Arrest — Warrant.] — Where justices, who had ordered the arrest of persons as vagrants for not giving a satisfactory account of themselves, were not seized of the case, and there was no information, summons, or warrant, and the ' parties were not offending at the time of arrest, Held that as there is no power under . the " Vagrant Act " to arrest without warrant • 1119 PARTNERSHIP. 1120 in cases where the act of vagrancy charged is the not giving to the justices a satisfactory account of means of livelihood, the arrest was bad. In re Comillac, 1 W. & W. (L.,) 193. [Compare Sees. 35, Sub-sec. No. 265. 1 and 41 of Act OFFICE. Statutory Office— Tenure Cannot be Altered by Commission Under Which it is Granted.] — Where an office is created by statute with a certain tenure, the tenure cannot be altered by the terms of a commission granting such office to the person appointed. Per Stawell, C. J., and Barry, J. ; and per Molesworth, J. — A com- mission purporting to confer a different tenure would be altogether invalid. Regina v. Rogers, ex parte Lewis, 4 V.L.E. (L.,) 334. Manager of Mining Company — Situation Not an Office.] — The appointment of the Manager of a Mining Company, registered under Act No. 228, is not an "office," but a "situation," Tinder a contract for service, and need not be under the Corporate Seal of the company. Royal Standard Gold Mining Company v. Wood, ante column 1017. The word "officer" in Sec. 38 of the " Statute of Trusts 1864," includes the assist- ant manager of a, bank. Regina v. Draper, 1 V.E. (L.,) 118; 1 A.J.E., 94. PARTITION. Specific A slett v. Specific Performance of Agreement for.] — Bee Kmsella, 1 A.J.B., 2, post under Perfobmance — Mattebs of De- fence— Statute of Frauds. PARLIAMENT. Barrister, Member of One Rouse Practising Before the Other.] — A barrister who is a member of one House of Parliament may plead before a committee of the other. Harbison v. Dobson, 2 A.J.B.,51. Offence Against House of Parliament— Persona- ting an Elector—" Ele. toral Act 1865," Sec. 116 — "Judicature Act," No 502, Sec. 15, Sub-seo. 7 — Jurisdiction of General Sessions.] — See Regina v. Hynes, 6 V.L.E. (L.,) 292 ; 2 A.L.T., 45. Post under Sessions — Jurisdiction of Court of General Sessions. Vote of Money to do a Work Confers No Authority.] —The fact that Parliament has voted a sum of money to defray the expenses of a certain work, gives no legal authority to do such work. Parliament may annul rights by legislation, not by votes of money for an object. Brooks v. The Queen, 10 V L.E. (E.,) 100, 110 j 5 A.L.T., 199. And see ante Constitutional Law and Election Law. II PARTNERSHIP. The Contbact. (a) What Constitutes a Partnership, column 1120. (6) Construction of Articles, column 1123. , Agreement to Become Partners, column 1124. III. Liability of Pabtnebs to Thibd Peesons, column 1125. IV. Liability and Duty of Pabtnebs inter be, column 1128. V. Retirement and Expulsion of Members, column 1131. VI. Dissolution, column 1134. VII. Death of Pabtnebs, column 1137. VIII. Suits and Actions between Pabtnebs and between Partners and Thibd Persons, column 1137. IX. Insolvency of Pabtnebs, 8ee ante column 599, 600. I. The Contract. (a) What Constitutes a Partnership. Part Owners of Land— Graziers— Conversion into Partnership Property.] — W. and E., not pre- viously partners, purchased lands, and sheep grazing on them, at an entire price, paid by their equal separate moneys and bills. After the purchase, each removed a portion of the sheep to their respective stations, and sent others in lieu of them. The substituted sheep and their progeny were there for three years, managed as joint property by E., and a station fund was lodged in a bank on their joint account, deducting station disbursements. Held that the lands were purchased, not to be sold as a joint speculation, but to be ultimately divided, and in the interim used only as a joint grazing farm; that W. and E. became part- ners in grazing as a result of being part owners in land, and did not become part owners of land in order to become partners in grazing; that there was nothing to convert separate property into partnership property, and that the land was therefore real and not personal estate. Ware v. Aithen, 2 W. & W. (E.,) 152. Q., a baker, being indebted to T. S. & Co., assigned his machinery, materials, "etc., to T. S. & Co. T. S. & Co. took possession. B., one of the firm, acted as manager, and G. as salaried assistant. T. S. & Co. dissolved partnership, but this business was conducted as to the world in substantially the same man- ner as before, the only difference being that B. no longer remitted profits, but kept the proceeds and paid expenses — the partners agreeing that " G.'s business was to be worked 1121 PARTNERSHIP. 1123 within itself," with a view to a sale to B. M., the plaintiff, supplied necessary goods to B., and B. gave a promissory note, signed " T. S, & Co., in liquidation," M. being at this time aware of the dissolution. On an action on the note against T. S. & B. for goods sold and delivered, judgment went by default against B., but a verdict was entered in favour of T. S. On motion to enter a verdict for M., Bald that, as creditors of G., T. S. & Co. were not partners with B., or liable for his acts, but as trustees they were entitled to all the proceeds of the business, and that a new partnership arose of T. S. &, Co., B. managing on their behalf, and "that T. S. was answerable for a debt properly incurred in the management of this business. Verdict entered for plaintiff. Moore v. Slater, 8W.4W. (L.,) 161. Participation in Profits.] — By agreement between A. and B., A. was to assist in pre- paring certain models for exhibition. B. had agreed to give A. 30s. a week while preparing models, and afterwards said that this amount should be treated as an advance, and that A. should " stand in," and refused to give A. more, representing that the less he received then the more he would get ultimately, and that it was as much to A.'s interest as his own to keep the expenses down. Held that it was evidence of a partnership. Smith v. Jones, N.C., 21. Agreement to Share Profits — Agreement for Half Proceeds in Lien of Rent.] — An agreement made between M., the landlord, and H., the lessee of a public-house, that every month an account of profits should be taken, and a half thereof should be paid to M. in lieu of rent, does not constitute a partnership between M. and H., so as to authorise H. to pledge M.'s credit for goods supplied to H. in his business as a publican. Regina v. WUlis, ex parte Martin, 5 V.L.E. (L.,) 149. Agreement to Share Profits— Stipulation that one should be a Dormant Partner, and not Liable for Losses.] — E. was carrying on business alone, and was indebted to B. By a deed of March, 1874, it was recited that B. was about to pur- chase one-foarth interest in the business for the benefit of her son, aged 19, in B.'s employ, and that B. was to have sole control of the share in the business until the son came of age, and to have power to dispose of the share in case the son died under age. E. covenanted to assign in consideration of the purchase money, which was treated as paid to B. or her nominee, one fourth interest in the business, with all usual clauses in assignments from one partner to another, to pay her until son's majority, one-fourth of the profits, provided that until son's majority B. should not be liable for losses, or be held out to the world as a partner, and that B. would, during that period, indemnify her against losses, and that E. should allow B. access to the books, and behave towards her as a partner. Beld that B. being entitled to profits, she was for the time a partner with E. ; and that the matter being a purchase for a price never to be repaid, it was not a loan, and that B. could not prove in competition with other creditors. In re Ruddock, 5 V.L.E. (I. P. & M.,) 51 ; 1 A.L.T., 25. Contract for Joint Sale of Goods.] — An agree- ment as follows : — " It is understood that we are to have one-fourth interest in T. and Co 's remaining stock of rice, being about 1400 tons, ex Seagull, Portlaw, and Manifred, at is 18 per ton in bond, four months' credit, with interest from 1st October. We are to receive 2£ per cent, commission on all rice sold through our hands (signed) A., agreed T. and Co.," does not constitute a partnership between the parties to it, and an action may be maintained at law for a loss on the transaction. Tumbull v. Ah , 2 A. J.E., 40. Series of Isolated Transactions Held not to Con- stitute a Partnership.] — Boyd v. Holmes, ante columns 183, 184. Bill Seeking Declaration of Partnership against Two Defendants — Proof of Sub-partnership between One of Defendants and Plaintiff.] — Bill sought a declaration of partnership and accounts as against two defendants, S. and T. S., one of the defendants, admitted there was a sub- partnership between him and plaintiff as to the half share of his partnership with T. in Several contracts on separate bargains. On July 19, 1872, S. and T. enteredinto a contract as between themselves to share profits, taking no notice of plaintiff. In several of the con- tracts plaintiff superintended the men and paid wages, but his doing so was quite con- sistent with his being a ganger or a clerk of works. There was no proof of plaintiff having been consulted as to the contracts. Held that there was no partnership between plaintiff and both defendants, and the plaintiff could not turn his bill for accounts against two defendants into a bill for an account against J., who ad- mitted a sub-partnership as to several of the contracts. Farham v. Thomas, 3 A.J.E., 103. Joint Adventure— Recovery at Law of Part Expenses.] -r- C. and L. agreed that they should pay equally all the expenses of working a mine. 0. and L. were owners of machinery which they agreed should be carried to the mine, and that all expenses connected with the mine should be borne equally by them until a company floated to work the mine, and in which they were shareholders, should be registered. L. had promised to pay C. a cheque for ,£28 as half the expenses, and C. sued L. for money paid. The Judge of the County Court nonsuited C;, holding C. and L. to be partners. Held that the promise to pay an ascertained sum entitled C. to have the case sent to a jury; that the agreement was for a definite period, and a special object, and the fact that gold obtained during that period was to be placed to their joint account did not constitute a partnership. Appeal allowed. Collins v. Locke, 5 VJJ.R. (L.,) 13. Incomplete Negotiations.] — An action was brought for breachT of an alleged agreement to enter into partnership. A mere skeleton of an agreement was entered into, the terms of which. 1123 PARTNERSHIP. 1124 were to be filled up by the parties subse- quently. Held that in the absence of the fact of the parties having been previously acting together, so that their antecedent conduct might afford some grounds for drawing infer- ences, from which an agreement might be deduced, there was no binding contract. Feme v. Whitehead, 5 V.L.E. (L.,) 132. Share of Dividends — Mine.]— The plaintiff and others entered into an agreement with defen- dants that plaintiffs and others should work a share in a, mine " on terms," viz., that they should receive £2 a fortnight each, and half the overplus of the dividend, after •deducting the wages. Defendants then put an end to the bargain, and plaintiff claimed to be entitled as a partner, but acquiesced in an arrangement by which defendants paid for labour of plaintiff and three others, two "on terms," and two on wages, dividing amongst them the total amount which was received by plaintiff on their account. Held that there was no partnership between plaintiff and defen- dants under the original agreement, and that plaintiff could not claim an account of net profits as distinguished from dividends, as plaintiff had only stipulated for a share of dividends. Meldrum v. Atkinson, 6 V.L.R. (E„) 154. (o) Construction of Articles. E. M. and L. were partners in a contract to construct a railway. The deed of partnership, December, 1858, provided (inter alia) that L. should receive out of the entire net profits, as a debt due from it, the sum of i>100 per month for the use of plant, chattels and effects brought in by him, the property after completion of the contract reverting to him absolutely. L., in fact, acted as a trustee for A. and B. Fresh plant and material were afterwards brought in and used. By deed, March, 1860, the partner- ship between E. M. and L. was dissolved, and a new partnership between L. and W. created on terms that the plant, &c, should be valued and assigned to W., and the amount of the aluation applied for the benefit of A. and B.; and by the deed E. and M. assigned their interests to W„ and L., with A. and B.'s con- sent, assigned the plant, &c, to W. In a suit for accounts the Master in his report excluded from the disbursements a sum of . £76,000, which had been spent in purchasing fresh plant, &c., and included only as disbursements the sum of £1500 paid to L. at the rate of £100 per month. Held that the Court could not go behind the provisions in the deed; and that, under the deed of 1858, L. being under no obligation to purchase fresh plant, &c, and such fresh plant being by the deed of March, 1860, treated as L.'s property, the expenses of repairing old and purchasing fresh stock should be borne by L. alone, and not by the partnership,' and matter's report affirmed, Evans v. Guthridge, 1 W. W. & a'B. (E.,) 119. Terminated Agreement — Forfeiture.]— A partner- ship agreement, containing a clause of forfeiture in certain events, having been terminated by consent, without any reservation as to for- feitures already incurred, the Court would not allow a prior forfeiture to be enforced against one of the partners. Collins u. Bobbins. 5 W. W. & a'B. (E.,) 194. Meaning of the Word "Stevedoring."] — Semlle r that " dumping " wool is not comprised within the term "stevedoring," in an agreement as to the latter business. Ibid. When a deed of partnership between three partners, provided that no partner should dis- pose of his share except with express consent of a majority, and A wished to dispose of his share to D., B., one of the partners being a lunatic, Held that the consent of the partner selling and of one other partner was sufficient. In re Anderson, 5 V.L.K (E.,) 133. Deed Containing Mutual Releases in Bespect of Partnership Claims or any Other Account Whatever — ejusdem generis — Action by Partner on Money Counts.] — See Cameron v. Hughes, post under Suits, &c, between Partners, &c. Reference to Arbitration — Injunction to Restrain Partner from Interfering.] — E. carried on business as brewer and entered into partnership with E. and W., a deed being drawn up by which F. was appointed brewer and manager, and containing provisions for referring disputes to arbitration. Provision was also made for half-yearly meetings, and, at one of these, so much dissatisfaction was expressed at _ F.'s management that he resigned, and his resigna- tion was accepted, and E. appointed manager. P. now insisted that his partners had no power- to remove him except for just cause, and that they had no cause for so doing, and that the dispute was one properly referrable to arbitra- tion. Held that E. and W. were justified in removing P., and that the arbitration clauses only referred to disputed accounts; and in- junction granted to restrain P. from interfering in the business as manager, without prejudice to the right of P., if any, to act as brewer. Gough v. Farrington, 1 A.J.E., 3. II. Agreements to Become Partners. Uncertainty— Contrary to Public Polioy.] — An agreement for mutually sharing, in certain . proportions, the profits of all patents, indus- tries, and copyrights possessed, or to be possessed by either party, indefinite as to duration, is not so uncertain or against public policy, as to prevent the Court from dealing with it. Le Boy u. Herrenschmidt, 2 V.L.K. (E„) 189. Specifio Performance.] — Specific performance, of an agreement for a partnership is generally refused where part of the consideration con- sists of duties of which specific performance cannot be enforced. Ibid. Specific Performance.] — Where a plaintiff seeks to enforce a partnership agreement, the terms of which are not reduced to writing, he must prove distinctly what its terms are. And unless the parties have engaged to execute 1125 PARTNERSHIP. 1126- aome instrument of which execution can be ordered, Courts of Equity will not decree specific performance of an agreement for a partnership. Ogier v. Booth, 9 V.L.E. (E.,) 160; 5A.L.T., 109. Shares and Proportions.] — M. purchased an hotel in 1875, and agreed with K. that he should share in the venture. K. paid a small part of the purchase-money, M. the rest, and M. received the rents and profits until 1877, when a re-sale was made at a profit. On hill by K. for a half share of the profit, there being a conflict of evidence, Held that K. was entitled to half such profit; but that, not having strenuously resisted M.'s contention, of which he was apprised before the re-sale, that he was not entitled to so much, K. was not entitled to costs. Kilpatrick v. Mackay, 4 V.L.E. (E.,) 23. Where a partnership is shown, the pre- sumption is of equality of shares. Ibid. Partnership in Selections — Partnership in Pro- duce.]— In 1874 C. D. and W. toot up adjoining selections under the " Land Act 1869," Sec. 20, and obtained licenses therefor, fenced and improved them. D. paid all the licence fees, and supplied all moneys for materials, &c. In 1877 leases were issued to C. D. and W., in accordance with the provisions of Sec. 20, and they agreed that the accounts should, be adjusted between them by W. transferring to D. the lease of his selection, and, before this was done, C. and W. agreed that, in consi- deration therefor, W. should have an equal share in C.'s allotment, and that they should ' carry on a farming business thereon in part- nership. In pursuance of the agreement they worked the lands in partnership, and stocked and improved them till "W.'s death, on 11th September, 1883. On suit by W.'s adminis- trator, seeking a declaration that a partnership existed between C. and W. in reference to the selections, Held that the agreement between C. and W. as to the transfer of W.'s selection being illegal under the " Land Act 1869," Sec. 21, the plaintiff was precluded from claiming the land as partner ; but that there had been a partnership as to the farming business, and the plaintiff was entitled to half the partner- ship property on the land at W.'s death, but not to the subsequent produce. Wisbey v. Churchman, 10 V.L.E. (E.,) 214; 6 A.L.T., 82. III. Liability of Partners to Third Persons. On Mortgage of Personalty of Firm.]— One partner can bind his co -partner by a mortgage of personal property of the firm, to secure a partnership debt. Williamson v. Cwnmgham, 3 W. W. & a'B. (E.,) 188, 201. Security Given by One Partner on Behalf of firm.]— J. and O. entered into partnership on the- agreement that each partner should con- tribute a certain amount of capital J. did not bring in his stipulated amount of capital, and the firm commenced business with deficient capital To remedy this G. borrowed from K., by means of acceptances, which he signed at various times, to the extent of £3000. There was a clause in the partnership deed, providing that no partner.should give any note, bill, or security for the payment of any money on account of the partnership, without the written consent of the others, and if any partner should give any such without such consent, it should be deemed to be given on his separate account, and he should discharge the same out of his own moneys, and indemnify his partners- against the same. There was evidence that J. had profited by, and was well aware of the transaction, although he had given no consent in writing. On taking accounts the Master reported that this sum of £3000 was due by the firm, and J. took exception to this on the ground that G. was really responsible for it. This exception was allowed, and G-. appealed, and on appeal, Held that J. was aware of the whole transaction, and had profited by it, and. so must have given his consent, and exceptions disallowed. James v. Greenwood, 1 A. JR., 125; 2 A.J.B., 14. Squatting Partnership— Power to Borrow so as to Bind the Firm.]— Per Molesworth, J. The power of borrowing by partners, so as to bind the co-partners, is incidental to a squatting^ like a mercantile, partnership. Glass v. Higgins, 2 V.E. (E.,) 28, 31. Proof of a debt as a partnership liability was admitted on a promissory note, given by one member of a squatting partnership on behalf of the firm. Ibid. Power of Partner in Squatting Partner.hip to Give Lien on Wool.] — White v. The Colonial Bank, 2 V.E. (E.,) 96; 2 A.J.E., 49. For facts, see S.C., ante column 810. Promissory Note made in Name of Firm for Pay- ment of Separate Debt of Partner — Presumption.] — A partner made a promissory note in the name of the firm, and gave it to a creditor in pay- ment of his separate debt. For six months- beforehand the partner had been in the habit- of drawing cheques in the same way, for the same purpose, and these had been duly honoured. Held that this practice gave the creditor reasonable ground to presume that such partner had authority from the firm to make a promissory note in the manner, and for the purpose mentioned, and that the firm was liable. London Chartered Sank of Australia v. Kerr, 4 V.L.E. (L.,) 330. Breach of Trust— Liability of Co-partner of Executor.]— Two executors, J. T. and T. T., got' in the estate of their testator, and lodged the overplus, consisting of money, in a bank. Of. this a certain sum was advanced to J. T., who- was in partnership with B., and was secured by an acceptance of B. and J. T., drawn in favour of T. T?. in his private capacity. B. was aware that the money the firm received was a trust - fund. T. T. had the bill discounted, and applied the proceeds to his own use. B. and J.T. paid the amount to the acceptor. Held 1127 PARTNERSHIP. 1128 that they, nevertheless, remained liable to the -estate as having been parties to the breach of trust. Jones v. Taylor, 2 V.E., (E.,) 15. Debt Incurred by One Partner Outside Scope of Authority — Absent Partner Complaining of Dealings Outside Scope of Authority, but Accepting Accounts Based on Them— Liability for Debt] — See in re Oppenheimer and Co., ante column 585. Old and New Firms — New Firm taking Liabilities of Old.] — E. and F. were trading together in partnership, and, amongst other liabilities, incurred a large indebtedness to F. S. and Co. whilst this partnership wa3 solvent, and the accounts showed a large excess of assets over liabilities and an increase of profits. Forster, a •clerk in the employ of E. and F., was admitted as a partner, and had access to the account books. E. and F. swore that the new firm took ■over the assets and liabilities of the old firm, and there was evidence that the profits of the new firm were, applied to extinguish the old liabilities. F. S. and Co. knew of the change in the firm, and the accounts submitted to them were in the same form, and treated the members of the firm of debtors in the same way under the old firm as under the new. Heldhj the fall ■Court, reversing Molesworth, J., that the debt was transferred to the new firm from the old, .as between the partners, and that the creditors, F. S. and Co., adopted that arrangement, and adopted the new firm in place of the old. Mx jparte Bolfe and Bailey, in re Rutledge, 2 W. & W. (I. E. & M.,) 16. Affirmed on appeal to the Privy Council, L.E., 1 P.C. 27. Members of a Partnership Ineffectually Attempting to Form Themselves into a Company — Liability for Debt.] — Carter v. Watson, and Oriental Bank v. Casey, ante colmmn 1010. Assets, What Are — Bank Shares.] — A deed of partnership between A. and M. contained a promise that the firm should take over the assets, and become responsible for the debts of an old. firm of M. and N. Held that under this clause the new partnership was not entitled to separate bank shares deposited by M. and N. to secure a joint debt to a bank. Agnew v. M'Qregor, 1 A.J.E , 133. On Joint Speculation.] — Where three persons .joined in a guaranty for A 10,000 to a bank for an overdraft on account of a vineyard speculation this was held not to limit the liability of one of them, to one third of that amount, as there was evidence of his recognising an extension of the undertaking. Holmes v. Bear, 2 A. J.E., ■ 3. Affirmed on appeal, Ibid 41. Act to Exempt Certain Contracts from Lav of Partnership, No. 179.]— Per Molesworth, J. "There is nothing to prevent a person lending money to be used in trade making any such ^stipulations as to not giving credit and keeping accounts and not carrying on any other business. All these stipulations are consistent with the mere relation of borrower and lender. In re Butchart, 2 W. W. & a'B. (I. E. & M.,) 8, 12. For facts see S.C., ante column 621. Loan of Capital Under No. 179— Creditor Claim- ing Under a Deed of Assignment.] — J. T. H. agreed with B., by deed, to make certain advances for the purposes of a business to be carried on by B., in the name of H. and Co., but under the control of H., who was to par- ticipate in the profits. The deed, which was drawn with express reference to the Act No. 179, provided that J. T. H. was not to be a partner. This business, which was unsuccess- ful, was carried on till September, 1869, when a new partnership was entered into between B. and W. H. for the purpose of carrying on the same business under the same name, J. T. H. to be in no way interested in the profits, but to receive the promissory notes of the firm for the debt due by B. in respect of the advances made to the former business. The new firm carried on business till January, 1870, when they executed a statutory deed_ of assignment in trust for creditors, in which J. T. H. was entered as a creditor, but the trustee refused to pay him a dividend on the ground that he was not entitled to rank in the joint estate until all the joint creditors had been paid, there being no separate estate, the trustee alleging that J. T. H. was either a partner in the firm or personally responsible for its debts. On rule nisi to compel the trustee to pay a dividend to J. T. H., Held that there was not sufficient evidence that the creditors of the firm considered J. T. H. as a partner j that if they had so considered him they ought not to have executed the deed of assignment in which he appeared as a creditor, and rule absolute, but considering J. T. H.'s conduot, without costs. In re Sarcourt and Bailey, 1 V.E. (E.,) 104 ; 1 A.J.E., 76. What Constitutes a Loan so as to Enable a Partner to Prove — Advance of Money Which is not Treated as Liable to be Repaid.] — In re Ruddock, ante columns 1121, 1122. IV. Liability and Doties of Partners inter SE. When One Partner Insane — Dissolution — Prom what Date— Arbitration — If made during Insanity not Binding — Remuneration to One Partner — Valuation, not Sale.] — X. and W. were carrying on a business in partnership under a deed which contained the usual stipulations for fidelity, justice, and diligence; that each should not, without the consent of the other, endorse, sign, draw, or accept any bill of exchange or promis- sory note; and that each should enter all moneys paid out or received by him in the partnership books. It provided also for each partner giving the other a week's notice calling upon him to make reparation in case of in- fringement of any clause by that other, and, after the week's notice, for a settlement of 1129 PARTNERSHIP. 1130' disputes by arbitration; and that, on arbitrators' decision, the offender should be excluded, from participation, and be paid off. In January, 1871, W. became eccentric, and accepted bills on London for £1100, and failed to enter an account of them. X. got no satisfactory ex- planation, and sent the week's notice, and, this being unnoticed, appointed his arbitrator, and, on 9th March, obtained an award in his favour. W.'s insanity had become more and more marked during February and March, and on 18th March he was confined in a lunatic asylum. X., acting under the award, treated the assets as his own, made arrangements for paying off W. 's share, and carried on business in his own name. On bill by lunatic and his committee, seeking to set aside the award, and have a dissolution declared and accounts taken, Held that the award was not a bar to the disso- lution sought, and that W., though not entitled to a dissolution on the ground of his own in- sanity, was entitled by the way X. had prema- turely taken upon himself the ownership of the assets, the dissolution to date from the decree ; that the award made during W. 's insanity was not binding on W. ; that X. was to be remuner- ated for his working the business alone since the 8th of March ; and that as the deed contem- plated a valuation and not a sale on dissolution, for which it expressly provided, a similar course should be adopted as to a dissolution arising from W.'s insanity. Gregory v. Welch, 3 V.R. (E.,)6; 3 A.J.R., 3. Accounts Taken hy Master — Excess of Capital of lunatic Partner Bearing Interest — Value of Lease- hold Premises — Discrepancy as to Balance Sent Back to Master for Re-consideration.]— Accounts were decreed in a suit seeking dissolution and accounts. On exceptions to Master's report, Held that, it appearing that the lunatic part- ner's excess of capital in October, 1869,- was £3400, such partner being sane at the time, the partnership fund was liable for interest up to October, 1871, the year's relations commencing as by balance-sheet of October, 1870, and after the partner became lunatic in March, 1871, the same partner made no distinct offer to his com- mittee to pay off excess of capital ; that a rest should not be taken in March, 1871, but in October, 1871; that the Master should have in his accounts valued the leasehold premises in which business was carried on, and that the Master be directed to value them at £300 ; that it appearing by the accounts that there was a discrepancy as to balance arrived at, such discrepancy should be referred to the Master for reconsideration. Gregory v. Welch, 3 A.J.K., 102. Where One Partner Insane.] — In a suit by the committee of a lunatic against the lunatic's partner, the plaintiff had unsuccessfully applied for a receiver. The defendant, however, had been in the wrong in two other instances in the suit, and had had the use of the money awarded to plaintiff since the dissolution of partnership, and the benefit of the goodwill and connection without paying for it, owing to his partner's lunacy. Upon winding up the suit on further directions, the Court thought justice would be done by making each party bear his own costs, tad by not charging the defendant interest upon the amount found due to the lunatic's estate. The partnership property was ordered to be handed over to the defendant, who was to- execute an indemnity against all liabilities. Gregory v. Welch, 4A.J.R., 14. Where One Partner Insane.]— One of two- partners had become insane, but was released, from confinement, and his partner made an agreement with him for dissolution. In this- agreement the lunatic partner acted through one of his sons, but assented to the agreement, and as part of it signed a promissory note. Subsequently the lunatic's partner wished to» revive the partnership, and made an agree- ment to that effect with one of the lunatic's sons, without in any way consulting the lunatic, who- upon its being brought to his knowledge, abso- lutely refused to assent to it In a suit to enforce the agreement, Held that as the plaintiff' had, in the agreement for dissolution, treated his partner as sane, he was estopped from setting up his incapacity to reject the agreement for reviving the partnership, and fulfilment of the- first agreement decreed. Upon appeal Held that the decree was right, and that the Court- would not measure the amount of mental capacity of a person. Ureswick v. Creswick, 4r A. J.R., 23. On appeal— Ibid, 93. Suit for Dissolution and Accounts — Authority by One Partner to an Agent to Arrange a Hew Partnership or Sell Assets — Different Arrangement made by Deed — Plaintiff's Refusal to Ratify such Arrangement.] — The plaintiff and defendant were- in partnership, the plaintiff residing in Europe and sending out goods to defendant, who- managed business in Melbourne. Differences- arose, and plaintiff sent out H. as his agent to- arrange for a new partnership, in which H. was- to have an interest, and for a sale of the assets, A different arrangement was made by deed between H. and the defendant by which partner- ship was dissolved as from a certain date, and the plaintiff and defendant were to divide assets. Plaintiff refused to ratify this, as it was beyond H.'s authority to make such an arrangement. Bill by plaintiff for dissolution, sale and accounts. Defendant demurred on ground that settlement arrived at was one authorised by power of attorney H. held from plaintiff. Held that power of attorney did not warrant- such an arrangement, and demurrer overruled. Oppenheimer v. Oppenheimer, 3 A.J.R., 60. Mining Partnership — Account — "Mining Com- panies Amendment Act" (Ho. 324,) Sec. 9.]— A partnership was not registered under Act No, 228, and some of the partners proceeded by plaint under Sec. 177 of Act No. 291 against their co-partners for accounts. Held that in Sec. 9 of No. 324 the word " action " is used strictly and means an " action " on a contract- by a third person against the partnership, and that no evidence in writing of authority is- necessary to establish liability between mining partners as to expenditure incurred by other partners with sufficient authority. Atlardyce v. Cunningham, 5 A. J.R., 162. One Partner Purchasing Assets at a Sale made upon a Dissolution.]— A partnership firm getting into difficulties assigned all its joint property 1131 PARTNERSHIP. 1132 to trustees upon trust for creditors, one partner at a sale of the property made by the creditors bought the assets, no other offers having been made. A bill was brought by the other partner seeking for a declaration of trust as to the pur- chase and for accounts. Held that assignment of property on trust for creditors was a dissolu- tion of partnership, and there being no evidence that the defendant had bought the assets on account of the partners that defendant was as much entitled to bid for the assets as a stranger. Bill dismissed without costs. Muirv. M'Qregor, 3 A.J.R., 14. Sale to One Partner — Fraudulent Misrepre- sentations.] — A. and B. entered into an agreement for partnership under which each was to bring in £10,000 as capital, B.'s con- sisting, not of money, but of stock in trade at cost price. A. agreed to purchase B.'s interest on the valuation of B.'s stock in trade, made by B. and accepted by A. as correct. A. afterwards discovered it was at cost price worth less by £6000 than B.'s valuation. Bill by A. seeking to have sale set aside, partnership re- vived and accounts taken. Held, on demurrer, by Malesworth, J., that plaintiff was not entitled to relief because he could not reinstate B. into the subject of the bargain, plaintiff having sold some of the assets since the transaction, and ■demurrer allowed. Per the Full Court that the facts stated did show some ground of relief, viz. , plaintiffs right to have accounts taken, and ■demurrer overruled. Per Molexworth, J. — If a misrepresentation made at the commencement of a partnership remained uncorrected and influenced the plaintiff at its close in his bargain to purchase it would have the same effect as if then repeated. Longstaff v.Keogh,3 V.L.R.(B.,) 175. See same case ante column 404. Set off.] — See Perkins v. Cherry, 3 A.J.R., 61, post under Set off. Action at law — Money Lent to a Partner.] — L. lent his partner, R., a sum of money which was to be paid as his share of the capital. L. sued R. for the money and obtained a verdict. Held, on rule nisi for a nonsuit, that L. was entitled to sue. Lee v. Roberts, 5 V.L.R. (L.,) 26. Suit to Establish Partnership — Costs.]— In a suit to establish a partnership and for accounts defendants admitted partnership, but set up an unsuccessful defence of composition with credi- tors. On taking accounts the Master found a sum due from them to plaintiff. Held that defen- dants were to pay plaintiff his costs up to and inclusive of hearing. England v. Moore, 5 V.L.R. (B.,) 312. And see also cases under following sub- headings. V. Retikement and Expulsion of Membebs. P. was entitled to one-third of a mining claim (A), and also to one-sixth of an adjoining claim (B). The other shareholders of the two claims agreed behind P.'s back to amalgamate the two claims to form a company with 1800 shares to be incorporated under Act No. 228. This was acted upon and -P. was registered as for 150 shares in the B. claim, but was excluded altogether in respect of his interest in the A. claim. P. brought a bill against the company and its legal manager seeking to be registered as for 450 shares. Held that P. had no right to object to other shareholders in the two claims forming themselves into a company and assign- ing to him 150 shares only, or totally excluding him; he had a right to object to being included at all ; that this grievance consisted in the com- pany having appropriated his one-third interest in the A. claim without his consent; that he had a right to claim that third, but not without agree- ment, to claim a number of shares as an equiva- lent for it against partners who wrongfully ex- cluded him; that P. might have a case against the shareholders in claim A. individually. Bill dismissed without prejudice to P.'s right to set aside the amalgamation and to enforce against the company his property in the A. claim and recover its value from the other shareholders in the A. claim. Parle v. Harp of Erin Coy., 3 W.W. & A'B. (E.,) 98, 107, 109. Injunction to Restrain Partner from Interfering.] — Four out of five partners who owned coal mines and brickfields in Tasmania applied for an injunction to restrain the fifth partner, who was managing the affairs of the partnership in Melbourne, from interfering in the business, and for a receiver over the property in Melbourne. It appeared that the defendant. was not mana- ging in a satisfactory manner; but the Court, thinking him rather culpable as to his temper than as to his honesty, refused the application, the defendant undertakingto change the registry of a schooner belonging to the firm, but which was registered in his own name, to meet a bill about to fall due and to pay all current liabili- ties. The defendant complied with the first condition, his compliance with the third was doubtful ; but with the second he did not comply. After a delay, caused by his partners becoming aware of the breach in vacation time, a fresh application was made to restrain the defendant from interfering, and for a receiver of the part- nership property in Melbourne. The injunction and receiver were granted, but the plaintiffs were required to meet the current liabilities, subject to a right to move, subsequently to the receiver's appointment, for the application of the funds iu his hands for that purpose, the Court requiring this on account of the unusual course pursued in appointing a receiver of the property in Melbourne, leaving the property in Tasmania untouched. Barrett v. Snowball, 1 A.J.R. 8. Misconduct of Partner's Agent.] — Two partners agreed that one of them might absent himself from the business and act by attorney. Accord- ingly one partner appointed an attorney under power and retired to Scotland. The attorney improperly withdrew bills of the firm deposited for collection, and placed the proceeds of their discount to the credit of his principal, in pay- ment of a debt alleged to be due to the principal by the firm. The other partner filed a bill claiming to act alone, and to restrain the attorney from obstructing him from so acting. On demurrer for want of equity, Held that since the absent partner was responsible for the 1133 PARTNERSHIP. 1134 attorney's acta, and that the misconduct of the attorney if committed by the absent partner himself would only give the plaintiff a right to file a bill for an injunction against its repetition and for a dissolution of the partnership, the plaintiff was not entitled to act alone, and de- murrer allowed accordingly. Terry v. Slrachan, 1 V.R. (E.,) 180. Forfeiture when Incurred.] — The plaintiff and defendants entered into a partnership agree- ment, under which one of them (the defendant B ) was to take up and cultivate a farm, and the others were to contribute the expenses. The plaintiff paid only part of his contributions, and had denied his liability, and had stated his in- ability to pay and his desire to withdraw. In a suit for a declaration of the plaintiff's right to his share, the Court held that he had not for- feited his interest; that none of the partners, by asserting unfounded claims were able to forfeit "their actual rights; but the plaintiff was ordered to pay up his contributions with interest at 8 per cent., with half-yearly rests; the partnership to be dissolved from the date of the decree. Dobbs v. Bromfield, 4 A. J.R., 8. But when the partnership agreement is uncon- ditionally terminated by consent, a prior for- feiture cannot be enforced. Gollins v. Bobbins, -5W.W. &a'B. (E.,) 194. Repudiation of Eights — Laches.]— Where plain- tiff claimed to be a partner with defendant in certain mining shares, and it appeared that while plaintiff was a director of the company the shares became unprofitable, and plaintiff joined in resolutions forfeiting them, and denied all interest in them in order to avoid liability, upon bill by the plaintiff seeking to have the defendant declared a trustee of a certain num- ber of the shares, Held that the plaintiff had not lost his right to be declared a partner in the shares by his attempt to repudiate them when unprofitable. Upon appeal this decision was affirmed, and Held that plaintiff was not guilty of laches in not prosecuting his claim for six years, he being during that period actively ^engaged in the affairs of the company. M'Ewing v. Aulrf, 4 A.J.R., 13; on appeal, Ibid, 49. Eight of Retiring Partner to Join in Sale of Assets.] — B., and the two defendants, in 1876 entered into a partnership for twelve months. By the partnership agreement it was provided that if after the twelve months any partner wished to retire he could do so by giving three months' notice in writing, and that if all the partners should agree, the partnership might be continued for one or two years longer, in which case an endorsement was to be made to that -effect; and that rent, cost of repair, rates, wages, and expenses should be paid by the partners in equal shares. The partnership owned a patent for branding stock, and owned stock-in-trade and tools', and debts were owing to the firm. No endorsement was made, but the partnership was continued for four years. In 1880, defendants gave B. notice that the partnership was dissolved, and requested him to concur in winding-up, and in distributing the moneys to be derived from' the sale of assets. They forthwith took possession of the business and effects, dismissed the workmen, and re-engaged them as for themselves. They also issued a circular stating that the partner- ship was dissolved, aud that they were going to carry on the business. On motion by B. for u, receiver and injunction, Held that the defen- dants had acted unwarrantably in excluding B., and had no right to treat the assets as their own; and motion granted. Boyle v. Willi*, 1 A.L.T., 189. VI. Dissolution. What Constitutes — Assignment of Joint Pro- perty in Trust for Creditors.] — An assignment of all the capital of a partnership firm on trust for creditors puts an end to its dealings, and on the same principle that the assignment of all a trader's property was, by the decisions of English Courts and by English Statutes, an act of bankruptcy, such an assignment by a partner- ship Arm is a dissolution. ATuir v. M'Qregor, 3 A.J.R., 14. What Operates as.] —A mere refusal to acknow- ledge that a partnership exists, where there is no time specified for the partnership to continue, does not necessarily operate > as a dissolution. Kin Sing r. Won Paw, 1 W. & W. (L.,) 303. Loss of Rights by Acquiescence— Dissolution by Marriage.] — Three sisters, having Baved some money, induced other members of their family to emigrate, and in conjunction with them, started a small grocer's shop. Other members of the family came out, and were taken into the business. No accounts were kept between them, and they lived together using the proceeds of the business indiscriminately. Gradually the elder brother assumed the management, conducted all out-door business himself, and acted as though he were sole owner. One of the sisters married in 1861, and another in 1862. The sister who first married took no more part in the management, and after the marriage of the second sister, the busi- ness was carried on by two brothers and another sister. One of the brothers alleged that there was an agreement by which the three sisters were to retire and take £300 as their share of the assets Disputes arose, and the first married sister (M.J.) and the unmarried sister(E.C) de- clared the partnership to be still existing. Hehl, per Molesworlh, J., that the acquiescence of the others in the elder brother's acting as sole owner, would deprive them of their rights as partners in the partnership at will ; that the marriage of M. J. terminated the partnership, that she agreed to take £300 for her share, of which £100 had been paid, and was entitled to interest on the balance at eight per cent. ; that E. C. was only entitled to a fifth share up to the date of M. J.'s marriage. Upon appeal, Held that M. J. was only entitled to £200 ; that upon M. J.'s marriage, the partnerships still subsisted between the others ; that on the marriage of the second sister, it was put an end to as far as she was concerned ; that as one of the brothers had been bought out, E. C. was entitled to a half share of the partnership ; and that the elder brother should be charged with interest at eight per cent, for partnership moneys he had expended in land. Johnson v. Colclough, 4 A.J.R., 53. On appeal— Ibid, 131. 1135 PARTNERSHIP. 1136 Indorsing Note in Name of Firm after Dissolu- tion.] — An ex -partner in a dissolved firm has no power to endorse a promissory note made pay- able to the firm, in the name of the firm, unless he has express authority from his former co- partners to do so. Pateraon v. Hughes, 2 V.R. (L.,) 148; 2 A.J.R.,96. Eights of Partners to Carry on the Same Sort of Business after a Dissolution on Expiration of Term, and to Solicit Custom — Goodwill.] — There is nothing to prevent partners from carrying on respectively the same kind of business in another place after the expiration of the partnership firm, and there is no reason why towards the end of the term they may not solicit a continuance of the business to each. Nor is there any legal obligation to carry on the business in such a way as to preserve the good- will. A. and B. were partners for a certain term, under a deed which provided that in six months after termination, accounts were to be taken, valuation made, provision made for debts, and the balance to be equally divided. Shortly before end of term, A. sent round a circular to customers, giving them notice of impending dissolution, and of his intention to carry on the same kind of business in other premises, and soliciting their custom. Bill and motion for injunction by B. restraining the issue of such circular. Injunction refused. Cornwall v. Hicks, 5 A. J.R., 61. Court will not Generally Interfere unless Dis- solution Prayed.] — Courts of Equity are disin- clined to interfere in partnership affairs, unless a dissolution is sought ; but this rule should not be extended so as to force a plaintiff to an nnfair dissolution, as a means of obtaining re- dress. Le Roy v. Herrenschmidt, 2 V.L.R. (E.,) 189. Eefusal of Partner to Account— Order for Pay- ment into Court.] — Courts of Equity in suits for partnership accounts, so long as the accounts remain open, are very reluctant to order money to be brought into Court ; but where defendant does not in his answer allege that there will be a balance in his favour, or where money has been received in violation of good faith an order may be made. Hart v. Belin/ante, 1 W. & W. (E.,) 196. Plaintiff, a member of a Melbourne firm of S.B. & Co., was also a member of a London firm of H. & Co. The Melbourne firm was dissolved by effluxion of time 1st August, 1861. The London firm sent out an agent to wind up affairs between them and the Melbourne firm, and pressed defendant B. for an account, which was refused. After this, in September, B. with- drew from the firm a sum of £1777, there being at the time no money due to B. from the firm. Plaintiff's bill alleged that a sum of £16,000 was due to him by the Melbourne firm, and the answer alleged that this was true without taking into account the losses occasioned by plaintiff's wilful neglect and default. On motion upon affidavits verifying bill and alleg- ing that a receiver had been appointed, Held that this case came within the exception, ^nd order made for payment into Court. Ibkl. Dissolution Refused where Plaintiff has Broken Conditions — Injunction.] — Plaintiff and defen- dants carried on partnership, but none of the parties had observed the conditions of the part- nership deed. After a while disputes arose and plaintiff dissolved a collateral partnership of which he and another member of the main partnership were members, and the withdraw- ing partner covenanted not to carry on busi- ness in their trade except as a shareholder in the main partnership. Subsequently he entered into negotiations for the purchase of another business in the same trade, which plaintiff re- garded as a breach of the covenant, and which caused ill-feeling between plaintiff and defen- dants. The defendants denied plaintiff certain privileges to which he was entitled under the deed of partnership, and he obtained an injunc- tion to restrain them from so doing. After further disputes plaintiff brought a suit for dissolution, which the Court refused to grant on the ground that he himself had not fulfilled the conditions of partnership, or performed his duties towards the defendants, but the in- junction was continued. Campbell v. Blair, 4 A.J.R., 148. Suit for — Parties.] — In a suit for dissolution of a partnership, all persons who have an in- terest in the suit must be made parties. Dancker o. Porter, 1 W. & W. (E.,) 313, 326. For fuller statement of the facts see S.C. pout under Practice akd Pleading — In Equity — Bill. Procedure in Suits for Dissolution — Costs — Against Executor of Partner.]— In a suit for dissolution, one of the defendants was the executor of a partner, and had never interfered in the disputes between the surviving partners, but reasonably objected to a dissolution. The Court ordered the plaintiff to pay his costs of suit. Campbell v. Blair, 4 A.J.R., 148. Where One Partner Insane.] — Gregory v. Welch, Creswick v. Creswick, ante, columns 1128, 112& 1130. When Granted or Befused — No Misconduct — Strife Between the Partners.]— Where a partner sued for a dissolution, and no misconduct was- proved against the defendant partner, but there had been strife between the partners, the quarrels having been begun by the plaintiff, and the defendant was the more violent of the two after the quarrels had once begun, the bill was dismissed, with costs. Mitchell v. Welsh, 4 A.J.R., 183. Receiver — lunatic Partner— Doubtful Award.] — W. and X. entered into a partnership under a deed which provided that if an award, to be made as therein provided, were made finding that any of the provisions of the deed had been contravened by either partner, the partner so offending should at once cease to have any further interest in the business, and should be paid off his share of the partnership capital. X. became eccentric, and improperly gave a bill in the name of the firm without W. 's consent. W. requested an arbitration, but X. took no> notice, so W. proceeded ex parte, as provided by the deed. An award was made and acted on by W. , who treated the partnership assets, hot PARTNERSHIP. 1138 after dissolution, as his own. X. shortly be- came insane, having shown symptoms of incipient insanity before the reference to arbi- tration. Motion by X. and his committee, in a suit to set aside the award and dissolve the partnership, for a receiver. Held, per Moles- worth, J., that though the validity of the award was doubtful through X.'s having so soon afterwards become insane, that did not justify the appointment of a receiver at the request of X.j and that X.'s insanity was not to deprive W. of his power of managing the partnership property, no misconduct having been proved against him. Gregory v. Welch, 2 V.R. (E.,) 129. Injunction — Receiver — Accounts.] — A. and B., in partnership as solicitors, upon dissolution agreed that A. should collect the assets and pay the debts, and that B. should pay to A. certain sums of money. A. filed his bill alleging that B. had improperly collected assets and appro- priated them to his own use, giving particular instances, and had permitted persons indebted to the firm to set off their debts against B. 's private debts to them, and praying for a dissolution, injunction, receiver, and accounts. Upon motion by A. a primd, facie case being made an injunction was granted against B. restraining him from collecting or recovering partnership debts ; and at the hearing, which was unde- fended, the relief prayed was granted ; but the Court refused to appoint A. as receiver without a reference to the Master that relief not beiDg prayed for, or, under the circumstances, to order the defendant to pay into Court the sum payable on the dissolution to A., or then to make an order for costs. Hewitt v. Akehurst, 4 V.L.R. (B.,)93. Winding up.] — Where a plaintiff seeks to have a partnership wound up as dissolved, and the property sold, he must prove that the partnership actually existed, not simply that parties agreed to become partners in a given event, and either that it has been legally dissolved, or that he is entitled to have it dissolved by the Court. Ogier v. Booth, 9 V.L.R. (E.,) 160, 164; 5 A.L.T., 109. VII. Death of Partners. Purchase of Partnership Property by Surviving Partner.]— Held, per the Full Court, that a sur- viving partner in dealing with the executor of his deceased partner for the purchase of the part- nership estate is bound to lay before the executor the fullest information as to the estate, and to conceal nothing material, either purposely or through carelessness ; but per Privy Council, qucere, whether this is necessarily so. Clark v. Clark, 8 V.L.R. (E,,) 303, 322; L.R., 9 Ap. Cos., 733, 741. VIII. Suits and Actions between Partners inter se, and between partners and Third Persons. Action for Work Done — Partnership Dissolved before Work Done.]— C. sued G. in the County Court for commission for work done in procuring a loan. When C. received instructions for the work he was in partnership with M.; the part- nership was dissolved in February ; the loan to be procured was not a partnership matter, and was actually procured in March. Held that C might sue without making M. a co-plaintiff. Clarke v. Gouge, 5 V.L.R. (L.,) 468. Partnership Deed — Confined to Partnership Matters.] — By a deed between C. and H., C. and H. dissolved partnership, and H. assigned to C. all interest in the partnership assets and effects, and the deed contained mutual releases in re- spect of all claims " on account of the partner- ship or any other account whatsoever." C. sued H. on money counts in respect of non-partner- ship matters, and H. pleaded the release. Held that the words "any other account whatsoever" referred to an account ejusdem. generis with the partnership account and did not refer to the moneys sued for. Judgment for plaintiff. Cameron v. Hughes, 1 V.L.R. (L.,) 43. Partnership Suit — Appointment of Receiver — Extent of Receiver Order.] — See Morelon v. Harley, 2 W. and W. (E.,) 74; post under Receiver — Powers, Functions and Liabilities of. Parties in Suit by Shareholder against Managers and Trustees.] — Per the Full Court — Where one person, a member of a mining partnership, complains of a special injury to himself, done by defendants, managers and trustees of the partnership, it does not follow because he is one of several shareholders and it is possible all the Qthers might have bvsn injured in a like man- ner, that all should be joined as co-plaintiffs in a suit in equity against the defendants. Ogier v. Smith, N.C., 3. Suit for Account of Partnership Affairs — Join- der — Trustees of Share of Partner.] — E., M., and L., trading under the name of E. M. & Co., con- tracted to construct a railway. In 1859, L. by deed covenanted that N.G., R.G., and J.W. should be entitled each to a third of L. 's share of the profits and of his interest in the property of the firm, and that he would hold the same in trust for them. In February, 1860, N.G., R.G., and J.W. assigned all their property to three trustees (H., W., and C.) in trust for their creditors. In March, 1860, the firm of E. M. & Co. was dissolved, and a fresh part- nership formed between L. and the defendant (W.), under the style of L. W. & Co. In the deed by which the firm of E. M. & Co. was dissolved, and to which N.G., R.G., J.W., and their trustees, L., W., and the Bank of New South Wales were parties, was a covenant that the share of L. in the new partnership should be held in trust for the persons entitled thereto under the deed of 1859. A bill was filed by L., N.G., R.G., and J.W. against W.W., praying {.inter alia) that it might be declared that N.G., R.G., and J.W. were each beneficially in- terested in one-third of the capital and net gains of the business of the firm of L. W. & Co. reserved to L., on the ground that their beneficial interest did not pass to their trustees H., W., and C. by the assignment of February,. 1880, and for an account of the dealings of the firm of L. W. & Co., and of the monies received, &c. The bill also contained an allegation that the Bank of New South Wales had been paid off and made no claim on the funds or the N N 1139 PATENT. 1140 parties. Demurrer by defendant for {inter alia) misjoinder and want of parties, Held that N.G., R.G., and J.W. might properly join L. as co-plaintiffs, being his ultimate cestui que trus- tent, subject to a charge for the creditors for whom H., W. and C. were trustees, that H., W., and C. ought to have been joined as plain- tiffs, since the bill did not allege that they made no claim, but that they had no right, and in order to dispense with the making them parties this latter allegation would have to be shown by clear detailed facts, whereas it was merely stated as a conclusion of law ; and that the allegation that the bank had been paid and made no claim rendered it unnecessary that it should be a party. Little v. Williams, 1 W.W, & a j B. (E.,) 32. Partnership Accounts — Dealings with a Ship — Re-opening Settled Accounts when not Allowed — Account of Receipts and Disbursements Directed.] — Smith v. Knarston, ante column 5. Simple Account between Partners within Rule 19 of Cap. VI. of Supreme Court Rules.] — Taylor v. Southwood, ante columns 5, 6. Action at law by Member of a Company against the Company — Special Agreement Taking Case but of Rule that Partners Cannot Sue their Co-part- ners at Law.] — Bennett v. Solomon, ante column 162. Sale by One Partner of Share to Other — Fraudu- lent Misrepresentation — Jurisdiction of Equity.] — Longstaffv. Keogh, ante column 404. IX, Insolvency op Partners. See ante columns 599, 600. PATENT. (1) To Whom and for What Granted, column 1139. (2) Assignment Sale and License to use, column 1140. (3) Infringement. (a) What is, column 1140. (5) Restraining Infringement, column 1140. (4) Extension and Prolongation of Term, column 1141. (1) To Whom and for What Granted. Prior Publication.] — The use of an invention by the inventor for the purposes of his trade, and the sale of work produced by such invention, amount to a prior publication of the invention, and are sufficient to avoid a subsequent grant of a patent for the invention. Ellis v. Geach, 4 A. J.R., 163. Design, What is— " Copyright Act 1869," Sec. 3.] — A new shape for an iron frame for the door of a safe, is not a " design " within the meaning of .Sec. 3 of the " Copyright Act 1869," so as to be capable of registration under that Act. Regina v. Radke, ear parte Dyke, 8 V.L.R. (L.,) 23. Bemble that it would form the subject of a patent. Ibid. (2) Assignment Sale and License to use. Sale under Execution.] — A patent cannot be sold under a fi. fa. Brown v. Cooper, 1 V.R. (L.,)210; 1 AJ.R., 162. Permanent Interest when Given.] — A person possessed of a secret invention for a medicine, a trade mark for its sale, and a market established for it, entered into an agreement with another, for an indefinite time for the making of the article by the other, and sales were conducted on a joint account, and the profits divided. The agreement was terminable at the pleasure of either. Held that the patentee had not given a permanent interest to the other person in either the secret or the trade-mark. Weston v. Hem- mons, 2 V.L.R. (E.,) 121. (3) Infringement. (a) What is. Publication — Want of Hovelty — Infringement.] — Suit instituted by a plaintiff company to re- strain the infringement of a patent. The plain- tiff company purchased from S. his patent for making composition pavement. The specifi- cations described the process as consisting of four layers, the ingredients of each of the three lower layers being stone, tar and lime ; of the top layer, stone and lime. Held that the patent was bad, because, taking lime as the only novelty, the patent claimed much which was not new, without discriminating between new and old ; also, that though the defendants, in making their pavement in a place where some mortar had been left, accidentally mixed some lime with their compound, this was no infringe- ment of the patent even if it were a valid patent. Patent Composition Pavement Coy. v. Mayor, &c, of Richmond, 1 V.L.R. (E.,) 50, 55. Using Patented Article Purchased in Another Country.] — Where a patent was taken out in Victoria for an American windmill, with im- provements, and K. purchased in New South Wales and used in Victoria an American wind- mill with those improvements, Held, that K.'s user was an infringement of the patentee's rights, although there was no evidence that he knew of the patent or of the improvements. M 'Lean v. Kettle, 9 V.L.R. (E.,) 145; 5 A.L.T., 107. (b) Restraining Infringement. Injunction — Where Validity of Patent not Estab- lished.] — On motion, in October, 1871, for in- junction to restrain the sale and manufacture of a specific alleged to be an infringement of the plaintiffs patent, the patent having been granted in August, 1870, and its validity impeached by the defendant, order refused until the patent should be established at law. Lande v. Law- rence, 2 V.R. (E.,) 171. Suit by Assignee— Copyright Act (Ho. 350,) Sec. 55.] — The assignee of a patent may, under Act No. 350, Sec. 55, sue in the County Court 1141 PAWNBROKER. 1142 any one infringing the patent. Shepherd v. The Patent Composition Pavement Coy., 4 A.J.R., 143. Novelty .]— In a suit by an assignee of a patent against the patentee for infringement the latter cannot dispute the novelty of the invention. Shepherd v. Patent Composition Pavement Gov.. 5 A.J.R., 27. Injunction— Accounts— Cos ts.] — Where a patent had been taken out in Victoria for an American windmill, with improvements, and K. pur- chased in New South Wales and used in Victoria an American windmill with those im- provements, an injunction was granted to restrain him. During the suit several issues had been sent to a jury, and were all found against K., who persisted in litigating the matter, which was to him of very small import- ance. Held that the patentees were not entitled to an account of the profits, or to a delivery up of the windmill ; and, upon the facts, that they were not entitled to the costs of the suit, although they were entitled to their costs of issues found by the jury in their favour. M'Lean v. Kettle, 9 V.L.R. (E.,) 145; 5 A.L.T., 107. (4) Extension and Prolongation of Term. On what Grounds Granted.] — On an application for the renewal of a patent to one H. for the manufacture of ice, the commission arrived at the conclusion: — 1. That the invention was meritorious. 2. That it had proved useful to the public. 3. That the fact of its not having been brought into operation at an earlier date during the original term of the patent was satisfactorily explained. 4. That neither the original patentee nor his assigns had been able to obtain a due remuneration for the money and labour expended in perfecting such inven- tion, and that those conditions existed which entitled the petitioners to the favourable con- sideration of the Crown. They therefore recommended: — 1. That the original term of fourteen years be extended for seven years more. 2. That in the new letters-patent grant- ing such extension there should be a recital that the further remuneration payable by the petitioners to the inventor formed part of the consideration of the grant, and a proviso that the said letters-patent should be void if the terms of such remuneration were not duly observed. 3. A limit on the price to be charged to the public. 4. Provision for the costs of the Crown and the opposers of the application. In re Ice Company's Patent, 1 A.J.R.,9. PAWNBROKER. "Pawnbrokers Statute 1865" (No. 248,) Sec. 29 — Refusing Pledgor Inspection of Entry of Sale.] — Where a pawnbroker refused to allow a pledgor to inspect entry of sale as to goods pawned which he alleged had been sold, and was sum- moned and fined under Sec. 29 of Act No. 248, the Court refused to issue an order of prohibi- tion. Regina v. Tucker, ex parte Aarons, 3 A.J.R., 69. Lien on Stolen Goods Pledged—" Criminal law and Practice Statute 1864," Sec.399.]— B. obtained goods by means of valueless cheques, and pledged the goods. After B.'s conviction for obtaining goods by false pretences one of the original owners applied to have the goods re- turned. Held that, notwithstanding Sec. 399 of the "Criminal Law and Practice Statute 1864," the pawnbroker was entitled to retain the goods as against the owner till he had been paid the amount he advanced on them, on the ground that the contract between the person who sold the goods and B. , who bought them, was voidable only and not void, and that if, before the contract was rescinded by the seller, B. parted with the goods to a pawnbroker, without any notice of the manner in Which they were obtained, the pawnbroker was entitled to a lien as against the original owner for the sum advanced on the goods. Regina v. Clarke, alias Bonnefin, 1 A.L.T., 116. Application for License — Power of Justices — "Pawnbrokers Statute 1865," Sec. 5.] — Under Sec. 5 of the "Pawnbrokers Statute 1865" justices, if satisfied with the character of the applicant, must grant him a license, without taking into consideration whether a pawn- broker's shop be required in the locality or not. Ex parte Mendelssohn, 2 A.L.T., 45. Jurisdiction of Justices — Under " Pawnbrokers Statute 1865," Sec. 5.]— The words of Sec. 5 of the " Pawnbrokers Statute 1865 " are mandatory, and upon an application for a pawnbroker's license, the justices, if satisfied that the charac- ter of the applicant is good, must grant him a license. If being so satisfied, they refuse to grant a license, no appeal will lie, but a. man- damus may issue to compel them to hear and determine according to law. Ex parte Nyberg, in re Nicholson, 8 V.L.R. (L.,)292; 4 A.L.T., 78. See S.C. post under Statutes— Construction and Interpretation — General Rules. Pledge-ticket — Signature of Pawnbroker — " Pawnbroker's Statute 1865," Sec. 21.]— A pledge- ticket contained the particulars inserted in the original entry in the pawnbroker's book ; but at the bottom, by way of signature, there were printed the words " Lewis M. Myers, per," fol- lowed by the written signature '« F. O'Farrell," being the signature of the person employed by Myers at the establishment. Myers was sum- moned under Sec. 21 of the " Pawnbrokers Statute 1865" for neglecting to give a pledge- ticket with the pawnbroker's signature attached, and convicted. On order nisi to quash, Held that, where a Statute merely requires that a document shall be signed, the Statute is satisfied by proof of the making of a mark upon the document by, or by the authority of the signa- tory, and that the signature was a sufficient compliance with the section. Regina v. Moore, ex parte Myers, 10 V.L.R. (L.,) 322; 6 A.L.T., 151. 1143 PAYMENT. 1144 PAYMENT. (1) General Principles, column 1143. (2) Appropriation of Payments, column 1144. (3) Payment into and out of Court, column 1145. (1) General Principles. When it Should be Pleaded.]— See King v. Levinger, 2 A.J.R., 113, ante columns 1043, 1044. Voluntary — What is.] — Ibid. What is — Payment after Date Specified in Bond.] — It is no answer to an action on a covenant for non-payment of money on the date mentioned in the covenant that the money was paid on a subsequent date and before action, and the plaintiff in such an action may recover damages for the breach. Anderson v. Stewart, 4 A.J.R., 170. What Amounts to.] — A company, whose cur- rent account at a bank was overdrawn to the extent of £5600, gave a mortgage to the bank to secure £6000 and interest. The bank placed £6000 to the debit of a new account called the "secured account," and credited the current account with £6000, thus placing it £400 in credit. Held that this transferring the amount from one account to the other did not amount to a payment, and did not discharge a surety responsible to the bank for the overdraft. Bank of Australasia v. Cotchett, 4 V.L.R. (L.,) 226. A debtor paying in money may apply it as he pleases, but, having paid it in generally, it rests with the creditor to apply it in the liquidation of the debt as he pleases, and the transferring the amount from one account to another does not in any way dispose of the debt ; the debt is not paid. Ibid. What Amounts to — By Agent — Question for Jury.] — Plaintiffs were in the habit of occa- sionally employing the secretary of the defen- dants, apublic body, to collect their accounts, and had more than once signed, at the request of such secretary, receipts in blank upon official forms of account without reading them, in order to enable him to obtain payment for them of accounts due from the defendants. The secre- tary, after his resignation as secretary, received payment from the defendants of an account due to the plaintiffs, giving them the usual receipt, and misappropriated the money. Held that it was a question for the jury to determine whose agent he was, so as to decide whether a plea of payment was proved. Davies v. Swan Hill Shire Waterworks Trust, 10 V.L.R. (L.,) 48; 5 A.L.T., 179. Attorney — Receipt by.] — An attorney is not an agent to receive a demand for payment or to pay money. Lee v. Melbourne and Suburban Ry. Coy., 1W.&W, (L.,) 34. See S.C., post under Solicitor — Relations with respect to Clients. Part Payment of an Account — Acknowledg- ment.] — F. was attended by R., a medical praetitioner, R. being sent for by P.'s partner while P. was unconscious. P. refused to ratify his partner's conduct, but paid a small part of the account sent in by R. Held that that afforded evidence of an admission of a liability to pay the whole amount. Patten v. Rudatt, 1 V.L.R. (L.,) 148. Person Making Payment not Authorised by Decree.]— See Phair v. Powell, 6 V.L.R. (E.,) 177; 2 A.L.T., 71; post under Practice and Pleading — In Equity — Decree and Order. (2) Appropriation of Payments. What is.] — A bank sued C. and B. to recover £377, the balance due on a promissory note for £500 in favour of the bank. C. allowed judg- ment to go by default, and B. defended on the ground that the bank had been already paid. It appeared that the bank had proceeded against C. and had obtained an order for attaching sufficient moneys in the hands of a debtor of C. to pay the note. The debtor applied to set the order aside, and eventually an order was signed by consent for payment of the sum. On the day such order was signed, but before it was served, C. signed an order directing his debtor to pay the sum due to C. to one M., for C, and the debtor paid it to M., who paid it into the bank to C.'s credit. The bank appropriated it in payment of other debts of O, and then proceeded against B. for the balance due on the note. Held that the money had not been paid under the attachment order, but under the order from C. and on his behalf, and as he had not appropriated it in payment of the note, the balance was still due and un- paid, and that B. was liable upon it. Com- mercial Bank v. Cowland, 4 A. J.R., 162. Offer'of Honey as Stakes for a Race — Acceptance with a Warning that all Forfeits Due were to be Paid.] — Money paid is to be applied according to the intention of the party paying it, and money received according to that of the re- ceiver. When nothing is said by the payer the recipient dictates the ground on which he re- ceives the money. F. entered a horse for a race and tendered £20 as the amount of the Btakes, and told the secretary he paid it for his right to run his horse in the race. Th^ secre- tary accepted it, but said that the horse would not be allowed to run unless F. paid certain forfeits which F. disputed. F.'s horse was not allowed to run, and F. recovered a verdict for £20 on a count of money had and received. On rule nisi to set aside verdict, Held that as the secretary had not declined to accept the money, he must be taken to have received it in the spirit and subject to the terms in which it was paid, and that therefore he could not appro- priate it to the payment of the forfeits. Rule discharged. Filgate v. Thompson, 5 A. J.R., 124. Set-off Against Rates — Appropriation of Pay- ments.] — A corporation sued M. to recover £182 for rates, and defendant pleaded a set-off. The plaintiff corporation met this by showing that the money was appropriated to rates due prior to October, 1863, when the old municipal council was abolished and a new council established. It was contended that some of these rates prior 1145 PENALTY. 1146 to October, 1863, were not properly recoverable as the proper formalities had not been observed. Held that in this case the creditor had appro- priated the payment of the old debts and the debtor had assented to that ; that unlawful debts cannot be liquidated by appropriation, but only those barred by the Statute of Limi- tation. Set-off allowed to a certain extent, Mayor of Fitzroy v. Mahony, N.C. 68. Honey Paid-in generally may be Appropriated by Creditor as he pleases.] — Bank of Australasia v. Cotchett, ante column 1143. Appropriation of Payment Indicated by Debtor— "Sheriff Heed not Regard.] — See Slack v. Winder, 5 A.J.R., 72 ; post under Sheriff. (3) Payment of Money Into and Out of Court. In County Court Action for Conversion — Effect of.] — In an action in the County Court the par- ticulars of demand stated a conversion of speci- fied goods, and the defendant paid a certain sum into Court. Held that the payment ad- mitted the conversion complained of, and not merely a conversion to the extent of the sum paid in. Lawes v. Price, Warren v. Same, 8 V.L.R. (L.,) 250 ; 4 A.L.T., 59. Suit to Recover Amount of Policy from Insur- ance Society— Interpleader—Payment into Court — Motion to Put Hatter in Course of Inquiry — In- junction — Costs.] — Australian Mutual Provident Society v. Broadbent, ante column 734. And see cases ante columns 257, 258. Payment Into or Out of Court under Equity Procedure.] — See cases post under Practice and Pleading — In Equity — Transfer of Funds into and out of Court. Defendants obtaining leave to defend action on bill of exchange and paying money into court, money treated as if they paid in under plea of payment. Young v. Dellar, 1 A.L.T., 87. Suit to Restrain Enforcement of Contributions.] —In December, 1871, an injunction was granted restraining defendant C. from further proceed- ing with execution of warrants of distress against certain plaintiffs, on condition that they should lodge £235 with the Master. In March, 1872, the bill was argued on demurrer, and dismissed as against C. Motion by plaintiffs for payment out of Court of the £235. Order made for pay- ment out of the sum without prejudice to the rights, if any, of the plaintiffs to be recouped, if the sums levied on them were in excess of their .contributions to a certain company. Smith v. Seal, 3 A. J.R., 19. Payment out of Court — Rule nisi to Rescind Order for Where Returnable.] — See Bell v. Stewart, 1 A. J.R., 92. Post under Practice and Plead- ing—At Law — Practice — Rules and Orders. Payment out of Court — Insolvency of Defen- dant—Plaintiff having Recovered Verdict En- titled to Payment Out— Act Ho. 304, Sec. 20.]— Playford v. 0' Sullivan, ante column 99. PENALTY. Penalty _ or liquidated Damages.] — B. con- tracted with the defendant shire to execute certain works within a certain Ijime, payment to be made monthly with a condition that if, in the opinion of the engineer, B. should employ bad materials, or execute the matter imperfectly, the defendant might take the work out of B.'s hands, and retain as " ascertained damages for breach of contract all monies in their hands due to the contractor." B. sued the shire for breach of contract in not making monthly pay- ments and other counts, and recovered £1296 damages. It appeared by defendant's plea that the engineer had been of opinion that B. had broken his contract, and that the contract had been taken out of B.'s hands, and money due to him retained. On rule nisi to enter verdict for defendants, Held that the penal sum was to be regarded as a penalty to be assessed by a jury, and not as liquidated damages. Verdict entered for defendant on so much of the plea as justified the discharge of the plaintiff from his contract. Otherwise judgment for plaintiff. Blair v. Shire of Leigh, 4 W.W. & a'B. (L.,) 281. When Penalty Amounts to a Prohibition. ] — An act, for doing which a penalty is prescribed, is thereby prohibited. Attorney-General o. Mayor of Emerald Hill, 4 A.J.R., 135, On Covenant — Penalty or Liquidated Damages.] — A contract for the sale of a draper's business contained a covenant that the vendor would abstain for ten years from carrying on the busi- ness of a draper in the town, or within five miles of the town in which the business sold was carried on, and would not sell or let a certain other store of the vendor to any person who should carry on such business, and that in the event of a breach of the covenant by the vendor, he should pay £2000 to the vendee by way of liquidated damages, and not as a penalty. Held that the £2000 was recoverable as liqui- dated damages. Qleeson v. Kingston, 6 V.L.R. (L.,)243; 2A.L.T..33. Per Stawell, J. — In such cases as the present the Court is not influenced solely by the words used; calling the sum liquidated damages will not make it so ; the Court looks at the in- tention of the parties, and at all the circum- stances, and regards the amount as a penalty, however strong the language selected, if the covenant comprises various contingencies differing in importance, and the sum is made payable on the occurrence of any of them ; as it will not be supposed that the parties con- templated the committing an act of injustice. Ibid. How Enforced.] — Where the power to award immediate imprisonment in default of immediate payment is not expressly given by Statute, it is necessary, in all cases where the Statute autho- rising the infliction of a penalty either directs a levy by distress or is silent as to the mode of levying for the penalty, that distress should precede imprisonment. Ex parte Fat Tack, ex parte Ah Poon, 6 A.L.T., 37. 1147 PENSION— POLICE. 1148 For Practising as a legal Practitioner without due Qualification— Acts 5 Will. IV., No. 22; 11 Vict. No. 33; Sec. 13, No. 159.]— The Act 11 Vict. No. 33, Sec. 13, enacts by reference the provisions of the Act 5 Will. IV. No. 22, relating to the recovery of forfeitures and pay- ments for offences under the Act No. 33, relating to persons practising as legal practitioners without due qualification ; and the repeal of No. 22 by the Act No. 159, left the provisions incorporated from the Act No. 22 in the Act No. 33 in full force as if they had been enacted in full in the last-mentioned Act. Fenton v. Dry, 1 W.W. & a'B. (L.,) 64. Under " Electoral Act 1865," Sec. 133 — Who may Recover — Qui tarn Action.] — A private prosecutor upon a qui tarn information cannot recover the penalty imposed by the " Electoral Act 1865," bee. 133, upon a returning officer who has been guilty of dereliction of duty ; but the prosecu- tion must be instituted by the Attorney or Solicitor-General, or by a prosecutor for the Queen. Begina v. Cope, ex parte Willder, 4 V.L.R. (L.,) 397. PENSION. " Constitution Act," Sec. 51— Order-in-Council.] — An order was made under the " Constitution Act" for regulating the granting of pensions to persons retiring or being released from office on political grounds, and a patent for a, pension was issued under the order. Sec. 51 of the Act provided that the amount should be so granted, that the same should, so far as might be, accord with 4 & 5 Will. IV., c. 24. The fund limited by the Legislature for pensions was £4000, and the number of pensioners was limited, while under the English Act the fund was practically unlimited. The order provided that the pen- sion incidental to certain offices should not exceed £1000, and to other offices £700. Held, by Stawell, C.J., and Williams, J. (dissentiente Barry, J.,) that the order had been framed to accord, as far as might be, with the English Act, and a demurrer to a scire facias, to repeal the patent on the ground that the order had not been well made, overruled. Begina v. Ireland, 2W.4W. (L.,) 291. And see cases ante column 133, under Civil Service. PERPETUITIES. Semble, per Molesworth, J., that an absolute assignment of land, with a verbal promise to re- convey on payment of a debt and interest, is not void as against the law of perpetuities, but gives the assignor a right of redemption. Masher v. Summers, 10 V.L.R. (E.,) 204, 210 ; € A.L.T., 80. Under Wills.]— See Will. PERSONATION. Fraudulently Personating Owner of land in Application to Bring Land under the Act.] — Fotheringham v. Archer, 5 W.W. & a'B. (L.,) 95 post under Transfer op Land — Remedies in Respect of Deprivation of Land. Personating a Voter.] — Begina v. Keating, ante column 305. Personating an Elector — Offence not Within Jurisdiction of General Sessions — Act No. 502, Sec. 15 (vii.)] — Begina o. Hynes, 6 V.L.R. (L.,) 292; 2 A.L.T., 45; post under Sessions— Jurisdiction of Court of General Sessions. PHOTOGRAPHS. See COPYRIGHT. PILOT AND PILOTAGE. See SHIPPING. PLEADING. See PRACTICE. PLEDGE. See BAILMENT— PAWNBROKER POLICE. Contract to Serve — " Police Regulation Statute 1865," Sees. 10, 11.] — The contractof a policeman, under the "Police Begulation Statute 1865" (No. 257,) Sees. 10 and 11, to serve the Crown is unilateral, and no corresponding obligation on the part of the Crown to retain him in the service is implied. Power v. The Queen, 4 A.J.R., 144. Inspector Opposing' License under "Licensing Act 1876 "—Right to Costs.]— Per H iginbotham, J. (In Chambers) — An inspector of police who has successfully opposed the issue of a license under Sec. 38 of the "Licensing Act 1876" is entitled to his costs of successfully opposing a rule nisi for a mandamus to compel the issue of a license. Ex parte Slack, 6 A.L.T. 23. POLICY (FIRE, Sao.). See INSURANCE. 1149 POUNDS AND IMPOUNDING. 1150 PORTIONS. Advancement.] — See Infant — Trust and Trustee— Will. POSTEA. See JUDGMENT— NONSUIT— PRACTICE. POUNDS AND IMPOUNDING. Statutes: — "Pounds Statute 1865," 28 Vict. No. 249. "Pounds Act 1874," 32 Vict. No. 478. "Land Act 1869" (No. 360,) Part IV., Sec. "Pounds Statute 1874" (No. 478,) Sec. 18— Shooting Goats Trespassing.] — Goats were tres- passing on W.'s land. W. shot at one and wounded it, and it did not die for nine days afterwards. Held that Sec. 18 did not impose any obligation to kill the animal instantaneously or any liability for injuring the animals. Bag- shaw v. Wills, 5 A.J.K., 115. See S.C. ante column 28. "Pounds Act 1874" — Effect of— Common law Right.]— The "Pounds Act 1874" does not do away with the common law right to impound animals trespassing. Main v. Robertson, 2 V.L.R. (L.,) 25. Pigs — Cannot be Impounded for Trespass under Act No. 237, Sec. 48.] — The manager of a com- mon is not empowered, by virture of Sec. 48 of the "Land Act 1865" (No. 237,) to impound pigs for trespass upon the common. The words "cattle, sheep, and goats," in the section, do not include pigs. Oeoghegan v. Talbot, 5 W.W. & a'B. (L.,) 187. [See now Sec. 60 of Act No. 360.] Cattle Trespassing from Highway.]— The owner of land adjoining a highway is not necessarily bound to fence it off; but, if cattle stray upon the land, when unf enced, from the highway, the owner of the land is not entitled to impound such cattle until their owner has had a reason- able time for driving them off. Butcher v. Smith, 5 W.W. & A'B. (L.,) 223. Adjoining Owners of Unfenced land.] — Both adjoining owners must know their own boun- daries, and must keep their cattle within them, though there be no fence between; and either may impound in case of cattle trespassing. Ibid. Sheep " under the charge of a shepherd" may be impounded for trespass. Brouqh v. Wallace, 2W.&W. (L.,)195. Cattle Damage Feasant — Detention — " Pounds Act 1874," Sec. 14.] — An owner of land may, in the absence of any enactment to the contrary, seize and drive off or impound cattle, damage feasant, or may drive them to a convenient place for the owner, and so far detain them, and, under the "Pounds Act 1874," Sec. 14, he may under certain circumstances detain them to give the owner an opportunity of taking them on payment or tender of trespass rates ; but the detention must be for the purpose of impound- ing, if they are not so taken away by the owner. Jones v. Campion, 4 V.L.R. (L.,) 473. Sheep Damage Feasant — Detention.] — Sheep seized as a distress, damage feasant, need not be conveyed to the nearest pound immediately and without any delay, but may be detained for a reasonable time ; and a person lawfully seizing sheep, damage feasant, and detaining them for an unreasonable time previously to impounding them, or treating them in an improper manner after seizure, e.g., driving them too fast, does not thereby become a trespasser ab initio. Sanderson v. Fotheringham, 10 V.L.R. (L.,) 289; 6 A.L.T., 122. Illegal Impounding.] — G. had a license from Board of Land and Works to graze his cows in the South Park from 6 a.m. till 6 p.m., and on condition that no cows should be in the park at night. G. afterwards obtained permission to enclose and use a portion of the land to be used at night as a stockyard. R., a servant of the board, found some of G.'s cows at 7.45 p.m. outside the stockyard and impounded them. G. summoned R. for illegally impounding. Held, reversing the justices, that the board could legally impound, and were not put to their remedy for breach of the conditions of the license, and that cattle should not have been in the park outside the stockyard after 6 p.m. Ritchie v. Gillespie, 2 W. & W. (L.,) 40. Illegally Impounding — What is.] — M. seized sixteen horses of plaintiff, put them in his yard, demanded trespass-money and said he would send the horses to the pound if the trespass- money were not paid. The poundkeeper refused to impound the horses, and M. thereupon let them go. Held that there was a seizure only, and not an impounding, and that a conviction, which had been made against M. for illegal im- pounding, was wrong. In re Rawlings, 1 W.W. &A'B. (L.,)22. Notice of Impounding — " Pounds Statute 1865" (No. 249,) Sec. 11.] — Where an impounding agent delivered to the poundkeeper a written memo- randum in the form of a letter headed "Loddon, 2nd November, 1868," Held that the memo- randum was not in accordance with Sec. 11 of the Act, as it did not express whether the land was enclosed and cropped, nor did it express the place of trespass. WwgAeld v. Glass, 6 W.W. & A'B. (L.,) 4. [Compare Sec. 19 of Act No. 478.] Notice of Impounding — What Sufficient.] — A notice of impounding was given by defendant to plaintiff at the time of impounding as I follows : — "Impounded by the manager of the 1151 POUNDS AND IMPOUNDING. 1152 L. and W. Farmers' Common, on 4th October, 1870, 1415 sheep (describing the sheep) mostly belonging to Mr. P. (plaintiff). Trespass damages on the lot. M. (defendant)." Held that this was a sufficient notice, since the fair inference was that the sheep were impounded from the common by the managers ; and a reference to the schedule of the ' ' Pounds Statute" would show the scale of rates which should be tendered for trespass on that descrip- tion of land. Pettett v. Mellies, 1 A.J.R., 164. [Compare Sec. 19 of Act No. 478.] Notice of Impounding— Description of Land.] — A notice of impounding was headed " Meredith, 6th January, 1871," and contained no other description of the situation of the land. Held a sufficient description. O'Keefe v. Behan, 2 V.R. (L.,)16; 2A.J.E., 19. [Compare Sec. 19 of Act No. 478.] " Pounds Act" (No. 478,) Sees. 14, 19, 33, Suh-sec. 3— Memorandum given to Poundkeeper.]— Sec. 33, Sub-sec. 3, creates the offence of illegal im- pounding, and Sees. 14 arid 19 declare what illegal impounding is, but non-compliance with the latter part of Sec. 19 as to the memorandum to be furnished to the poundkeeper is not an offence within Sec. 33, Sub-sec. 3. Convic- tion of justices quashed. Robertson v. Main, 1 V.L.R. (L.,) 5. " Pounds Act 1874," Sec. 14 — " Place Trespassed upon."] — The "place trespassed upon" in Sec. 14 of the " Pounds Act 1874" means the place where the cattle trespassed by feeding without authority. Sanderson v. Fotheringham, 10 V.L.R. (L.,) 289 ; 6 A.L.T., 122. Per Higinbotham, J. : — The actual spot where the seizure took place and the actual place of residence of the owner, agent, or overseer must be taken in every case to be the true termini of the statutory limit of distance (within five miles of the place trespassed upon. ) Ibid, p. 295. "Pounds Statute 1865"— Construction.]— The provisions of the " Pounds Statute 1865," as to driving to the "nearest pound," are merely directory and not mandatory, the language used being affirmative and not negative. Butcher v. Smith, 5 W.W. & a'B. (L.,) 223. [Compare Sec. 19 of Act No. 478.] Act No. 478, Sec. 14— Illegal Impounding — Burden of Proof of Exceptions.] — An information was laid for illegally impounding certain sheep known by defendant to belong to an owner resident within five miles, without giving forty- eight hours' notice. Semble that the onus of proving that the case was or was not within the exception of Sec. 14 did not lie on the defendant. Mack v. Murray, 5 V.L.R. (L.,) 416. Act No. 478, Sec. 28 — Illegal Impounding — Notice to Poundkeeper.] — Although Sec. 28 directs that notice of intention to com- plain should be given to the poundkeeper at the time of releasing the sheep, the only object of such notice is to get a fund in hand to satisfy the owner's claim, it is not a condition prece- dent, to the right to sue for illegal impounding. Stephen v. Gill, 3 V.L.R. (L.,) 178. "Pounds Act 1855" (No. 39,) Sec. 25 — "Illegal."]— The word "legality" in Sec. 25 means legality under that Act ; i.e., to say that all the requirements of that Act as to impounding have been complied with. A per- son impounds " illegally" if he has not complied with the requirements as to the modus operandi prescribed by the Act, and magistrates have no- jurisdiction to decide questions of title under that Act. Degraves v. Bennett, 2 W. & W. (L.,) 191. [Compare Sec. 29 of Act No. 478.] "Pounds Statute 1865" (No. 249,) Sec. 25— Notice of Appeal.] — Where K. , on paying pound fees and damages, released his cattle and gave notice to poundkeeper of his intention to appeal, but such notice was not lodged at the time of release, but two days afterwards, Held that the words " at the same time," in Sec. 25, must be strictly complied with, and that K. was too' late. Parker v. Kelly, 4 W.W. & a'B. (L.,) 28. " Pounds Statute 1865" (No. 249,) Sec. 26— Prac- tice on Appeal.] — M. impounded sheep belonging to P. P.'s superintendent (C.) gave notice of. appeal in P.'s name, but proceedings were in- stituted, and a conviction against M. was obtained in C.'s name. Held that the convic-' tion could not be sustained, that the same name must be used throughout. Prohibition granted. Regina v. Taylor, ex parte Macdonald, 3V.R. (L.,)13; 3A.j.R.,31. [Compare Sec. 28 of Act No. 478.] "Pounds Statute 1865" Sec. 26— legality of Impounding — Question for Justices.] — On a com- plaint for illegally impounding, the question of "the legality of the impounding," which the justices have to try under Sec. 26 of the " Pounds Statute 1865 (No. 249,) is not whether the seizure has been legal or not, but whether the requirements of the " Pounds Statute 1865" have been complied with, and they have no power to enter into a question of title. Rome v. Middleton, 2 V.R. (L.,) 59; 2 A. J.R., 54 (sub nom. Middleton v. Rome.) [Compare Sec. 29 of Act No. 478.] Order for Damages for Illegally Impounding — ■ Notice to Poundkeeper — " Pounds Act 1874," Sees. 28, 29.]— Before an order under Sec. 29 of the 4 " Pounds Act 1874" finding that an impounding 1 was illegal and giving damages in respect' thereof, can be valid, there must have been a notice to the poundkeeper, under Sec. 28 of the Act, of intention to complain against the im- pounder for illegally impounding, though the owner may not seek to have the cattle released before such order. Regina v. Taylor, ex parti Hailes, 8 V.L.R. (L.,) 149. " Pounds Act 1874"— When Notice under Sec. 28 Necessary.]— Per Higinbotham, J. (in Chambers) —When a complaint for an illegal impounding is lodged against an impounder it is not neces- sary that strict proof of the notice in writing 1153 POUNDS AND IMPOUNDING. 1154 to the poundkeeper, under Sec. 28, of intention to complain should be given, since by neglecting to give the notice the complainant only deprives himself of the right to claim from the pound- keeper the trespass rates paid to and retained by him. It is only in proceedings against the poundkeeper for the illegal detention of the cattle impounded that it is necessary to give such proof of notice. Begina v. Littleton, ex pane Kirk, 6 A.L.T., 21. " Pounds Act 1874," Sec. 29 — Words Necessary to give Justices Jurisdiction — " Justices of the Peace Statute 1865," Sec. 113.] — Per Higinbotham, J. (in Chambers)— It is unnecessary that the par- ticular nature of the illegality under Sees. 14 or 19 of the "Pounds Act 1874," should be set forth in an order of justice for illegally im- pounding made under Sec. 29 of that Act. The order is valid and sufficient, according to Sec. 113 of the "Justices of the Peace Statute 1865," if the subject matter is set forth in the words of the Act on which the order is framed. Ibid. Where an order alleged that the defendant " did illegally impound eight head of cattle " without adding the words " contrary to the provisions of the ' Pounds Act 1874,' " Held that the order was bad ; and prohibition granted. Ibid. "Pounds Statute" — Jurisdiction of Justices on Summons for Illegally Impounding.]— See O'Keefe v. Behan, 2 V.E. (L.,) 16 ; 2 A.J.R., 19; ante column 746 under Justice of the Peace. 18 Vict. No. 30— "land Act 1862," Sees. 68, 122, 129— Remedy for Trespass.]— D. was ap- pointed herdsman of a Farmers' Common, and impounded two horses belonging to the defend- ant for trespass on the common. The magis- trate held that the only remedy was under the " Land Act 1862," Sec. 129, and ordered pound- age to be repaid. Held, on appeal, that the remedy provided in Sec. 129 was inadequate, and did not deprive an owner of his rights, in- dependently of the section, and that as Act 18 Vict. No. 30 is silent as to particular persons who may impound, D. might, as the person in possession, impound animals damage feasant. Appeal allowed. Douglas v. Reynolds, 2 W. & W. (L.,) 1. [Compare Sec. 60 of Act No. 360 with the provisions in " Land Act 1862."] Poundage Fees— How Recoverable.]— The right to recover any deficiency in poundage fees, charges, and expenses in the proceeds of im- pounded animals given by the " Pound Act," 18 Vict., No. 30, Sec. 22, to poundkeepers, can only be enforced by the specific remedy given by the Act, viz., before Petty Sessions, and the County Court has no jurisdiction in the matter. Bourne v. Jones, 3W.W.4 a'B. (L.,) 45. Damages for Trespass by Sheep — Jurisdiction of County Court—" Pounds Statute 1865," Sec. 33.]— Sec. 33 of the Statute does not take away the jurisdiction of the County Court to give damages for trespass bv sheep. Mtdhare v. Lindsay N.C. 14. Damage for Trespass — Special Damage — Juris- diction of Justices—" The Pounds Statute 1865."] — Where trespassing cattle were given up to the owner, instead of being impounded, upon his promising to pay what should be due, and the justices awarded a sum for special damages over and above the ordinary rate allowed by the "Pounds Statute 1865" (No. 249,) Held that the justices had no power to make such an order, and decision reversed. Wilson v. Powell, 5W.W. &VB. (L.,)249. Trespass Kates — Agreeing upon Higher Bates than those Provided — Offence — " Pounds Act 1874," Sees. 17, 33 (viii.).] — Although the parties may have agreed upon higher trespass rates than those provided for by Sec. 17 of the "Pounds Act 1874," the rates to be tendered are those provided for by that section, and a re- fusal to release the animal seized on tender of the lower rates, even where a higher rate has been agreed upon, constitutes an offence within Sec. 33 (viii. ) of the Statute. Persse v. Smith, 4 V.L.R. (L.,) 201. " Pounds Act 1874," Sec. 15— Order for Trespass Fees and Fine in One — Amendment — Costs.] — Justices have no power to order the payment of trespass damage, and also to impose a penalty for illegally impounding, in one and the same proceeding. Should justices, however, do so, the Court has power to amend the proceeding by striking out the order as to damages and fees ; but where the respondent did not appear, the Court, in amending the order and discharg- ing a rule to prohibit, ordered him to pay the costs of the application. Regina v. Heron, ex ■parte Jones, 8 V.L.R. (L.,) 140 ; 4 A.L.T., 6. Receiving Evidence — " Pounds Act 1874," Sec. 15.] — On a complaint, under Sec. 15 of the "Pounds Act 1874," for the amount of trespass rates in respect of trespassing cattle delivered to some person for the owner, the justices must hear evidence, and determine whether such person was a person having authority to receive them. Schneider v. Wright, 4 V.L.R. (L.,) 62. " Pounds Act 1874 " (No. 478,) Sees. 14, 15— Recovery of Trespass Fees— Demand.]— In order to enable a complainant to recover trespass fees it is not necessary for him to make a demand of them personally to the owner ; and restoration of sheep trespassing to the owner's agent or overseer is sufficient. A selector under the " Land Act " (No. 360,) who has not fenced his land, may drive off trespassing sheep, and re- cover trespass fees on restoration of them, although he may not " impound " until his land is fenced. M'Millanv. Gove; Regina v. Puekle, ex parte Ware, 1 V.L.R. (L.,) 142. "Pounds Statute," 18 Vict. No. 30, Sec. 32— " Owner " and " Occupier."]— F. was manager of a Farmers' Common duly proclaimed under the " Land Act 1862," and he seized and impounded sheep found on the common. G., the owner, sued F. for illegal impounding. Held that i< . was not the "occupier" under Sec. 32 of the " Pounds Statute," but was the ' ' owner under that Statute solely by force of the "Land Act 1865" (No. 237,) Sec. 48, and that F was en- titled to impound the sheep. Goldsbrough v. Fletcher, 6 W.W. & A'B, (L.,) 213; N.C, 14. P P 1155 POUNDS AND IMPOUNDING. 1156 As to managers of commons see now "Land Act 1869," Sec. 60. Trespass Rates — Who may Recover— " Pounds Act 1874," Sees. 12, 15.]— A licensee of land, under the " Land Act 1869," Sees. 19 and 20, is debarred from recovering trespass rates or damages under the "Pounds Act 1874," Sees. 12, 15, unless he has enclosed his land with a substantial fence. Allan v. M'lntyre, 8 V.L.R. (L.,)133; 4A.L.T..4. Occupier — Manager of a Common — " land Act 1869," Part iv.— " Pounds Act 1874," Sec. 15.]— The managers of a common under Part iv. of the *' Land Act 1869 " cannot sue for trespass rates under Sec. 15 of the " Pounds Act 1874," not being occupiers within the meaning of that sec- tion. Begina v. Can; ex parte Sanderson, 10 V.L.R. (L.,) 178; 6 A.L.T., 53. Act No. 478, Sec. 15— Owner.] — It is only the owner of trespassing cattle who can, under Sec. 15, be sued for the trespass rates, after restora- tion of the cattle to him or his servant ; and a manager of a station is not an "owner" to be sued for trespass rates. Lewis v. Green, 9 V.L.R. (L.,) 354; 5 A.L.T., 121. Seizure and Detention for Purposes of Im- pounding — Plea — " Pounds Act 1874," Sec. 14.]— In an action for trespass and detinue for seizing cattle if the defendant pleads, under Sec. 14 of the " Pounds Act 1874," that the cattle were seized and detained for the purpose of being impounded, the plea must state the existence of the conditions specified in that section, otherwise it will be defective. Jones v. Campion, 4 V.L.R. (L.,) 170. Action for Trespass in Seizing Sheep — Justifi- cation under Sec. 14 of the " Pounds Act 1874" — Plea.] — A plea to an action for trespass for seizing sheep which justifies, under Sec. 14 of the " Pounds Act 1874," must deal with all the con- ditions stated in that section. If it omit to deal with those in the latter part of the section, on the assumption that they are for the benefit of the defendant, and may therefore be waived by him, the plea will be bad. O'Shea v. D'Arcy, 6 V.L.R. (L.,) 142; 1 A.L.T., 170. Seizure of Sheep by Managers of a Common — What must be Pleaded in Action for — ' ' Pounds Act 1874."] — In an action against the managers of a common for seizing and impounding sheep, the defendant managers must in their plea, as any other owner of land must, allege all that is necessary to show that the impounding was done in such a manner as to conform to the conditions imposed by the " Pounds Act 1874." It is not sufficient merely to plead that the de- fendants were managers of the common, and in that capacity impounded the sheep as trespassing upon the common. Sanderson v. Fotheringham, 10 V.L.R. (L.,) 17; 5 A.L.T., 172. "Pounds Act" (No. 478,) Sec. 33, Sub-sec. 1— "Rescue."]— To constitute a "rescue," there must be something amounting to a breach of the peace, or an act likely to provoke a breach of the peace, and in the presence of the pound- keeper. Where, therefore, a person took his horse out of an enclosed paddock belonging to the poundkeeper, but outside of the limits of the pound, there being at the time no one in charge of the horse, Held that there was no " rescue" or " pound breach." Lodge v. Route, 1 V.L.R. (L.,) 65. "Pounds Act," 18 Vict. No. 10— Offence Against — Conviction.] — It is not necessary that a convic- tion for the offence of impounding cattle out of the police district in which the cattle were dis- trained, should be had at the "nearest petty sessions" to the pound. Ex parte BeUby, 1 W. & W. (L.,) 281. " Pounds Statute" (No. 249,) Sec. 20— Proceeding for an Offence under the "Pounds Statute" (No. 478,) Sec. 31.]— Under the Act No. 249 it is not an offence for a poundkeeper to assist in driving cattle to pound, though it is under No. 478. No. 478 is not retrospective in this section (31.) Anderson v. Deasy, 5 A.J.R., 14. Jurisdiction of Justices to Determine what is a " Substantial Fence" within Act No. 478, Sec. 14 — Not Governed by Meaning of " Sufficient Fence" in "Fences Statute " (No. 479,) Sec. 4.] — See Eegina v. Hutchinson, ex parte Jessell, ante column 458. POWERS OP APPOINTMENT. Defective Execution — Wife in Favour of Hus- band — Formalities.] — Where a marriage settle- ment reserves to wife a power of appointment by deed to be executed by two witnesses and with husband's consent in writing, Held, per Molesworth, J., that Court will not aid, as an intended execution of it, a deed executed by wife in favour of husband unattested, and with- out husband's consent in writing. Bennett v, Bennett, 1 V.L.R; (E.,) 280. POWER OF ATTORNEY. Filing of — "Instruments and Securities Statute" (No. 204,) Sec. 98.]— The word "unless" in Sec. 98 must be taken in its usual signification, and must not be read as ' ' until." Therefore a, power of attorney must be filed before or at the time of executing a conveyance, which is executed under such a power, otherwise the deed is of no effect unless confirmed in the way pointed out in the Act. Pratt v. Williams, 6 W.W. & a'B. (L* ) 22. Death of Principal before Registration of Power — "Instruments and Securities Statute" (No. 204,) Sees. 95, 99.]— The first portion of Sec. 95 ending with the words " until the death, &c, shall have been registered as hereinafter pro- vided" must be read as explained by the subse- quent portion beginning " every act within the scope, &c.;" in that way all the parts of the section are consistent with each other, and the section itself is consistent with the subsequent sections, particularly Sec. 99. Where the Registrar of Titles refused to register a transfer 1157 POWER OF ATTORNEY. 1158 of certain land, the title to which depended on a deed purporting to have been executed under a power of attorney, on the ground that evidence must be given of the principal being alive at the date of the registration of the power, Held that he was right. In re Woods, 6 W.W. & a'B. (L.,)233; N.C., 26. When Person Contracting with Attorney Need not Require Production of Power.]— A person contracting with an attorney under power, if the power be not referred to during the nego- tiations, need not require the production of the power, more especially where the agent holds himself out as possessing other authority to contract. Brown v. Hardy, 5 W.W. & a'B. (L.,) 245. Attorney Acting in Excess of — Ratification.] — An attorney under power to grant leases upon certain terms acted in excess of his power, but the principal on becoming aware of it, did not repudiate the contract made in excess of the power. Held that the other party to the lease was entitled to enforce his remedy for breaches on the part of the principal. Ibid. Authority Conferred by— Non-Registration — Creditors' Deed.] — The registration of a power of attorney is not necessary to the validity of a creditors' deed which has been executed by the attorney under power of a creditor. Stacpoole v. Glass, 1 V.E. (L.,) 195 ; 1 A. J.R., 154. Authority to Take out Letters of Adminis- tration.]— See post under Will— Probate and Letters of Administration. Petition for Winding-up Company Presented by Attorney under Power — Insufficiency of Autho- rity.]— See In re Provincial and Suburban Bank, ante column 166. Power of Attorney— Piling of.]— Where an ap- plicant for administration holds a power-of- attorney for the next-of-kin, which has been registered under Sec. 98 of Act No. 204, such power-of -attorney need not be filed in the Su- preme Court. In re Mitchell, 3 A.J.R., 18, Verification of Execution of Power— Affir- mation.]— Where the execution of a power-of - attorney was verified by affirmation before a commissioner, the Court refused to accept such in the absence of evidence that the person verifying had conscientious scruples against taking an oath. In the Estate of Talents, 9 V.L.K. (LP. & M.,) 27. Verification of Power of Attorney.]— The Court will not accept verification by a notary public where the party is resident within access to a commissioner of this Court. In the Goods of Crowther, 3 V.L.R. (LP. &M„) 63. Affidavit Verifying Power — Defect in Affidavit how Cured.]— In the Estate of Downing, ante column 23. Execution of Power made in England Attested hy Notary, and Not hy Commissioner— Matter Affects Court only, and not Parties.]— In re Chaplin, ante column 23. Verification of Power of Attorney.] — The practice of the Court is to require the due execution of a power-of-attorney to be verified before a com- missioner of the Court in the county where it is executed, or proof from some person in Victoria as to the handwriting of the grantors of the power. In the Will of Taylor, 1 A.L.T., 45. Power of Attorney — Limited to Personal Pro- perty.] — In an application for administration with an exemplified copy of the will annexed, the power of attorney only referred to personal estate. Held that this was insufficient, and that the power must refer to both realty and personalty. In the Will of Sutherland, 9 V.L.R. (LP. &M.,)29; 5 A.L.T., 120. PRACTICE AND PLEADING. (A) In Equity before Judicature Act. (B) Practice at Law before Judicature Act. (C) Pleading at Law before Judicature Act. (D) Practice under Judicature Act, 1883. (E) Pleading under Judicature Act, 1883. In Mining.]— See Mining. • In Probate and Administration.] — See under Will. In County Court.] — See County Court. In Suits between Mortgagor and Mortgagee.]— See Mortgage. In Administration Suits.]— See Administra- tion. In Ejectment, Trover) Trespass, Attachment, be] —See under various titles in the book. Statutes : — 19 Vict., No. 13— Sees. 3, 4 and 5, repealed by No. 761. " Common Law Procedure Statute 1865 " (No. 274,) in great measure repealed by Act No. 761. "Equity Practice Statute 1865 " (No. 342,) Sees. 3, 4 and 5, 6 and 7 repealed by Act No. 761. "Judicature Act 1883" (No. 761.) (A) In Equity before the Judicature Act 1883. (1) Abatement— See Abatement. (2) Account— See Account. (3) Administration Suit— See Administra- tion. (4) Affidavit— See Affidavit. (5) Amendment, column 1159. (6) Answer, column 1160. (7) Appeal— See Appeal. (8) Bill, column 1162. (9) Contempt— See Contempt. (10) Costs— See Costs. (11) Damages— See Damages, (12) Decree and Order, column 1171. (13) Demurrer, column 1176. (14) Discovery— See Discovery. (15) Evidence— See Evidence. (16) Foreclosure— See Mortgage. 1159 PEACTICE AND PLEADING. 1160 (17) Hearing of Causes and Setting Down for Hearing, column 1181. (18) Infants, column 1182. (19) Information, column 1183. (20) Injunction— See Injunction. (21) Inquiries, column 1183. (22) Interrogatories—See Discovery. (23) Investments— See Trust and Trustee. (24) Issues at Law, column 1184. (25) Married Women— See Husband and Wife. (26) Master's Report and Proceedings in Master's Office, column 1184. (27) Motions and Utiles, column 1187. (28) Next Friend, column 1187. (29) Order — See Decree, post column 1171. (30) Parties, column 1188. (31) Petition, column 1194. (32) Plea, column 1194. (33) Receiver— See Receiver. (34) Revivor and Supplemental Orders, column 1195. (35) Security for Costs — See Costs. (36) Service of Proceedings on Parties out of the Jurisdiction and Substituted Ser- vice, column 1196. (37) Settled Estates — See Settlement. (38) Staying of Proceedings, -column 1199. (39) Stop Order, column 1199. (40) Suit. (a) Supplemental Suit — See Revivor, post column 1195. (6) Generally, column 1201. (c) Undefended Suit, column 1201. (41) Taking Evidence, column 1203. (42) Transfer of Funds into and out of Court, column 1203. (43) Writs, column 1206. (1) Abatement — See Abatement. (2) Account— See Account. (3) Administration Summons, and Suit — See Administration. (4) Affidavit— See Affidavit. (5) Amendment. Amendment of Bill — Supreme Court Rules, Cap. VI., R. 20.] — Rule 20 does not permit of a suit being converted, so as to urge a totally opposite view by amendment of the bill. Officer o. s, 3 V.L.R. (E.,) 115. Misjoinder, Objection for — When Bill Requires Amendment.] — See Graham v. Qibson, post under sub-heading Parties. Amendment of Record.] — See Bailey v. Wright, post under sub-heading Parties. Amendment of Bill — Striking out Averment that a Necessary Party was out of the Jurisdic- tion.] — See M' Donald v. Rowe, post under sub- heading Parties. Amendment of Bill after Answer — Costs.] — An order was made for amendment of bill by in- serting new allegations charging wilful default, but defendants' costs of appearing on the sum- mons for the order were allowed them, as the amended bill required no further answer Harding v. Smith, 5 V.L.R. (B.,) 118. Amendment of Decree by Inserting Direction Omitted from Original Decree — Interval of Six Years— Supplemental Order.] — See Attorney-Gen- eral v. Huon, 6 V.L.R. (E.,) 184; 2 A.L.T., 73, post under Decree and Order. (6) Answer. Signature of Counsel.] — If the original draft of an answer be signed by counsel, the engrossment, sworn by the defendant and delivered to the plaintiff, need not have upon it any copy of such signature. Lee v. Robertson, 1 W. & W. (E.,) 374, 380. Signature of Counsel.] — The rule is that the answer should have the signature of counsel. Order made directing defendant's solicitor to be at liberty to annex name of counsel to the copy delivered, defendant paying costs of motion to set answer aside for irregularity. Planner v. Williams, 5 V.L.R. (E.,) 327; 1 A.L.T., 113, sub nom. Flannery v. Williams. Putting in without Oath or Signature — Defen- dant out of Jurisdiction.] — Before the Court will make an order for leave to put in the answer of a defendant out of the jurisdiction without oath or signature it must be satisfied that defendant is aware of what is being applied for, and that he concurs in the application. Green v. Suther- land, 2 W.W. & a'B (E.,) 134. Putting in without Oath or Signature — Power of Attorney.] — Where a defendant was in Eng- land, but had left a very full power of attorney with a solicitor to appear and defend and answer in all suits, on motion by the plaintiff that the defendant's answer might be taken without oath or signature, Held that as there was a full power of attorney the motion should be granted. Munroe v. Munn, 2 A.L.T., 25. Endorsement of Name and Address— Supreme Court Rules, Cap. V., R. 32— Costs.]— Where a defendant, pleading in person, delivered his answer without an endorsement, as required by Supreme Court Rules,, cap v., r. 32, of his name and address, upon motion to set it aside as irregular the Court permitted him to endorse his name and address, but ordered him to pay the costs of the motion. Bowman v. Bowman, 4 V.L.R. (E.,) 114. Time for Answering— Plea Overruled.]— A plea put in to an information and bill had been overruled, no time for answering had been fixed by the Court in its judgment overruling the plea and no application had been then made for time to answer although the time for answering had elapsed. The plaintiff then set down the suit as undefended. On motion that the setting down be set aside as irregular, Held that the provision in the rules as to the Court allowing time to answer on disposing of a plea does not import that a defendant should necessarily have time to answer ; that the obtaining time is a privilege which the Court gives the defendant, and he should be the moving party for obtaining it and not the plaintiff. Motion refused. Note : the cause was subsequently heard as undefended. Attorney-General v. Prince of Wales Coy., 6 W.W. & a'B. (E.,) 27. " 1161 PRACTICE AND PLEADING. 1162 Admissions.] — Where an answer erroneously admits a sum of money mentioned in the bill, the defendant making such an answer cannot as to his liability to account for wilful default contradict his own answer, though the error in the bill appears by evidence in the suit. Allan v. Lane, 2 W.W. & a'B. (B..) 1, 8. Admissions Contained in — How Avoided.] — Per Full Court — The admission of a defendant in his sworn answer is unimpeachable by cross bill, or by evidence in contradiction ; and the only course which a defendant, wishing to avoid the effect of such an admission, can take is to move for leave to amend by putting in a supple- mentary answer. Cuningham v. Piatt, 8 V.L.E. (E.,) 55, 67 ; 3 A.L.T., 126. Facts not Traversed by — Further Evidence.] — In equity facts not traversed, e.g., the incorpora- tion of a company, are not necessarily taken as proved. But if the plaintiff be taken by surprise by an objection of this kind, the Court will allow the case to stand over for further evidence. London and Australian Agency Coy. v. Duff, 5 W.W. &a'B. (E.,) 19. " Statute of Frauds."] — A defendant denying an agreement stated in the bill may rely on the "Statute of Frauds" without pleading it. Jennings v. Tivey, 6 W.W. & a'B. (E.,) 152, 153. Semble, that the defence of the " Statute of Frauds" maybe relied on although not pleaded. Randall v. Man, 2 V.R. (E.,) 158, 163; 2 A.J.R,, 103. Supplemental Answer — Proof of Facts occurring after Bill Sealed.] — In a suit for specific perform- ance of an agreement to lend money on mort- gage, after evidence had been taken, a lis pendens against the property was removed, and the mortgagor executed a further security over the property. On motion for leave to put in a sup- plemental answer, leave was given to prove these facts at the hearing. Phelan v. O'Shanassy, 2 V.R. (E.,) 120, 121 ; 2 A.J.R., 67. Summons for Information Sought by Bill — Re- gistrar of Titles.] — In a bill in a suit relating to registration and bringing land under the Act No. 301, the Registrar was as a defendant in- terrogated as to the title laid before him of a defendant who was applying to bring the land under the Act and how the same was made out. The Registrar answered, refusing to give the information. Upon summons for a full answer, Held that the Registrar must answer fully. Hodgson v. Hunter, 3 A. J.R., 64. Insufficiency of— Interrogatories as to Docu- ments in Possession of Defendants — ',' Evidence Statute 1864," Sec. 19.]— The bill sought for dis- covery of a list of certain books, plans, &c, in the possession of defendants. The defendants refused to answer this interrogatory. On sum- mons under Supreme Court Rules, can. v., r. 34, by way of exception for insufficiency, ■HeMthat as Part II. of "The Evidence Statute" (No. 197,) afforded a simpler and less expensive remedy for discovery by a summons in Cham- bers, the Court would not compel an answer as to the documents in the defendants' possession. Motion refused. Learmonth v. Bailey, 5 A.J.R., Insufficiency — Negative Pregnant— Accounts.] — Suit by infant next-of-kin against adminis- trator of an intestate, with other next-of-kin defendants. The answer of the administrator admitted the grant of administration; but, to a. paragraph stating that the intestate died seised and possessed of real and personal property ex- ceeding £1000 in value, and including certain specified lands and chattels, merely replied: — " Save as hereinafter set forth, I deny the alle- gations in the 4th paragraph of the bill men- tioned." Also, in answer to an allegation that after the sale a considerable sum remained avail- able for distribution, the defendant merely denied that a considerable sum remained, &c.' To an allegation that the defendant kept back certain chattels from sale and used them himself, whereby the said chattels became depreciated in value, and the defendant caused a con- siderable loss to the estate, the defendant replied admitting the keeping and using the chattels, but denying that they were depreciated in value, " or caused a considerable loss to th& said estate." The defendant denied generally that he had used part of the moneys for his own business, and had permitted another person to- use the residue. A paragraph in the bill alleging that the plaintiff from time to time applied for an account and distribution, and that the defendant neglected and refused, &c. , was met by a general denial. The bill also re- quired the defendant to furnish accounts of the- property and of his application thereof, and in- stead of doing so the defendant set out a story from whichitwas to be inferred thatthe intestate held the land mentioned in the bill as a truste& for the defendant and his brother, who allowed the intestate to have a home on the land as long as she lived, and it was submitted that it was- an unnecessary and useless expense to set out accounts. Held that the answer was not full enough, that the defendant ought to have stated distinctly that the land mentioned in the 4th paragraph did or did not belong to him, or he might set out the circumstances and state his belief as to who was entitled; that in denying a considerable loss, the defendant should haves answered that the loss, if any, did not exceed a certain sum, or have given some intelligible re- striction; that it was not proper to deny a whole paragraph, and that the defendant should have set out the accounts required, notwithstanding that accounts had been filed in the Master's office under the Rules of Court. Dick o. Dick, 2 A.L.T., 17. (7) Appeal— See Appeal. (8) Bill. Writs of Summons.] — There can be no copy of the seal on the sealed writ of summons endorsed on a bill in Equity, and the omission of the usual letters, " L.S.," from a served copy of the writ does not vitiate the copy. Jamieson v. Allen, 1 W. & W. (E.,) 19. The Master's name need not be added to the copy for service of the sealed writ. Ibid. p P 1163 PRACTICE AND PLEADING. 1164 The writ must contain the name of every plaintiff; but need not contain the "place of business" or " address" of the plaintiffs, except •when they appear in person. Ibid. Writ of Summons — Duration of Service— Su- preme Court Rules, Cap. V., E. 4.]— The period for which a writ of summons remains in force under Supreme Court Rules, Cap. V., R. 4, crannot be extended by the effect of an order for leave to serve the bill out of the jurisdiction. Young v. Dickson, 4 W.W. & a'B. (B.,) 56. Writ of Summons — Supreme Court Rules, Cap. V., R. 3.] — Where, on a motion for an injunction, the plaintiff's name was omitted from the writ of summons, and defendant took a preliminary ob- jection at the hearing on that ground, Held, following Jamieson v. Allen, 1 W. & W. (E.,) 19, that such objection was fatal. Smith v. Blacker, 3 V.L.R. (E.,) 1. Writ of Summons.] — Where an order had been made directing an amendment of the suit by making G. one of a class on behalf of whom the plaintiffs were suing a co-defendant, on the day when the writ was endorsed on the bill expired, upon application to the Court in Chambers an order was made directing the issue of » new writ to the new defendant endorsed on the amended bill. Graham v. Gibson, 5 V.L.R. (E.,)103, 108; 1 A.L.T., 8. Service of Printed Copies.] — If the original bill, bearing the seal of the Court, be in writing, there is nothing to prevent the service upon the defendants of printed copies. Dancker v. Porter, 1W1W. (E.,) 313, 332. Facts taken Against Pleader — Illegality.] — The rule is that every fact left doubtful is taken most strongly against the pleader ; and though there may be an exception where one aspect of the doubt would make facts alleged illegal, such illegality amounting to a crime or breach of public duty, yet the rule holds good where a convey- ance is at one time authorised and at another not. Where, in a bill to enforce an equitable mortgage of a lease under " Land Act 1865 " (No. 237, ) the bill did not state the date of the lease, it was assumed against the pleader that the mortgage was made within three years after the date of the lease and was, therefore, illegal under Sec. 15. M'Nicoll v. Ferguson, 5 A.J. R. , 67. Allegations of Fraud.] — If the relief sought by the bill is based on fraud, the failure to prove it is fatal ; but if by striking out of the bill the charge of fraud there is sufficient equity stated and proved, and the charge of fraud is only sub- sidiary, it is a matter only affecting costs. London Chartered Bank v. Lempriere, L.R. 4, P.C. 572. Allegations of Fraud.]— Per the Full Court- When a bill charges fraud, and alsb makes an alternative case apart from fraud, relief on the alternative case may be given, although the charge of fraud fails on the evidence. The true test is, whether the bill contains an equity, independent of, or only dependent on the fraud alleged. The Creswick Grand Trunk G.M. Coy. v. Hassall, 5 W.W. & a'B. (E.,) 49, 79. Allegations of Fraud.] — It is sufficient if a bill states a case of fraud by allegations of informa- tion and belief merely as to fraudulent use of documents and as to fraudulent pretence. Hqfer v. Silberberg, 3 V.L.R. (E.,) 125. As to costs where bill contains allegations of fraud see cases ante columns 235, 236. Allegations of Part Performance.] — A plaintiff alleging in his bill an agreement and acts of part performance need not state in terms that he relies upon them as such. Jennings v. Tivey, 6 W.W. & a'B. (E.,) 152, 158. Allegation that Land is Dedicated as a High- way.] — It is not sufficient, in a, bill for the use of a highway, to state facts which may be evidence of the dedication of land to the public. The bill should also state that the land is dedi- cated. Webb v. Were, 2 V.L.R. (E.,) 28. Necessary Allegations.] — If bill alleges posses- sion by a plaintiff, seeking a declaration of trust against one defendant, and a conveyance from another defendant as purchaser with notice, such allegation is sufficient for sustaining a charge of constructive notice from plaintiff's possession without alleging the inference that such possession is constructive notice. Wilson v. Boyd, 3 V.L.R. (E.,) 98. What Should be Set Forth — Inferences not Necessary.] — It is only necessary that a bill in Equity should set forth a narrative of the material facts and circumstances on which the plaintiff relies, the specific relief sought, and general relief. It is not necessary that the inference which the plaintiffs desire to be drawn from the facts should be indicated otherwise than by the prayer. Clark v. Clark, 8 V.L.R. (E.,) 303, 330. Prayer for General Relief.] — Under a prayer for general relief, relief warranted by the facts put in issue may be given, although the prayer does not properly distinguish the relief to be had under different aspects. United Hand-in-Hand and Band of Hope Coy. v. National Bank of Australasia, 2 V.L.R. (E.,) 206. Relief Included in Prayer.] — If a plaintiff fails to establish one case, but states and proves another, he may have any relief to which he is entitled, if it is comprised specifically or generally in the prayer. S.C., 3 V.L.R. (E..) 61, 67. Multifarious — Defendants Claiming in Different Rights.]— A. and B. mortgaged certain land, sold to C. by agreement in writing, and after- wards paid mortgage off and obtained a recon- veyance to themselves as tenants in common in fee. C. sold part of the land to various pur- chasers, A. and B. conveying. C., in 1842, sold all his right, title, and interest in the land unsold to D. by memo, in writing. In 1843, D. executed a declaration of trust in writing in favour of his sister E., the plaintiff. In 1870, C, by deed, conveyed his interest in unsold land to E. E. entered into possession in 1843. E. sold part of her interest to co-plaintiffs, and mortgaged other parts to certain defendants. 1165 PRACTICE AND PLEADING. 1166 In December, 1871, the Registrar of Titles gave notice, by advertisement, of an application by defendant F. to bring this unsold land under the " Transfer of Land Statute." Caveats were lodged. Amended bill alleged false allegations by F. as to his purchase of land from A. and B., and that he had never been in possession and alleged possession by E. and co-plaintiffs since 1843. A. died intestate, and left G. his heir, in whom was the legal estate in one moiety of the land. B. had died, and his legal estate in the other moiety became vested, by mesne assign- ments, in H. and K. Bill by E. and her pur- chasers for declaration of right to land subject to E.'s mortgages as against F., and for convey- ances by G., H., and K., and to restrain the Eegistrar of Titles and F. from registering or bringing the land under the Act. Held that the bill was not multifarious as against F., G., H., and K., or as against the Registrar. Hodgson v. Hunter, 3 A. J. R., 41. Multifarious.] — A bill to restrain an act of a grantor of land, as a public nuisance, especially injuring the plaintiff, and also as an act incon- sistent with the grant of land under which he derives his title to relief, is not multifarious. Webb v. Were, 2 V.L.R. (E.,) 28. A bill claimed relief as to two allotments of land held under different grants, but confirmed by a, deed coupling the titles. Held not multi- farious, as the rights arising out of the separate grants closely resembled one another, and there was no other defendant interested in only one of the matters in the bill. Multifariousness is now treated as a question of convenience, and it cer- tainly is more convenient to have rights closely resembling each other dealt with between plain- tiff and defendant in one suit rather than in two. Ibid. Multifarious.] — Two brothers B. were in part- nership and agreed to purchase land for tannery purposes, and certificate of title issued to a son of J.R. (one of the partners.) J.R. deposited certificate of title as partnership property to secure an overdraft with the plaintiff bank. J.R. died and his wife became administratrix ; S.R., the other partner, carried on the business on his own account and incurred fresh liabili- ties. Bill by bank against S.R. and adminis- tratrix to enforce a banker's lien on the part- nership assets generally and in particular on the land. Held that in the absence of evidence of partnership between S.R. and J.R.'s widow there was no colour for greater part of relief, yet the interests of the two defendants were so far blended that bill was not multifarious. Bank of Victoria v. Bawling, 6 V.L.R. (E.,) Ill ; 2 A.L.T., 9. Injunction against Mining on Private Property — No Consent of Crown — Bill and Information joining Attorney-General held Multifarious.]— A ttorney- Oeneral v. Scholes, ante column 912. And for a similar case where the bill was held to be not demurrable, see Attorney -General v. Gee, ante column 912. See also United Hand and Band Coy. v. National Bank ; Merry v. Hawthorne ; Lear- month v. Bailey ; Simson v. Scallan ; post under sub-heading Demurrer. Signature of Counsel— Insufficient Allegation of Pact— Objections Taken by Demurrer.]— Allega- tions of fact in a bill in the form " The plaintiff is informed and believes that" are not positively stated, and are insufficient, and the bill should be signed by counsel. The foregoing objections may be taken by demurrer. McDonald v. Board of Land and Works, 1 V.L.R. (E.,) 90. Demurrer — Crown Lands — Want of Parties.] — Palmer v. Board of Land and Works, 1 V.L.R. (E.,) 80, ante columns 329, 330. Demurrable Bill — Defence of " Statute of Limi- tations" — Defence not Raised by Demurrer or Plea — Defendant Required to Answer only Part of Bill.] — Where a bill was demurrable by reason of "Statute of Limitations," and the defence- was not raised by demurrer or plea, but in the answer, and was taken as a preliminary objec- tion, bill dismissed with costs as upon objection. Bill dismissed with costs as against a defendant who was only required to answer two paragraphs and not to consider the rest of the bill, on which power to demur turned. Kemp v. Douglas, 1 V.L.R. (E.,) 92. Demurrable — "Statute of Limitations."] — In 1837 C. purchased Crown lands, and in the- same year by lease and release, conveyed them to B. for consideration. The Crown grant was- subsequently issued to C, and bore date 30th November, 1838. By lease and release, dated 1839, C. conveyed to T. for consideration, a. portion of the same lands. B. died in 1839, having by will devised all his real estate to trustees, who in 1861 brought a suit against a purchaser from T. for recovery of the part of the allotment C. had conveyed to T. The bill, after stating the above facts, alleged that both T. and the defendant had notice of the prior sale to B., that such sale was valid and effectual to pass C. 's interest to B. , and had priority over the sale to T., but did not allege that B. had ever entered into possession of the property, but averred that the defendant "obtained and took possession and occupation at some time un- known to the plaintiff within six years now last past, and has ever since been and now is, in such possession and occupation." Demurrer by defendant that it appeared from the allega- tions of the bill that the suit had not been brought within the period limited by the- " Statute of Limitations." Held that on the pleadings 1 it must be taken that those through whom defendant claimed were in possession from the date of T.'s purchase, down to the- time when defendant himself took possession within the last six years, and that B. never was in possession at all : and that if it had been intended to rely on the fact that defendant had not been in possession any more than the plain- tiff, during the earlier years of the period of limitation, the bill should have pleaded that fact. Demurrer allowed, leave given to amend. Dalton v. Plevins, 1W.4W. (E.,) 81. Demurrable— Want of Parties— Dissolution of Partnership.]— Suit by one of the shareholders or partners in an association or partnership, which was unincorporated, against the directors, and other shareholders, praying that an account might be taken of all the transactions of the 1167 PRACTICE AND PLEADING. 1168 partnership, and for a dissolution, and also for other relief. The bill (inter alia) alleged that " the plaintiff and defendant are the present shareholders and partners, and the only share- holders and partners in the said association." The bill, however, disclosed other persons who, at some former period, were shareholders and partners in the association, and these were not shown by the bill to have transferred their shares in accordance with the deed of settlement executed by the partners. On demurrer, for ' want of parties. Held that the general allega- tion that the plaintiff and defendants were the only partners was not sufficient, and demurrer ■allowed with costs. Dancher v. Porter, 1 W. & W. (E.,) 313. For other instances of demurrable bills see post under sub-heading Demurrer. Cross Bill where Requisite — Defence of Drunken- ness.] — To a suit for specific performance of an agreement which the defendant alleged that he signed when drunk, the drunkenness is available as a defence without a cross bill. Scates v. King, 1 V.R. (E.,) 100 ; 1 A.J,R., 71. Cross Bill.] — If a defendant sets up a defence to the enforcement of a plaintiffs rights under his deed, and it is inequitable that the plaintiff s rights should be suspended unless the deed is totally set aside upon terms, then a cross bill is necessary, but not in cases where a third person or the Crown has by deed affected to grant an interest inconsistent with the defendant's rights. Aladdin CM. Coy. v. Aladdin and Try Again O.M. Coy., 6 W.W. and a'B. (E.,) 266, 278. Bill of Review — Co-ordinate Jurisdictions.] — The rule of practice requiring that before a bill of review or bill in the nature of a bill of re- view is filed in a Court of Equity, the leave of the Court in which the original suit was instituted should be obtained, does not apply to courts of co-ordinate jurisdiction. In cross suits in a Court of Mines between the W. company and the P. company the decree fixed a boundary line, and restrained the com- panies, respectively, from mining on opposite sides of it. On appeal to the Chief Judge he varied the decree by declaring that the boundary line should be deemed to determine the rights of the parties only with regard to their claim's on the Frenchman's Lead, and so far as was shown by their present discoveries as to the course of the leads. A bill in equity was filed by the W. company against the P. company, alleg- ing that since the decree it had been discovered that all the gold removed by the plaintiff com- pany, south of the boundary line, was upon the Golden Point Lead, and within the plaintiffs ■claim on that lead, and seeking an injunction to restrain defendants from prosecuting the decree in the Court of Mines or mining within the plaintiffs claim on the Golden Point Lead. On motion to set bill aside as irregular, Held, by Molesworth, J. , that leave of the Court in Equity was necessary in order to enable the plaintiff company to bring a bill which sought to vary •and delay decree of Court of Mines. Motion granted. On appeal to the Full Court— Held that the practice as to obtaining leave of Court did not apply to Courts of co-ordinate jurisdic- tion ; that if the leave of any Court was neces- sary it was the leave of the Court of Mines ; that the decision of Molesworth, J., abridged the jurisdiction of the Supreme Court, which could only be done by express statutory. enact- ment. Appeal allowed. United Working Miners' Coy. v. Prince of Wales Coy., 6 W.W. & a'B. (E.,) 8. Service of Bill out of Jurisdiction.] — See cases collected post under (36) Service of Process on Parties out of the Jurisdiction. Substituted Service.] — See cases collected post under Substituted Service. Motion to Set Aside a Bill— " Supreme Court Rules," cap. vi., r. 1 — Cap. x., r. 7.]— Rule 1 of cap. vi. is only intended for the protection of the next friend, and the omission to file such an authority cannot be taken advantage of by a defendant. Semble— Rule 7, cap x., requiring the numbering of folios in the margin of the bill, though dealing with a trivial matter will be regarded by the Court, and a bill offending in this particular will be set aside, but generally upon terms as to costs. Mahood v. Odell, 2 W. & W. (E.,) 73. Where defendant's solicitor has accepted ser- vice of bill, and has undertaken to demur, plead, or answer, this is a waiver of a technical objec- tion under cap. vi., r. 1. Attorney-General v. Cant, 2 W. & W. (E.,) 113. Motion to Set Aside.]— Where a defendant, two days after time for answering had expired, gave notice of motion to set aside bill and writ of summons, as the latter did not contain the name and address of the plaintiff, the Court dis- missed the motion as being made too late. Held that generally applications of that nature by defendant should be made in the time given him for answering. Wills v. Ogier, 5 V.L.R. (E.,) 317. Dismissal for Want of Prosecution.] — defen- dant gave notice of a motion to dismiss for want of prosecution. Plaintiff, before this motion came on, set down the cause, and gave defen- dant notice of the step. Defendant moved to dismiss, and mentioned to the Court that the cause had been set down since the motionto dismiss. Plaintiff did not appear on the motion to dismiss, and the cause was dismissed. On motion by plaintiff to reinstate, and that defen- dant should pay the costs, Held that the defen- dant was not, after learning that the cause was set down, bound to call the attention of the Court to that fact, or bound to suit his motion to it ; that he was regular in what he did ; and that the bill was rightly dismissed. However, under the circumstances, bill reinstated on terms of plaintiff paying costs both of the motion to dismiss and of the motion to rein- state. Thompson v. Tullidge, 1 W. & W. (E.,) 108. Dismissal for Want of Prosecution.] — Where notice of motion to dismiss a bill for want of prosecution as not being set down for evidence within the time prescribed by Supreme Court 1169 PRACTICE AND PLEADING. U70 Rules cap. vi., rr. 13, 14, is served upon the plaintiff, it is not sufficient for the plaintiff to pay the costs of the notice of motion, he should give the defendant an enforceable xindertakiug to speed the cause and pay the costs. Govett v. Crooke, 5 V.L.R. (E.,) 30. Motion for Dismissal for Non-Prosecution — Effect of Order of the Privy Council. ]— Pleas put in by defendant were overruled with costs by the Primary Judge and the Pull Court, and pending an appeal to the Privy Council, the ■defendant had answered, and the case was set down for evidence April. 1878. The Privy Coun- cil, 25th January, 1879, reversed orders, sav- ing to the defendant the benefit of his plea with liberty to amend pleadings. On 18th •June, 1879, the defendant moved to dismiss for want of prosecution. Held that as the Privy Council order gave the plaintiff liberty to amend under leave of the judge by .Supreme Court Rules, cap. v., r. 11, and as the judge might direct further answer from the defendant, the setting down for evi- dence was inoperative, and the motion refused. Brougham v. Melbourne Banking Corporation, ■5 V.L.R., (E.,) 110; 1 A.L.T., 29. [Note. — The Court having intimated that plaintiff should be called upon to make his elec- tion to amend or proceed without amendment, notice of motion for such an order was given, and by consent an order was made accord- ingly.] Notice of Motion for Dismissal — Service on Assignee — Costs.] — A notice of motion for dis- missal of a bill for want of prosecution, after the insolvency of the next friend of the infant plaintiff, should ask for costs generally, and not against the testator's estate, and need not be served upon the official assignee. Flannagan v. n, 6 V.L.R. (E.,) 77 ; 1 A.L.T., 183. Dismissal for Want of Prosecution — Delay.] — A plaintiff has a right, without assigning a reason for his "delay, to have a first motion to dismiss the bill for want of prosecution dismissed, on undertaking to speed the cause, and pay the city, i.e., it was simpler for the defendant* if defeated, to bring an action against the person who supplied the rope. Semble that third party proceedings do not apply to a person resident out of the jurisdiction. Bound v. Victorian Stevedoring and General Contracting Company, 6 A.L.T., 88. (3) Writ of Summons. Specially Endorsed Writ on a Cheque— Order 3, Eule 6 — Appendix C, Sec. 4.] — Per Higiribotham, J. — A cheque is only an accepted bill of exchange, and as the drawer of a bill is, under Appendix C, Sec. 4, entitled to notice of dishonour, so a maker of a cheque is entitled to notice of dishonour ; that the endorsement should contain a, statement that the cheque was presented and dishonoured in order to make it a specially endorsed writ. Nathan v. Tumbull, 6 A.L.T., 139. Practice Under ' ' Judicature Act" — Order 20,EuIe 1 (a,) (c)— Order 26, Eule 1, Appendix C, Sec. 4— Act No. 204, Sec. 19, Schedule 2] — An action was brought as on a specially endorsed writ on a bill of exchange — the writ being endorsed according to the form given in Schedule 2 to Act No. 204 ("Instruments and Securities Stat.") Held, per Williams, J., that the writ was a specially endorsed writ within the meaning of Appendix C, Sec. 4, and that defendant must deliver a statement of defence. Goodwin v. Heanchain, 6 A.L.T., 160. "Judicature Act 1883," Sec. 59 — Appendix A , Part I., No. 5 — Writ to be Served Out of the Jurisdic- tion.] — Per Higinbotham, J. (in Chambers.) Where a party wishes to issue a writ of summons, to be served on a British subject out of the jurisdiction, the proper method is to apply to the Judge before the writ is issued, who will insert the number of days allowed for appearance in the original and the copy, and will initial both documents, the copy ought then to be lodged with the Prothonotary. Priestly v. Davis, 6 A.L.T., 18. (4) Judgment and Proceedings Thereunder. Signing Final Judgment — When Plaintiff Allowed — Order 14, Eules, 1, 8.] — Per Higinbotham, J, (in Chambers.) By the words of Order 14. the plaintiff is not to be allowed to sign judgment merely because the defendant's affidavit does not show a complete " defence," and the power given by Order 14, Eule 3, to order the defen- dant to attend and be examined on oath should only be exercised in exceptional cases. Wain- man v. Hansen, 6 A. L.T., 24. Where a plaintiff, the surviving partner of a building firm, claimed a balance of ,£163 6s. to be due to him from the defendant, who alleged a payment by him to the deceased partner of £200 beyond the amounts acknowledged by the plaintiff, and contended that he had over, paid the defendant's firm by ,£36 14s., Held that the PRACTICE UNDER THE JUDICATURE ACT. a 229 defendant's affidavit contained sufficient alle- gations and facts to entitle him to defend the action, and summons under Order 14, Rule 1, lor liberty to sign final judgment, or that the defendant might be ordered under Rule 3 to attend and be examined on oath, dismissed with costs. Ibid. Application to Sign Final Judgment on Writ •Specially Endorsed— Order 3, Rule 6— Order 14, Rule 1— Order 3, Rule 6 (F.)]— Order 3, Rule 6, (F.) •only applies to cases where the relationship of landlord and tenant exists, and does not apply to a case where the owner of land seeks to recover possession from a trespasser. Applica- tion under Order 14, Rule 1. Dismissed with costs. Davies v. Herbert, 6 A.L.T., 70. Application to Sign Final Judgment — No De- fence to Writ— Order 14, Rules 1, 4.] — Tn an application to sign final judgment on the ground that there is no defence, plaintiff must show that the money is owed legally ; but plaintiff was allowed to sign final judgment as to certain items which were not in dispute. Traders' Company v. Sutton, 6 A.L.T., 113. Act No 761, Sec. 41 — Order 16, Rule 40— Service of Notice of Decree Upon a Person out of the Juris- diction.] — Application to serve notice of decree upon interested persons resident in Sydney granted. Six weeks fixed as the time within which they must apply to vary the decree. Hayes v. Wilson, 6 A.L.T., 87. "Judicature Act 1883," Sec. 8, Sub-sees. 4, 64,— •Charging Order — Equitable Claim] — Application for an order under Sec. 64 of the " Judicature .Act 1883" charging certain mining shares held by the defendant, for a debt due by her for calls to the plaintiff company, for which she had given a cheque, which was dishonoured. The defendant alleged that she held the shares in trust for her husband. Higinbotham, J. (in Chambers,) took into consideration the equit- able claim, under the power conferred by Sec. 8, Sub-sec. 4, of the Act, and considering that on the facts the claim was not established made the order absolute. Long Tunnel Gold Mining Company v. Zimmier, 6 A.L.T., 25. (5) Intermediate Proceedings. (a) Summons for Particulars. Action for Fraudulent Representation — State- ment of Claim— Particulars— Order 19, Rules 4, 5, 6, 7— Appendix C, Sec. 6, No. 14.]— In an action for fraudulent representation the statement of •claim was that the defendants fraudulently represented to the plaintiffs that certain land was of a " certain value," knowing the same to be untrue, and that plaintiffs were induced to lend money on such representation, &c. On summons, in Chambers, by defendants, under •Order 19, Rule 7, for a further and better statement of claim, Held, per Higinbotham, J., that in an action for fraudulent representation the precise nature of the alleged representation is a material fact which should not be omitted from the statement of claim j that even if it 1230 were not included in the form of claim in Appendix C, Sec; 6, No. 14, the defendant would be entitled in an action of this nature to particulars; and he might be entitled to special particulars beyond those contained in the forms, if it should appear to be necessary {vide Order 19, Rule 6) j and summons allowed with costs. Desailly v. Ham, 6 A.L.T., 21. Particulars — Application for when made — Order 19, Rule 7.] — Per Higinbotham, J. (in Cham- bers) — Applications for particulars under Order 19, Rule 7, ought to be made by the defendant before he has delivered his statement of defence, and by the plaintiff, if the statement of defence is such as would entitle him to particulars, before he has delivered his reply. In future, applications for particulars after the party applying has pleaded, will not be granted, unless under special circumstances. Taylor v. Port, 6 A.L.T., 155. (6) Receiver and Equitable Execution. Equitable Execution by Appointment of » Receiver — Act No. 761, Sec. 9, Sub-sec. 8.] — Before granting equitable execution by ap- pointing a receiver under Sec. 9, Sub-sec. 8, the Court must be satisfied that plaintiff has tried all he can to get satisfaction at law, and that means that he must do all he can in Victoria to get satisfaction of his judgment. Ettershank v. Russell, 6 A.L.T., 140. (c) Staying Proceedings. Staying Proceedings — Action under " Instru- ments and Securities Stat. 1864," Part I — Service of Writ — "Supreme Court Rules, 1884," Order 10, Rule 6 ; Order 16, Rules 4, 6, 14.] — Action against H. and K., who were partners, upon a cheque drawn by them. They were not sued in the name of the firm, but as joint contractors. The writ was served upon the manager of the two partners. The service, which was defective - under Sec. 19 of the "Instruments and Secu- rities Stat, 1864," was treated by K. as good service, and he took steps to defend the action. H. was out of the jurisdiction, and so was not served. Application, in Chambers, by K. that all further proceedings as against him should be stayed until the writ was served upon H., and he had appeared, or judgment had been signed against him. Held, per Higinbotham J., that K., having accepted the service, was in no better position than he would have been in if, under the old procedure, he had been sued alone for a debt jointly due by him and another person, in which he could only have compelled the joinder of the other contracting party by giving the plaintiff a better writ ; that, under the new rules, even this limited right is taken away, for under Order 16, Rule 6, a plaintiff is at liberty to join one or more only of the parties liable, and under Rule 4 of the same Order judgment may be signed against one or more defendants who may be found to he liable without amendment, and application dismissed with costs. Oriental Bank v. Halstead, 6 A.L.T., 30. 1231 PRACTICE UNDER THE JUDICATURE ACT. 1232 (6) Trial. Filing Memorandum of Close of Pleadings— Order S3, Rule 6.] — It is only the plaintiff who oan file the memorandum, and he should not file it until issue has been joined between all the parties, and the -whole of the pleadings have been thereby closed, and not merely the plead- ings between particular parties referred to in Rule 5. Freehold Investment Company v. Thompson, 6 A.L T., 126. Application for Aotion to be Tried with a Jury — Order 36, Eule 6.] — Applications to have an action tried with a jury should (Per Molroyd, J.,) be made ex parte, and do not require an affidavit as to the nature of the aotion. The Judge will look at the jpleadings, and decide thereupon, Pralle v. Slater, 6 A.L.T., 70. Per Williams, J. — Where pleadings are pro- duced, no affidavit as to nature of the action is necessary, but where they are not, an affidavit is necessary. Coulson v. Campbell, 6 A.L.T. 89. Coulson v. Campbell, followed by Higmbotham, J. Green v. Embling, 6 A.L.T., 98. Application for Trial by Jury — Order 36, Eule 6.] —Per Williams, J. (in Chambers) — In afl applications for trial with a jury an affidavit stating the nature of the action is necessary. Simmons v. Hall, 6 A.L.T., 45. Reservation of Law Points — Order 25, Rule 2.] — In an action against a. Justice for issuing a warrant on a Sunday, certain points of law raised in the defence were ordered to be tried before the trial of the action. Graham v. Haig, 6 A.L.T., 158. (7) Causes Pending under Old Procedure. Action Under Old Procedure — Cross Action Under New Procedure — Costs — " Judicature Act 1883," Sec. 8 (V.,) Order 65, Rule 27, Sub-sec. 12.]— Action for balance of a banker's account com- menced before the coming into operation of the " Judicature Act ;" cross action on the same subject matter by the defendants against the plaintiffs under the Act. Application in Chambers on behalf of the defendants in the cross action under Sec. 8 (V.,) of the Act to be allowed to set up, by way of counter claim, equitable facts entitling the defendants to a stay of proceedings, defendants offering, if the application were granted, to abandon their cross action, ordered per Siginbotham, J , that the action be carried on under the " Judicature Act," that the defendants be at liberty to set up equitable facts by way of counter claim, and that the defendant have a week from the date of the order to deliver his counter claim. The costs of the cross action to be paid by the defendants to the plaintiffs, the costs of the application and of the order to be costs in the action. Ettershank v. Russell, 6 A.L.T., 19. Hew Procedure Ordered to be Adopted after Com- mencement of Action on Affidavit of Counter Claim — Costs.] — Where an action was commenced under the old procedure, and the defendants put in an affidavit stating that there was a cross claim for damages, and that this cross claim could, under the "Judicature Act," be set off against the claim of the plaintiffs, ordered, per Higmbotham, J, (in Chambers,) that the action should be carried on under the- ordinary proceedings under the "Judicatare Act." Costs of the application to be costs in the cause, and defendant to have six days, to deliver his counter claim. Langton u. Gillespie, 6 A.L.T., 20. (8) Proceedings in Chambers. Summons — Signature of Judge — Service — "Judicature Act, 1883," Sees. 86, 41, Order 54, Eules- 4, 10, Order 64, Rule 11 — " Common Law Procedure. Stat. 1865," Sec. 420.] — Summons (in Chambers) calling upon the defendant to show cause why an order of Williams, J., should not be set aside on the grounds — 1st, that the copy of the summons upon which the order was made was. not signed by a judge, and, 2nd, that the copy summons was served upon the plaintiffs attorney after the hour of two o'clock on the- day previous to the date at which, by the copy, it was directed that all parties should attend, the Judge in Chambers. Held, j>er Williams* J-, that as Order 54, Eule 10, provides that these summonses should be in the form No. 1 in Appendix K, and that appendix not providing for the name or signature of a judge, no signa- ture was required by the Judge or his associate- in his name; and that Sees. 36 and 41 of the "Judicature Act 1883," repealing Sec. 420 of. the " Common Law Procedure Act 1865," Order 54, Eule 4, was in force, and copy summonses, must be served before two o'clock, as theret provided. Rudduck v. Clarke, 6 A.L.T., 46. Affidavit in Support of Summonses — Order 38, Rule 10— Order 66, Eule 7— Order 70, Rule 1.]— Objections were made to the affidavit in sup- port of a summons in Chambers — 1st, that it did. not show on whose behalf it had been filed, in accordance with Order 38, Eule 10 j and, 2nd, that the folios were not numbered in accord- ance with Order 66, Eule 7 (m.) Williams, J. (in Chambers) upheld the first objection, but allowed an amendment under Order 70, Eule- 1, and dismissed the second on the ground that Order 66, Eule 7, did not apply to such an affi- davit as this, which was not required to be printed. Ibid. Affidavits— " Supreme Court Rules, 1884," Order 38,Rule28.]— Eule23 of Order28 of the "Supreme Court Rules, 1884," applies to affidavits in Chambers only. Regina v. Birkett, ex parte Chambers, 10 V.L.E. (L.,) 313. Application for Leave to Defend — " Supreme Court Rules, 1884," Order 38, Rules 23, 24 — Copy of Writ and Summons should not be Annexed to the Affidavit, but must be Referred to as an Exhibit.] — London Discount Bank v. Prendergast, ante, column 99 1233 PRINCIPAL AND AGENT. 1234 Power of Judge in Chambers to fix Costs.] — See freehold, Investment and Banking Company v. Thompson, Fahey v. Jvey and Kennedy, Coulson v. Campbell, ante column 240. (9) Terms. Abolition of Terms— Aot No. 761, Seo. 18.] — For effect of Sec. 13 in abolishing terms, see in re Busbands and Husbands, under Arbitration, ante column 53. Terms — 15 Vic, No. 10, Sec. 19.] — Per Higim- botham, J. (in Chambers.) " The Judicature Act 1883," Sec. 13, which abolishes terms, except as a measure for determining time, repeals Sec. 19 of 15 Vic, No. 10, commonly called the "emergency clause." A'egina v. Bailes, ex parte Pickup, 6 A.L.T., 29. (e) Pleading under the Judicature Act of 1883. (1) Statement of Claim, column 1233. (2) Statement of Defence and Counter Claim, column 1233. (3) New Assignment, column 1234. (1) Statement of Claim. Statement of Claim — Insufficient — Appendix C> Sec. 7, Mo. 2 — Order 9, Eule 4.]— In an action for the recovery of land the statement of claim was as follows : " The plaintiff is entitled to recover possession of Crown allotments 5 and 6, Sec. 14, town and parish of Dandenong, County of Bourke. The plaintiff claims pos- session." Williams, J. (in Chambers,) Held this not to be in accordance with the rules, and ordered it to be struck out, but subsequently, because the summons was not properly served, refused the application to strike out or amend, defendant to pay the costs of the summons, and allowed the plaintiff to amend within a week. — Budduck v. Clarke, 6 A.L.T., 45, 46. Statement of Claim — Insufficient — Amendment — Order 70, Eule 1.] — HoVroyd, J. (in Chambers,) ordered a statement of claim in an action for breach of agreement and non-payment of salary, to be amended, under Order 70, Eule 1, by inserting the dates and sums in fig .ires, by adding the signature of the counsel who drew the statement, the place of trial, and by stating the particulars as to the salary the plaintiff was to receive, and the expenses he had been put to by the breach of the agreement. Vail if. Gilmour, 6 A.L.T., 64. (2) Statement of Defence and Counterclaim. Statement of Claim— Statement of Defence— Set Off and Counterclaim.] — A statement of claim was for arrears in rent due by defendant, for rates paid on the property, and for damages for breach of contract, and covenants contained in a lease to keep in repair. Statement of defence alleged a set off for work done and money paid, and defendant counterclaimed for damages caused by the trespass of the plaintiff. Bolroyd, J. (in Chambers,) Held that the defendant ought with regard to the set off to give the particulars of the work done andl money paid, and with regard to the counter- claim ought to give the dates of the trespass and the items. Freehold Investment and Bank- ing Company v. Thompson, 6 A.L.T., 65. Pleading— Statement of Defence — Order 19, Rules 4, 5, 7, 19, 27— Appendix D, Sec. 6.]— Action for wrongs. The statement of defence denied the " material allegations " in the statement of claim. The second paragraph of the state- ment of defence alleged that the alleged injuries were occasioned by a certain instru- ment, and that the defendant had not the care- and management of or any property in such instrument. Held, per Higinbotham J. (irt Chambers,) that the first statement was insuffi- cient, though semble had it followed the form in Schedule D, Sec. 6, it would have been sufficient j but that the second was not only art- allowable but a very proper one to put on th» record, and was not in any way embarrassing. Blackburn v. Mayor of Melbourne, 6 A.L.T., 154. Defence and Counter Claim — Order 21, Eules 10, 11.] — Where a defendant mixed up a defence- and counter claim without distinctly separating the counter claim, the Court held that the pleadings were embarrassing and must be> struck out, and that it was proper to apply before trial to strike out such pleadings. Ballarat Banking Company v. Wall, 6 ALT.,. 157. (3) New Assignment. For circumstances in which a reply was ordered to be struck out or amended on the- grounds that it raised a "new assignment,' contained inconsistent statements, and did not clearly raise the points of law which it- intended to raise, thereby violating Eules 6 and 7 of Order 23. See M'Eenxie v. Hanham, 6 A.L.T., 153. PRINCIPAL AND AGENT. I. Eights and Liabilities of Principal. with Eegard to Third Persons and Vice Versa. (a) Agent entrusted with indicia of Property, column 1235. (6) Undisclosed; Principal, column 1235. (c) In Other Cases — Authority of Agent, column 1235. II. Eights and Liabilities of Agent to- Third Persons. (a) Generally, column 1240. (ft) Undisclosed Principal, column 1242. III. Eights and Liabilities of Principal, and Agent Inter se. (a) General Principles, column 1242. (ft) Commission, column 1243. (c) Account and Fiduciary Position, column 1244. IV. Agent Misappropriating Monet En- trusted to Him— See Insolvency, columns 684, 685. 1235 I. Eights and Liabilities of Principal with Regard to Thied Persons and Vice Veesa. (a) When Agent Entrusted with Indicia of Property. Agent Entrusted with Goods — Storage.] — A -factor, or person entrusted with goods, with power simply to sell and deliver them, is not presumed to have authority to stipulate for his principal with the buyer for storage of the goods by the principal on the buyer's behalf, in the absence of evidence of an authority in that behalf by the principal. Brebner v. Birkett, 1 W. &W. (L.,)205. Not Within Factor's Act— 6 Geo IV., Cap. xciv., Sec. 2.] —The word " person " in Sec. 2 of 6 Geo. IV., cap, xciv., must be construed as "factor " or "agent," and applies only to factors or agents having mercantile possession, so as to be within the mercantile usage of getting advances, and not to persons where the relation is that of master and servant, or employer and clerk. A bill of lading of goods landed, but not delivered to the consignee, was endorsed by him for a specific purpose, and on a subse- quent day handed by him to B. for the purpose merely of enabling delivery of the goods to be expedited, and freight to be paid. B. held the bill of lading. Held, that B. was merely a clerk to the consignee, and not the consignee's agent " entrusted " by him with the bill of lading, within the meaning of Sec. 2 of 6 Geo. IV., cap. xciv. Levi v. Learmonth, 1W. AW. (L.,)283. (6) Undisclosed Principal. Suing in Own Name.] — "W. and H., as agents for undisclosed principals, joined with E. in a joint ■ purchase of Crown lands. W. and H. advanced to E. .£1024, being one-fifth of the purohase money, out of their principals' moneys. E. -signed a declaration of trust as to the land he purchased in favour of W. and H. as to one- fifth. E. had no notice that W. and H. were only agents. The representatives of some of the principals brought a suit against E. to -enforce their equity to one-fifth of the land. Held on demurrer that the plaintiffs suing on behalf of sufficiently affirmed the investment on behalf of all the undisclosed principals, and that W. and H. were not necessary parties. Demurrer overruled. Hunter v. Butledge, 6 W. W. & a'B. (E.,) 331. Husband Acting as Agent for Wife Without Dis- closing Principal —Eight to Sue Wife When Ascer- tained to be Principal.] — See MIntosh v. Tonkin, ante column 547. (c) In Other Cases — Authority of Agent. Excess of Authority — Ratification — Contract -Made on Sunday.] — An agent who is authorised to sell partly for cash, partly on credit, exceeds his authority if he sells for cash only, and .eimi'arly where the agent arranges a sale which is conditional upon approval of title by PRINCIPAL AND AGENT. 1236 purchaser's solicitors ; but if the principal acquiesces with knowledge of authority having been assumed by agent this affords strong evidence of the power in the agent : where defendant (vendor) having distinct early know- ledge of an agreement made on his behalf, though in excess of authority as above stated, subsequently wrote to the purchaser stating that he would be bound if a contract was made, this is a sufficient ratification of such a contract if made (per Molesworth, J., and affirmed.) Semble, per Molesworth, J., if an agent without authority signs a contract as on behalf of principal, the latter may adopt it without writing, and make it good under Stat, of Frauds. Per Molesworth, J. — A con- tract made by land agents on a Sunday is not binding on principal by 29 Car. 2, Cap. 7, and such objection may be taken at hearing, though not stated in answer if it appears that fact only became known to principal on taking of evidence. Per totam curiam. A land agent is not within the Stat. 29, Car. 2, Cap. 7, sinee "other person" means a person ejusdem generis with " Tradesman, artificer, workman, labourer," and therefore a contract made by land agents on behalf of principal on a Sunday does bind a principal. Ronald v. Lalor, 3 A.J.E., 11, 12, 87. Agent Exceeding His Authority.] — N. held an island under a lease for purpose of exporting guano, and gave C, his agent, a power of attorney to do all that N. could do " in gather- ing, collecting and exporting guano." C, as such agent, chartered a ship, of which H. was master, simply for purpose of sending to N. " samples of guano and despatches." H. sued N. on the charter party. The pleadings did not aver that the despatches bore upon "the gathering, collecting and exporting of guano," and the plea stated that "samples" were not commonly sold as merchandise. Held that the agent had. exceeded his authority, and that N. was not liable. Hort v. Nicholson, 2 W. W. & a'B. (L.,) 183. Agent Acting in Excess of Authority — Government Officer.] — By Eule 17 of the Civil Service Eegu- lations, no officer may incur any liability on behalf of the Crown without the authority in writing of the Minister of his department ; and, by Euie 20, no information out of the strict course of official duty is allowed to be given by any officer without the express direction or permission of the responsible Minister. C, the Chief Engineer, wrote to the Minister of his department, requesting authority to so far depart from the regulations of the service as to obtain the professional opinion of independent engineers upon some points raised by the Engineer-in-Chief in his report of some works executed under C.'s direction. The Minister replied that he had no objection to C.'s so doing. The engineers requested by C. to give their opinion did so, and addressed their report to C. Afterwards the Minister wrote to the Treasurer requesting him to make provision for the payment of the engineers for their report, but this was not done. On suit by the engineers against the Crown, Held that therewas 1237 PRINCIPAL AND AGENT. noagencyprovedbyreason of these letters on the part of C. to incur the liability for the Crown, siuce the letter from C. to the Minister was under Eule 20, and not Rule 17, and the letter from the Minister to the Treasurer was merely an expression of opinion ; and plaintiffs non- suited. Adams v. The Queen, 2 V.E. (L.,1 145 ; 2 A.J.E., 96. Liability of Corporation for Illegal Seizure by Inspector of Licenses — Excess of Authority.] — See Henderson v. Mayor of Melbourne, ante column 214, under Corporation. Extent of Agent's Authority — Delivery — Acceptance.] — An authority given to an agent to purchase goods for his principal, for use upon the principal's premises, does not im- pliedly authorise him to direct delivery of the goods elsewhere. If the agent, after selecting and purchasing the goods, order their delivery elsewhere than at the principal's premises, delivery at the place so directed does not amount to an acceptance to satisfy the Statute of Frauds. Mitchell v. Watson, 6 V.L.E. (L.,) 493; 2 A.L.T., 99, sub nom., Watson v. Mitchell. Agent Drawing Drafts— Change of Authority].-— As a general rule a. person, without inquiry, taking drafts drawn by an agent as agent for a principal, does so at his own risk ; but this does ,not apply where on former occasions drafts so drawn and taken have been honoured. Where, therefore, T., a squatter, authorised his over- seer to draw drafts without restriction as to the manner up to June, 1868, and after that time imposed the restriction on him that the drafts should be endorsed by Y., and a person who had taken drafts from the agent before took drafts drawn payable to bearer after that date without Y.'s endorsement, which were dishonoured, Held that Y. was bound >to com- municate the restriction of the overseer's authority to draw by ordering him to draw payable to bearer, subject to Y.'s endorsement ; and that not having altered the form of the drafts when he changed the nature of the over- seer's authority, there was evidence to go to the jury of Y.'s liability, and a rule nisi for a nonsuit which had been obtained discharged. Fletcher o. Youl, 1 V.E. (L.,) 61; 1 A.J.B., 101. Authority of Agent— Breach of— What is.] — Where an authority is given to an agent to sell for cash, and he sells giving a month's credit, that is a breach of his authority, and specific performance cannot be enforced. Bmese v Lindsay, 8 V.L.E. (E„) 232; 4 A.L.T., See S.C., Vendor and Purchaser — -Specific Performance. An authority to sell real estate does not extend to receiving purchase money. Laughton 4). Munro, N.C., 31. Authority of Agent— Breach of.] — Per Moles- worth, J., following Harrier v. Sharpe, L.E., 19, Eq. 108. A general authority to an agent to iSell land does not authorise him to enter into 1238 an open contract. But, per Stawell, C. . — Where land is entrusted to an agent to sell without instructions as to conditions, and he enters into an open contract, qucere, whether as between vendor and purchaser, that contract is absolutely void. Boss v. Victorian Peima- nent Building Society, 8 V.L.E. (E.,) 254, 266, 270; 4 A.L.T., 17. Agent Acting Contrary to Authority— Eefusal of Principal to Eatify.] — Oppenheimer v. Oppen- heimer, ante column 113u. Bank Manager, Authority of.]— Colonial Bank v. Ettershank, ante column 83 ; Hamsun v. Smith, ante ^columns 79, 80. Agency — Philanthropic Society — Liability of Committee-men for Overdraft— Authority not With- drawn.] — An action was brought by a bank to recover from the members of a committee of a society for the promotion of temperance the amount of an overdraft. At a meeting of the committee in June, 1874, the treasurer was em- powered to operateupon theaccountat the bank, and his signature on cheques was accepted as sufficient guarantee. The account then became overdrawn. Held that the authority given to the treasurer being unrevoked, the members who were aware of the overdraft and did not express their dissent, were liable; and that members assenting to one overdraft would, until such assent was revoked, be liable for future overdrafts. English, Scottish and Aus- tralianChartered Bank v. Adcock, 7 V.L.E. (L.,) 157. Liability for Orders of Manager of Company as to Goods Supplied.] — Where goods were delivered to H., and were afterwards seen on the com- pany's premises, and it was proved that H. had been at one time manager of the company, Held that there was no evidence of agency, or of H.'s being manager at the time the goods were ordered. Maxwell's Beef Company v. Irving, 3 A.J.E., 26. Overseer of a Station — Authority.] — The situation of overseer on a sheep station does not necessarily authorise him to draw drafts for station purposes, his position being com- pletely analagous to that of the manager of a mine. Fletcher o. Youl, 1 V.E. (L..) 61 j 1 A.J.E., 101. Authority of Agent — Authority to Complete Verbal Agreement as to Cancellation of Policy — Eecission.] — An agent of a life assurance com- pany, who has been entrusted with a cheque to purchase a policy, which it was agreed should be cancelled, has no authority, in the absence of an express authorisation to rescind the agreement. Hardy v. Anderson, 1 A.J.E., 136. Authority of Agent — Verbal Eecission of Con- tract for Sale of Land by Agent of Vendor.]— A person appointed as attorney under power with authority to sell land, and " to rescind any contract for sale," has power verbally to rescind a contract entered into for sale of land, and such verbal recission is binding on his principal. Bartlett v. Looney, 3 V.L.E. (E.,) 14. 1239 PEINCIPAL AND AGENT. 1240 Evidence of Election to Sue Principal — Evidence to £o to Jury.] — H. authorised C, as his agent, to buy cattle for him, furnishing C. with on9 or more drafts for a certain amount, in which the name of the drawer and payee were left blank, and on the side of each draft was a written statement by the manager of the bank, that the draft would be honoured in favour of any payee. C. purchased cattle from M. and B., disclosing his principal in each case. C. filled in his own name as drawer in each draft, and M.'s name as payee in one, B.'s in the other. The cattle were delivered, and on the drafts being dishonoured the vendors sued H. At the trial the Judge nonsuited each plaintiff on the ground that there was conclusive proof that each elected to give credit until the draft should be honoured by C. alone. Held by Stawell, C. J., and Barry, J., (dissentiente Williams, J.,) that there was no such conclusive evidence of election, but only facts, from which the jury might or might not have inferred the election. Rule absolute to enter verdict for plaintiffs in each action. Mate v. Herbert, Bardwell v. Herbert, 2 "W. and TV. (L.,) 258. For Acts of Foreign Agent — Shipowners — Negli- genoe.] — See Goddard v. Tasmanian Steam Navigation Company, 9 V.L.R. (L.,) 360 j 5 A.L.T., 120, post under SmppiNG-^Owners, their Liability and Bights. Liability of Principal Under Order of Injunction.] —Lane v. Hannah, ante column 562, Wrong Committed by Agent — Fraud.] — A prin- cipal is liable for every wrong of the agent committed in the course of his employer's business, and for his benefit, though no express command or privity of the principal be proved j and no sensible distinction can be drawn between the case of fraud and that of any other wrong. Stevenson v. Bear, 2 V.B. (L.,) 220 ; 3 A.J.R., 23. Liability for Tort of Agent — Malicious Prosecu- tion.] — See Lennox v. Langdon, ante column 880. For Illegal Distress by Agent — Ratification.] — See Sherwood v. Courtney, ante columns 382, 383. Insurance Agent — Knowledge of Agent Deemed to be Knowlege of Insurer.] — Jones v. Queen Insurance C ompany, ante column 719. Husband and Wife — Contract by Wife — Ratifica- tion.] — "W. sued H. for breach of agreement to lease a hotel. It was proved that Mrs. H., acting on H's. behalf, had contracted to sell the business, but that H. himself had subse- quently executed the lease. Held, reversing County Court Judge, that there was evidence to go to the jury to sustain plaintiff's case ; non- suit set aside, new trial directed before Supreme Court. Whitesides v. Hayes, 3 A.J.B., 32. Selling Liquor Without a Licence— Wife not Deemed to be Husband's Agent.]— Hettenbach v. Isley, ante column 833. Person Fraudulently Altering a Bill Made Agent by Negligence of Drawer.] — A bill was drawn on. E. for £60 on a printed form and handed to him for acceptance. E., whose sight was weak,, was under the impression that the sum was- properly written in writing and in figures, and accepted as for £60. After E.'s acceptance, the drawer or some one with his consent altered the sum to £160 and made the necessary additions in the writing and figures on the bill. The alteration was rendered perfectly easy by the manner in which the words and figures representing the original amount were filled in. The bill as altered, was endorsed and delivered to a bank, which had no notice of the fraud. The bank sued on the bill for £160 and recovered a verdict. On rule nisi to set aside the verdict, Held, that E., by hia negligent conduct, must be deemed to have made the drawer, or the person who altered the bill with the drawer's consent, his agent to alter the bill; and verdict upheld. Bank of Australasia v. Erwin, 1 W. W. & a'B. (L.,) 70. Contraots for Sale of Land Made by Agents.] — See Vendor and Purchaser. II. Rights and Liabilities of Agents to> Third Persons and Vice Versa. (a) Generally. Liability on Contract — Signature.] — A contract was worded "As agents for Mr. B. we have this day sold Mr. A. 3000 sheep at the rute of lis. 6d. per head" and was signed. "PowerB, Rutherford and Co., per W. A» Torrance," and A. brought an action against P., R. and Co., for non-delivery of the sheep. The plea set out the contract. Held upon demurrer to the plea that the defendants being described "as agents for Mr. B." did in the sale act as such agents and their signature "per "W. A. Torrance," was a, signature in such a capacity ; that there was no distinction between the limitation as agentB, being placed at the beginning or at the end of the contract. Judgment for defendants. Aitken v. Power, 2 W. W. & a'B. (L.,) 172. Personal Liability of Agent on Contract.] — H. sent his horse to B., a horse-dealer, to sell. B. sold the horse and signed a sale note as follows : — " Sold this day, to S., through W. C. S., chestnut horse, belonging to H., branded , which I guarantee all right, for the sum of £30. £30 received same date — B., on account of H." Held that B. did not render himself personally liable on the guarantee, but had acted on account of H. in giving it. Sprent v. Boiaes, 1 A.J.R., 111. Sale as Agent for Nam d Principal — Receipt for Deposit on Same Paper Without Stating Agency.]— An agent made a t-ale note as follows : — " As agents for Mr. J. R., we have this day sold te P. the lease of the R. Hotel— W. H. and Co.," and on the same paper, at the foot of the note, 1241 PRINCIPAL AND AGENT. drew up a receipt for the deposit as follows : — " We acknowledge haying received cheque for ,£50, being deposit on the above sale, from P. W.H. and Co." Held, that the whole note must stand together, and that on the document as a whole the agent acted as agent for R., who was the proper party to be sued for return of the deposit, after the sale had gone off. Groom v. Parkinson, 10 V.L.E. (L.,) 14; 5 A.L.T., 171, sub nam, Parkinson v. Groom. Person Acting as Agent for Company not then in Existence.] — Persons professing to act as agents for companies not then in existence must be treated as principals, and are personally liable for breach of the contract, one to the other. Cone v. Sinclair, 10 V.L.E. (L.,) 60 j 5 A.L.T., 186. Certain bills of lading, invoices, &c, of a consignment of champagne were handed to A. on agreement with D. to the effect that A. was to dispose of the goods to M., and to share in the profits. A. disposed of the goods, and by a letter accepted the. terms as to sharing profits, and stated that he acted as agent for W. (the shipper.) In an action by D. against A. as principal for a share in the profits, Held that A. could not dispute his own liability, and was liable as principal in the arrangement made. Danby v. Adet, 5 V.L.E. (L.,) 17. Untrue Representations of Authority — Plaintiffs Knowledge — Burden of Proof.] — In an action by a purchaser of land for untrue representations as to the authority of an agent to sell the land, it is necessary for the plaintiff to show not merely that the agent made such representa- tions, but also that the plaintiff was induced by such representations to enter into the con- tract; the onus of proving that the plaintiff was aware, at the time of the contract, that the agent had not the authority alleged, lies on the agent. Adamson v. Morton, 7 V.L.B. (L.,) 307; 3A.L.T., 31. Bight of Agent to Sue for Non-delivery of Mining Shares.] — C, a broker, as agent for W., bought shares in mining companies from M. The bought-note was made out in the following form :— " C, stock and share broker, 8th January, 1872. Sold by order, and on account of M., 100 Great Success at 16s. 6d. F .£82 10s." M. refused to deliver, and C. had to buy other shares to supply his customers at an advanced rate. C. brought an action in his own name for non-delivery against M. The County Court Judge non-suited C. Held an appeal that there was evidence both ways as to whether plaintiff acted as principal or agent. Nonsuit set aside. Clarke v. Mellor, 3 A. J.E., 39. Transmission of Bill from Principal to Agent — Duty of Agent as Regards Obtaining Acceptance.]— Sank of Van Dieman't Land v. Bank of Vic- toria, ante columns 94, 95. Admissions by Agent— "Without Prejudice."]— Goodman v. Hughes, ante eolurrm 415. 1242 (6) Undisclosed Principal. A defendant B., really acting as agent for the purchase of land on behalf of A., but representing himself as agent for S. (A. being anxious not to appear as purchaser,) bought land from plaintiff, and signed contract as on his own behalf. On a bill by plaintiff against B., Held that defendant was liable on the ground that the signed contract would have no effect if it did not bind defendant. Clarke v. Byrne, 3 A.J.R., 20. Refusing to Disclose Principal.] — S. sued D. for delivering wool which was not equal to the sample. Two bales were shown as samples, but the plaintiff, on opening other bales, found they were of inferior quality, and asked D. to disclose his principal, which D. refused to do. The Judge of the County Court gave S. a verdict. The Court, on appeal, affirmed the decision, thinking there was suffi- cient evidence to prove that the wool was not equal to the sample. Synnot v. Douglas. 5 A.J.E., 165. Agent Signing Guarantee to Creditors — Signa- ture Among Those of Creditors.] — G. signed a contract to guarantee a sum to the creditors of a person, of which creditors his firm was one. The contract was as follows: — "We, the undersigned creditors of P. S , hereby agree to accept the lump sum of .£80 as offered by Mr. G. for another party. . . . (Signed.) B. and G. (G.'s firm,) C, A., P., G." Held that G. must have signed as a con- tracting party, and not as ^ creditor, and that he must be the " Mr. G." referred to in the contract ; and that his principal not being dis- closed he was personally liable on the contract. Coote v. Gillespie, 6 V.L.E. (L.,) 56; 1 A.L.T., 155. III. Eiohts and Liabilities of Principal and Agent Inter Se. (a) General Principles. Land Purchased by Agent in Mistake — Principal's Right to Deposit Money Paid by Him to Agent.] — A instructed B. to, purchase for him land at the corner of two streets containing 110ft., and paid B. ,£50 for deposit money. B. purchased land in King-street, but two lots from the corner mentioned, and A. repudiated the pur- chase. Held that A. was entitled to recover the .£50 from B. as money had and received. Allison v. Byrne, 3 V.E. (L.,) 155 ; 3 A.J.E., 67. Factor — Selling After Countermand of Authority — Advance Equal to Value of Goods Sold — Damages.] — Where a factor entrusted with goods with an authority to sell them in order to recoup him- self for advances made by him to the principal, equal in amount to the value of the goods so entrusted, sells such goods after his authority to sell has been countermanded, but before he has been repaid his advances, the damages in an action of trover by the principal will be only nominal. Osborne v. Synnot, Z V.L.E. (L.,) 209. 1243 PEINCIPAL AND AGENT. 1244 Conntermand of Authority — Sale — Measure of Damages.] — "Wool was consigned to a factor for sale, but before the sale the authority was countermanded. The trustee in insolvency of the principal sued the factor in trover. Held that the defendant had no right to sell after the countermand of authority ; and that by the wrongful sale the factor's lien for a debt owing him by the insolvent principal was extinguished, and the measure of damages was the value of the wool. Osborne v. Synnot, 3 V.L.E. (L.,) 148. Suit by Principal to Compel Agent to Transfer Shares — Necessary and Proper Parties — Third Parties.] — "Where a principal brings a suit to enforce the transfer of shares in a company purchased by the defendant as his agent, which transfer the defendant refuses on the ground that the company may impeach the purchase as invalid, neither the company nor the former owners are necessary parties. Hardy v. Cotter, 7 V.L.E. (E.,) 151. An agent cannot set up as against his prin- cipal in a suit between them the rights of third parties to impeach the validity of a transaction which was the subject matter of the suit. H. employed C, the manager of a mining com- pany, to purchase for H.. as his agent, certain shares in the company which were forfeited for non-payment of calls, and about to be sold by auction. C. purchased accordingly, and the purchase money was subtracted from certain costs due by the company to H., as its solicitor. C. had the scrip issued in his own name, and gave them to H. , but refused to transf er them to H., alleging that sale was invalid, the proper preliminaries for forfeiture not having been taken. Beld that C. could not set up the right of the company to impeach the sale as against H. Decree for transfer. Ibid. Parol Agreement to Purchase Land for Principal — Agent not Provided with Funds.] — A verbal agreement by an agent not provided with fnnds to purchase for another, cannot be enforced against the agent having got a con- veyance. Pom v, Flynn, 10 V.L.E. (E.,) 131. (5) Commission. A company borrowing money on debentures, employed the plaintiff W. to place them in the market under the following terms: "For disposal for three months from date of .£30,000. Tour commission to be 14 per cent, by whom- soever sold, but it is understood that, should the whole of the debentures not be disposed of at this time, no commission is to accrue until they are sold." Within the three months tenders were sent in for £6000, but no further tenders being received these were not accepted. Held that the words, " at this time," meant at the end of the three months, and that W. wag not entitled to any commission, such right only arising under the contract when all were sold. Were v. South Melbourne Gas Company. 3 V.L.E. (L.,) 352. - (c) Account and Fiduciary Position. Manager of a Station — Purchase of Land Thrown Open for Seleotion.] — Per Molesworth, J. — An agent in . the management of a squatting station is not, as such, disqualified from pur- chasing land on the station put up for sale by the Government ; although his agency might give him peculiar means of knowing its value- Lempriere v. Ware, 2 V.E. (E.,; 1. Sale of Mine — Vendor and Purchaser — Sub- purchase by & gent for Sale.] — Motion for injunction against disposing of shares in a company, and for a receiver over the shares of certain defendants. (The facts as stated by the bill appear in 1 V.L.E. (E.,) 34.) In addition to those facts it appeared from affidavits- in support of the motion that the defendant B., as agent for plaintiff's vendors, had signed a sale note, 15th September, 1873, by which the mine was to be sold for £13,500, half cash,, remainder when transfer was completed. The half of the purchase-money was paid to B. on signing of note, and the remainder on 19th September, ] 873, when defendant C. was put into possession of the mine. After possession was delivered, B. and defendant C. entered into an agreement by which B. purchased a quarter share in the mine for £3348. Held that after B. , as plaintiff's agent had signed contract for sale, all his discretionary powers as agent, all those in which he would be warpei by intention to benefit himself, were over ; all that remained to be done was the execution of the transfer and payment of the balance of the purchase- money,, as to which it did not appear by the bill that B- had to do anything, and that therefore his sub- purchase was good. Motion refused. Learmonth v. Bailey, 1 V.L.E. (E.,) 122. Affirmed on appeal, 2 V.L.E. (E.,) 228, 241. Suit by Principal Against Agent for Account.] — Where C. acts as sub agent for B., who is agent for A., and is in such a position that as between him and B. he cannot set up A.'s title as against B., and there is sufficient- evidence to show that B. is responsible to A. for money received by C, and recovered from him by B. in an action at law, in a suit by A. against B. for an account, C. is not a necessary party. Hofer v. Silberberg, 3 V.L.E. (E.,) 125. Suit by Principal Against Agent for A«count.]— Generally speaking a principal may proceed against his_ agent in Equity as well as at law, and especially where there is complexity in the matter. The plaintiff became entitled to large Bums of money coming to him from Guernsey, and by two instruments appointed S., his attorney, under power to receive it,, and he did receive some small sums under it. S. then informed the plaintiff that it would be necessary for him to sign another document, which he represented came from B., the- German Consul, and plaintiff signed it, and the bill charged that this document was in reality an assignment of plaintiff's interest to- S. B. received £950 from Germany, and S^ brought an action for this amount, and.it was paid into Court, and taken out by S. Held on demurrer that a bill against S. for an account would lie. Ibid. 1245 PRINCIPAL AND SURETY. 1246: PRINCIPAL AND SURETY. 1. Discharge of Surety, column 1245. 2. General Principles, column 1247. 1. Discharge of Surety. By Insolvency, &c. — Principal Creditor not Bound to Prove.] — P., in consideration that plaintiff bank would make cash advances to H., guaranteed to pay such advances to the extent of .£600. The bank made advances to H. to the extent of .£5000. The bank sued P. on his guarantee. P. put in an equitable plea to the effect that, after the guarantee and advances, H. gave certain mortgages, &c., to the bank as security, and that H. became insolvent, and that the bank did not value its securities or prove upon H.'s estate, and that H.'s estate being discharged from insolvency, P.'s guarantee was improperly increased. Held, upon demurrer to the plea, that the bank was not bound to prove ; and that the plea was bad, as P. could not show that the bank had violated any duty, a, thing which he must prove, in order to entitle him to a perpetual injunction in equity. Judgment for plaintiff. National Bank v.Plummer, 6 W. W. & a'B. (L.,) 165. When Surety not Affected by Principal Creditor's Acts.]— Defendant became surety for G. to a company for ,£3000, portion of a debt due by E.G. to the company on a mortgage. G. became insolvent, and obtained his certificate, and the company, without defendant's knowledge or consent, proved their debt at a certain amount against G.'s estate, put a smaller value on their securities, and received a dividend on the residue. Held that defendant was not dis- charged as surety by the acts of the company, nor did their acts amount to an acceptance by them of the mortgage securities in full satis- faction of the value they had placed on them ; that th6 fact of the company having proved their debt, valued their securities and received a dividend on the residue, did not prevent defendant afterwards proving for the sum he might have to pay as surety, and thus, by injuring him, discharge him from his liability, and that he was not bound by the valuation of the securities made by the company. Trust and Agency Company of Australia v. Greene, 1 V.E. (L.,)171 j 1 A.J.E , 142. Guarantee for Overdraft — Amount of Guarantee Exceeded — Surety not Discharged.] — M., in con- sideration that a bank would allow F. to over- draw from time to time on her current account with a bank, to an extent not exceeding .£150, promised the bank to pay them on demand the amount of any overdraft to the extent of .£150, with the usual bank interest. F. overdrew to an amount exceeding J3150. Held (dubitante curia) that M. was not discharged from his liability. Commercial Bank v. Moylan, 1 A.J.E., 123. Further Security Taken by Creditor.]— A surety is not discharged by the creditor taking a lien on the next clip of wool in the ordinary form, of sheep over which he already held a mortgage payable on demand. The creditor, by taking- such a security, does not. impliedly contract to give time to the mortgagee. Swan v. The National Bank, 4 A.J.E., 42, 43. By Concealment of Alteration of Security.]— K., being in difficulties, altered acceptances of P.'s, which he held, so as to increase the amount, and had also misappropriated moneys of P.'s. F. agreed to take up the altered accept- ances if K. would provide security for their amount. K. induced B. to give a promissory note for the amount, and to sign an agreement to mortgage a station as security if required^ P. did not inform B. of K.'s forgery and mis- appropriation. B. went insolvent, and P. filed a bill against his official assignee for specific performance of the contract to mortgage the- station. Held, per Molesworth, J., that the surety was discharged by the concealment of the forgery and misappropriation. On appeal, Held, that in contracts of guaranty, the same candour was not required as in contracts of insurance; that B. was not released by P.'s reticence ; but that P. was not entitled to the- relief prayed, and must prove upon the estate with other creditors, and appeal dismissed. Fitzgerald v. Jacomb, 4 A.J.E., 111. On appeal Ibid, 189. By Dealings Between Creditor and Principal.] — A surety for payment for goods sold to the principal is not discharged by the vendor taking bills for the amount in the ordinary- course of business from the principal without the knowledge of the surety. Dodgshun v. Mots, 4. A.J.E., 118. By Giving Time.]— All the makers of a bill of exchange being primarily liable, giving time to- one does not discharge the others. Colonial Bank v. Ettershank, 4 A.J.E., 94, 185. By Supineness of Creditor.] — Porbearanoe or even supineness on the part of a creditor will not release the surety. And if the creditor be inactive or supine in realising upon his- securities, the surety Bhould pay off the creditor, and take over the securities, and realise upon them himself. M'Mahon v. Young, 2 V.L.E- (L.,) 57. S. obtained a loan on a policy of insurance^ on his life, and assigned an East Indian, pension to the company by way of security, and. executed a power of attorney to their agent to enable him to receive payment of the pension. Y. became surety, and executed his covenant after receipt of a letter from the company's agent, stating that T.'s liability would cease upon the assignment of the pension, and the power of attorney being recognised and registered at the India office, and a defeasance to that effect was endorsed on the deed, but not executed by the company. The India office- did not recognise the assignment, but recog- nised the power of attorney, and several pay- ments of the pension were made under it to the- attorney. The pension was then allowed to fall into arrears. S. subsequently granted- another power of attorney to another person to receive the pension and all arrears, and they 1247 PRINCIPAL AND SURETY. 1248 ■were accordingly received by such person. In an action by the company against T., Held that the letter from the company's agent was not an agreement, and could not therefore be setup as a defence ; that the power of attorney was not a security j and that, if the pension were assignable, Y. had his remedy against the grantors who improperly paid the holder of the second power of attorney, and if it were not assignable Y. had not been injured, so that in neither case was he discharged. Ibid. By Payment — What is Payment ] — See Bank of Australasia v. Cotchett, ante column 1113. Guarantee of Fidelity of a Clerk — Alteration of Course of Clerk's Business — Alteration Not Carried Out.] — A contract of guarantee of the fidelity of a clerk, which is expressly based upon repre- sentations amounting to a promise as to the manner in which the dealings of the clerk will be checked and supervised, is vitiated by an alteration in the course of such clerk's business "by the insured, without the insurer's consent ; but if the instructions of the insured as to such alteration be not, in fact, carried out by his servants, the guarantee will not be vitiated. J)ougharty v. London Guarantee and Accident ■Company, 6 V.L.K. (L.,) 376 ; 2 A.L.T., 79. Act of Creditor Producing Injury to the Surety.] — There is no principle that an act by a -creditor producing a small injury to the surety shall operate as a total discharge of the surety ; it only operates as a discharge pro tanto. Attorney -General v. Huon, 7 V.L.K. (E.,) 30, 43 ; 2 A.L.T., 130. 2. General Principle!. Suretyship for Whole of Debt with Liability Limited to Less Amount — Surety's Bights to Pro- portion of Dividends Under Insolvency of Principal Debtor.]— P. having an overdraft with defend- ant bank wanted further advances, which bank made on A. endorsing a promissory note for ,£2500 to the bank as security. P.'s estate was sequestrated, he being then indebted to the bank in the sum of ,£3900. Defendant bank proved on this debt, receiving a dividend, and •commenced an action against A. on his pro- missory note, and the bank received payment ■of it by an arrangement made. Bill by A. for recovery of the sum received by the bank in dividends as upon .£2500, Held by the Pull ■Court, on appeal, affirming (Molesworth, J.,) that the plaintiff was entitled to recover as surety a proportionate amount of the dividend as on the note. Ford v. London Chartered Bank of Australia, 5 V.L.K. (B.,) 328: 1 A.L.T., 66, 117. Surety's Title to Securities— Further Security.] — A debtor who had mortgaged lands to his creditor to secure a certain sum, had also -obtained a surety for that sum. Wishing to obtain a further advance, he mortgaged other lands to his creditor. The surety claimed to be entitled to the further security. Held that though a surety was entitled to all further securities for the guaranteed debt, he was not entitled to further securities for an additional debt. Swan v. The National Bank, 4 A. J.B., 42. Debt Recovered From Surety— Bight of Surety to Assignment of Securities — " Instruments and Securities Stat. 1864," Sec 85 ]— J. recovered judgment against H., who was surety for a debt, as sole defendant, and execution was issued and E. paid the amount of the judg- ment and costs. H. then brought an action against J. to compel the latter to assign to him the judgment, and the indenture of guarantee upon which H. and others had become sureties. Held that H. was entitled to judgment as to the indenture, but not as to the judgment, since that could not be regarded as a security or of any use in enforcing contribution, and Sec. 55 of the " Instruments and Securities Stat. 1864," only allows the surety to have assigned to him what may be useful in enforcing contribution. Hardy v. Johnston, 6 V.L.K. (L„) 190; 2 A.L.T., 19. Surety's Eight to an Assignment of Securities — Act No. 204, Sec. 55— Promissory Note.] — A surety who has paid his principal's debt is entitled under Sec. 55 of Act No. 204 to an assignment by deed of the securities which the creditor holds, including a promissory note or bill of exchange, and is not bound to accept such promissory note or bill of exchange endorsed by the creditor without recourse. Evervngham v. Waddell, 7 V.L.K. (L.,) 180: 3 A.L.T., 16. Proving for Balance on Insolvency.] — See Trust and Agency Company of Australia v. Greene, ante column 1245. Valuation of Securities— Surety When Not Bound by.] — See Trust and Agency Company of Australia v. Greene, ante column 1245. Principal Creditor Not Bound to Prove on Insol- vency of Debtor.]— See National Bank v. Plummer, ante column 1245. Amount of Liability.]— In an action the defendants were ordered to bring into Court the sum of .£165 as security, and they were then to be allowed to jtake it out again on giving a bond with sureties for the payment to the plaintiffs of any sum the plaintiffs should recover in the action under the declaration to theextent of ,£165. The plaintiffs recovered against the defendants in the action the sum of Is., together with £171 9s. 10d., for taxed costs. Before the plaintiffs recovered this amount the defendants had paid directly to the plaintiffs the sum of £217. In an action against the sureties on the bond, Held that the £217 paid direotly was not money "recovered" in the action, that the money paid into Court was not to be deemed included in the direct payment ; and that the costs were part of the damages recovered, and should be paid by the sureties to the extent of their bond. Day v. Union Gold Mining Company, 2 V.L.K. (L.,) 11. Liability of a Surety to Administration Bond— Damages Eecoverable Against— " Administration Act 1872," Sees. 26, 28.]-In an action against a surety of an administration bond, the breach 1249 PRIVY COUNCIL. 1250 assigned was that the administrator had mis- appropriated moneys of the estate, but not that he had failed to furnish true accounts. Held, that the form of the pleadings debarred the plaintiff from recovering as damages the costs of an administration suit to prove the breach assigned, such suit not being shown by the pleadings to be necessary; but that, apart from the pleadings, the effect of Sees. 26 and ■ 28 of the "Ad/ministration Act 1872," which did not contemplate the necessity of a suit, prevented the plaintiff recovering such costs as damages. M'Carthy v. Ryan, 8 V.L.E. (L.,) 189 ; 4 A.L.T., 33. The costs of procuring an assignment of the bond, under Sec. 28 of the "Administration Act 1872," cannot be recovered as damages in such an action — Qucere, whether they may not form part of the costs of the action, /bid. Indemnity — Bills Endorsed by Plaintiffs as Secu- rity for Payment for Certain Articles by a Third Person and Discounted by Defendant Who Became Responsible and Obtained a Bill of Sale From Such Third Person — Plaintiffs Entitled to Indemnity Out of Proceeds.] — A., wishing to start in business as a hotelkeeper, the plaintiffs endorsed bills of exchange in favour of the seller of the good- will and furniture, to secure payment by A. The defendant had these bills discounted, making himself responsible to a bank which discounted them, and taking a bill of sale over the furniture from A. for security. Defendant held the bills, and sold A.'s interest in the hotel to B., taking a bill of sale from B. to secure part of the purchase money, without plaintiffs' consent or concurrence, and after- wards freeing B. from her contract as to the hotel, entered into possession and received and applied the profits to his own use. The de- fendant compelled some of the plaintiffs to pay the moneys they had guaranteed on the bills of exchange, and recovering part from one of them brought an action on the bills to recover the balance. On bill by plaintiffs against defendant for indemnity, and for an injunction staying the action, Held that defen- dant was liable to indemnify plaintiffs against the bills out of the proceeds, and to pay back to same the moneys he had recovered. Injunc- tion restraining action granted. Davidson v. M'Carthy, 5 A.J.E., 101. Contribution and Recoupment — Assignment of JudgmentDebt — Damages — "Instruments and Securi- ties Stat." No. 204, Sec. 55.]— McE. & Co. recovered against E., and fifteen others, a judgment, of which E. paid the greater part, including damages and costs, the residue being recovered out of funds belonging to the defendants. E. requested McE. & Co. to assign the judgment, to enable him to enforce contribution from his co-debtors, and on their refusal to do so brought an action. Held that the measure of damages in such an action, which would lie under Sec. 55 of No. 204, was the loss of the full amount, the onus of proving that any of the co-debtors were insolvent lying on the defendants ; and that the plaintiff need not lay special damage. Embling v. McEwan, 3V.E. (L.,)52; 3 A.J.B., 36. Defence to Action Against Surety — Act Increasing Liability of Principal.] — An information against a surety to a bond that the Curator of Intestate Estates would duly discharge his duties alleged that the Curator held the office from 1861 till 1st July, 1864, and stated general breaches. On an objeotion that on the 1st of. July, 1864, the Act No. 230 came into force, and enlarged the liability of the Curator, and discharged the surety, Held that, though the Court could take judicial notice of the Act No. 230, still the matter was one that ought to have been pleaded; aad that the breaches being assigned without any date, the information was substantially good. Begina v. Shovelbot- torn, Begina v. Sandars, 5 W. W. & a'B. (L.,) 188. Defence to Action Against Surety by Principal Creditor— Equitable Plea — Surety must Show Vio- lation of some Duty by Plaintiff to Support such Plea.] — See National Hank v. Plummer, ante column 1245. PRIVILEGED COMMUNICA- TIONS. Non-Actionable.]— See Defamation. Inadmissible in Evidence.] — See Evidence. PRIVY COUNCIL. Appeal to and Practice Thereunder.] — See Appeal, ante columns 30-39. Making Decree of Privy Council an Order cf. Court — Variance.]-— The Court has only power to make the decree an order of Court, it can- not vary it in any way. London Chartered Bank v. Lempriere, 4 A.J.B., 92. Accounts Directed by Decree of Privy Council.] — Where a Privy Council decree has directed accounts, and certain facts not contemplated in it have happened subsequently, the Court cannot go beyond the letter of the decree to adapt it to such facts. Ibid, p. 102, affirmed on appeal to Supreme Court, p. 136. Making Decree an Order of Court — No Application Necessary.]— After the decision of the Privy Council on appeal, no application is necessary to make the order of the Privy Council an order of the Supreme Court. Urquhart v. McPhtrson, 4, V.L.E. (L ,) 290. Order of not Necessary to Make an Order of Supreme Court.]— It is not necessary to make an order of the Privy Council an order of the TT 1251 PROHIBITION. 1252 Supreme Court in an Equity suit (following Vrquhart v. Macpherson, 4 V L.E. (L.,) 2B0.) Brougham v. Melbourne Banking Corporation, 5 V.L.E. (E.,) 110; 1 A.L.T., 5. Order of as to Costs — How Order Knforoed by Court in Victoria.] — Where a plea had been overruled, with costs, by the primary Judge and the full Court, and the decision was reversed on appeal by the Privy Council, saving the benefit of the plea, and directing that costs of the plea should be costs in the cause, upon motion by defendant, Order made for repay- ment to defendant by plaintiff of the costs occasioned by the orders made in Victoria on the pleas, without interest. Ibid. Making Privy Council Order as to Costs an Order of Court — Notice to Respondent.] — It is necessary to serve the respondent with notice of motion to make the Privy Council order an order of the Court, and it is the better course to move for taxation of those costs. M'Millan v. The Queen, 1 V.L.E. (E ,) 253. Adding Costs of Appeal to Judgment of Supreme Court.]— The Court has power to add the costs of an appeal to the Privy Council to the judg- ment of the Supreme Court. See Begina v. Dallimore, ante column 39. PROBATE. The cases as to the instruments entitled to probate, and the practice on the grant of probate and letters of administration, are digested under the title of Will. PROHIBITION. Practice on— Stay of Proceedings — Eule to Rescind — Omission of Date of Issue.] — A rule nisi for a prohibition to a Court of Mines against putting the respondents in a suit in possession, was granted on an ex parte motion, returnable in the following term, with a stay of proceed- ings. Two days' notice of the motion for the rule was not given to the respondents; and the Court, on the motion of the respondents, granted a rule nisi to rescind the stay of pro- ceedings, and referred the rule, on its return, to a Judge in vacation. A lease had been promised by the Minister of Mines of the claim in dispute, to the complainants, who were to be put out by tb.3 order of the Court of Mines, to which the prohibition had been obtained, and this lease was to issue in a few days. The rule to rescind the stay of proceed, ings omitted to state the day of the week on which it issued, but amendment was allowed as regards this omission on terms of adjournment, in order to allow the complainants to produce affidavits, showing that they had made their application for prohibition promptly after the last proceedings in the suit. On the adjourned hearing of the rule to rescind, it was made absolute, as there was no reason why the two days' notice could not have been given, and no sufficient cause had been shown for granting the stay of proceedings on an ex parte motion. Begina v. Cope, in re Moore, 4 A. J.E., 82, 98. Eule Nisi for — Abandonment — Costs.] — After the issue of a rule nisi for prohibition, if the respondent offers to abandon the proceedings sought to be prohibited, the relator will not be allowed his costs of proceeding further with the rule. Begina v. Leech, ex parte Bhire of Tullaroop, 2 A.L.T., 19. When Issued or When Not — Common Law.] — In order to sustain a prohibition at common law, the Court sought to be restrained must have no jurisdiction whatever in the matter. In the case of a statutory prohibition, the Superior Court can interfere, although the Judge restrained had jurisdiction, if he did not exercise that jurisdiction correctly. And where a prohibition at common law was sought to restrain the Judge of a County Court, whose order was bad on the face of it, and no attempt was made to support it, Held that, though the order could be quashed on certiorari, since there was jurisdiction in the Judge to make it, no prohibition could issue at common law. Begina v. Pohbnan, ex parte Patterson, 5 W. W. & a'B. (L.,) 122. Prohibition to Order for Payment of Bates — Court will amend Order.] — See Begina v. Mayor of Bichmond, ex parte Hegarty, post column 1267. To Judge of County Court— Nonsuit — Appeal Proper Eemedy where Judge has Jurisdiction.]— Mau v. Weightman, ante column 265. To Judge of County Court.]— Where a Judge of the County Court had granted an appli- cation for a new trial more than seven days after the first trial, the Court granted a pro- hibition. Begina v. Skinner, ex parte Freame, 3 A.J.E., 126. To Warden.] — See Begina v. Philps, ex parte Granya Company, ante column 975. To Courts of Mines.]— The Supreme Court will not issue a prohibition to a Court of Mines where it has acted within its jurisdic- tion, although it may have decided wrongly. Begina v. Cope, re Moore, 4 A.J.E., 113. Defendants Failing on a Point of Law Not Allowed Afterwards to Fall Back Upon Merits.] — M. and party sued W. and party before a warden to obtain possession of a claim, and the warden decided in favour of the defendants. Plaintiffs appealed to the Court of Mines, the Judge of 1253 PUBLIC WORKS. 1254 -Which reserved a case for the opinion of the ■Chief Judge. The defendants joined in stating the case, but adduced no evidence in support of their claim, relying merely on the defects of the plaintiff's title. The Chief Judge decided, on the facts before him, in favour of the plain- tiffs. "When the case was returned to the •Court of Mines, to have the decision of the Chief Judge registered, the defendants applied to be allowed to call evidence to rebut the plaintiff's case, but the Judge of the Court of Mines refused to allow them to do so, made a ■decree against the defendants, and refused a Te-hearing. On rule nisi, for a prohibition to restrain the Court of Mines from enforcing the order, Held that the defendants were not entitled to fall back upon the merits of their case after the course they had taken, since that would be to allow them to have a double chance of obtaining a decision on the point of law, and of falling back afterwards on the merits ; and rule discharged. Ibid. For cases of Prohibition to Justices, see ante columns 772 et seq. Grievance as to Service of Debtor's Summons — Appeal,Not Prohibition, Proper Remedy.] — Ezparte M. B. Levy, ante columns 581, 582. PROMISSORY NOTE. See BILLS OP EXCHANGE. PROMOTER. See COMPANY. PROOF OF DEBTS. See INSOLVENCY. PROSPECTUS. See COMPANY. PROTECTION ORDER. See HUSBAND AND WIFE. PROTHONOTARY. The prothonotary is the proper officer to sign informations in the nature of quo warranto, Regina v. Pethybridge, 6 W. W. & a'B. (L.,) 66. PUBLIC HEALTH. See HEALTH (PUBLIC.) PUBLIC-HOUSE. See LICENSING ACTS. PUBLIC WORKS. Statutes— "Public Works Stat. 1865," No. 289. Part III., Sees. 78-94.— Eepealed by Act No. 344 " Lands Compensation Stat." Part III., Sees. 95-101.— Repealed by Act No. 767, Sec. 2. Part VI.— Eepealed by " Post Office (Amend- ment) Act," No. 455. Part VII.— Eepealed by Act No. 344. Roads — Tolls on Roads.] — See post under Tolls. Indemnity of Beard of Land and Works Against Works Constructed Under Sec. 52.] — Hepburn v. Mayor of Hawthorn, ante column 857. Railways— Taking Land For.] — See under Lands Compensation, ante columns 820-825. Management of Railways.] — See ante columns 1078, 1079, under Negligence, and Sweeney v. Board of Land and Works, ante columns 116,117. 1255 RAILWAY. 1256- Lands Compulsorily Taken by Board of -Land and Works.] — See Hunter v. Hunter. In re Bear's Estate. In re Thompson, ante column 117, and also under Lands Compensation, ante columns 820-822, 825. Imposing Penalties for Breach of By-Laws of Government Railways — Proof of By-law.] — On an information for breach of a by-law of the Government Railways, proper proof of the making and publication of the by-law is n necessary preliminary to the jurisdiction of the justices to impose a penalty for its infraction. Begina v. Nicholson, ex parte Pufflett, 8 V.L.E. (L.,) 44. Water Races, Water Rates, &o.] — See post under Watee. QUO WARRANTO. Rule Hisi for — What it Must Show.] — A rule nisi for a writ of quo warranto must state the grounds upon which it was obtained. In re Municipal Council of Smythesdale, 1 "W. & "W. (L.,) 117. To Oust from Office— " Boroughs Stat.," No. 359, Sees. 137, 138— Delay of Relator.]— The Court, having regard to the simple mode of redress given under Sees. 137 and 138 of Act, No. 359, requires, before granting a writ of quo war- ranto, to be satisfied that the relator has had good reason for his delay in not applying under those sections, which he must do within six months of the election. The Court, even though the election was held irregularly, exercised its discretion by refusing the writ. Regina v. Laurens, 3 V.E. (L.,) 73; 3 A.J.E., 46. When Applicable.] — "When an office is d e facto full, the proper mode of procedure to settle the rights of rival claimants is by quo warranto. Begina v. Robinson, ex parte Torrance, 1 V.L.K. i,h.,) 50. "When an officer has been elected to an office, and has held it for more than six months, the proper process to oust him is by quo warranto, and not by a rule to oust. Regina v. Donaldson, 1 A.J.E., 162. See S.C., ante column 227. • To Remove County Court Judge — Who May be Relator.] — Any domiciled inhabitant of Victoria may be relator in an application for a quo warranto to remove a County Court Judge, although such person may not reside within any district of the County Court of which the respondent purports to be Judge. Regina v. Rogers, ex parte Lewis, 4 V.L.E. (L.,) 334, 838. Order Granted in Vacation sot Returnable in. Term.] — An order nisi for a quo warranto granted by a Judge in vacation, under the emergency clause, must not be made returnable before the. Court in Term, but before the Judge in vacation. Begina v. Mouatt, ex parte Sargeant, 4 V.L.E. (L.,) 450. Information in Nature of — Who Should Sign.]— •See Begina v. Pethybridge, ante column 1254. And as to Practice as to Rules to Oust from Office.}. — See cases, ante columns 227, 228. RACING. Victoria Racing Club — Authority of Stewards — Rules 22 and 23.]— Although by Eules 22 and 23 of the Victoria Eacing Club, the authority of the stewards is supreme in all matters con- nected with a race, and their decision final, yet the stewards are not authorised to order a race to be run over again, in the absence of any protest, or inquiry, or evidence on both sides, or personal knowledge on the part of the- stewards of anything wrong, but merely because they think the time too slow. Cole v. Chirnside, 6 V.L.E. (L.,) 68. Victoria Racing Club — Rule 30 — Construction.] — The stewards have no power, under Eule 30 of the Victoria Eacing Club Eules of Eacing, to award the prize to the owner of a horse, where his jockey has been expressly declared to be wanting in weight, without deciding that the horse has won the race. "When acting as referees, they should expressly decide the matters submitted to them. Powell v. Savage,. 6 V.L.E., 293. Flemington Race Course— Liable to be Rated not. being used solely for a Public Purpose.] — Blackwood v. Mayor of Essendon and Flemington, post columns 1260, 1261. Offer of Money as Stakes for a Race — Acceptance with a Warning that all Forfeits due were to be Paid* — Money held to be Paid for Stakes.] — Filgate v. Thompson, ante column 1144. RAILWAY. See COMPANY— LANDS COMPENSATION —PUBLIC "WOEKS. Arrest by Engineer of a Workman of a Municipal Council Using Railway Company's Bights-of-Way "Melbourne and Hobson's Bay Railway Company Act," Sec. 63.]— Jenkyns v. JNsdon, 1 "W. W. & a'B. (L.,) 145, post under Trespass— To the person. 1257 SATES AND RATING. RAPE. See CRIMINAL LAW. RATES AND RATING. 1. Persons Liable for Rates, column 1257. 2. Property Rateable, column 1259. '3. Valuation of Property and Assessment and Apportionment of Rate, column 1261. 4. Validity of Rate, column 1265. 5. Recovery of Rates and Procedure and Prac- tice thereon, column 1267. ■6. Appeal from Hates, column 1270. 7. Other Points, column 1272. STATUTES : 6 Vic, No. 7. 8 Vic, No. 12. "Road Act" (No. 40.) ■** Municipal Institutions Act 1863 " {No. 184,) repealed by Act, No. 359. "Shires Stat. 1863" (No. 176,) repealed by Act No. 358. "Shires Stat. 1869" (No. 358,) repealed by- Act No. 506. " Boroughs Stat. 1869" (No. 359,) repealed by Act No. 506. ■*' XocaZ Government Act 1874 " (JVo. 506.) ■"Amending Act 1881" (Bate Surplus, No. 687.) 1. Persons Liable for Rates. " Person Occupying " — Official Assignee of Occupant— 6 Vic, No. 7, Sec. 67 ; 8 Vic, Ho. 12, Sec. 19.] — B., tenant and occupant of a hotel and premises in Melbourne, rateable to the city rate, became insolvent, and his official assignee attached chattels of B.'s in the hotel. After the attachment, rates became due from "" the persons occupying the premises," and the Mayor and Corporation distrained on the chattels for these rates. The official assignee replevied before sale. Upon a special case ■■being stated, Held that the Act 6 Vic, No. 7, ■Sec. 67, only gave power to levy upon the goods of the person occupying the premises, and that the official assignee was not such a person within the meaning of that section or section 19 of 8 Vic, No. 12, and that the Mayor, &c, had no power to distrain upon the chattels attached. Goodman v. Mayor, Sec, of Melbourne, 1 W. & W. (L.,) 4. [Compare Sec. 257 of Act No. 506.] Eoad Act, No. 40— Bates Due" from Occupant- Proof of Occupancy.] — H., collector for a road- board, sued L. for rates due on certain land, alleging that L. was the occupant as official ■assignee of the former proprietors. The only ■evidence of L.'s occupancy was that the amounts due were ascertained in the middle of September, and the fourteen days' notice of demand required by the " Road Act," No. 40, 1258 was served on L.'s agent on 26th September, and that L.'s agent informed H. that L. was in possession at this time. L.'s agent told H. that L. was in possession previously to the service of the notice, and after, and that was the only knowledge H. had of L.'s occupancy. Held that the authority to L.'s agent to enter into occupancy did not include an authority to admit the fact that he had so entered so as to bind L., and that the admission by L.'s agent was not proof of L.'s occupancy sufficient to fix L. with payment of the rates due from the occupant. Laing v. Herbert, 1 W. & W. (L.,) 155. [Compare Sec. 257 of Act No. 506.] Weekly Tenant — Hates Payable in Advance — Occupier— Act No. 184, Sec. 308.]— A rate was made by a borough for the year 1865-6, payable in advance by two equal moieties on 1st Febiuary, and 1st August, 1866. In the rate, an occupant of certain premises was rated, and on 1st March, 1866, a weekly tenant subject to a week's notice to quit succeeded the original occupant, and paid his share of the rates up to 31st July, 1866. The tenant had paid all rent due to his landlord up to date, and he was summoned to pay in advance the second moiety of the rate due on 1st August, 1866. He contended that on the construction of Sec. 208 of the " Municipal Corporations Act 1863 " (No. 184,) that he was only liable to pay rates . for the period that he actually was in occupa- tion, and as he might receive notice to quit at any time during the coming six months, was not liable to be rated till the actual period of his occupancy was determined. The magis- trates so held, and dismissed the case. On appeal, Held, that the proper construction of the section is, that the person actually in occu- pation when a period for which rates are made commences, is liable to pay the whole rate, and that the tenant was liable to pay it. Mayor, fyc, of Ballarat East v. Davis, 3W.W.4 a'B. (L.,) 146. [Compare Sec. 289 of Act No. 506.] Purchaser's Liability for Rates Under Prior Occu- pancy — "Boroughs Stat.," Sec. 237.] — A subse- quent purchaser of rateable property is per- sonally liable for unpaid rates, accrued due before he purchased the land, made under the Acts Nos. 15 and 184, by virtue of the provisions of Sec. 237 of the "Boroughs Stat.," No. 359, which provides that such unpaid rates shall be a charge upon the property, and may at any time be recovered, with interest, from the owner of the property. Mayor, fyc, of Newtown and Chilwell v. Batten, 2 V.E. (L.,) 142; 2 A J.E., 86. [Compare Sec. 294 of Act No. 506.] Owner for Time Being — " Local Government Act 1874," Sec. 294.]— Under Sec. 294 of the " Local Government Act 1874 " the owner, for the time being of land, is liable in an action for arrears of rates due long before he became owner, and without any previous demand. Mayor, S(c., of Wangaratta v. Meighan, 6 V.L.E. (L.,) 170; 2 A.L.T., 5. 1259 RATES AND RATING. 1360 Act No. 506, Sees. 19, Sub-sec. 6, 20, 285— (Severance of District.] — A borough council made a rate on the 13th December, 1876, for the year ending 31st December, 1875, payable on 4th January, 1876. After 4th January, but before demand was made, that portion of the borough in which W.'s property was situated was severed and attached to the Shire of Caul- field, under Sec. 19, Sub-sec. 5. Held that, as the rate was payable when W.'s land formed part of the borough, he was liable for the rate, and that Sees. 19 and 20 only applied to ad- justment of rights and liabilities between the municipalities, and that Sec. 285 did not affect W.'s indebtedness. Woolcott v. Mayor of St. Kilda,^ V.L.E. (L.,) 5. Resident on Railway Reserve — Act No. 184, Seo. 182.] — Begina v. M'Lachlan, post column 1261. Resident on Railway Reserve — Act 289, Sees. 4, 101.] — Regina v. Mayor of Sandhurst, post column 1261. 2. Property Rateable. Land Exempt from Rating — Mines — Act No. 170, Sec. 181.] — All machinery on the surface of the land used for purposes strictly subservient to the working of the mine should be regarded as part of the mine, and within the exemption from rates under Sec. 181 of No. 176. Machinery for separating the metal from the ore does not, however, come within this ex- emption, as the process may be carried on near the mine, or far removed from it, and such machinery cannot be regarded as a necessary adjunct to the working of a mine. Davidson v. The Stawell Road Board, 1 W. W. & a'B. (L.,) 79. [Compare Sec. 253 of Act No. 506.] Mining Company— Rateability of Machinery — " Municipal Institutions Act 1863," No. 184, Seo. 182.] — The C. Company were assessed by the defendant corporation for property described as *' Engine and battery of twelve heads, black- smiths' shop, office, and store." Held, it appearing on the special case that the engine and battery were used exclusively for crushing quartz taken from claim, and extracting the gold, that the office was on the claim, and was the registered office of the Company, and that the blacksmiths' shop was used exclusively for keeping; in working order the tools and machinery used in the mine ; that the engine and battery as a necessary adjunct to the mine were exempted under Sec. 182, but aliter as to other property assessed. Climes United Com- pany v. Clunes Borough Council, 2 W. W. & a'B. (L.,) 96. , [Compare Sec. 253 of Act No. 506.] " Boroughs Stat. 1869," No. 369, Sec. 197— Smithies Upon a Mine — How Amount of Rate to be Altered.] — A mining company was sued for rates. Their property comprised inter alia three smithies used for the purposes of the mine. The company did not appeal against the assessment, but resisted payment. Held that the smithies were rateable, and that in the form of proceedings the amount of the rate, if" excessive, could not be altered. Carlisle Com- pany v. Mayor of Sandhurst, 5 A. J.E., 14. [Compare Sees. 53 of Act No., 506.] Auriferous Land — Mines on Private Property— "Local Government Act 1874," Seo. 253.] — The- Court cannot recognise mining for gold on private land, and therefore cannot regard a gold mine on private property, worked without licence from the crown, as a " mine " for the purpose of exempting it from rating under Sec. 253 of the " Local Government Act 1874," which, in the case of gold-mining, applies only to land held under miner's right, or under lease from the Crown. Shannahan v. President, ire, of Shire of Creswick, 8 V.L.B. (L.,) 342 ; 4 A.L.T., 85. Auriferous Land — Tenant of Surface— Minerals.] A pereon in possession of the surface of auri- ferous lands, under a lease, reserving the minerals, and providing that any part of the surface may be resumed for the purpose of working them, can claim no exemption from rating in respect of the minerals, but is liable- to be rated upon the whole value of the fee- simple of the land including them. Ibid. Description of Property— " Works."] — Describ- ing merely as "works," land on which there are mines, is, at most, an insufficient description; and insufficiency of description in a rate does not form a valid objection to a demand for payment of such rate. If the words used may include what is rateable, as well as what is not, then they must be taken to mean property rateable. Councillors, ire, of Bulla v. Allison, 1 V.E. (L.,) 79; 1 A.J.R., 77. Bridge— Whether Used for Public Purpose Only.] — H. built a bridge for Her Majesty on con- tract, and was under the contract to receive payment by collecting tolls for seven years ; and was rated by a Road Board as occupant of the bridge. H. appealed, first to General Sessions and then to the Supreme Court, on the ground that the bridge belonged to the Crown and was "used for public purposes." Held that in order for bridge to be " used" for pub- lic " purposes," it must be purely and solely used for such purposes ; and that, as public had a right of passage over the bridge, only on payment of a toll, it subserved private pur- poses also, and was therefore rateable. Hanna* v. Seymour-road Board, 2 W. W. & a'B. (L.,) 93. [Compare Sec. 253 of Act No. 506.] What Property — Flemington Racecourse.] — Under the " Victoria Racing Club Act 1871," Crown lands were leased to the Victoria Racing Club for ninety-nine years, at a pepper- corn rent, for the purpose of maintaining a racecourse. Held that the land so leased was not rateable, since it was land, the property of Her Majesty, used for public purposes under Sec. 253 of the "Local Government Act 1874." On appeal to the Privy Council, Held that it was rateable, as it was not shewn that the 1261 RATES AND RATING. 1262 land was used solely for a public purpose, and that individuals had no beneficial interest in it, Blackwood v. Mayor, fire, of Essendon and flemington, 2 V.L.B. (L.,) 87; on appeal, 2 App. Ca. 674 j 46 L.J., P.O. 98 ; 38 L.T., 625 ; 25 W.E., 834. Semble, that a racecourse, for admission to which the public are charged, is not land used for a public purpose so as to exempt the occupiers from rates under the " Local Govern- ment Act 1874," Sec. 253. Mayor, fife, of Essendon and Flemington v. Blackwood, 2 App. Ca. 574 j 46 L.J., P.C. 98 j 36 L.T., 625; 25 W.B., 834. Police Inspector's Quarters — " Local Government Act 1874,". Sec. 253.]— The liability to, or exemption from, rating under Sec. 253 of the " Local Government Act 1874," of the quarters provided by the Government for one of its officers, depends upon whether it is optional with the officer to reside in the quarters pro- vided for him by the Government. If he is obliged to occupy, as a part of his duty, he is not the occupier, and the premises are not rateable ; if he is not under such an objection, he does occupy, and the premises are rateable. Mayor, fife, of Sandhurst v. Ghomley, 2 V.L.B. (L.,) 207. Building Vested in the Minister of Public Instruc- tion—Not Eateable.] — Shire of Wamambool v. Bawe, 10 V.L.B. (L.,) 347; 6 A.L.T , 164, see post column 1269. Resident on Railway Reserve — Act No. 184, Sec. 182.]— B. was an engine-fitter employed on Victorian Eailways, and " had permission to reside " on the railway reserve at Sandhurst ; the rate book in the column " Owner " had the entry " The Crown." The magistrates ordered E. to pay the rate levied. On rule nisi for a prohibition, Held that under Act No. 184 it is the property which is made rateable or exempted and not the person; that E. was not exempted under Sec. 182, as he was in occupation for himself, and not for the Crown. Eule nisi discharged. Begvna v. M'Lachlan, 4 W. W. & a'B. (L.,) 57. [Compare Sec. 253 of Act No. 506.] Act No. 289, Sees. 4, 101—" Railway."]— The Court held that under Sec. 4 the word " rail- way" includes all within the railway fence, and that, therefore, a railway servant occupy- ing a tenement on a railway reserve was exempted from paying rates under Sec. 101. Eule absolute for prohibition. Regina, v. Mayor of Sandhurst, 4 W. W. & a'B. (L.,) 197. 3. Valuation of Property and Assessment and Apportionment of Bate. Act No. 506, Sees. 264, 269.]— The " Local Government Act," No. 506, shows a distinct general intent that all rates shall be based on valuations made by valuers under declaration, which are to be binding unless appealed from, and municipal corporations have no power under Sec. 264 to make any alterations in such valuations. Attorney-General v. Shire of Hampden, 2 V.L.E. (E.,) 138. See S.C., ante columns 219, 220. Mode of Assessing a Gas Company's Property Aot No. 184, Sec. 191.]— Where a gas company has its retorts and gas works in one borough, and its mains and pipes extending over a num- ber of boroughs, the proper basis on which to estimate the valuation is to take the gross receipts, deduct from them the gross expendi- ture, and so arrive at the profits, and the average of these profits extending over a short period of years will give the net annual value of the whole property ; this net annual value is to be apportioned over the whole number of boroughs through Which the pipes or mains pass, the value in each borough being ascer- tained by the value of the land on which the pipes rest, regard being had to the purpose for which it is granted. Mayor, fife, of FiUroy v. GolUngwood Gas Company, 6 W. W. & a'B. (L.,)72; 1 A.J.E., 82. [Compare Sec. 265 of Act No. 506.] Valuation of Property— £5 per cent, on Capital Value— "Shires Statute," No. 358, Sec. 209.]— Section 209 of the " Shires Statute " is com- pulsory, and under that section property must be assessed at not less than £5 per cent, on ita capital value, irrespective of its yearly rental. Shire of Metcalfe v. Degraves, 1 A.J.E., 124. [Compare Sec. 265 of Act No. 506.] Valuation— Improved Land — "Shires Stat. 1869" (No. 358,) Sec 209.]— Improved land which could not be let at a profit is " other rateable property " within Sec. 209 of the " Shires Stat, 1869," (No 358,) and is therefore to be valued at not less than 5 per cent on its fair capital value. Shire of Bungaree v. Ballarat and East Ballarat Water Commission, 4 A.J.E., 80. [Compare Sec. 265 of Act. No. 506.] Valuation — Improved Property — Act No. 358j Sec. 208.J — Under the last proviso of Sec. 208, all improved property must be rated at five per cent, on its capital value ; and therefore improved property in a borough must be so rated, although its annual rent would not pro- duce so much as five per cent, on the capital value. Bennett v. Mayor of East Oollingwood, 4 A. J.E., 81. [Compare Sec. 265 of Act No. 506.] Semhle, it is no objection to the validity of a rate that the rate is struck before the valuation is made. Menzies v. Councillors of Newstead, 1 V.B. (L.,)88; 1 A.J.E., 97. Water Commission — How Rated — Property ia Different Districts — "Shires Statute 1869," Sec. 309.] — The property of a Water Commission in any district is not to be rated by taking the capital value of the land, and adding to it the amount expended on works in that district, since the outlay of capital furnishes no crite- rion of value. The principle of rating, whether 1263 RATES AND RATING. 1264. the works are or are not all in one shire or borough, is the same. If an apparatus occupied by one occupier, consisting of several parts, lies in one shire, the rate is on the whole and is received by that shire; and if such an apparatus lies in several shires, the occupier is liable for the same amount of rateable value, but it must be apportioned among the several shires in which the apparatus lies. To ascer- tain of what the apportionment should, be made, a hypothetical tenant should be assumed, with permanent occupation of the whole, with all requisite capital and land, with sub-tenants of the profitable part at a rack rent, and of the rest as contractors at a remuneration; that, from the gross receipts of the commissioners, deductions should be made for working ex- penses, insurance, maintenance, &c„for interest on working capital, at the rate of from five to eight per cent., for tenants' profit at from fifteen to twenty-five per cent, on working capital, for remuneration for superintendence of the whole apparatus, for interest on the value of the stock of plant necessarily kept on hand, at the rate of about ten per cent., and for shire and borough rates charge- able; and the balance, after such deductions, would be the " rent at which the same might reasonably be expected to be let from year to year, free of all usual tenants' rates and taxes, ■and deducting therefrom the probable annual •costs of insurance and other expenses (if any) necessary to maintain such property in a state necessary to command such rent" ("Shires Stat. 1869," Sea. 209 ;") and no deduction should be made for interest on borrowed money. For the purpose of distributing the rateable value thus arrived at between the different shires, the works must be divided into the parts directly productive of rateable value, e.g., service pipes, and those which are only indirectly productive, i.e., the rest of the works bringing the water to the service pipes; and the latter must be rated as mere land, buildings, and fixtures, with some additional value from their application to such purposes ; the latter rates (of the indirectly productive parts) must then be deducted from the net annual value arrived at as above ; and the deduction must be distributed among the respective shires in which such part lies, according to the value, and not according to the quantity of the land ; the residue of the rateable value arising from the directly productive parts should be distributed to each shire in which such parts lie, in such proportion as the gross receipts in each dis- trict bear to the gross receipts in all the dis- tricts. If the value so arrived at be less than five per cent, upon the fair capital value of the property, the case is within the last proviso of Sec. 209 of the " Shires Stat. 1869," and the property must, under that proviso, be rated at five per cent, on the fair capital value of the fee simple thereof. Shire of Bungaree v. Bal- larat Water Commission, 4 A.J.B,., 160, 187. [Compare Sec. 265 of Act No. 506.] Apportionment of Bates of Waterworks— Act No. 858, Sec 209.]— Where a Justice had calcu- lated the apportionment of rates, and arrived at the " fair capital value," omitting to notice the amount of profits made by commissioners, and not allowing any increase on the value of buildings and fixtures by reason of their capacity to be used for water supply, the Court refused to disturb his decision. Shire of Bun- garee v. Ballarat Water Commission, 5 A.J.B,., 79. Apportionment of Bates — Particular Period — No Particular Period— Act No. 176, Sees. 183, 208.] — The Legislature, in passing Act No. 176, contemplated (Sec. 183) the making of rates for "a particular period," and the making of them for "no particular period." Sec. 208 only gives apportionment of rates made for "a particular period," and the title of the rate alone must be looked at for its description in this respect. Declaration seeking to recover a portion of a rate. Plea that the rate was intituled, "An assessment to the general district rate made this 16th day of December, 1863, after the rate of twelve-tenths (sic) in the pound, by virtue of Act No. 176." On demurrer to the plea, Held that it was a rate made for " no particular period," and demurrer overruled, and judgment for defendant. Springfield Road Board v. Clarke, 4 W. W. & a'B. (L.,) 53. Apportionment of Bates — Act No. 184.] — The plaintiff, Borough Council.-sued G., as occupant, for proportionate part of the " general town rate for the year 1365-6." During G.'s occu- pation no notice was served on him, he had paid his rent and left the house, and after he had so left he was served with a notice to pay the rates sued for. The case being remitted to the magistrate, it appeared on restatement that the two rates sued for were the following : Bate made 27th February, 1865, for year ending 30th November, 1865 ; rate made 18th December, 1865, for year ending 30th Novem- ber, 1866, and that G. had left on the 10th January, 1866, having been in residence since 17th July, 1865. Held that G. was liable for his proportion of the first rate up to 30th November, 1865, but not for any portion of the second rate. Mayor, Sfc, of Ballarat East ■u. Gaskell, 4W.W.4 a'B. (L.,) 51. [Compare Sec. 289 of Act No. 506. Assessment — 18 Vio. No. 15, Sec. 30.] — The words " fair average value" in Sec. 30, mean a fair average during a number of single years, aud not an average number of terms greater than a single year. Gumer v. Muni- cipal Council of St. Eilda, 2 W. & W. (L.,) 124. [See now Sec. 265 of Act No. 506.] Assessment of Bate — Bailway Company — Act No. 506, Sec. 265.] — A railway company appealed to Petty Sessions from a rate. It contended that it was entitled to a deduc- tion — in addition to an allowance for the annual repair of movable stock, rails and framework, so as to maintain the line in an efficient state— of certain other allowances for the ultimate renewal and reproduction of the permanent way, for which it had reserved, out 1265 RATES AND EATING. 1266 -of the annual revenue, a fund as for all con- tingencies. The Justices disallowed the allow- ances for reproduction and renewal. Held that the allowance for renewal was correct, there being nothing to shew that the same deductions were made twice over ; that if the use of the rolling-stock is taken into consider- ation as enhancing the rateable value of the line, repairs to the rolling stock should be allowed. Melbourne and Hobson's Bay United Railway Company v. Mayor of Prahran, 3 V.L.K,. (L.,) 206. 4 Validity of Rate. Formality of Eate Book— Act Ho. 176, Sec 187.] — Where a shire summoned P. for rates, and it was objected that the rate was bad, because it was not in the form required by Act No. 176, in three respects, viz., (I) that the amount in each column was not added up, and set down at the foot of each column ; (2) there was no date to the signature of the signing coun- cillors ; (3) the president and councillors had not added to their signatures any designation importing membership, Held that none of the objections were fatal. Shire of Ballan v. Partridge, 4W.W.4 a'B. (L.,j 245. [Compare Sec. 262 of Act No. 506.] Validity — Evidence of— Eate Books.] — The rate books of a Koad Board are, under Sec. 206 of the "Local Government Act" No. 176, merely 3>rimo. facie, and not conclusive evidence of the validity of a rate. Lindsay v. Tullaroop Dis- trict Board, 1 W. W. & a'B. (L.,) 61. Sec. 287 of Act No. 506 Expressly Makes the Bate Book only prima facie Evidence. When Eate Valid — Advertising Notice of— Act No. 176, Sec. 186.]— Sec. 186 of Act No. 176, is only directory and not mandatory, and a rate assessed, even without notice being advertised in pursuance of that section, is a good rate. Shire of Mclvor v. Nolan, 6 W. W. & a'B. (L.,) 259, N.C. 68. Any person aggrieved by non-compliance ■with the section may institute proceedings ^against councillors for a misdemeanour. Ibid. [Compare Sec. 261 of Act No. 506. , rate struck before the valuation of the property on which it depends is good. Mewsies v. Councillors of Newstead, 1 V.R. (L.,) 88; 1 A.J.R., 97. Sub-nom., Shire of ifewstead v. Menzies. Amount of Eate— Not Exceeding 2s. in the £— Act No. 184, Sec. 183.]— The " one year " of the Act, No. 184, Sec. 183, reckons from the 1st of January to the 31st of December in each calendar year. Therefore, where a rate had been struck on the 26th October, 1866, and a •previous rate on the 16th November, 1865, and '.the two rates struck within twelve months of each other, together amounted to more than 2s. in the £ of the net annual value of the ^property, but only one rate was struck in each of the calendar years 1865, 1866, and such rate -separately was under 2s. in the £, Held that the rates were good under Sec. 183 of No. 184. Scantlebury v. The Mayor of Tamagulla, 3 W. W. & a'B. (L.,) 69. [Compare Sec. 254 of Act No. 506, where 2s. 6d. in the £ is the amount.] " Eetrospective" Eate— Act No. 184, Sees. 186, 200— Eatepayer Omitting to Appeal.]— A general rate was levied by the M. Corporation. The corporation sued N. in the County Court for rates. The corporation had obtained an over- draft from a bank of J3793, and the " estimate " showed as the first item of " expenditure " a sum of .£1224 6s. 6d. "by bank overdraft," and so far the rate was to have a retrospective effect in paying off the difference, viz., ,£431. In the County Court, N. objected to the rate as being invalid as being retrospective. The County Court held that the rate was pro tanto invalid, but not wholly invalid; but that as N. had omitted to avail himself of the right of appeal to General Sessions, given by Sec. 200 of the Act, his objection to the validity of the rate should be overruled. On appeal, Held that " retrospective " rates were forbidden as effectually under Act No. 184, Sec. 186, as under No. 176, Sec. 184 ; and that, as this objection was not capable of being amended or set right on appeal under Sec. 200, N.'s right to object was not waived by his failing to appeal. Appeal allowed judgment to be entered for N. in the County Court. Newman v. Mayor, lire., of Maryborough, 4 W. W. & a'B. (L.,) 153. [Compare Sees. 260 and 276 of Act No. 506.] Eetrospective Eate — "Waterworks Loan Amend- ment Act," No. 500, Sec. 6.] — The Water Commissioners had made a by-law on the 7th January, 1875, purporting to make a rate for the year ending 30th September, 1875, and sued W. before the justices to recover such a rate for the half-year ending 30th March, 1875. Held that the by-law was valid, and the rate made under it, though retrospective, was good. Semble, per Fellows, J., that a "year" in Act No. 500 means a calendar year. Clunes Water Commission v. Winchester, i V.L.K. (L ,) 298. How Council Should Provide for Expenditure by Levying Bates.] — Attorney-General v. Mayor of St. Kilda, ante column 218. Eate Made to Satisfy Past Liability—" Local Government Acf 1874," Sees. 248, 260.]— The " Local Government Act 1874," Sees. 248, 260, authorises the making of a rate to satisfy paBt lawful debts and liabilities. Hegina v. OaUeigh Shire, ex parte Wilson, 10 V.L.K. (L.,) 67 ; 5 A.L.T, 195, sub nom Wilson v. Shire of Oak- W., who had obtained judgment against a municipal corporation, levied execution, but obtained little more than would satisfy the expenses of the levy. W. thereupon obtained a rule nisi for a mandamus to compel the council to make a rate for the purpose of satisfying such judgment, such rate, together withthe other rate previously made for the current year, not to amount to more than 2s. 6d. in the £. Held that the rule should be made absolute. Ibid. RATES AND RATING. 1267 Ratepayer Hot Paying Invalid Entitled to Sate is to be on Burgess List— Duty of Town Clerk.] — Lennon v. Evans, ante column 220. 5. Recovery of Rates and Procedure and Practice thereon. Complaint for Non-payment of— Period of Limi- tation — ''Municipal Corporations Act 1863/' Sec. 205—" Justices of the Peace Stat. 1865," Sec. 51.] — A borough rate was struck on the 5th of May, 1865, a demand was served on B., in writing, under Sec. 205 of No. 184 (" Municipal Corpora- tions Act 1863," on the 4th April, 1866, and B. failed to pay for the space of fourteen days after such demand. In August, 1866, a com- plaint against B. for non-payment was heard before justices, who dismissed the complaint for want of jurisdiction on the ground that the complaint was not made under the Act No. 267 (Justices of the Peace Stat. 1865 ") Sec. 51, within twelve months from the time when the matter of such complaint arose. Held, on appeal, that a demand being necessary under the Act No. 184, the period of limitation ran, not from the striking of the rate, but from the expiration of fourteen days after demand in writing ; and that the period not having expired, the justices had jurisdiction. Mayor, &c, of Sandhurst v. Broderich, 3 W. "W. & a'B. (b^ 108. [Compare Sec. 285 of Act No. 506.] Suing for — Complaint Must be in Council's Name.] The collector of a borough council cannot, under Sec. 73 of No. 267, sue for rates in the Police Court in his own name ; but the Council must be named as the complainant. Regina v. Carr, 1 V.R. (L.,) 1 ; 1 A.J.R., 23. Corporation Not Suing in Full Corporate Name — Not Barred.] — Hearn v. Council of Borough of Essendon, ante colv/mn 220. Council Must Sue as Complainant — Act No. 506, Sec. 285.] — A summons was taken out in the name of a collector of rates as complainant. Held that the summons in that form was bad, that the collector might demand the rate, but section 285 only authorised the council to recover, and that the collector was not entitled to sue as complainant. Regina v. Templeton ex parte England, 3 V.L.R. (L.,) 305. Property Exempt Included in a Bate.] — On a complaint in the Police Court for rates, if it appear on the face of the rate that that has been rated which is exempt, the justices can take notice of such an objection. Councillors, $c, of Bulla v. Allison, 1 V.R. (L.,) 79: 1 A.J.R., 77. Complaint for Rates — Different Eates — Amend- ment — " Local Government Act 1876, Sec. 285.] — The inclusion of the amount of several rates made under different Acts in one complaint before justices, is not authorised by Sec. 285 of the " Local Government Act 1874." The Court will, however, on a rule to prohibit an order made for payment of rates on such a complaint, amend the order. Regina v. Mayor of Rich- mond, ex parte Hegarty, 6 V.L.R. (L.,) 437; 2 A.L.T., 87. 1268< No Summons for Payment of Bate— Notice that Warrant would be Applied for not Sufficient.]— T. was rated, but declined to pay. A notice* was then served upon him by the rate collector to the effect that a warrant would be applied for against him, and requiring him to show- cause why execution should not issue for the amount and costs. T. did not attend, and under a warrant his goods were seized. T„ then brought an action of replevin. Held that the notice was not equivalent to a summons, and, without a summons to pay, the justices could not issue a warrant ; and that as no sum- mons had been issued the justices could not in replevin justify under the warrant. Judgment, for plaintiff. Taylor v. Patterson, 2 W. & W. (L.,) 32. Semble, per Stawell, C. J.—A.B to resisting payment of rates, a resident in a municipal district who derives all the benefits therefrom, ought not to be allowed to impugn the incor- poration of the municipal council, and the creation of the municipality. Ibid. [Compare Sec. 288 of Act No. 506.] Demand — Purchaser's Liability for Bates Under Prior Occupancy — Prima facie Case.] — B. pur- chased rateable property, and was sued by the corporation for rates unpaid for eleven years, which had all accrued due before B purchased the property. The corporation proved the rates by the rate books, and the town clerk and rate collector deposed, from the books and documents and inquiries, that, to his belief, the rates had not been paid. A demand of payment, in compliance with Sec. 229 of the " Boroughs Stat.," was proved to have been made upon B., and non-payment by B. for 14 days after demand was also proved. Held that the corporation had made a prima facie case, and were entitled to recover unless B._ could prove that the former owner had paid the rates. Mayor, fyc, of Newtown and Chilwell v. Batten, 2 V.R. (L.,) 142 j 2 A.J.R., 86. [Compare Sec. 285 of Act No. 506.] Demand —Owner for Time Being Liable for Past Arrears without Previous Demand — Act No. 506, Sec. 294.]— Mayor of Wangaratta v. Meighan, ante column 1258. Demand for Payment — No. 184, Sec. 205.] — Payment of shire rates cannot be enforced by justices unless a demand in writing be made upon the ratepayer before summons, in accord- ance with Sec. 205 of No. 184. Regina v. Thompson, 1 V.R. (L.,) 2 j 1 A. J R., 23. [Compare Sec. 285 of Act No. 506.] Demand for Payment of Bates.] — A demand for payment of rates is sufficiently served by sending it through the post, properly addressed, if it reach the person to whom it is addressed. M'Kenzie v. Shire of Swan Hill, 4 V.L.R. (L.,) 299. Demand for Bates — Sufficient Service what is— " Local Government Aet 1874," Sec. 290 ] — Placing a demand for payment of rates in the post, 1269 RATES AND RATING. 1270' properly addressed, affords prima facie suffi- cient evidence of service within the " Local Government Act 1874," Sec 290. Regina v. Mayor, Sfc, of Hotham, ex parte Bent, 4 V.L.E. (L.,) 409. What is Sufficient Demand within the " Local Government Act 1874," Sec. 290.] — If a demand for payment of rates give sufficient informa- tion, having regard to the knowledge already possessed by the person to whom it is addressed, to enable him to ascertain the amount really due, it will not be vitiated by want of form or claiming too much,'and will be sufficient demand under Sec. 290 of the " Local Government Act 1874." Jbid. Demand — Notice to Ratepayer — Act No. 506, Sees. 286, 290.]— S., in September 1879, entered into occupation of certain premises at a time when there were arrears of rent from 1875. A demand was made for all the rates, and S. only consented to pay for the time he had been in occupation. It appeared that the demand had not been made by personal service or by notice in the ways provided for in Sec. 290, and the Council relied upon Sec. 286. Held that the notices in Sec. 286 did not refer to the notices in Sec. 290, but to the notices before making the rate and as the notices required by Sec. 290 had not been given, S. was only liable for the rates during the time he had been in occupation. Schafer v. Mayor of Sandridge, 3 A.L.T., 41. Defences Available — Sateability of Property, not Bate Itself— Act No. 506, Sec. 285.]— E. was rated in respect of a building vested in the Minister of Public Instruction, a portion, of which It. occupied. Held, on appeal, that under Sec. 285 by necessary implication, a person may com- plain of the liability to be rated in respect of the person or the property, though he cannot assail the rate itself, and that he could raise, as a defence in proceedings to recover the rate, the fact that theproperty was not rateable; and appeal allowed. Shire of Warrnambool v. Sawe, 10 V.L.E. (L.,) 347 ; 6 A.L.T., 164. Enforcing Payment — Ob jection cannot be taken at Hearing by Justices — Person Sued most Appeal.] —On a proceeding before a justice, to enforce payment of a rate, the ratepayer cannot raise the objection that the valuation on which the rate depended had not been made till after the rate had been struck; the principle being applicable that, when the ratepayer had an opportunity of taking the proper course, viz., appealing to the General Sessions and getting the rate quashed, and has not done so, he cannot be allowed to take an objection which he might have taken on appeal. Menxies v. Councillors, $c, of Newstead, 1 V.B. (L.,) 88; 1 A.J.E., 97, sub. nom. Shire of Newstead v. 3fensi.es. Person Resisting Payment and not Appealing- Bo Alteration Permitted in Valne of Hate if Exces- iive.] — Carlisle Company v. Mayor of Sand- hurst, ante tolumns 1259,1260. Failure to Appeal — Objection not Capable of Being Set Eight by Appeal— Person not Prejudiced by Failing to Appeal.] — Newmnn v. Mayor of Maryborough, ante column 1266. Act Ho. 859, Sees. 216, 217, 219— Person not having Appealed to General Sessions Against the Rate Entitled to Resist Payment.] — H. was assessed for rates for property within defendant borough, and was summoned before justices for payment. He proved that he was not the occupier of any land within the borough and the justices made an order for payment. H. had not appealed to General Sessions against the rate. Held, that as to Sees 2 1 6, 217, and 219, . there was a distinction between exemption and absence of liability, and where a person was not in occupation, he need not take any notice of the rating. Appeal allowed. Heller v. Mayor of Essendon, 5 A.J.E., 165. [Compare Sees. 272, 273, 275 of Act No. * 506.] Appeal against Rate to Petty Sessions— Stay of" Proceedings—" Shires Stat. 1869 " (No. 358,) Sees. 217, 218.] — Although an appeal to General Sessions under Sec. 218 of the "Shires Stat. 1869," No. 358, on account of any matters omitted from or included in the rate does not prevent the recovery of any such rate, yet an. appeal to Petty Sessions, under Sec. 217 of the Act against the assessment of a rate, operates - as a stay of proceedings, and, pending the appeal, no action can be taken by the shire council for the recovery of the rate appealed - against. Shire of Bungaree v. Ballarat Water Commission, 4 A..J.E., 158. [Compare Sees. 273, 274 of Act No. 506.] 6. Appeal from Rates. Where Appeal Lies.] — In rate cases appeal cases are allowed from the decisions of Petty- Sessions. Mayor, Sfc, of Fitzroy v. Colling- wood Gas Company, 6 W. W. & a'B. (L.,) 72. Appeal to Petty Sessions under Sec. 217 of Act No. 368 Operates as a Stay of Proceedings.]— Shire of Bungaree v. Ballarat Water Commissioners supra. Where Appeal Lies, and Who may Appeal.]— See Attorney -General v. Shire of Hampden, ante columns 219, 220. Who may Appeal— Act No. 184, Sec. 199:]— H., the owner of certain property, had it assessed at a high value in order to qualify himself to be a councillor, to which office he was elected. B., another ratepayer, and not the owner, appealed against the assessment as being too high. Held, reversing the justices, that B. was a person "aggrieved" within the meaning of No. 184, Sec. 199, and might maintain an appeal' against the assessment. Brown v.. Mayor, %c, of Footscray, 6 W. W. & VB. (L.,> 168. [Compare Sec. 273 of Act No. 506.] 1271 RATES AND RATING. 1272 When Notice of Appeal should be Given— Act Bo. 176, 8ec. 199.]— G. appealed to justices, under the Act No. 176, Sec. 199, against a road rate. The respondents (before the justices) objected that the notice of appeal was not given .in time. A notice had been originally given which fixed no date for the hearing, and at the hearing the objection was made that the notice had no date. The justices adjourned, to allow . another notice with a date for the hearing to be given, and a second notice with a date was given. On this date the appellant attended, . and took part in the proceedings. The second notice was objected to on the ground that it was too late — more than a month after the rate. The first notice had been within the month. The justices heard the appeal, and decided against the rate. They stated a case -on the appeal of the Road Board. On the appeal, the Road Board took a third objection, . that the original notice did not show the appel- lant to be the party within the Act. Held, that the respondents waived the first objection as to the want of date at the adjourned hearing, and were stopped from taking the second, and could not take the third, which might have been taken at the original and adjourned hearings, at the present hearing. Corio Road Board v. ■ -Galletly, 1 W. W. & a'B. (L.,) 85. [Compare Sec. 273 of Act No. 506.] Notice of Appeal — Jurisdiction of Justices.] — A notice of appeal against a. rate given within one month from the time the rate was made, but which gives, as the date for hearing the •appeal, a time outside of one month from the date of making the rate, is a good notice of appeal within the Act No. 176, Sec. 199, and Justices in Petty Sessions have jurisdiction to hear such an appeal. Begina v. M'Lachlan, .3 W. "W. &a'B. (L.,) 120. [Compare Sec. 273 of Act No. 506.] What Notice should Contain — Hearing— No. 176, •Sec. 199.] — A notice of appeal to justices in Petty Sessions from a road rate, under the Act No. 176, Sec. 199, should name a date for the hearing, and the hearing may be the first after the day named, on which the justices actually sit in Petty Sessions. The notice of appeal should also show, on the face of it, that the person appealing against the rate is a party aggrieved thereby within the jneaning of the Act No. 176, Sec. 199; and semble, that if the notice describe such person as the " owner or lessee," and not as the " occu- pant" of the land, he will not appear to be a party aggrieved within the Act. Corio Boad Board v. Galletly, 1W.W.4 a'B. (L.,) 85. [Compare Sec. 273 of Act No. 506.] Time for Appeal — No Court of Sessions — " Local ■ Government Act 1874," Sec. 281.] — Where, on an appeal from a rate, there was no Court of Ses- sions sitting within the time directed by the ■ " Local Government Act 1874," Sec. 281, as that to which the appeal was to be made, a time for the hearing of the appeal was allowed to be fixed at the next available Sessions. Melbourne and Hobsoris Bay United Railway Company v. Town of Richmond and Borough of Sand- ridge, 4 V.L.R. (L.,) 81. Notice of Appeal, Act No. 506, Sec. 274.]— A notice of appeal to General Sessions set out various grounds as to misdescription of the property. Held that the proper test as to the sufficiency of a notice of appeal is whether the respondents were actually, or might reasonably have been misled, and, if the property was described in the rate book before the justices that was sufficient to enable them to alter the rate. Bussell v. Shire of Leigh, 5 V.L.R. (L.,) 199; 1A.L.T., 18. Jurisdiction of Justices on Appeal — Act No. 176, Sec. 199.]— The words in Sec. 199, Act No. 176, "Court of Petty Sessions holden nearest to such rateable property," are mandatory, and are descriptive of certain justices, and give jurisdiction to those alone. Begina v. McLachlan,2W. W. & A'B. (L.,) 171. [Compare Sec. 273 of Act No. 506.] Jurisdiction of Justices Under Sec. 31 of Act No. 18 — Only as to Amount of Assessment.] — Blair v. Council of Ballarat, ante column 752. 7. Other Points. Action for Excessive Eate Paid Tinder Protest — Money Had and Received.] — A , Road Board demanded payment of a road rate from K. The rate had been properly struck, but K. contended that certain pasture land, on which a lower assessment was proper, was treated as arable land, on which a higher rate was proper. K. paid the whole demand, under protest, and brought an action in the County Court for the excess due to him, as money had and received to his use. On appeal by the Road Board, Held that K. could not have quashed the rate on certiorari, or have replevied for the excess paid under protest ; that K. was bound to tender the amount really due, and might, after such tender have brought his action if a distress were issued for any excess beyond the sum really due and tendered ; that " money had and received" did not lie in such a case, as the validity of a rate could not be inquired into in such an action ; and that money had and received, not lying, the judgment for K. was erroneous; and appeal allowed. Belfast Boad Board v. Knox, 1 W. W. & A'B. (L.,) 133. Mandamus to Eate Collector to Compel Accept- ance of Amount to which Justices had Reduced the Eate—" Shires Statute 1869," (No. 358,) Sees. 57, 68, 220.] — Rule nisi for a mandamus to compel the rate collector of the Shire of R. to receive the sum of J3114 tendered to him in payment of rates due on the property of T. T. was the owner of land in the Shire, which was rated by the Council at .£2800, on which, at Is. in the £1, the rates amounted to ,£140. T. appealed to Petty Sessions, and when the case was first called on, it was adjourned for a month, and at the adjourned hearing there were no represent- atives on the part of the Council. The justices reduced the rates to .£114. Sec. 220 of No. 1273 RECEIVER. 1274, 358 requires that an amendment of a rate by the justices should be made by altering the sum at which any person is rated therein.. Notice had been served on the Shire secretary to produce the rate book, but it was not pro- duced, so that the justices could not enter the reduced rate therein. T. tendered the sum of £lli to the Shire treasurer and to the rate col- lector , but neither would take it. Sec. 57 provides that, to entitle a person to be on the ratepayers' roll, he must have paid his rates before the 20th June in each year, and no per- son not entitled to be in the ratepayers' roll could act as a councillor. Held that the rule ought not to go, as it would lead to nothing, since the words in the Act being " paid," and not "paid or tendered," and the money not having been paid before the 20th June, a mandamus would be useless. Semble, that T. would have an action against the rate collector for not taking the rates. Regina v. Black, ex parte Twomei/, 5 A.J.R., 82. RATIFICATION. When Impossible.] — A father allowed his son, who had the same name as himself, to obtain possession of the title deeds of lands belonging to the father. The son represented himself as owner of the land, and mortgaged it to first and second mortgagees. The father recog- nised and confirmed the first mortgage, but refused to recognise the second. Held that no title passed by either of the mortgages by the son. Ettershank v. Zeal, 8 V.L.K. (E.,) 333, 342; 4A.L.T., 90. Forgery of a Bill of Exchange— Eatification by Acknowledgment ot Alleged Signatory that Sig- nature is his.] — Kernan v. London Discount find Mortgage Bank, ante column 102. , Of Acta of Directors.]— See Company. Eatification of Company's Solicitor's Acts only Effectual when Under Seal.] — Shiel v. Colonial Bank, ante column 231. Liability of Corporation on Contract Entered into by One Council at Bequest of Another Council —Eatification.] — Shire of Leigh v. Shire of Hampden, ante column 212. Of Trespass— How Effected.]— A wrongful act, in order to be capable of being ratified, so as to make the ratifier liable for the wrong, must be an act done by a person professing to act for the use or benefit, or by the authority of the party who is afterwards said to have ratified it. Maudoit v. Ross, 10 V.L.E. (L.,) 264,266; 6 A.L.T., 104. Evidence of Eatification.]— Evidence of ratifi- cation consists of proof of acts or words showing an election of the ratifier to adopt as his own act the act of another known to him. and done by that other for his benefit or in his- name. Mere knowledge of the act of the- agent is not ratification (though knowledge is- a necessary element of ratification,) except wheie there is an intention to adopt the act at all events and under whatever circumstances. There must be evidence either of participation, in the advantage resulting from the act, or of express approbation of the act. Ibid. And see cases, ante under Principal and Agent. REAL PROPERTY STATUTE,. No. 213. Acknowledgments— " Eeal Property Stat. 1864," Sec. 123 — Disentailing Deed.] — Where the appointment, of a special commissioner to take, under Sec. 123 of the "Real Property Stat. 1864," the acknowledgement of tenants in tail to a disentailing deed was sought, Held that the Court had power to make the appointment, and a separate order was made for each tenant. In re Bowman, 6 V.L.E. (E.,) 180 ; 2 A.L.T., 73. Limitation of Actions, Sees. 17-50.] — See under- Limitations (Statutes of,) ante columns 844-847. Dower.] — See under Husband and Wife, ante column 538. Alienation by Married Women.] — See under Husband and Wife, ante column 550. Leases and Sales of Settled Estates.] — See post under Settlements. Eegistration of Documents.] — See under Deed,. ante column 354. Sale of Infants' Lands.] — See under Infant, ante column 558. Payment of Debts Out of Eeal Estate.]— See under Debtob, ante column 345. Appointment of Commissioner for Taking Acknowledgment of Married Women — Act No. 112,. Sec. 87.] — A commission may issue appointing; as commissioner either of two persons in the alternative. In re Brookfield, 1 W. & W. (E.,> 110. [Compare Sec. 75 of Act No. 213.] RECEIVER. 1. Appointment and Discharge, column 1275. ' 2 Powers, Functions and Liabilities, column 1276. 1275 RECEIVER. 1276 1. Appointment and Discharge. Motion for Appointment.] — After an order at the hearing, giving liberty to amend for want of parties, and before amendment, a motion by plaintiffs refused as unprecedented. Glad- stone v. Ball, 1 W. & "W. (E.,) 9. In what Cases Appointed — In Suit for Specific Performance where ex parte Injunction has been Granted.] — In a suit for specific performance of a clause for repurchase in an indenture, where an ex parte injunction had been granted against the defendant, the plaintiff moved for appoint- ment of a receiver, and the defendant alleged that the indenture was wrongly prepared in •containing the clause of repurchase. Held that the document must be taken prima facie to express the intention of the parties, and that a receiver was necessary for the purpose •of carrying out the injunction. Order made. Shaw v. Wright, 2W.4W. (E ,) 57, 64. In what Cases Appointed — Partnership — Insanity of a Partner Between Decree for a Dissolution and Report of Master.] — In a suit for dissolution by an insane partner and his com- mittee, a dissolution and accounts had been ■ decreed, no attempt being then made for appointment of a receiver. On application by motion for a, receiver before Master's report, Held that no case was made, and motion .refused. Gregory v. Welch, 3 A.J.B., 43. Partnership.]— Where the defendants had improperly excluded the plaintiff from par- ticipating in winding up a partnership, and had treated the assets and effects as their own, .a receiver was appointed, notwithstanding that the appointment was injurious to all parties. Boyle v. Willis, 1 A.L.T., 189. Eor facts, see S.C., ante columns 1113, 1134. And see also Barrett v. Snowball, and Hewitt v. Akehursi, ante columns 1132, 1137, for cases of appointment of a receiver in partnership -matters. When Appointed.] — Where an application is made for appointment of a' receiver, under a covenant to account, irregularities of account- ing, unless they lead to an inference of fraud or dishonesty, should not be made a ground for the appointment of a receiver. Aarons v. Lewis, -3 V.L.E. (E„) 79. Appointment of Receiver in Administration Suits.] Graham v. Graham, ante column 14, Dryden v. Dryden, ante column 15. In what Cases Appointed— Mortgagee in Posses- sion.] — Where a mortgagee in possession is charged with mismanaging the estate, the Court will not appoint a receiver. Hayward ■v. Martin, 9 V.L.E. (E.,) 143; 5 A.L.T., 109. Equitable Execution by Appointment of a Receiver— Act No. 761 (" Judicature Act 1883 ") Sec. 9, Sub-sec. 8.]— Before the Court will grant •equitable execution by appointing a receiver, it requires to be satisfied that the plaintiff has tried all he can to get satisfaction at law, and that means he must do all he can in Victoria to get satisfaction of his j udgment. Ettershank v. Russsell, 6 A.L.T., 140. Appointment of — Abuse by Trustee of his Discre- tion-]— See Phelan v. Baton, 3 V.E. (E.,) 13; 3 A.J.E., 6, post under Trust and Tbustee. Bights and Powers. Who may Move for Appointment of New Receiver — Annuitant — Costs.] — In a suit a, decree had been made for the administration of the testator's estate. Prior to the decree, a receiver had been appointed who, about twelve months since, left the colony. The testator's widow, a defendant in the suit, was entitled to an annuity charged on the estate, but which had been left unpaid since the receiver's departure. Motion by the annuitant, on notice to the plaintiff, for the appointment of a new receiver. Motion granted; the applicant to have her costs of the motion ; the plaintiff though rightly served with notice of the motion, not to have his costs, since it was through his neglect in leaving matters as they were with reference to the receiver that the necessity for the motion arose. Pittman v. Townshend, 1 W. W. & a'B. (E.,) 140. By Whom He should be Proposed.] — The attorney, under power of one of two co-plaintiffs, not the solicitor on the record, proposed a. receiver in the Master's office in opposition to the receiver proposed by the solicitor on the record. Held that the Master was right in refusing to receive the proposal as on behalf of one of the plaintiffs. Graham v. Graham, 2 "V.E. (E.,) 145, 149; 2 A.J.E., 100. Who should be Appointed.]— It is undesirable to appoint as receiver, a person who has acted as agent of the defendant in the management of the property. Ibid. Who should be Appointed.] — A receiver ought to be indifferent between all parties to the cause, and therefore a motion for appointment of the accountant in the office of the plaintiff's solicitor as receiver refused. Hunter v. Hunter, 4 W. W.&a'B. (E.,) 17. Discharge.] — A receiver will not be discharged immediately upon the nomination of new trustees. The estate must be conveyed and the new trustees must execute the deed, before he will be discharged. Lane v. Phelan, 2 AJ.E., 10. 2. Powers, Functions, and Liabilities. Powers and Functions of.] — The functions of a receiver are not at all analagous to those of an official assignee. A receiver's duties are those of collection, not of distribution. It is not his business to set about adjusting the creditDrs' accounts, and if he does so he misconceives his duties as a receiver. Moreton v. Harley, 2 W. &W. (E.,)74, 79. 127] RECOGNISANCES. 1278 Partnership Suit — Appointment of Receiver — Undertaking by Defendant during Pendency of jMotioa— Extent of Eeceiver Order.] — On 20th May notice of motion for a receiver was given. ■On that day the motion stood over, the de- fendant undertaking not to sell. On 27th May .order for receiver made. On 15th May — orders laving been previously given — a sale of pro- perty was made to the net value of ,£1000, of which J380O had been received by the defendant before 27th May, the rest subsequently. On .motion by plaintiff, that defendant should pay whole of this amount to the receiver, Held that the undertaking not to sell did not prevent the •defendant receiving the proceeds of a sale theretofore made ; that the ,£200 received since .27th May was to be paid over to the receiver. Held also, that a receiver order carries exist- ing chattel property and debts continuing due to a firm at the time the order is made, but not money in the hands of one of the partners, which, on an account taken, he might be sub- ject to hand over to one of the other partners. Moreton v. Barley, 2 W. & W. (E.,) 74. Powers of— To Carry on Business.] — Permission will not be given to a receiver of an intestate's estate to carry on a business, although it has been carried on by an intestate and his admi- nistration, on the ground that the Couit ought not, through one of its officers, to carry on a mercantile establishment. Graham v. Graham, .2 V.E. (E.,) 145, 148; 2 A.J.E., 104. Eeceiver of Infant's Property has no Power to Sell or Convey under Sec. 6 of " Lands Compensation Statute 1869."]— The Board of Land and Works served a notice to treat under the Acts No. 415 and No. 344, upon an infant's solicitor, which he accepted. A receiver had been ^appointed of the infant's property. Upon motion on behalf of the infant, that the receiver might be at liberty to treat with the board as to the purchase-money, Held that the .solicitor had no right to accept service of the notice, and that a receiver was not included .among the persons authorised to sell, convey, release, &c, by Sec. 6 of the " Lands Compen- sation Stat. 1869," No. 344 ; but that he was a mere agent of the Court, concerned only with the rents and profits for the time being, not with the inheritance. Hunter v. Hunter, 4 AJ.K., 24. Upon a subsequent application, the receiver ■was appointed special guardian of the infant, ior the purpose of selling and conveying to the Board of Land and Works. Ibid. 65. Power to Grant Leases of Infants' Estate. — The general power of the receiver in an .administration suit to grant leases of the property of infant parties extends to any number of years during the minority; and the Master may, without an express reference by the Court, approve of a lease for more than one .year, if during the minority. Brock v. M'Phail, 1 W. & W. (E.,) 12. Eeceiver of Infant's Estate — iand under " Land Act 1863," Sec. 23.]— A receivjr of infant's real estate extended to land selected under the " Land Act 1862," Sec. 23. Brock v. M'Phail, 3 W. W. & a'B. (E.,) 121. Land Sold under a Decree— Motion for Leave to Eeceiver to bring Ejectment against Person in Pos- session, and for Person in Possession to give up Title- deeds — Costs.] — A decree was made for the sale of certain real estate, of which one P. had been seized, and a receiver had been appointed in the suit. The defendant was the infant heir- at-law of P. Mrs. P., widow of P., and mother of defendant, and who was not a party to the suit, occupied some of the property directed to be sold, and refused either to attorn to the receiver or give up possession. She also refused to deliver up the title deeds, which were in her possession. Motions for liberty to the receiver to bring ejectment against Mrs. P., and for an order upon Mrs. P. to bring into Court, for the purpose of carrying out the decree, the title-deeds in her possession re- lating to the property directed to be sold. Separate notices of each of these motions had been served on Mrs. P. Chapman, J., made an order as to the first motion, as of course ; and as to the second, ordered that Mrs. P., within a week after service of the order upon her, deliver into Court all deeds exclusively relating to the title of P. to the property directed to be sold. No order was made as to costs, because an unnecessary notice was served upon Mrs. P. as to the first motion, His Honour consider- ing that the costs of that might be set off against the costs of the other. Royce v. Parker, t'W. &. W. (E.,) 267. Attornment to Eeceiver.] — The Court has no jurisdiction to order a person in possession of land, to attorn to a receiver, where the tenancy is not clear, or where a right of purchase is set up by such person. Brydon v. Innes, 5 W. W. & a'B. (E„) 189. Appointment as against a Person Subsequently made a Party to Suit.] — Motion for an order for H. and B. to deliver certain property to a receiver. A receiver was appointed before H. was made a party to the suit. Held that the Court could not make an order as against H. unless and until an application was made extending the appointment of the receiver to H. as a new defendant. M'Kay o. Bell, 3 A.J.E., 53. RECOGNISANCES. To Prosecute Appeal — Appearance — Estreating.] — C. was convicted before justices, and sen- tenced to six months' imprisonment. He appealed to the General Sessions, and H. and T. became his sureties to " prosecute the appeal with effect." At the hearing, the Chairman of General Sessions estreated the recognisances, C. not appearing in person, but counsel appear- ing on his behalf. Held that there is no 1279 RELEASE. 1280' practice to appear in person on a recognisance to prosecute an appeal, and that the recognis- ances were improperly estreated. Sed aliter in the case of a recognisance to hear judgment. Begma v. Hull and Trevarrow, 3 V.E. (L„) 143 ; 3 A.J.R., 29. "Crown Remedies and Liabilities Stat.," No. 241, Sec. 18 — Satisfaction — Costs Against Crown.] — The Court had ordered satisfaction to be entered on a judgment see supra, being of opinion that the recognisances should not have been estreated. The Crown applied to have the words " with costs " struck out. Held that the words in Sec. 18 did not imply that the subject should be entitled to full costs. Satis- faction entered without costs. Begina v. Hull and Trevarrow, 3 V.E. (L.,) 218 j 3 A.J.R., 111. Estreatment — Prisoner Appearing on Day Fixed in Recognizances — Judgment Given on Another Bay on which Prisoner did not Appear.] — Begina u. Moore, ante columns 73, 74. To Keep Peace — Estreatment by Justices before whom Defendant was not Convicted.] — Rule nisi to set aside a judgment recorded against C. on a forfeited recognisance. C. had been bound over to keep the peace for twelve months, and entered into a recognisance. C. committed an assault for which he was fined by one justice, and was summoned to show cause why the recognisance should not be estreated before other justices. In the presence of the sureties, C. confessed the assault to these justices, and judgment was entered on the recognisance being estreated. Held that the justices had personal cognisance of the fact that C. had broken the condition. Rule discharged. JXegina v. Cairns, 5 A. J.R., 36. To Prosecute Appeal from Justices.] — See cases ante columns 766, 767. To Prosecute Appeal to Sessions. ]- post under Sessions. — Appeal. -See cases REFERENCE. To Arbitration] — See Abbitbation. Work and Labour. To Master in Equity.] — See ante columns 1184, el seq. REFRESHERS. See COSTS, column 245. REGISTER OF SHARE- HOLDERS. See COMPANY— MINING. REGISTRAR. Of Titles.] — See Transfer of Land (Statu- tory.) Of County Court.] — See County Court. Of Building and Friendly Societies.] — See Build- ing Societies — Friendly Societies. Registrar-General — Signature of Deputy — Judi- cial Notice of—" Stat, of Evidence 1864," Sec. 54.J. — See Teague v. Farrell, ante column 428. REGISTRATION. Of Copyright.] — See Copyright. Of Medical Practitioners.] — .See Medicine. Of Deeds.] — See Deed. Of Patentsl] — See Patent. Of Trade Marks.] — See Trade. Of Transfers under " Title of Land Stat."] See- Transfer of Land (Statutory.) Of Marriage.]— Crowl v. Flynn, ante column 501. RELEASE. Construction of Release in a Partnership Deed- Doctrine of ejusdem generis.] — Cameron a. Hughes, ante column 1138. f Sureties.] — See Principal and Surety. Of Trustee.] — See Trust and Trustee. Of Debt— Part Payment.]— Beeves v. Luplau r ante column 344. Of Joint Debtors — Execution by One of a Credi- tor's Deed— Release of Others.]— Glass v. Martin, ante column 344. 1281 REVENUE. 1282 Of Insolvent Estate from Sequestration.] — See Insolvency. Release of Equity of Redemption Obtained by Fraud of Mortgagee ] — Brougham v. Melbourne Banking Corporation, ante column 1055. Release by cestui que Trust to Trustee.] — A release executed by a female cestui que trust to her trustee, immediately after attaining her majority, and without any accounting 1 by the trustee, is not binding. Bennett v. Tucker, 8 V.L.E. (E.,) 20; 3 A.L.T., 108. Qucere, whether any release given by a cestui que trust to a trustee without any accounting is binding. Ibid. For facts see S.C. post under Tbust and Trustee. Eights, &c, of Trustee. And see also S.P. Westwood v. Kidney, 5 A.J.R., 25, post under Trust, &c. — Eights, powers and duties, &c, and O'Leary v. Mahoney, ante column 559. When Verbal Renunciation of Claims under Bill of Exchange Effectual as a Release. ] — Glass v. M'Leery, ante column 95. Creditors' Deed — Release Operating as a Cove- nant not to Sue.] — Glass v. Biggins, ante column 352. REMAINDERMAN. See TENANT— WILL. RENT. DISTEESS-LANDLOED AND TENANT. REPLEVIN. When Maintainable— Payment to Two Persons Claiming as Landlords.]— E., in March, 1856, by post nuptial voluntary settlement, settled land upon J. and B. as trustees in favour of himself and wife, and in November, 1856, mortgaged this land to T. In March, 1859, E. leased the land to plaintiff, who continued to pay rent to trustees untilT.,by threatening ejectment, com- pelled plaintiff to attorn to him. E. then, as agent for J. and B., distrained upon plaintiff s goods for rent in arrears under the lease. Plaintiff brought his action of replevin; E. avowed for rent in arrear, and as agent for J. and B., and a verdict was entered for plaintiff. A rule nisi was obtained to enter a verdict for defendant E. Held that plaintiff did not dis- pute his landlord's title, but merely showed that by his own act the landlord had deprived- himself of the title he previously had. Eule discharged. Taylor v. Jtobinson, 2 W. & W. (L.,) 69. Against whom Maintainable — Married Woman having Separate Property.] — Eeplevin is main- tainable against a married woman having separate property, when the warrant of distress was signed by her daughter in her presence, and by her authority, but was not attested before a Justice or Attorney under Sec. 73 of the " Landlord and Tenant Stat. 1864." Field v. Howlett, 4 A.J.E., 152. Warrant for Payment of Rates — Where Justices may not Justify under Warrant — No Summons for Payment of Rates ] — Taylor v. Patterson, ante column 1268. Action of Replevin against Justice — Notice of Action— Act Ho. 267, Sees. 164, 170.]— Smith v. Cogdon, ante columns 783, 784. Act No. 345, Sec. 97 — Replevin in Supreme Court — Execution out of County Court.]— H. brought an action against M. in the County Court, and recovered judgment, and issued execution. An application was made to set this aside, but the County Court Judge refused to inter- fere, and M. then issued a writ of replevin in the Supreme Court. On rule nisi, to set pro- ceedings aside, Held that Sec. 97 did not create an entirely new j urisdiction, and the jurisdiction of the Supreme Court was not ousted. Eule refused, the Court not thinking the proceedings showed sufficient irregularity to justify them in interfering. Marie v. Hogan, 5 V.L.E. (L.,) 160. REVENUE. 1. Excise and Customs, column 1283. 2. Land Tax, column 1284. 3. Stamp Duties, column 1286. 4. Other Duties, column 1287. Statutes. " Customs Act 1857," No. 13. "Customs Amendment Act," No. 144, and various Amending Acts, Nos. 293, 306, 400, 593, 646, repealed by Acts Nos. 768, 769. "Customs Act" (Excise) or " Distillations Act," No. 147. " Customs Consolidation Act 1 883" No. 768. " Customs Duties Act 1883," No. 769. " Land Tax Act, 1877," No. 575. " Stamp Stat.," No. 355. " Stamp Duties Act," No. 645. u u 1283 REVENUE. 1284 1. Excise and Customs. Illegal Seizure of Stock—" Distillation Act 1862," No. 147, Sec. 113] - E. sued M. m trespass for seizing certain stock in a certain 'paddock. An illicit still had been found in a hut in the pad- dock, which was rented by E. The hut was occupied by D., and was forty yards away from the house in which E. lived. Held that Sec. 113 of No. 147 must be construed strictly; that words "house, building:, premises or place" must be read disjunctively, and that the "premises or place" in which the stock was found was not the same " premises or place" in which the still was found, and the seizure was illegal. Rule absolute to enter a verdict for plaintiff. Ryan v. Moody, 4 W. "W. & a'B. (L.,) 99. Registration Fees on Imported Goods — Tranship- ment — Aet No. 144, Sec. 3.] — The registration fees imposed on goods "on their importation into Victoria," by the Act No. 144, Sec. 3, ('* Customs Amendment Act") are not pay- able on goods which ar e merely trans-shipped without being landed in the colony. Larimer v. The Queen, 1 W. & W. (L.,) 244. Recovery of fees Wrongly Levied — Act No. 49.] — Per Stawell, C.J., and Williams, J. (dubitante Molesworth, J.) — Registration fees wrongly levied, paid under protest, and illegally received by the Customs officers, under the Act No. 144, Sec, 3, may be recovered back by petition against the Queen, under the Act No. 49 (repealed and re-enaeted by " Crown Reme- dies and Liabilities Stat.;) there being an implied contract by the Crown to repay such moneys illegally received on its behalf. Jbid. Customs Duty Improperly Paid — Remedy — "Customs Act 1857," Sec. 21 — "Crown Remedies and Liabilities Stat., 1865," Sec. 20.] — Where a dispute has arisen between the importer of goods and the Customs officer, as to whether any duty is payable on goods, and the importer has paid the duty under protest, he cannot sue the Crown under the " Crown Remedies and Liabilities Statute 1865," Sec. 20. Sec. 21 of the " Customs Act 1857," applies to a case of this sort, and the only remedy open to the importer is to pay the amount under protest, and. then sue the collector within three months, as provided by Sec. 21 of the latter Act. The remedy given by the " Customs Act " is obliga- tory on the importer, and must be followed. Sargood v. The Queen, McArthur v. The Queen, 4 V.L.R. (L.,) 389. And see also Stevenson v. The Queen, ante ■column 325. Notice of Action against Customs Officer — Act No. 13, Sec. 227.] — Stevenson v. Tyler, ante column 10, and compare Sec. 270 of Act No. 768. Importing Indecent Prints— " Customs Act 1857 " (No. 13,) Sees. 34, 165.]— D. was informed against for that he was concerned in importing •certain prohibited goods, to wit, a number of indecent prints, paintings, cards, &c. The •evidence showed that the defendant applied to clear at the Customs a case of goods, which arrived per ship, and that defendant produced an invoice of a list of goods with their prices without disclosing the names of the vendor, vendee, shipper or consignee; that the case contained in a false bottom a large number of indecent prints, and on the officer remarking " why there's a false bottom," the defendant answered " Oh, no ; the case is too large for the goods." Defendant was convicted and fined. Re Id, on appeal, that there was evidence to support the conviction, and appeal dismissed. Davis v. Sprent, 2 W. W. & a'B. (L.,) 86. [Compare Sec. 206 of Act No. 768-1, Act No. 13, Sec. 233— Act No. 306, Sec. 13— Jurisdiction of Justices — Forfeiture.] — Fellows J. (in Chambers) granted a rule absolute for a prohibition against proceeding in an order of forfeiture made by justices, on the ground that the justices had no jurisdiction to make such order under Sec. 233 of Act No. 13, where they refused to hear the defendants on their refusal to make an affidavit of ownership. Regina v. Call, ex parte Callaghan, 5 A.J.E., 91. [Compare Sec. 266 of Act No. 768.] Act No. 646— Watch— Imported in Parts.]— A duty or tax cannot be enforced unless the intention of the Legislature to impose it has been unmistakably expresssed. Where there- fore it was sought to enforce payment of duty of watches imported in different packages, so as to be easily fitted together on arrival in Victoria, Held that such goods did not fall with the class on which duty is imposed in Act No. 646. Shaw v. Howden, 9 V.L.E. (L.,) 102 ; 5 A.L.T., 7. [See now Act No. 769.] 2. Land Tax. Deduction of £2500— On Estate in which More than One Person are Interested — " Land Tax Act 1877" (No. 575,) Sec. 7.]— If A. and B. are owners of one estate, and B. and C. are owners of another, both over the taxable value, accord- ing to the proper construction of Sec. 7 of the "Land Tax Act 1877," the deduction of .£2500 must be made from the value of each estate before assessing the tax. Regina v. Cunningham, 4 V.L.R. (L.,) 320. Act No. 575, Sees. 5, 45, 46, 55— Covenant by Tenant to Pay Land Tax.]— Sec. 5 places the incidence of taxes upon the owner of the land, and Sees. 45 and 46 taken together point to the conclusion that the landlord is the person who is liable to pay the tax ultimately, and therefore a covenant by the tenant to pay the land tax is void as against the provisions of those sections. Sec. 55, in providing that all '_' agreements or covenants contrary to the intent of the Act," shall be void, is retrospec- tive, and therefore a covenant in a lease made prior to the Act to pay all taxes present and future is void. Trenerv v. Stewart, 5 V.L.E. (L„) 247 ; 1 A.L.T., 37. Act No. 575, Sec. 3— One Person Owning Several "Landed Estates."]-An owner of several "landed 1285 REVENUE. 1286 is entitled under See. 3 of the Act to only one deduction of .£2500 on the valuation of the whole of his property, and not to a deduction of £2500 on each of his estates. Docker v. The Queen, 5 V.L.E. (L.,) 316; 1 A.L.T., 49. "Land Tax Act 1877," No. 575, Sec. 4- « Landed Estate " Subject to Mortgage — Valuable Consideration.] — A father bought for his chil- dren a station, consisting of freehold land under the " Transfer of Zand Stat.," comprising a "landed estate," within the meaning of " The Land Tax Act 1877," and stock thereon ; the land being subject to a mortgage under the " Transfer of Land Stat." He requested the vendor to transfer direct to the children, but the vendor refused, on the ground tljat some of the children were minors. In a subse- quent negotiation a transfer was made, subject to the mortgage to the father, who gave his promissory notes for the payment of the pur- chase money extending over a period of ten years, except a small amount which he paid in cash. He also gave a second mortgage over the land to secure payment of the promissory notes. He then transferred the land, except a small portion which he reserved for himself, to the children, in such portions that each was under the taxable amount, and the children were registered as the absolute proprietors in fee of those portions. The Eegistrar, however, put the father's name on the Land Tax Register as "owner" of the whole of the land. The stock was not transferred to the children, but depastured on the whole of the land. There was an understanding between the father and the children that the whole of the proceeds, including profit on the stock, were to be ap- plied first in making improvements, and then to make a fund to pay off the liability. The Eegistrar, though requested to do so, refused to remove the father's name from the Land Tax Register in respect of such Transfer. Upon order nisi to remove his name in respect of all the lands except the portion reserved for himself, Eeld, per Molesworth, J„ and affirmed on appeal, that the liability, under Sec. 63 of the " 'transfer of Land Stat.," of the transferees to pay the mortgage debt, did not form a valuable consideration for the transfers to the children, and that the whole dealing was not a transfer bond fide for valuable consideration within the meaning of Sec. 4 of " The Land Tax Act 1877," but the transfers to the children were only gifts. Ex parte Finlay, 10 V.L.E. (E.,) 68; 5 A.L.T., 182. Act No. 575, Sec. 24— Lien of Agent— Taxation of Costs.]— Although the Act in Sec. 24 authorises persons to appear by their attorneys or agents, it does not give agents a lien over the papers of their clients to the same extent as if they were attorneys. A Judge of the County Court, in an action by an agent to recover costs of an appeal to the Commissioners, ought, even in the absence of evidence, that the costs claimed are unreasonable, and of a schedule of costs in the Act, to reduce them to what he considers a reasonable amount, where he considers them even under such circumstances too high. Watson v. Clinch, 5 V.L.E. (L.,) 278; 1 A.L.T., 40. Commissioners — Power to Award Costs to Suc- cessful Appellant.] — Under Sec. 25 of the "Land Tax Act 1877," the Commissioners of Land Tax have power to award costs against the Crown to a successful appellant against the classification of an estate. Coldham v. The Queen, 6 V.L.E. (L.,) 102; 1 A.L.T., 166. The appellant may sue the Crown for such costs imder the " Crown Remedies and Liabilities Act 1864," as a debt due by the Crown. Ibid. " Land Tax Act 1877," No. 575, Sec. 4— Fraudu- lent Transfer — Owner.] — Hay Lonie, on the Land Tax Register, in 1882, transferred part of his estate to his wife, wrongly describing her as "Jane Lonie, wife of Henry Lonie." The Land Tax Eegistrar refused to remove his name from the Register in respect of such transfer. In 1883, Jane Lonie, with the con- sent of Hay Lonie, transferred the land to her mother, who leased it to Hay Lonie. The Eegistrar again refused to remove his name. - Upon order nisi by Hay Lonie to have his name removed, Held that the transfer of 1882 was not bond fide, and Hay Lonie was still the owner under Sec. 4 of " The Land Tax Act 1877," the conveyance of 1883, though made with Hay Lonie' s consent, was not his transfer, and the transfer of 1882 was the only one with which the Court had to deal. Order discharged, with costs. Ex parte Lonie, 9 V.L.E. (B.,) 128; 5 A.L.T., 94. 3. Stamp Duties. " Stamp Duties Act," No. 645, Sec. 68— Ee-sale of Portion of Purchased Land, and Payment of Duty direct from Original Vendor to Sub-Purchaser.] — W. sold certain lands under Act, No. 301, to the plaintiff company for £5400, and the com- pany re-sold a portion of the land for £3000, W. transferring to the sub- purchasers, and the sub-purchasers paying duty on the £3000. The registration of the residue to the company was refused unless it paid duty on the whole amount (£5400.) Held that the company were liable to duty, to be charged on the proportion of the consideration apportionable to the land to be transferred, i.e., the residue. National Land Company v. Comptroller of Stamps, 9 V.L.E. (L„) 87; 5 A.L.T., 5. When Bill of Exchange Deemed Duly Stamped — Act No. 645, Sec. 57, Sub-sec. i.^\—Whitty v. Dunning, ante column 93. Cancellation of Stamp on Bill of Exchange— Act No. 645, Sec. 47.] — Harriman v. Purchas, ante column 93. Praecipe Fee on Petition — No Objection to Peti- tion if Full Fee is Afterwards Paid — " Stamp Stat.' ' (No. 355,) Sees. 4, 10.]— In re Provincial and Suburban Bank, ante columns 170, 171. Act No. 645, Sec. 51— Guarantee.]— Semble a guarantee to pay an amount of money is not one which requires to be stamped under the Act. Croft v. Grimbly, 5 A.L.T., 89. ut72 1287 SALE. 1288 4. Other Taxes and Duties. Application of Licensing Fees — Act No. 566, Sec. Ill — " New Licenses."] — A renewal of a license to a person previously licensed, and in respect of premises previously licensed, is not a "new license" within Sec. Ill, nor is an annual license issued to a transferee of a license in respect to the same premises, in respect of which the fees must he paid into consolidated revenue ; hut where a licensed person procures a transfer of his license from one house to another, an annual license afterwards issued to him in respect of the latter house is a new license. The Queen v. Mayor of Melbourne, 5 V.L.K. (L„) 446. RIVER. Placing Obstructions in Navigable River.] — Every navigable river is a public highway, and one of the incidents common to it, and to a highway on land, is that a permanent obstruction placed in one or the other without lawful authority, ■which renders it less commodious than before to the public, is a public nuisance at common law which may be punished by indictment, and which is removable by any member of the public whose right of user of the highway is obstructed by it. Fergusson v. Union Steamship Company, 10 V.L.K. (L.,1 279, 287; 6 A.L.T., 120. Negligently Navigating — Vessel Taking the Ground.] — The right of the public in exercising the right of navigation in a navigable river is not limited to the water in the alveus of the stream, and the right of user does not cease, nor does the navigation become negligent, if the bed or the semi-liquid matter forming the bed of the river is disturbed by a. vessel in motion. Fergusson v Union Steamship Com- pany, 10 V.L.K,. (L.,) 279, 285-6; 6A.L.T., 120. Plaintiff was lessee and occupier of a steam ferry across the Yarra. This ferry was worked by means of chains which lay along the bottom of the river when the ferry boat was drawn in to the bank. The defendants' steam- boats, when steaming down the river, caught and carried away these chains while they were resting on the bottom of the river. On these occasions the defendants' vessels, though draw- ing upwards of seventeen feet of water at the stern, had gone down the river when the guage indicated that there was not more than four- teen or fifteen feet of water in the river, and this was charged against them as negligent "navigation. The bottom of the river where the accident occurred consisted for about the first two feet of liquid mud, in which the ferry chains were lying, and through which the defendants' vessels forced their way, causing the damage complained of. At the trial a verdict was given for the plaintiff. On a rule nisi to set aside the verdict and to enter a non- suit, pursuant to leave reserved, Held that the defendants had not been guilty of negligent navigation, and that the plaintiff had no ritjht to put the chains where they were, since they formed an obstruction to a navigable river, and were consequently a public nuisance. Ibid. SALE. I. Sale or Goods. (1) The Contract. (a) Generally, column 1288. (6) Statute of Frauds, column 1289. (c) When Title Passes, column 1291. (2) Warranties and Sales by Sample. (a) Warranties. (i.) Implied, column 1291. (ii.) Express, column 1292. (iii. ) In other Oases, column 1293. (5) Sales by Sample, column 1293. (3) Performance and t Discharge of Con- tract, (a) Quality and Quantity of Goods, column 1294. (5) Breach of Contract, column 1294. (4) Bights of Unpaid Vendor. (a) Lien, column 1295. (b) Stoppage in Transitu, columnl296. (5) By Auction. See Auction, ante columns 71, 72. II. Sale of Land. See Specific Perform ance — Vendor and Purchases. I. Sale of Goods. (1) The Contract. (a) Generally. Resale of Goods not " Cleared" or Paid for.] — On a " resale" of goods at the risk of the purchaser it appeared that one of the written conditions of the sale by auction was that "all purchases must be cleared . . . within twenty-four hours, in default of which the auctioneers will have it in their power or option to cancel the whole of the sale, or such portion of it as may remain uncleared, or to resell the same," when the purchaser ' ' will be held liable for all loss and expenses attending such sale. " A purchaser bought some of the goods, but did not ' ' clear" a portion of them, and they were resold by the vendor's order for the account, and at the risk of the purchaser. A sum less than what they were originally sold for was realised, which sum, less the auctioneer's commission, was sued for by the vendor as "loss and expenses." At the "resale" other lots of goods of the same " description, quality, and value" were substi- tuted for the original lots, but the case did not state that they were of the same "condition." Held that the goods resold must be substan- tially identical with those originally sold; and a nonsuit which had been granted to the defendant in the Comity Court was upheld. Matthews v. Benjamin, 3 W.W. & a'B. (L.,) 124. Conditions of Sale— Catalogue.] — P. purchased salvage goods at a sale by auction, the goods being described as four bales of new spaper, but turned out to be bales of calico, which were of greater value, and which the auctioneer refused to deliver. The conditions of sale contained inter alia a clause to the effect: — "If any error is made in describing the quality of any of the lots it shall not vitiate the sale, but the pur- chaser shall be bound to take the article sold with all faults as it lies here, packages full or empty not known or guaranteed." On action for non- delivery, Held that the catalogue and conditions of sale must be read together, and 1289 SALE. 1290 that what was sold and bought was a chance, and that defendant was bound to deliver. Crespin v. Puncheon, 7 V.L.R. (L.,) 203 ; 3 A.L.T., 4. Sale of Goods of a Certain Kind ex a Certain Ship to Arrive — Double Event.]— See Cohen v. Cleve, post column 1292. Conditional Offer to Sell by Letter— When it does not Amount to an Enforceable Contract.] — Cakebread v. Huddart, ante column 184. And for other contracts of sale see ante columns 186, 187. (6) Statute of Frauds. Goods over the Value of £10— Acceptance.] — B. was offered sheep for sale by A,, and B. agreed to take them if after acceptance he should approve of them. Their value exceeded £10. B. approved of them and they remained in A.'s hands on B.'s application to oblige B. During this time they were attacked by disease and some died. B. sent an agent to take pos- session of them with written authority naming their number. A. then tendered to the agent a lesser number than those approved of, not only by those which had died but by some lambs which he kept back. B. refused to accept. Action by A. against B. Held that there was no acceptance to satisfy the "Statute of Frauds;" that B.'s purchase and approval were of the lot mentioned as a whole, and that he did not so approve of every individual of the whole so as to make a new contract concerning the lesser number. Adams v. Brown, 2 W. & W. (L.,) 176. What is Sufficient — Acceptance — Extrinsic Evidence.] — Defendant, of Ballarat, ordered of plaintiff, in Melbourne, iron pipes to be de- livered by the railway at Ballarat. Plaintiff accordingly forwarded pipes by train, but defen- dant not deeming them of the required weight left them lying at the station to the order of plaintiff. In the correspondence between the parties with reference to the sale and delivery there was no identification express or by refer- ence to any particular pipes. Plaintiff brought an action for goods sold and delivered, and goods bargained and sold, and recovered the price of the pipes. On rule for a nonsuit, Held that there was no acceptance to complete a sale and delivery; that extrinsic evidence to identify any particular pipes as those bargained and sold under the correspondence was inadmissible; and, the correspondence alone not identifying any particular pipes, that it did not constitute a sufficient memorandum within the Statute of Frauds. Wilhiev. Hunt, 1 W.W. & a'B. (L.,) 66. Sec. 17— Act No. 204, Sec. 108— Acceptance by Receipt and Retention.] — S. sold certain goods to W. by means of an auction sale, and the memorandum of sale contained the word " con- ditionally" which was after the sale struck out by the auctioneer. W. retained the goods for seven days. S. sued W. for the price of_ the goods in the County Court, and was nonsuited. Held that even u there was no sufficient memorandum, W.'s retention of the goods for seven days was sufficient evidence of acceptance to go to a jury. Appeal allowed. Service v. Walker, 3 V.L.R. (L.,) 182. Part Delivery — No Acceptance.] — Where machinery was purchased by a, company, and most of it remained on the vendor's premises, but part was removed by a carrier under com- pany's directions, and then stopped in transitu, Held that there was no receipt or acceptance of the whole, or of part on account of the whole, and without a memorandum in writing to satisfy the '.'Statute of Frauds," there was no sale. M'lver v. Duke Coy., 5 V.L.R. (L.,) 449. Part Delivery— Payment of Warehouse Rent.] — Where warehouse keepers, also unpaid vendors, had delivered part of the goods, and had also received payment of warehouse rent, Held, per Privy Council, no delivery, the pay- ment of rent not operating as a constructive de- livery of the whole. Lange v. Orice, 2 V.L.R. (L.,) 251 ; on appeal sub nom. Orice v. Richard- son, L.R. 3 App. Ca., 319 ; for facts see S.C. post column 1295. What is Sufficient Acceptance and Receipt.] — Delivery of goods purchased by an agent, who has authority to purchase goods for use at a particular place, but not to authorise delivery at any other place, at such other place, does not amount to an acceptance and receipt which will satisfy the "Statute of Frauds." Mitchell ■v. Watson, 6 V.L.R. (L.,) 493. 2 A.L.T., 99, sub nom. Watson v. Mitchell. Sufficiency of Memorandum.] — Bought and sold notes of tea signed by the seller's agent is suffi- cient evidence to satisfy the Statute. Moss v. Fowler, 3 A.J.R., 122. Sufficiency of Memorandum — Signature by Auc- tioneer as Agent for Purchaser.] — At a sale by auction the auctioneer had a book containing conditions of sale and columns for entering in a single line the numbered description of each lot, the buyer, and the price. At the end of the conditions and above the columns the auctioneer had signed his own name. The defendant Ross bought several consecutive lots. In the line containing the entries respecting the first lot bought his name was written at full length in the proper column, but underneath the word "Do" was written in the proper column instead of the full name. Held that the auctioneer was the purchaser's agent only to write his name at full length, and that the signing of the word " Do" in the respective columns was not sufficient to satisfy the Statute. Williams v. Hoss, 2 W. & W. (L.,) 285. Entries by Auctioneer's Clerk of Name of Pur- chaser—What should be done.]— Moss v. Cohen, ante column 71. Signature by Parties or their Agents — Auc- tioneer's Clerk.]— Per Fellows, J.:— It is doubt- ful whether an auctioneer's clerk has power to bind a successful bidder by entering his name as purchaser in the sale book. Service v. Walker, 3 V.L.R. (L.,) 182. 1291 SALE. 1292 Entry by Auctioneer's Clerk — Bought Note not Containing Warranty Announced at Sale.] — Certain flour at an auction sale, which was warranted at the sale, was knocked down to R., and R. 's name was entered by the auc- tioneer's clerk in the sale book. The bought note described the flour as " Rochestei-, " but did not contain a warranty that it was "first- class," as announced at the sale. R. refused to accept the note or to accept a bill for the price, or to take the flour except a small portion for the purpose of testing it. Held that there was no evidence to satisfy the "Statute of Frauds," and embodying the warranty, and that R. was not liable for non-acceptance. Pratt v. Rush, 5 V.L.R. (L.,) 421. Signature by the Parties or their Agents — Auc- tioneer's Clerk.] — At a sale by auction, the pur- chaser is not bound by the auctioneer's clerk writing his name for him in the auctioneer's book, in the absence of evidence to show that he knew of this method of proceeding, and that he, by acquiescence in the practice, authorised the clerk so to write his name. Hill v. Willis, 6 V.L.R. (L.,) 193 ; 2 A.L.T., 20. (c) When Title Passes by. Vendor Remaining in Possession — Subsequent Insolvency — Title of Trustee.] — W. bought of M. ten tons of iron of a certain description pro- vided he had so much in stock, and received invoices for the goods, and paid for them. The goods, however, by arrangement remained in the possession of M. , who subsequently became insolvent. The goods had been done up in lots, and this it was contended was a specific appro- priation in favour of W. The trustee in insol- vency refused to deliver the goods, and W. sued in trover and recovered. On rule to enter a nonsuit or verdict for defendant, Held that there had been no specific appropriation, and so the property in the goods did not pass, not- withstanding that M. had no more than the exact quantity bought in his possession, for W. would have been bound - to take away ten tons of the description of iron sold ; that though W. had seen the iron done up in » stack, in the absence of M., it was unnecessary that M. should have informed them that the stack in question was not intended for them, or that W. should inform M. that he intended to take it, and that M. should assent ; and that W. could not recover the price as for money had and received, as the money when paid to M. became his own ; and rule absolute for a nonsuit. Warnoch e. Blyth, 4 A.J.R., 47, 180. Two Documents Forming one Contract — Agree- ment for Sale and Agreement for Storage — Postponement of Payment— Eight of Possession Remaining in Vendors.] — See Martin v. Coombs, ante column 187. (2) Warranties and Sale by Sample. (a) Warranties. (i.) Implied. Fit for Purpose— Question for Jury.]— The article delivered must answer the description contained in the contract or which would be so contained if the contract were accurately drawn out; and if the subject matter purchased be merely the commercial article of that name, it must be that article in a saleable or merchant- able condition — fit for some purpose ; but, if it be an article purchased to be used for a particu- lar purpose, it must be reasonably fit for that purpose. Where plaintiff purchased a Corbett's reaper and binder, in the absence of an express warranty, Held that the plaintiff was to receive an article fit for some purpose, and it is a proper question for the jury to determine whether the article was fit for some purpose, i.e., in fair order, and the Court refused to disturb the finding of the jury on that point. Corbett v. Taylor, 5 V.L.R. (L.,) 455. Sale of Goods of Specific Denomination — Not in esse or Capable of Inspection.] — Where an article of specific designation is sold, and not shown to be hi esse or capable of inspection, an implied warranty of merchantable quality goes with it. Thomas v. Marks. 10 V.L.R. (L.,) 217; 6 A.L.T., 91. Sale with " All Faults" Rebutting Implied Warranty that Goods are Merchantable.] — See Service v. Walker, post colum 1294. Declaration that A. and B. agreed that B. should deliver and A. accept and pay for 45 half-tierces of Barrett's anchor-brand twist tobacco, ex a certain ship called the R. to arrive, at the price of 5s. per lb. in bond all round, and on other terms set out in the contract ; and alleged as breach, that though the R. arrived after the agreement without 45 half-tierces of the tobacco specified, but with 45 half-tierces of an inferior kind of tobacco, yet B. after such arrival and before suit, delivered to A. 45 half- tierces of tobacco, ex the R. , of an inferior kind as and for the 45 half-tierces of the kind agreed to be delivered. And A. not knowing, &c, and believing, &c, and that B. was deliver- ing, &c, under and in pursuance of the said agreement, received the said tobacco, and paid for the same at the rate, &c. , according to the agreement. And B. has not delivered to A. the 45 half -tierces of the specified tobacco ex the R. Held, on demurrer, that the original contract was on a double event — the arrival of the R. and her arrival with tobacco of the kind specified ; that the original contract was gone when the R. arrived without tobacco of the kind specified ; that on the subsequent facts of mere delivery and acceptance, no implied warranty was im- ported ; and that in the mere absence of such warranty, and of all fraud, the declaration was. bad, and the plaintiff had no remedy. Cohen v, Cleve, 1 W.W. & a'B. (L.,) 167. As to Title.] — A warranty as to the vendor being the owner of the article sold may be im- plied from the circumstances of the sale. Smith v. Starling, 9 V.L.R. (L.,) 178; 5A.L.T., 65. Sale " with all Faults " — No Implied Warranty — No Warranty that Bulk was Equal to Sample.]— Service v. Walker, post column 1294. (ii. ) Ex-pi-ess. As to Title— Sale by Auction.]— See Robbins v. M'Culloch, ante column 72. 1293 SALE. 1294 (iii.) In oilier Oases. Oral Warranty — Sold Note Containing no Warranty.]— K. sold F. certain horses, orally warranting them to be staunch and sound. The sold note afterwards delivered was silent as to the warranty. Held that the contract was oral, and the sale note did not constitute the contract, but was in the nature of a mere in- voice, and that F. could recover on the verbal contract. Faram v. Kerr, 3 V.LR. (L.,) 146. Verbal Warranty— Contract in Writing.]— K. sold a horse to M. , verbally stating that it was sound. After the sale a memo, was signed by M. to the effect: — " Sold to K. one bay horse for the sum of £30, for which I have received payment." Held that if the. statement could lie assumed to be embodied in the verbal agree- ment for sale, the document contained all the necessary elements of a contract, and was the best evidence of the contract; and as it was silent as to the warranty there was no war- ranty. M'Devitt v. Kattengall, 5 V.L.R. (L.,) 89. Sale by Auction— Sample Produced — Contract not Mentioning Sample — "With all Faults" — No Warranty that Bulk was Equal to Sample.] — See Service v. Walker, post column 1294. Wire of a Certain Size — Breach of Warranty — Plaintiff not Bound to Return Goods.] — Plaintiff purchased from the defendant a quantity of fencing wire of No. 6 gauge. Plaintiff inspected the wire and thought it was No. 6, but whether it was so or not could not be verified without careful application of a No. 6 gauge. Plaintiff, on discovering that the wire was not of the size mentioned, was held entitled to recover as on a breach of warranty, and not bound to return the wire before being entitled to recover. Duckeit v. Belijian Export Coy., 10 V.L.R. (L.,) 36. Right of Purchaser after Receiving and Retain- ing Goods to Recover for Breach of Warranty.] — A person buying goods with an implied warranty that they are . of merchantable quality is at liberty to take the goods, keep them, use them, and then either to set up their inferior quality in answer to an action for their price, or else to institute an action to recover damages for their inferiority. Thomas v. Marks, 10 V.L.R. (L.,) 217; 6 A.L.T., 91. Sale of Sheep — Price Does Not Affect a War- ranty.]— B. sold sheep to R. ; R. alleged that B. represented that the sheep were free from fluke, and had come from the Bogan River, whereas the sheep were found to be flukey, and came really from the Broken River, which was noted for the presence of fluke, as Bogan River was for its absence. A low price was given for the sheep. R. sued B. for breach of warranty, and the jury found for B. On rule nisi for a new trial, Held that the price in no way affected the warranty, and though there might be a war- ranty with a small price as well as with a large price, still the jury might take the low price into consideration. Rule discharged. JHichey v. Birkin, 3 A.J.R., 121. (b) Sales by Sample. Onus of Proof.]— B. purchased from G. certain tea by sample. B. swore positively to the fact that he had carefully examined the samples, and G. swore as positively that the tea in bulk corresponded with the tea in the samples. Held that the plaintiff was not relieved from the necessity of proving the fact affirmatively, even though a verdict for defendant would raise a presumption of fraud on plaintiffs part. Boyd v. Goulstone, 3 V.L.R. (L.,) 181. Warranty — With all Faults.] — Goods were sold by auction, and a sample was produced at the sale, but the contract which was in writing made no mention of the sample ; and one of the conditions of the sale was that the goods were to be taken with all faults. Held (1) that there was no sale by sample ; (2) that there was no warranty that the bulk was equal to the sample, such a warranty only arising upon an express warranty by using words to the effect that the bulk is " equal to sample"; (3) that the words " with all faults" rebutted the presumption of an implied warranty that the goods were mer- chantable, and in the absence of fraud the buyer took the risk of the quality. Service v. Walker, 3 V.L.R. (L.,) 348. (3) Performance, and Discharge of Contract. (a) Quantity and Quality of Goods. Sale of Article of Food by Description.] — Where an article of food is sold by description, the vendee is entitled to have, not only mer- chantable goods, but merchantable goods of the description agreed upon. Spence v. Dvffield, 1 V.R. (L.,)49; 1 A.J.R., 74. Conditions of Sale — Goods Purchased Proving to be of Superior Value — Clause Providing that Error in Describing Quality shall not Vitiate the Sale. ] — See Crespin v. Puncheon, ante columns 1288, 1289. Sale of Certain Goods to Arrive ex Certain Ship — Delivery and Acceptance of Inferior Goods does not Warrant Quality.] — Cohen v. Cleve, ante column 1292. (6) Breach of Contract. Measure of Damages — Sale of Chattels the Subject of Common Demand and Supply.] — Where a person purchases a chattel which is a subject of common demand and supply, the purchaser of such an article, in the event of the vendor not complying with the agreement, must go into the market and buy it ; and there is no instance in which the purchaser of such an article received any more damages than the difference between the contract iprice and the market price which he has to give for it. Thomp- son v. Marshall, 3 W.W. & a'B. (L„) 150. Measure of Damages— On Delivery of Inferior Goods — Difference in Price — Special Damages.] — In an action for damages for delivery of flour of an inferior quality to that contracted for the plaintiffs claimed as damages the difference be- tween the value of that which ought to have been delivered and that actually delivered ; and also special damages for the freight paid for transhipment of the inferior flour to another country, and for its passage back after rejection by the consignees. Held that they were en- titled to recover damages on the first ground ; but that in the absence of evidence that the 1295 SALE. 1296 parties at the time of the contract contemplated that the flour should be exported, they could not recover on the second. Spence v. Duffield, 1 V.R. (L.,)49; 1 A.J.R., 74. (4) Rights of Unpaid Vendors. (a) Lien. Delivery Orders — Payment of Warehouse Eent — Part Delivery.] — Goods remained in the posses- sion of unpaid vendors who were also ware- housemen, the vendors gave the usual bonded certificates to the purchasers W. and Co., who resold to L. and Co., and handed them the certificates duly endorsed. L. and Co. obtained delivery of part of the goods on presentation of the certificates, and paid rent in respect of such portion, but on presenting the other certificates were refused delivery on account of W. and Co.'s stopping payment. W. and Co. before their sale to L. and Co. had received the certificates duly endorsed as deliverable to their order, and the goods were transferred into the names of W. and Co. in the warehouse books, and rent charged as against W. and Co. as from the date of the sale to W. and Co. Three days after such transfers into the names of W. and Co. W. and Co. stopped payment, and their trustee in insolvency claimed the goods, delivery of which was refused. Held that, as to L. and Co., the defendants had the right to stop delivery, as to W. and Co.'s trustee, the defendants, by specially endorsing the certificates and making the transfers in their books, and by charging rent, had changed their position from that of unpaid vendors to that of warehousemen, and could not refuse delivery to W. and Co.'s trustee. Held, per Privy Council, that unless actual possession of the goods sold has been delivered to the purchaser the vendor is not deprived of his right of lien as against the assignees of the purchaser in the event of his insolvency ; and (reversing Full Court) that the charging of warehouse rent, and the endorsement by the vendor's clerk of the warehouse certificates, and the transfer into W. and Co.'s names did not amount to such a delivery actual or constructive as would defeat the vendor's lien ; and that the goods therefore never having left the possession of the vendors were subject to their lien, which revived upon W. and Co.'s insolvency. Lange and Richardson v. Grice, 2 V.L.R. (L.,)251. On appeal sub nom. Grice v. Richardson, L.R. 3 App. Cas. 319, 47 L.J., P.C., 48; 38 L.T., 677 ; 26 W.R., 358. Sale of Goods in Bond — Transfer of Bonded Cer- tificates — Part Payment of Eent.]— D. sold fifty chests of tea to P. , and received in payment his acceptance, which was overdue and unpaid. These chests were in a bonded store belonging to D. The usual bonded certificates were de- livered to P. at the time of the sale. P. obtained possession of part of the goods, and paid D. a portion of the warehouse rent on account of the goods — viz. , the whole rent due on the part delivered and part of the rent due on the remainder. P. executed a creditor's deed, and his acceptance was dishonoured. Held, on special case stated, that D. was entitled to a lien as an unpaid vendor. Fraser v. Dalgety, 2 W.W. & a'B. (L.,) 227. Goods Marked in Bonded Certificates hut not Separated.] — Defendant, the proprietor of a bonded store, received a number of cases of brandy from S. and Co., and gave them bonded certificates for the goods. S. and Co. then sold a portion of these goods to W. ( who resold them to plaintiff; and, at plaintiffs request, the proprietor of the store transferred the quantity purchased by plaintiff into his name, and marked an equivalent portion of the certificates accord- ingly; but the goods represented by the certifi- cates so marked were not selected or ear-marked to distinguish them from the rest of the goods. Plaintiff requested the proprietor to deliver his goods to him, but the latter refused because S. and Co., not being paid by W., had attempted to exercise their right of stoppage in transitu, and had given defendant notice not to deliver. Plaintiff sued in trover. Held that the admis- sion by defendant in marking the certificates amounted to a change of possession of the pro- portion of the goods purchased by plaintiff, although they had not been separated from the 'rest; and that he was estopped from denying plaintiffs right to their possession; and that plaintiff could maintain trover to recover that proportion. Isaacs c. Skellorn, 1 V.R. (L.,) 46; 1 A.J.R., 74. Goods in Bonded Warehouse — Warrants In- dorsed in Blank — Indorsee.] — Imported goods were placed by the importers in a bonded ware- house of the defendants. Warrants were given with the words " deliverable to their order by indorsements thereon" on them and signed by defendants. The importers sold the goods to a merchant, indorsed the warrants in blank, and delivered them to the purchaser. The pur- chaser deposited the warrants with a bank to secure an advance, which was also secured by a promissory note, which was not paid at ma- turity. The bank, fearing the purchaser's insolvency, delivered the warrants to plaintiff, which, with a written notice to transfer, were presented to defendants, who refused to transfer unless with the permission of the importers, and such -permission was refused. Plaintiff tendered the rent, and then sued the defendants in trover. Held that, the warrants given to the importers being general and indorsed in blank, the presentation of the indorsed war- rants and demand for possession put an end to the unpaid vendor's lien for purchase-money, and that the plaintiff had sufficient special pro- perty in the goods to enable him to maintain his action for trover. Rule for nonsuit dis- charged. Dredge v. Black/tarn, 3 V.R. (L.,) 101; 3 A.J.R., 75. Bill of Exchange not Paid — Sale by Vendee.] — See Martin v. Coombs, i A.J.R., 27; ante column 187. (b) Stoppage in Transitu. Acceptance of a Bill of Exchange — • Sale in Bond.] — L. M. & Co. sold brandy in bond to S.M. , took the purchaser's acceptance at three months for the price ; and endorsed and handed to him the bonded storekeepers' certificates for goods purchased. S.M. paid no rent for the goods and did not get them transferred into his own name in the books of the storekeeper. Within two months after the purchase, and 1297 SEQUESTRATION. 1298 during the currency of the bill, S.M. died in insolvent circumstances. S. and B., who re- presented S.M.'s creditors, obtained from the storekeepers some of the brandy. During the currency of the bill S. and B. were sued by L. M. & Co. in trover. Held that, notwith- standing the finding of the jury that a custom existed whereby an unpaid vendor who took a bill of exchange lost his right of stoppage in transitu, the .plaintiffs were entitled to stop the brandy mi transitu. Larimer v. Cleve, 2 W.W. & A'B. (L.,) 223. Sale of Goods in Bond — Acknowledgment of Title by Warehouseman.]— B. & Co. sold tobacco in G.'s bonded store to M., received payment and handed the bonded certificates to M. M. resold to D. and got four bills in payment, handing D. the certificates. D. endorsed the certificates to a bank for value. D. became insolvent, and the bills were dishonoured. M. then gave notice of his claim to the warehouse- man by asking for a stoppage, which was not granted because the correct list of the goods was not forthcoming, and the bank by pre- senting the certificates subsequently obtained a transfer of the goods. Held that M. never having had his rights recognised by the ware- housekeeper was not entitled to stop the goods in transitu. Moss v. Orice, 2 W.W. & a'B. (L.,) 230. SCHOOLS. See EDUCATION. SEAMAN. See SHIPPING. SECURITY FOR COSTS. In Actions.]— See Costs. On Appeals.] — See Appeal. In County Court Appeals.]— See Cottnty Couet. On Appeals from Justices.] — See Justice of the Peace— Sessions. In Mining Appeals.] — See Mining. SEDUCTION. Proof of Service— Absence from Father's House- Animus Revertendi.]— C. sued M. for loss of ser- vices by the seduction of his daughter. The daughter was residing with M., and performing services for him at bis residence, but under no contract of service at the time of her seduction; but there was evidence of an animus revertendi to her father's house at the time, and she was afterwards delivered there., She was in the habit, during her visit to M., of returning home once a week and assisting in the household duties, on one occasion remaining there to take part in cleaning and arranging the house. Held that the evidence of service thus afforded was not neutralised by a mere visit, and that she still remained in the service of her father if she went to plaintiffs house animus revertendi; and there being evidence of such an animus a verdict for plaintiff was upheld. Cumber v. Morley, 4 V.L.R. (L.,)3. Action for — Plaintiff not Standing in loco Parentis — Objection not Taken at Trial — New Trial Refused.]. — Roy croft v. Iago, ante col- umn 1096. SEPARATE PROPERTY. See HUSBAND AND WIPE. SEPARATION DEEDS. See HUSBAND AND WIFE. SEQUESTRATION. For Breach of Injunction — Common law Pro- cedure Statute, Sec. 243— Corporation— Writ must be Produced.] — On rule nisi for sequestration of the property of defendant company for breach of injunction, Held that Sec. 243 of " Common Law Procedure Statute 1865" applies to the pro- perty of a corporation; but the Court discharged the rule because the writ of injunction was not produced in Court. Parade G.M. Coy. v. Black Hill G.M. Coy., 5 A.J.R. 85. For Breach of Injunction.] — Seal v. Webster- street G.M. Coy., ante columns 65, 66. Sequestration for Disobedience of an Order Refused where Order Bad and Unworkable.] — An injunction against the defendant company was obtained, and there being doubt as to whether an appeal would lie to Privy Council, an order for injunction was made by the vacation judge. This order directed the plaintiff company to keep accounts pending an appeal to the Privy Council. The plaintiffs found this unworkable, and thinking it beyond the power of the judge to make such an order, notified their intention of moving in term to have it set aside, and re- fused to comply with it. Motion for sequestra- tion of the estate of the plaintiff company for disobedience of the order refused, such order being bad and unworkable. Alma Consols Coy. v. Alma Extended Coy., 5 A.J.R., 2. Sequestration of Company under 11 Vict. Mo. 19.]_/ re re Provident Institute of Victoria, ex parte Dodds, ante columns 171, 172. Sequestration of Estate of Insolvents.]— See Insolvency. 1299 SESSIONS. 1300 SERVANT. See MASTER AND SERVANT. SERVICE OF WRITS, &c. See PRACTICE. SESSIONS. (1) Appeal from Justices and Petty Sessions to General Sessions, column 1299. (2) Appeal from and Reviewing Decisions of General Sessions, column 1300. (3) Jurisdiction of Court of General Sessions, column 1301. Statutes: — "Justices of Peace Statute 1865" (No. 267,) Part II., partly re-enacted by Act No. 502. "Judicature Act 1874" (No. 502,) Sees. 13—15. "Justices of Peace Amendment 1876" (No. 565.) (1) Appeal from Justices and Petty Sessions to General Sessions. When Appeal Lies— Costs.]— There fs no appeal to General Sessions under Act No. 267, Sec. 140, against an order made under Act No. 268 against a father for the support of his illegiti- mate child, and therefore the Court of General Sessions has no jurisdiction to give costs in such an appeal under Sec. 147. Eegina v. Justices of Central Bailiwick, ex parte Moltine, 1 V.L.R. (L.,) 302. When it Lies — "Wines Beer and Spirit Sale Statute" (No. 227,) Sec. 67 — Act No. 267, Sec. 140— Whether Adjudication of Forfeiture a Conviction.]— A revenue officer had seized a certain quantity of ale on the ground that it was being sold without a license. The justices before whom the owner appeared adjudged the liquor to be forfeited under Sec. 67 of Act No. 227. The owner appealed to the General Sessions. Summonses were taken out by the City Council for prohibition against the appeal on the ground that the General Sessions had no jurisdiction by the owner for prohibition against the order of forfeiture. Held that the "adjudication" of forfeiture was not a "con- viction" against which an appeal would lie under Sec. 140 of Act No. 267 ; and that See. 67 provided for forfeiture only where the owner did not appear. Prohibition granted in each instance. Eegina v. Pohlman and Eegina v. Sturt, in re White, 5 A. J.R., 22. Where it Lies — Conviction for Indecent Expo- sure — Age of Offender.] —Where, in a conviction for indecent exposure under Sec. 36 of the " Police Offences Statute 1865," the justices have sentenced the prisoner to be whipped, without any evidence that his age exceeds six- teen years than their own conclusions, and the prisoner succeeds in showing that he is under sixteen, his remedy is by appeal to the General Sessions, and not by a rule to quash the convic- tion. Eegina v. Benson, ex parte Tubby, 8 V.L.R. (L.,) 2. Where it Lies— Act No. 268, Sec. 40— From Maintenance Orders.]— Sec. 40 impliedly gives the right of appeal to General Sessions against the maintenance orders of justices, and the chairman must do his best to carry out the intentions of the Legislature by moulding a system of practice and procedure. Eegina v. Justices of Central Bailiwick, ex parte M'Evoy, 7 V.L.R. (L.,) 90; 2 A.L.T., 125. See also Eegina v. King, ex parte King, ante column 534. Appeal to General Sessions — Practice — Recog- nisances not Forwarded by Clerk of Petty Sessions.]— M. sued C. in Petty Sessions and recovered a verdict. C. appealed to the General Sessions, but the recognisances to prosecute the appeal, although lodged with the Clerk of Petty Sessions, had not been forwarded by him. The Chairman of General Sessions ordered the ap- peal to be struck out and the judgment of Petty Sessions to stand. Held that the appellant should not be prejudiced by the default of the clerk ; and, in answer to an objection that the fees had not been paid, that the clerk was bound to answer for the fees if he had taken the recog- nisances without the fee. Rule absolute for mandamus to compel the Chairman of General Sessions to hear the case. Eegina v. Pohlman, ex parte Cobb, 3 A. J.R., 38. Practice — Quashing Order made on Appeal from Justices — Case Remitted to Justices.] — The Supreme Court has a discretion as to whether, having quashed an order of the General Sessions, it will remit the case to the justices to be heard on the merits. Where, therefore, on an appeal to General Sessions from a conviction by justices the Sessions quashed the conviction on technical grounds, without going into the merits, and stated a special case for the opinion of the Supreme Court, the latter Court quashed the order of the Sessions, and held that, as from the conduct of the appellant and the nature of the objections taken it was evident that he had no case on the merits, the conviction of the justices should be affirmed, and that the case should not be sent back to them to be heard on the merits. Ah Fan v. Sturt,2 V.L.R. (L.,)201. (2) Appeal from and Reviewing Decisions of General Sessions. Where the Appeal will he heard.]— The Supreme Court will decline to hear an appeal from a Court of General Sessions, where in the case judgment has not been delivered, but ' ' reserved" in order to obtain the opinion of the Supreme Court. Fitzpatrick v. Hackett, 1 W. & W. (L„) 335. Practice— Act 28 Vict. No. 267, Sees. 135, 159.] — The proper practice under Sees. 135, 159 of the Act No. 267 is for the Court of General ■ Sessions to make an order, and then state a case for the opinion of the Supreme Court. Clunes United Coy. v. Clunes Borough Council, 2 W.W. & a'B. (L.,) 96. 1301 SESSIONS. 1302 Stating Case for Opinion.] — A Court of General Sessions must hear and determine the whole case before stating a case for the opinion of the Supreme Court. Blackwood v. Mayor, die. , of Essendon and Memington, 2 V.L.R. (L.,) 87, 94. Stating Special Case — Act No. 565, Sec. 36.] — The Chairman of General Sessions need not since Act No. 565 decide a case before submitting it to the Court. He is (Sec. 36) to state the facts specially for the determination of the Court. Batchelder v. Garden, 5 V.L.R. (L.,) 45. Act No. 565, Sec. 31 — Notice of Appeal.] —Not- withstanding Sec. 31 of Act No. 565, where » Chairman of General Sessions decides a matter as to the sufficiency of grounds of appeal in the notice before stating a special case to the Supreme Court, the fact of his having referred the question to the Supreme Court gives it jurisdiction. Bussell v. Shire of Leigh, 5 V.L.R. (L.,)199; 1 A.L.T.,18. Mandamus to State Special Case — Act No. 267, Sec. 135.] — Semble, the language of Sec. 135 is compulsory ; mandamus issued to Chairman of General Sessions to state a special case, even though there was no point of law arising. Begina v. Pohlman, ex parte Bagshaw, 1 V.L.R. (L.,)208. Stay of Proceedings.] — An appeal to the General Sessions does not operate as a stay of proceed- ings, although a special case to the Supreme Court does. Ex parte Baker, 1 A.L.T., 43. Case Stated for Supreme Court by General Sessions — Power of Supreme Court — Costs.] — The Supreme Court has no power to award costs on a case stated from General Sessions. Moncrieff v. Moncrieff, 5 A.L.T., 192. Power of Supreme Court on Special Case Stated by General Sessions — Costs — Rehearing.]— The Court, upon a case stated by General Sessions, has no longer (since the passing of the Act No. 565) any power to award costs, nor can it direct a rehearing. Dobson v. Sinclair, 8 V.L.R. (L.,) 69; 3 A.L.T., 106; sub nom. Sinclair v. Dobson. Power of Supreme Court to Reverse Record of General Sessions— Habeas Corpus.]— The Supreme Court, or a Judge of the Supreme Court cannot, on an application for a writ of habeas corpus, reverse a record of the Court of General Sessions. Where, therefore, prisoners were duly con- victed of forgery by a Court of General Sessions, and sentenced, the Court refused to entertain affidavits that the chairman of the Court who had sat alone, had, before the trial, been re- moved from office and had not been re- appointed. Be Armstrong & Stewart, 4 V.L.R. (L.,) 101. (3) Jurisdiction of Court of General Sessions. Jurisdiction to Amend Convictions or Orders of Justices.] — The power of Courts of General Sessions, as to the amendment of convictions or orders of justices, are confined to amendments in matters of form. There is no power to substitute a substantially new and different order or con- viction for that which is the subject of appeal, and no power to substitute one sentence for another where the amount of the sentence is. discretionary with the justices. Harrup v. Templeton, 2 V.L.R. (L.,) 185. Jurisdiction — Act No. 502, Sec. 15 (vii.).]— The offence of personating an elector at an election of a member of Parliament under the "Electoral Act 1865," Sec. 116, is an " offence against either House of Parliament" within the meaning of Sub-sec. vii. of Sec. 15 of the " Judicature Act" (No. 502,) and is, therefore, excepted from the jurisdiction of Courts of General Sessions. Begina v. Mynes, 6 V.L.R. (L.,) 292 ; 2 A.L.T., 45. Jurisdiction — "Judicature Act" (No. 502,) Sec. 15 (xiii.)] — The offence of unlawfully and inde- cently assaulting a girl under twelve years of age is within Sec. 15, Sub-sec. xiii. of the " Judicature Act" (No. 502,) which excepts the defilement of women and girls from the jurisdic- tion of the General Sessions, which accordingly has no jurisdiction over such an assalt. Begina v. Herbert, 8 V.L.R. (L.,) 205 ; 4 A.L.T., 39. Jurisdiction — " Marriage and Matrimonial Causes Statute 1864," Sec. 40 — Maintenance Order.] — The Court of General Sessions has jurisdiction, on an application to it, under Sec. 40 of the " Marriage and Matrimonial Causes Statute 1864" (No. 268,) to review an order of maintenance, when the appellant does, not appear, to confirm the order without hearing evidence, and to award costs to the respondent. Begina v. Chairman, &c, of General Sessions Melbourne, ex parte Kemball, 10 V.L.E. (L.,) 40; 5 A.L.T., 177. Act No. 268, Sec. 40— Bastardy Order.]— Per Judge Macfarland— Under Sec. 40 the Court of General Sessions has jurisdiction to quash, confirm, or vary a bastardy order, whether an appeal has been entered or not. Ludgrave v. Belcher, 5 A.L.T., 72. Jurisdiction as to Costs— Confirming Order of Justices under Sec. 40 of the " Marriage and Matrimonial Causes Statute 1864"— Costs.]— The Court of General Sessions has power, under Sec. 40 of the "Marriage and Matrimonial Causes Statute 1864," when confirming an order of justices made under Sec. 31 of that Statute, to award costs. Moncrieff v. Moncrieff, 5 A.L.T., 192. Jurisdiction as to Fixing Valuation of Property for Rating Purposes.]— See Begina v. Cope, ex parte Mayor of Essendon, ante column 126. Jurisdiction as to Costs— Act No. 310, Sec. 48 ]— On an appeal to General Sessions under Sec. 48 of Act No. 310 as to the amount of compensation to be given to occupiers of land taken for the purposes of a drain, the General Sessions as arbitrators can only enter into the amount of compensation, and cannot enter mto the question of its necessity, or award costs on the appeal. Begina v. Pohlman, 6 W.W. & a'B. (L.,) 109. See B.C., ante column 497. Jurisdiction as to Costs— Dispute between two Shires.]— The council of the shire of T. re- solved that a bridge at the boundary between 1303 SET-OFF. 1304 that shire and the shire of N, required repair ing, and gave notice thereof to the council of that shire, with notice to treat. The council of N. declined to join in the work, and the council ■of T. obtained from the Chairman of General Sessions a summons calling on the other shire council to show cause why the work should not be executed. This was heard and dismissed with £15 15s. costs. The council of T. then obtained a rule nisi for prohibition, on the ground that the Chairman of General Sessions had no power under the " Local Government Act 1874," Sec. 395, to award costs. The council of N. submitted, and offered to abandon the order as to costs, and to pay all costs of the rule nisi. A meeting was held between repre- sentatives of the councils to arrange as to the costs, and there were conflicting affidavits as to the arrangement made, the council of T. insisting that the costs were to be paid as' between attorney and client. In the corres- pondence, the latter council had at first met the offer of the other, by a statement that it would be better that the rule should come on to be made absolute, to establish a precedent. The Court made the rule absolute with costs. Beqina v. Leech, ex parte Shire of Tullaroop, 6 V.L.R. (L.,) 189 ; 2 A.L.T., 19. Commitment for Trial at Next General Sessions — Remand to Court of Assize — Act No. 502, Sees. 13, 32.] — M. was committed for trial at General Sessions. The Court of General Sessions sat on 14th November, and there being no business the chairman was about to adjourn when he was in- formed of M.'s commitment. The case was adjourned until the next day when the chairman refused to discharge M. in the absence of the Crown Prosecutor and remanded him until the next Court of Assize. The warrant was ex- hausted on the 15th, and no fresh warrant was issued. On a writ of habeas corpus, Held that M. was not in unlawful custody, that under Sees. 13 and 32 the justices had power to trans- mit for trial at the assizes a presentment, and that the chairman had no power to discharge M. In re Marshall, 7 V.L.R. (L.,) 427; 3 A.L.T., 57. Petty Sessions.] — See Justices of the Peace. SET-OFF. Creditor of Insolvent Purchasing Assets — Right to Set-off his Debt against the Price.] — K. owed D. £74, K. called a meeting of his creditors, and prepared an account of his assets and debts; among the former were some goods which D. wished to buy, and among the latter D.'s debt. K. told D. he couldn't sell except for cash as the goods were among the assets. D. said he must have the goods, and at last agreed to pay cash. K. let him have the goods, but did not receive cash on delivery. D. claimed to set-off his debt of £74 against the cash price of the goods. K. asiigned all his property upon trust for his creditors. The trustees sued D. for the price of the goods and D. pleaded his set-off; the County Court judge disallowed it as based on fraud. On appeal the Court offered a nonsuit, but this being declined, affirmed D.'s right of set-off in the action. Donaldson v. Couche, 4 W.W. & VB. (L.,) 41. A solicitor's costs may be set-off against a debt owing by him. Begina v. Alley, ex parte Twigg, 5 V.L.E. (L.,) 151 ; 1 A.L.T., 9. See S.C., post under Solicitor— Costs. Against Official Assignee— Creditor Preferred by Insolvent.] — One of several creditors frau- dulently preferred by an insolvent, is not en- titled, in an action by the official assignee, to recover the amount of the fraudulent preference, to set-off the original debt, there being no mutuality between the parties. Courtney v. King, 1 V.R. (L.,) 70; 1 A.J.R., 86. Setting-off Payment of Debt against Proof of Debt.]— Per M olesworth, J.: "A proof of debt cannot be met by way of set-off by the receipt of payment of another debt by way of fraudu- lent preference." In re Groves, ante column 660. Insolvency Rules, Rule 26— Notice of Wish to Set-off a Claim against a Proof.] — In re Hickin- botham, ante column 660. And see cases ante columns 668, 669. Set-off under " Justices of the Peace Statute 1865."] — See Wynne v. Barnard; Reginav. Bond, ex parte Woodhead; and Begina v. Heron, ex parte Burnip, ante columns 751, 752. Set-off.]— The Court refused to allow interlocu- tory costs to be set-off against final costs. Board of Land and Works v. Glass, 2 W. & W. (L.,) 197- For facts see S.C., ante columns 372, 373. Unnecessary Notice of Motion— Set-off of Costs.] — Royce v. Parker, ante column 236. On Partnership Liability — On Account Stated.] — One partner cannot recover as against another for money paid to his use, but only on an account stated and settled when the sum due has actually been ascertained, and one of the partners has promised to pay that sum to the other. Plaintiff and defendant were partners in a, mine, and the defendant claimed money expended in connection with it as a set-off against an action on a bill of exchange brought by plaintiff. There was only a partial settle- ment, and no dissolution of partnership. Rule ' nisi to enter verdict for defendant for amount claimed in a set-off discharged. Perkins v. Cherry, 3 A. J. R., 51. Set-off in County Court — Exceeding Limit.] — See Johnston v. Cox, and Begina v. Cope, ex parte Rawson, ante columns 251, 252. Set-off under Act No. 228 (" Mining Company's Act 1864.")]— Semble, there can be no set-off under the Act No. 228. Wynne v. Barnard, 5 W.W. & a'B. (L.,) 35; for facts see S.C. ante column 1038. Set-off against Rates — Appropriation of Pay- ments.] — The Mayor of Mtzvoy v. Mahony, ante columns 1144, 1145. 1305 SETTLEMENTS. 1306 Guarantee by Intestate — Debts Owing by Plain- tiff to Defendant Administrator — Mutual Debts.] — The N. Bank brought an action against S., as administrator of W., upon a guarantee given by W. to the bank, by which he undertook to pay to a certain extent all advances made to a third person in case of default. S. pleaded that before the time the payment of the advances was due, and before default made, the bank was indebted to him as administrator in various amounts, which he offered to set-off. Held, on demurrer to the plea, that a set-off can be pleaded to an action on a guarantee, such guarantee being in the nature of a debt ; but that the debts were, not mutual, the debt on the guarantee, in the absence of an ex- press promise to pay by S ., was a debt of W. on a contract between him and the bank, and not a debt of S. as administrator. Judgment for plaintiffs, demurrer allowed. National Bank of Australasia v. Swan, 3 V.R. (L.,) 168, 3 A. J.R., 75. By Garnishee.] — A declaration was drawn under Sec. 204 of the ' ' Common Law Procedure Statute" against a garnishee in respect of a debt due by him to a judgment debtor, containing a special count upon an express contract and com- mon money counts. The defendant pleaded as a set-off a debt due to him from the judgment debtor. Held, on demurrer to the pleas, that the pleas were good. Bishop v. Woinarski, 1 V.L.R. (L.,) 31. Married Woman — Joint Hiring with Husband.] —A married woman who was hired jointly with ,her husband issued a separate summons for wages. Held that the defendant could not set- off a joint demand against husband and wife for goods supplied. Segina v. Bond, ex parte Woodliead, 5 V.L.R. (L.,) 130; 1 A.L.T., 1. Bankers — Overdue Promissory Note Deposited for Collection — Bank not Allowed to Set-off as against liability of Maker.]— See Ford v. London Chartered Bank, ante column 87. Rules of Company Imposing Fines on Non- payment of Costs — Fines may be Set-off against Dividends.] — Cotchett v. Hardy, ante column 161. SETTLEMENTS. I. Generally. (a) Limitations, Construction, and Con- tents, column 1305. (6) Setting Aside and Enforcement, column 1306. II. Marriage Settlements. See Husband and Wife. III. Settled Estates— Practice Relating to, column 1308. I. Generally. (a) Limitations, Construction, and Contents. Power to Exchange— lands Yielding an Equal Rental.]— A settlement contained a clause allow- ing the trustees to exchange the land settled for other lands "yielding a rental equal in amount to the land exchanged for the same." Held that this must be construed strictly, and would not authorise the trustees to exchange the lands for others of greater value but yield- ing no rental. Be the " Transfer of Land Statute," ex parte Dougharty, 4 A. J.R., 71. " Real Property Statute 1864" (No. 213,) Sees. 79,104— Building leases— Testator's Intention.]— A testator devised lands to trustees, and a sum of money, upon trust to expend it or a sufficient part of it in building four dwelling-houses with out-offices upon the land, or, if four suitable houses could not well be built, a smaller num- ber ; and to invest any surplus upon certain trusts, and, until sale, to demise. Upon petition by the trustees for power to grant building leases, Held that such a power was excluded by Sec. 104 of the Act, which excludes from its. powers cases in which "an express declaration or manifest intention that they shall not be exercised, is contained in the settlement, or may reasonably be inferred therefrom." Quaiie whether such a will is a "settlement" within Sec. 79. In re Hall, 2 V.L.R. (E.,) 156. Exoneration of Property Mortgaged — Bene- ficiaries paying off Part of Debt.] — Where a settlor settled certain real estate, and after- wards mortgaged parts of it, with other pro- perty, and died leaving the mortgage still sub- sisting, and the beneficiaries paid off part of the mortgage debt, Held that the beneficiaries paying off part of the debt were to stand in the place of the mortgagees so paid off. John- ston v. Brophy, 4 V.L.R. (E.,) 77, 89. Where the settlor as to one part of the settled estate mortgaged it with part of the residuary real property, and died leaving the debt sub- sisting, Held that the mortgage debt should be paid out of the residuary estate comprised there- in in exoneration of the settled estate. Ibid. Vested or Contingent Remainder.] — A., by voluntary settlement, conveyed lands to trustees upon trust to pay the rents and profits to B. for life, and after her death the lands were to remain to the use of C, D., E., F., and G., or such of them as should attain twenty-one years, their heirs and assigns as tenants in common, and in case of the death of all of them before attaining twenty-one years without leaving issue remainder to use of A., his heirs and assigns. There were provisions for maintenance during minority, and a power of sale and leasing until sale by the trustees. B. died before C., D., E., F., or G. attained the age of twenty-one years. Held that C., L\, E., F., and G. were entitled upon A.'s death each to one-fifth of the pro- perty comprised in the settlement, although then under age. Johnston v. Brophy, 4 V.L.R. (E.,) 77, 88. See also re " Transfer of Land Statute," ex parte Leach, ante column 353. (6) Setting Aside and Enforcement. Suit to Set Aside a Revocation of a Settle ment as Procured by Fraud — Representative of Settlor a Necessary Party.] — J.B. executed a ISO- SETTLEMENTS. 1308 deed of trust, by which certain land and moneys were conveyed and assigned to trustees upon trust to divide the income between the settlor and his father during their joint lives, to pay the income to the survivor, remainder over in trust for certain charities, the deed providing that the deed should not be revoked except by the consent of the father. One of the trustees acted upon the settlor's intemperance and weak- ness, and induced him to execute a deed of re- vocation, and the trustee appropriated the moneys. Both father and son executed this deed, not knowing its contents. In a suit after the settlor's death by the father to set aside the deed of revocation, Held that the settlor's re- presentative was a necessary party, as he was interested in supporting the deed of revoca- tion. Richardson v. Arthur, 1 W.W. & a'B. (E„) 12. Suit to Set Aside Conveyance as Against Settlement — By Cestui Que Trust Against Trustees and Stranger — Demurrer.] — A bill alleged that R. died intestate, and seised of land subject to a mortgage to B., that R.'s heir-at-law had agreed to settle the land in trust for R. 's widow and family (including himself) in consideration of his receiving all R.'s personal estate, and paying the debts thereout. This agreement was acted upon by a conveyance to that effect. Afterwards the heir-at law, intending to dispose of his interest in the settled lands, conveyed all the land to D., which was either executed by mistake or procured by D.'s fraud, and D. had conveyed the land to his father for value. On a bill by the beneficiaries under the settle- ment to set aside the conveyances to D. and D.'s father (the trustees of the settlement refusing to join as plaintiffs, Held on demurrer (1) that the pleadings showed that the legal estate was in R. and not in the mortgagees, and so passed to the trustees of the settlement, whose remedy would be at law and not in equity ; (2) that no collusion between the trustees and D. being charged, the mere refusal of the trustees to in- stitute a suit did not justify the beneficiaries in suing D. and the trustees. Demurrer allowed. Ronalds v. Duncan, 1 V.R. (E.,) 146 : 1 A.J.R., 144. In a suit by cestuis que irustent under a settle- ment to set aside a conveyance by one of the cestuis que trustent under a mistaken belief as to how much of the property he was conveying, Held that the other cestuis que trustent could sue on their own behalf without making the convey- ing cestui que trust or the trustees of the settle- ment co-plaintiffs. Ronalds v. Duncan, 2 V.R. (E.,)65; 2A.J.R., 30, 45. Necessary and Proper Parties — Suit to set Aside a Settlement.] — Where a settlement for a wife's separate use was made in pursuance of an ante- nuptial agreement to settle, and the husband was a party to and signed both deeds, but took no interest under them, Held that the husband was not a necessary party to a suit to impeach the settlement. Sinnott v, Hockin, 8 V.L.R (E.,)205; 4 A.L.T., 10. Voluntary — Containing no Clause of Revocation — Not Parted with or Disclosed to Beneficiaries — Collusive Sale and Repurchase.]— R. , by deed, conveyed certain property to himself and A. upon trust for himself and his family. There was no clause of revocation in the deed, and the other objects of the settlement had no knowledge of its having been executed, R. keeping it in his own possession, and no action being taken upon it. R., wishing to get rid of the deed, effected a collusive sale and a repur- chase of the property settled, his solicitor hav- ing advised him that he could so get rid of it. By his will he disposed of the property settled in a different manner from that con- tained in the trusts of the settlement. On suit to establish the deed, Held that the settlement was good though not communicated to the objects under it; that the settlor being advised by his solicitor that he could so avoid it, and thus, by mistake, executing it without a power of revocation, was not a ground for relief in equity, but that R. could only get rid of the settlement effectually by a real sale, and that he must be treated as a trustee for the bene- ficiaries. Moorhouse v. Rol/e, 4 A. J.R., 159. Two Voluntary Conveyances — Conveyance by Grantee under Second Voluntary Deed to a Pur- chaser — Application of 27 Eliz., C. IV.] — If there are two voluntary conveyances, and the grantee in the second conveys to a purchaser for vahte, such purchaser has the benefit of 27 Eliz., c. iv., against the first volunteer. Ibid, p. 160. Trustee Adopting a Position Antagonistic to Cestui que Trust.] — Semble, per Holroyd, J. — In a suit against the trustee and cestui que trust of a settlement to have the settlement set aside, the trustee will- not be permitted to take up a directly opposite position to his cestui que trust. Davey v. Pein, 10 V.L.R. (E.,) 306, 312; 6 A.L.T., 131. Settlement in Pursuance of Ante-Nuptial Agree- ment—Refusal of Trustee to Act.]— Where an ante-nuptial agreement to settle property named a person as trustee of the intended settlement, and he refused to act in the trusts of the settle- ment, Held that such refusal, and the fact that the settlement was made without his consent, did not render it void, for the Court will not allow any trust to fail for want of a trustee, and if one refuses to act another can be appointed in his place. Sinnott v. Hockin, 8 V.L.R. (E.,)205; 4 A.L.T., 10. Setting aside Deeds on Ground of Mistake. &c] — See Deed — Mistake. Setting aside Voluntary Settlements as Fraudu- lent under 13 & 27 Eliz. and " Insolvency Acts."] —See Fraudulent Conveyances. III. Settled Estates— Practice Relating to; Statutes.] — "Real Property Statute 1864" (No. 213,) Part V. " Seal Property Amendment Act 1867" (No. 318.) Sees. 3-6. " Real Property Amendment Act 1870" (No. 378.) leases of Settled Estates— Act No. 213, Sec. 80— Questions as to Fitness of Proposed Lessee.]— Under Sec. 80, the Court requires the proposed 1309 SETTLEMENTS. 1310 lessee to be » solvent individual, and will not make an order authorising trustees to lease to a company with limited liability. The only way for such a company to obtain a lease is to put forward some solvent person to obtain and hold for them. In re Bergin's Estate, 5 V.L.R. (E ) 131; 1 A.L.T.,5. Leases of Infants' lands.] — See under Infant, ante column 558. Sale— Suit by Mortgagee.]— Where, in a suit by a mortgagee of settled estates praying for pay- ment or a sale, some of the parties claiming under the settlement were infants, and it was for the interest of the infants that there should be no delay, the Court held that there should be, with consent of the parties sui juris, an imme- diate sale. Henty v. Hodgson, 1 W. & W. (E ) 250, 260. Sale— Application for on Behalf of Infants- Guardian.]— Upon an application for sale of a settled estate on behalf of infants, it is sufficient if a guardian be appointed before the hearing of the petition. Ex parte Dolan, 1 V.R. (E.,) 30- 1A.J.R., 22. Sale— Application for on Behalf of Infants- Advertisements.] — On an application for sale of a settled estate on behalf of infants, advertise- ments will be directed before the appointment of a guardian. Ibid. Sale— How Conducted.]— The sale of settled estates, upon an order for sale should be by auction and not by private contract. Ibid. Order for Sale — Directions as to Application of Proceeds.] — Directions as to the application of proceeds of sale will not be given in the order directing sale, but should be the subject of a subsequent order. Ibid. Order for Sale— Where a Part of Settled Estate is in Mortgage.]— Where the estate to be sold was originally all in settlement, it will be sold as a settled estate, although part of it may have subsequently become absolutely vested. Ibid. Order for Sale— Investment of Proceeds.]— Peti- tion under Sec. 94 of the "Real Property Statute 1864" (No. 213,) praying for a sale of a part of certain settled estate, and an investment of the money received on the sale, in the purchase of another piece of land. It appeared that the land desired to be sold was an outlying piece dissevered from the other portion of the settled estate, and locally situate in the midst of land belonging to C, whilst the piece of land pro- posed to be bought was the property of C. , but locally situate in the midst of the settled estate. The petition was presented by the tenant for life with the consent of the trustees, and the persons entitled for life in remainder. The first tenant in tail was an infant, and his father, who was one of the trustees, had in that capacity consented to the petition. The Court required the father's consent as guardian of his son, and upon that being done made the order for sale, but held that the investment of the proceeds must be the subject of a distinct application. Exparte Staughton, 3 W.W. & a'B. (E.,) 95. Sale— 'Real Property Statute 1864," Part V — Purchase Money how dealt with.]- Where a sale ol settled estate is ordered by the Court, the purchase money should be paid into the hands ol the Master-in-Equity, and a subsequent 0r ,5 ° btamed for its proper application! In re M'Gregor's Estates, 4 V.L.R. (E.,) 1. Sale —Advertisements under "Real Property o,T charge mileage fees one way, back mileage not counting as part of the distance, but the Court will not make absolute a rule for the sheriff to refund money which he has already paid into the general revenue. Colonial Bank v. Beacons- field O.M. Coy., 9 V.L.R.(L.,) 168; 5 A.L.T.,32. liability — Escape of Person Attached — Negli- gence of Sheriff — Re-arrest — Remedy of a Creditor — 15 Vict. No. 10, Sec. 30.]— H., a defendant in an equity suit, obtained an order dismissing plaintiff's bill with costs, and issued a writ of attachment against the plaintiff in usual form commanding the sheriff "to have him in our Supreme Court at Melbourne on the 17th June, or on the first day on which said Court shall sit in equity next after arrest." Plaintiff was. arrested but escaped on the morning of 13th June before the Court sat, was re-arrested and lodged in gaol but was discharged on habeas corpus by the Full Court in banco. On motion by H. to charge the sheriff in regard to the escape from attachment, Held that the sheriff was liable in damages only, including costs of motion, and not full amount on writ, following, the analogy of the remedy at law in 15 Vict- No. 10, Sec. 30. Wall v. Hooper, 1 V.L.R. (E.,> 185. Action for False Imprisonment — Arrest — Escape through Negligence — Re-arrest — Right to take Prisoner before Court in another Bailiwick.] — W. had been arrested by the sheriff under a warrant for contempt of the Court in refusing to obey its order as to costs, the warrant named as the day on which he should be brought before the court, a certain day on which W. escaped through the negligence of the sheriffs bailiff, but the sheriff rearrested him at A., out of his bailiwick, and lodged him in gaol until W. was discharged on habeas corpus on the ground that the warrant was sped and no longer in force. W. brought an action for false imprisonment against the sheriff, and recovered a verdict. On rule nisi for a non- suit, Held that the sheriff had power to re- arrest W. inside or outside his own bailiwick 1315 SHIPPING. 1316 wheresoever he might find him, and might alao bring an action to recover debts and costs and money he had had to pay owing to W. 'a escape, but that the sheriff did not comply with the war- rant in placing W., on the re-arrest, in gaol on his own responsibility, and wasthereforeliable. Rule discharged. Wall v. Meyriclc, 5 V.L.R. (L.,) 260 ; 1 A.L.T., 38. Duty of Sheriff under Writ of Attachment for Contempt.] — See Re Phelps, ante column 67. Liability for Negligence while levying under Fi. Pa.] — A sheriff levied under a ft. fa. for £166, on a mine, plant, &c, of a company ; and being told by several persons that there was a mort- gage on the property, and that a number of the men had not been paid their wages, he sold the next day for £10. As a matter of fact there was no mortgage, and the purchaser, three weeks afterwards, sold the mine, plant, &c. , for £240. The company was wound-up, and the execution creditor sued the sheriff for negligence. Held that the sheriff was liable for the difference be- tween the net amount realised by him at the sale, and the amount of the fi. fa. Smith v. Oolles, 2 V.R. (L.,) 195 ; 2 A. J.K., 117. Sheriff may Appoint a Bailiff to Execute Writs of Fi. Fa. addressed to Him.] — See In re Knowles, ante column 591. SHIPPING. (1) Registration, column 1316. (2) Nationality, column 1316. (3) Passenger Ships, column 1316. (4) Owners and their Liability and Rights, column 1316. (5) Master, column 1318. (6) Seamen, column 1319. (7) Mortgage of Ship, column 1320. (8) Bill of Lading. {a) Construction, column 1321. (6) Rights and Liabilities of Holders of Bills and Consignees, column 1322. (9) Charter Party, column 1322. (10) Freight, column 1322. (11) Demurrage, column 1323. (12) Pilotage and Pilots, column 1323. (13) Collision. (a) Rules of Navigation, &c. — Neglect of, column 1323. (b) Damages, column 1323. (14) Salvage and Towage, column 1324. (15) Bottomry, column 1324. (16) Average Contribution on Loss of Ship, column 1325. (17) Ports, Harbours and Wharves. (a) General Regulations relating to, column 1325. (6) Removal of Wreck or Obstructions, column 1326. (18) Proceedings by Victorian Steam Navi- gation Board, column 1326. (19) Jurisdiction and Practice of, Vice- Admiralty Courts. (a) Jurisdiction, column 1327. (6) Procedure and Practice, column 1327. (1) Registration. 17 and 18 Vict., Cap. 104, Sees. 40,41— False De- claration in Certificate — New Ship out of materials of Old.] — W. was informed against before justices for making a false statement in his certificate in having a ship registered as a new ship ; the ship was partly built from the materials of an old ship which had been wrecked. The information was dismissed. He'd that the fact of whether the statement was false was for the determina- tion of the justices. Semble that it was not false, as the old ship was broken up and nothing but a few fragments of her reappeared in the new vessel. Dunn v. Wilson, 5 V.L.R. (L.,) 465. Ship— Proof of Ownership.] — Semble that a foreign certificate of registration of a foreign ship, when accompanied with evidence of acts of ownership, is evidence of the property in the ship. Dowsett v. Smith, 4 V.L.R. (L.,) 58. (2) Nationality. British Flag.] — The fact of a ship sailing under a British flag is good evidence that she is a British ship to support a conviction for har- bouring a deserter under Act 17 & 18 Vict., e. 104, Sec. 257, without production of certificate of registration or an examined and certified copy thereof. Regina v. Clark, ex parte Doyle, 5 V.L.R. (L.,)440; 1 A.L.T., 105. (3) Passenger Ships. "Passenger Act 1855," Sec. 60— Order in Council, No. 20— Offences against— Who are Amenable to Punishment under.]— The words "any person on board," in See. 60 of the "Passenger Act 1855," include "the medical officer" of a passenger ship and her third mate, the latter not being at the time in charge of the ship, so as to render them subject to the summary juris- diction of justices of the peace for offences com- mitted by them against the Order in Council, No. 20, issued under the " Passenger Act" on the 7th January, 1864, and gazetted in Victoria on the 18th of March, 1864. Regina v. Hill, 3 W.W. &a'B. (L.,)91. "Chinese Passenger Act" — Offences against — Where Punishable.]— An offence against the ['Chinese Passenger Act," 18 & 19.Vict., cap. civ., is triable and punishable in Victoria, although the Act itself refers expressly to no colony but HongKong, since the " Merchant Shipping Act," part X.j relating to procedure for penalties, &c, is applicable to all possessions not expressly exempted, and is imported bodily into the "Chinese Passenger Act." Regina v. Middkton, 5 W.W. & a'B. (L.,) 182. (4) Owners and their Liabilities and Rights. Owners need not be Licensed as Passage Brokers —"Passage Brokers Act 1863."]— It was never contemplated by the "Passage Brokers Act 1863" (No. 174,) that owners of ships and their managers should be licensed as passage brokers. Where, therefore, S.,the manager of the office in Melbourne of the P. & O. S.N. Coy., not being duly licensed to act as a passage broker, let a passage by a ship of the company from Melbourne to Ceylon, and was convicted, Held, on appeal, that he was not liable to the penalty 1317 SHIPPING. 1318 imposed by the Act, and conviction reversed. Sparhes v. Macfarlane, 1 W.W. & a'B. (L.,) 90. Liability of, as Carriers — Where no Proof of Contract.] — W. sued a steamship company for the loss of certain goods, which he stated that he had delivered to the company to be safely carried from Melbourne to Port Albert for freight to be paid by W. Defendants traversed the contract of bailment, and their liability as carriers. The only evidence in support of W.'s case was a receipt for four packages, given by a wharf clerk to the drayman of a person from whom W. had bought the goods, and evidence that three of the four packages had arrived at Port Albert ; but there was no mate's receipt or bill of lading signed by the captain, or other evidence of the conditions on which the goods were delivered on board, given in support of the alleged contract. Held that to substantiate the charge of liability against, the owners, evi- dence of the terms of the contract must be given, and that on the evidence given the owners were not liable. Walker v. The Oippsland S. N. Coy., 2 A. J.R., 123. Liability of Shipowner to Charterers — Delivery of Cargo — Part only Put on Board.] — Under a charter-party the charterers undertook to load a full and complete cargo of guano, which the owners agreed to deliver, and upon which they were to be paid freight. The charterers loaded only a small quantity of the guano, and the owners refused to deliver it. Held in an action by the charterers against the owners, for not proceeding to the port of discharge and deliver- ing, that the owners, having taken part of the cargo on board, were bound to deliver such part. Smith v. Beaver, 2 V.L.R. (L.,) 110. Carriers-Negligence-Liability for Acts of Agent.] Tasmanian shipowners had undertaken to carry certain goods to Melbourne. On the arrival of the goods in Melbourne, they were carted by a person in the employ of the owners' Melbourne agent to the Custom House, and were injured. Held that there was evidence to render the shipowners liable for negligence in respect of the act of their Melbourne agent. Ooddard v. Tasmanian S.N. Coy., 9 V.L.R. (L.,)360; 5 A.L.T., 120. Liability of Owner — Voyage Abandoned— Sale of Cargo by Master without Authority of Ship- per.] — When a voyage is abandoned, the ship- owner will be liable in an action of trover by the shipper, if the master sell the cargo without the authority of the shipper, when it is possible to communicate with him. Connor v. Spence, 4 V.L.R. (L.,) 243, 262. For Necessaries— Power of Master to Bind Owner by Contract for Necessaries— Accessi- bility of Owner.] — For circumstances in which the Court upheld the decision of the County Court that the master of a ship had power to bind the owner by contracting for the services of a tug, see Smith v. Blair, 5 A.L.T., 177. Liability for Acts of Master.]— An owner of a ship is not liable for the acts of the master when there are means of communication be- tween them. Holmes v. Norton, 1 A.J.R., 93. Liability for Collision— Compulsory Pilotage.] — See " The Eden," post column 1323. What are Necessaries.] — Advances by the master to pay off a mutinous crew are not necessaries, even though it be expedient and for the benefit of the vessel that the crew should be paid off as quickly as possible. Dunn v. Hoyt, 4 A.J.R.,3. Lien of Shipowner on Cargo — Wreck of Ship — General Average.]— See M'Lean v. Liverpool Association, post column 1322. Right of Owner to Recover Freight — Delivery at Intermediate Port at Consignee's Request.] — Hunt v. Barbour, post column 1322. Liability of Owner for Injuries to Workman Employed about Ship.]— See McLachlan v. Ser- . vice, ante columns 893, 894. (5) The Master. When Entitled to Detention Money as Witness.] — The expenses of a master, who had appeared in his own cause when suing for wages and who was the sole witness examined, for detention money as witness were objected to on the grounds that (a) it was not necessary that he should have stopped in the country, as he could have had his evidence taken de bene esse; (b) he should have obtained employment, for he must have known that the cause would not have come to a hearing for a long time; and (c), having acted as his own advocate, he was not entitled to expenses as a witness. Held that it was optional whether he should have himself examined de bene esse ; that since the delay was caused by the respondent, and the master could not obtain employment for any length of time without entailing more delay, and could only obtain an employment for a short time of an inferior nature, he was not bound to obtain employment ; and that his being his own advo- cate did not debar him from his expenses as a witness, since the parties to » suit in the Vice- Admiralty Court, when examined as wit- nesses, were entitled to such expenses. Re the "E. M. Young," 2 A.J.R., 85. . See also Dunn v. Hoyt {the "Albion"), 4 A. J.R., 9 ; post column 1328. Compensation for Loss of Time.] — Ibid. Claim for Disbursements by, before becoming Master — Maritime Lien.] — A master has no mari- time lien for disbursements made by him on account of the vessel after an agreement with the owner that he should become master, but before he was actually appointed. Dunn v. Hoyt, 4 A.J.R.,3. Suit by Master for Wages and Necessaries — "Imperial Act," 26 Vict., Cap. 24, Sec. 10 — Limited to Time when Placed on Register.]— By Sec. 10 of the "Imperial Act" the Court has jurisdiction in claims for necessaries only when the necessaries are supplied in a "British" possession. A master can only claim against his ship for wages and disbursements from the vv2 1319 SHIPPING. 1320' date on which he is placed on the ship's register as master. " The Albion," 3 A.J.R., 72; 27 L.T., 723. lien for, Hot lost by Taking Mortgage over Ship.] — A master is not deprived of his lien for wages and disbursements by the fact that he has taken a mortgage over the ship for the balance of his wages and disbursements, espe- cially if the shipowner has fraudulently con- cealed from him the fact that there was a prior mortgage over the ship. Ibid. liability for Injuries Caused by Negligence of Crew.] — The master of a ship in harbour is not liable for injuries caused by the negligence of the crew, he being merely a fellow-servant with the crew. Clancy v. Harrison, 4 V.L.R. (L.,) 437. Neither is a ship-master liable for an injury to a passenger by a plank falling while the ship was at sea, there being no evidence of any per- sonal negligence on his part. Stacpoole v. Bet- ridge, 5 V.L.R. (L.,) 302; 1 A.L.T., 43. Suspension of Certificate — Jurisdiction of Vic- torian S.H. Board beyond Territorial limits of Colony.]— In re Victorian Steam Navigation Board, ex parte Allan, post columns 1326, 1327. (6) Seamen. Seamen's Wages — Payment of — Discharge — "Merchant Shipping Act 1854," Sees. 209, 210.] — The master of a disabled seaman paid to the shipping master the wages of such sea- man, having rendered an account of what wages were due, and obtained from him a discharge. The seaman refused to recognise the payment, and sued the master for his wages and damages for wrongful dismissal, and recovered a verdict. On appeal, Held that though under Sees. 209 and 210 of the "Merchant Shipping Act 1854" the master is bound to render to the shipping master an account of the wages due before he obtains a discharge, he must pay the wages to the seaman himself, and appeal dismissed. Pain v. Kneen, 4 V.L.R. (L.,)73. Compensation for Wrongful Discharge — Viaticum.] — A seaman wrongfully discharged in the port of Melbourne is not entitled to receive as part of his' compensation an allowance for viaticum to his port of engagement, if it be shown that he could have obtained employment on ships bound direct to his port of engagement at higher wages than he was receiving when discharged. The "Ferret," & V.L.R. (A.,) 1,4. Compensation for Wrongful Discharge — Sea- men Farticipes Criminis in an Attempt to Steal Ship.] — If seamen are pariicipes criminis in an endeavour to steal their ship, they are not entitled to recover either wages or compensa- tion for alleged wrongful dismissal. "The Ferret," L.R., 8 App. Cas., 329, 337. Six seamen brought a suit in the Vice- Admiralty Court, to recover wages and damages for wrongful dismissal, and the judge found that a total amount of £203 9s. 8d. was due to them, but that the amount due to each was less than £50, and dismissed the suit for want of jurisdiction. On appeal to the Privy Council, Held that under See. 15 of the Orders-in- Council passed under 2 Will. 4, c. 51, and Sec. 189 of the " Merchant Shipping Act 1854," the judge was wrong in dismissing the suit for want of jurisdiction, and that a decree for £203 19s. 8d. should be made. Ibid. Action for libel— " Merchant Shipping Act" (17 and 18 Vict., Cap. 104), Sec. 176— Discharge of Seaman — Question for Jury.] — A seaman brought an action of libel against a master of a* ship for writing "declined" in the certificate of discharge in each of the columns set apart for certificate of character as to his conduct, capacity, and sobriety. Held that the master was not privileged in writing as he did ; that the master might have drawn a line across the blank, in which case he would not have been liable, but having written as he did it was a question for the jury whether the word "declined" was really libellous. Garson v. Jacobsen, 5 V.L.R. (L.,) 7. Seaman's Certificate of Discharge — Filling in Column with a Cross.]— Snewin v. Doherty, ante column 361. (7) Mortgage of Ship. Eights of Mortgagee — Freight.] — G. being regis- tered owner of the ship N., of Launceston, Tasmania, consigned and shipped from Launces- ton certain goods at a certain rate of freight to the plaintiffs. The N. arrived in Melbourne, February, 1867, with the goods on board. G. gave plaintiffs' solicitor a written order directing the master of the ship to deliver the goods to the plaintiffs, which order stated that plaintiffs had settled with G. as to the freight. G. being indebted to the plaintiffs, the debt was reduced by the amount of this freight. G. had mortgaged the ship to the defendant company in September, 1866. On 14th February, 1867, the defendants took possession of the ship ; but before this the plaintiffs had presented the order for the delivery of the goods and demanded them, but the master refused delivery. The defendants then claimed freight for the goods from the plaintiffs, and refused to deliver until freight was paid. The plaintiffs paid £197 for freight. On special case stated without plead- ings, Held that the arrangements made between plaintiffs and G. before the defendant mort- gagees took possession could not be unravelled and disturbed by them after taking possession, and thab plaintiffs were entitled to recover back the freight. Goldsbrough v. Melbourne Banking Coy., 4 W.W. & a'B. (L.,) 105. Act 17 & 18 Vict., Cap. 104, Sec. 69— Priority of Mortgages.] — Plaintiffs, in May 1875, advanced money to C. J.H., who executed a mortgage over a ship in statutory form to secure it. C.J.H. at that time was registered owner of 32-64ths of the ship, and held an unregistered bill of sale of the remainder. C.J.H. subsequently mortgaged to H.H., who procured the due, registration of the bill of '"sale to C.J.H. over the 32-64ths, and also registered the mortgage to himself. This was done before plaintiffs registered their mort- gage. On bill by the plaintiffs alleging the facts and charging fraud, and that H.H. had notice of their mortgage, Held, upon demurrer, 1321 SHIPPING. 1322 that H.H. had priority under 17 & 18 Vict,, o. 104, Sec. 69. Jardine v. Hoyt, 2 V.R. (E.,) 152: 2A.J.R..129. " Beneficial Interest," as Defined by 25 & 26 Vict., Cap. lxiii., Sec. 3.]— The 25 & 26 Vict., c. lxiii., Sec. 3, declaring that "beneficial interest," when used in " The Merclicmt Ship- ping Act 1854," includes interests arising under contract and other equitable interests," and that "equities maybe enforced against owners and mortgagees of ships in respect of their in- terest therein in the same manner as equities may be enforced against them, irrespective of any other personal property," applies only to ■equities against them personally, and not as against the ship or persons having acquired good registered titles to it under the contractors; the clause, in fact, saves the powers of dispo- sition conferred by the former Act (17 & 18 Vict., c. 104, Sec. 69) on registered owners and mortgagees ; that is, amongst other things, the power of making a good title, notwith- standing their own imregistered acts. Ibid. 8. Bill of Lading. (a) Construction. Contract Created by — "Factors Act" 6 Geo. IV. Cap. xciv. , Sec. 2.] — The contract contained in a bill of lading is not performed by merely landing the goods; that contract is not only to carry, but to deliver, and until the goods have been taken out of the possession of the shipowners, and have been delivered to the consignee, the bill of lading is in force, and remains a symbol of property which may be " entrusted " to a "person," within the meaning of the " Factors Ad," 6 Geo. IV., c. xciv., Sec. 2. Levi v. Learmonth, 1 W. & W. (L.,) 283. Exceptions from Liability — Bust.]— A bill of lading contained a clause exempting the ship from liability for damages caused by leakage, breakage or rust . The plaintiff sued for damages for the delivery of certain hoop iron in a damaged condition, and the defendants pleaded damage by rust. Held that the plaintiffs to recover must prove that the damage was not caused by rust ; and that if some of the damage were caused by rust, and there were other damage superadded to the damage by rust, it was for the plaintiff to show how much of the damage was caused by rust, and how much by other causes. Martin v. Hunter, 1 V.R. (L.,) 144 ; 1 A. J.R., 128. Exceptions from Liability.]— A bill of lading contained the following exemptions: — "Re- straint of princes or rulers, accidents, loss or damage from any act, neglect, or default what- soever of the pilot, master, mariners, &c, in navigating the ship, or under any other circum- stances." The ship put into Manilla, by the laws of which port the master ought to have included in the ship's manifest all the goods on board ; he failed to do this as to a portion, and that portion of the goods was confiscated by the Custom authorities. Held that the words "under any other circumstances" were ■ejusdem generis with those preceding them, and must in some way be connected with the navigation of the ship. Per Williams, J., that even if it would come within the words "re- straint of princes or rulers," yet the causa causans was the master's default, and that the exemptions were no defence. Ah Rang v. Aus- tralian S.N. Coy., 9 V.L.R. (L.,) 171 ; 5 A.L.T., 29. (6) Bights and Liabilities of Holders of Bills, and Consignees of Cargo. Action by Indorsee against Ship-owner for Short Weight.]— The plaintiff bank as indorsee of a bill of lading, sued the shipowner B. for short weight in bales of wool delivered. The bills were signed before the goods were re- ceived on board the ship. Held that although there was an irregularity in so signing the bills, yet the jury, who returned a verdict for defen- dant, had had the opportunity of hearing the evidence of mercantile men as to what ought to be the weight of bales shipped and delivered in London, and the Court refused to disturb the verdict. Bank of Australasia v. Blyth, 5 A. J.R., 166. Wreck of Ship — General Average — Protracted Adjustment — Lien of Shipowner.] — In the case of a wreck where certain holders of bills of lading have to contribute to a general average, and the adjustment is protracted, the ship- owner's lien may be satisfied by the consignee tendering his bond for the payment of the con- tribution when adjusted, and the consignee, when he has tendered such security, is entitled to the delivery of the cargo, and the owner, accepting such security, is relieved from further liability in respect of securing the payment of the contribution. M' Lean v. Liverpool Associa- tion, 9 V.L.R. (L.,) 93; 5 A.L.T., 1. <9) Charter Party. ' Construction.] — A charter party provided that the ship might lawfully carry 252 passengers in the 'tween decks and 9 in the cabin, and should she not be able to carry 252 in the 'tween decks, defendant should pay £5 per head for each less than that number. The ship could not take 252 in the 'tween decks, but could take more than nine in the cabin, and the owner desired to set apart part of that space for their accommoda- tion. Held that there were two contracts, and a breach of the first might be separately relied on. Hart v. Munroe, 1 W. & W. (L;,) 53. Liability of Owners to Charterers— Part only of Cargo put on Board — Charter Party Providing for a Full Cargo.] — Smith v. Beaver, ante column 1317. Agreement for Hiring Ship— Construction of.] — See Stewart v. Austin, ante column 190. (10) Freight. Eight of Shipowner to Recover Freight— De- livery at Intermediate Place.]— If goods are delivered to be carried to a certain place, a carrier is not generally entitled to freight until delivery at that place. But where a carrier (by sea), at the special request of the consignee, delivers goods at an intermediate port, and the consignee gives an unqualified receipt upon the bill of lading, the carrier is entitled to recover freight. Hunt v. Barbour, 3 V.L.R. (L.,) 189. 1323 SHIPPING. 1324 Right of Mortgagee of Ship to Freight.]— See Goldsbrough v. Melbourne Banking Coy., ante column 1320. (11) Demurrage. Demurrage — For what Delay Payable.] — A ship- owner, by charter party, contracted to bring his ship to "Hobson's Bay, or as near thereto as the ship may safely get," and to deliver " at any wharf where the ship can safely lie afloat." He brought his ship into the Bay convenient to the wharf named by the charterer, and was ready to come alongside the wharf and discharge; but was kept waiting for a berth for four days, and during the time the ship was discharging she was compelled by stress of weather to haul out from the pier for four days. The shipowner claimed demurrage for the eight days so lost. Held that he was entitled to demurrage for such days. Young v. Woolley, 1 W.W. & a'B. (L.,) 30. (12) Pilotage and Pilots. Compulsory Pilotage — liability of Owner.]— Where a ship is under compulsory pilotage, and a collision occurs by the fault of the ship, the owners of the ship will not be exonerated from liability unless the collision was occasioned solely by the fault of the pilot. The Eden, 6 V.L.R. (A.,) 8. (13) Collision. (a) Rules of Navigation, &c. — Neglect of. Steamer and Sailing Vessel — " Sailing Rules," Articles 15, 16, 18.] — When a steamer and a sailing vessel meet it is the absolute duty of the steamer to 'give way, under "Sailing Rules" Article 15. If her master is in doubt as to the position or course of the sailing vessel he should Blow his engines under Article 16. Though the sailing vessel should then keep her course, under Article 18, that does not necessarily mean the same direction by compass, but the path she ought to take in the particular position in which she then is ; in navigating a channel it means following the channel, and, when sailing in a wind, keeping the weather-side. The Easby, 6 V.L.K, (A.,) 1. Steamship meeting Sailing Vessel — " Rules of Sailing," Article 16.] — When the master of a steamer, which a sailing vessel is approaching in a fairway, sees the latter suddenly alter her course without any apparent reason he is at liberty to assume there is some reason for the alteration, and that it will be adhered to, and he is then, on that supposition, to take the neces- sary steps to get out of the way, not to slow his engines under "Rules of Sailing," Article 16. The Eden, 6 V.L.K, (A.,) 8. (6) Damages. For Preventible Injury.] — A person is not to stand by and see injury done to his ship which he can prevent, and then to claim damages for the injury which might have been avoided had he taken ordinary precautions. Holmes v. Lloyd, re " The Ch-eyhound," 1 A.J.B., 39. For Preventible Injury — Onus of Proof.]*— Where in a collision it is asserted that any part of the damage might have been avoided, the onus of proving such assertion is on those assert- ing it. Ibid. How Ascertained.]— Semble, that the question of damages should be gone into by the parties themselves. Ibid. (14) Salvage and Towage. Salvage— How Recoverable.]— Salvage is re- coverable at common law under the common count "for goods saved for and delivered to the defendant." Buisson v. Warburton, 4 A.J.R;, 43, 119. .Contract to Tow Ship for Fixed Price— Employ- ment of Additional Tug.]— Holmes v. Norton, ante column 190. Services Entitling to Salvage— Recovery of Dere- lict Property.] — A ship sank with a cargo of copper belonging to M. and N. M. hired a vessel, fitted her out, and sent her to recover the derelict copper. A great part of this copper was recovered under circumstances of great difficulty and danger, and was sold by M. N. filed a bill against M. seeking an account of copper sold after deducting proportionate amount of costs and expenses. Held that M. was entitled to a salvage allowance over and above the costs and expenses. Melhuish v. Miller, 3 W.W. & a'B. (E.,) 61. Jurisdiction of Court of Equity in such a Case.] — Such a case for an account and for salvage allowance comes within the equitable jurisdic- tion of the Court as one for arranging contribu- tion as in cases of average. Ibid, p. 66. (15) Bottomry. Validity — Communication with Owners — Power of Agents to take Bond — Termination of the Voyage.] — A ship owned by a person living in New Zealand was directed to go to Melbourne, discharge there, and proceed thence to New- castle and load with coals. The vessel reached Melbourne, and the cargo was consigned to the promoters as the owner's agents, and the pro- moters advanced money to the captain, which was repaid by a, draft on the owner duly honoured. The captain then obtained three separate advances from the promoters for re- pairs and wages. To secure themselves, the promoters took a bottomry bond on 24th January, 1874. On 13th January, the owner became insolvent, which was known to the pro- moters after the execution of the bond. The respondents seized the ship under a mortgage of September, 1873. Held that there was evi- dence that the voyage was not terminated at Melbourne, and that, therefore, the bond was not invalid on that ground ; that the bond was invalid in the absence of communication with the owner, and that the promoters could not convert the advances made upon the personal credit of the owner into bottomry; that agents may, if advances cannot be obtained elsewhere, take the security of a bottomry bond. The Lady Franklin, 5 A. J.R., 185. 1325 SHIPPING. 1326 (16) Average Contribution on Loss of Ship. General Average— Where and How Adjusted.]— A ship was damaged and driven back by stress of weather, and, in an action for contribution to general average, the evidence of an average- stater, who had purported to adjust the general average at a port not being the port of destina- tion or of actual discharge, upon documents sent to him from the port of discharge, was received as that of an expert, and the facts on which the adjustment was based were proved before the jury. Held, in an action to set aside such adjustment as being made in an improper place, and consequently before an improper per- son as adjuster, that this was not an adjustment of average in the proper sense of the term, since the whole question was gone into and there was a finding by the jury of the amount of contribu- tion on facts proved before them, the adjuster being merely called as an expert, and no ques- tion as to the law of the port of discharge need- ing determination; and that the adjustment could not be set aside. Connor v. Spence, 4 V.L.R. (L.,) 243, 262, 263. (17) Ports, Harbours and Wharves. (a) General Regulations relating to. Act No. 255, Sec. 5— "Public Works Statute 1865," Sec. 131— " Melbourne and Hobson's Bay United Railway Companys Statute" — Company's Pier Master.] — D. sent his boat alongside a ship moored to the Railway Company's Pier to re- ceive cargo consigned to him. V. , who was pier- master to the company, and also assistant harbour-master, on D.'s denying his obligation to pay wharfage rates to the company, cut D.'s boat adrift after giving him notice as on behalf of the company to remove it. D. sued V. in the County Court for seizing and carrying away his boat, and was nonsuited. Held, that V. had such power, and D. 's appeal dismissed. Donald- son v. Vine, 4 V.L.R. (L.,) 6. Dues, Tolls, and Eates— Act No. 209, Sec. 2— Goods Imported "for use of H.M. Government" — 18 Vict. No. 9, Sec. 4.]— Goods imported " for the use of H.M. Government" and received and accepted by H.M. Government, are under Sec. 4 of Act No. 9 exempt from the wharfage rates levied under Sec. 2 of Act No. 209. Regina v. ' ft*, 2W.W. &A'B. (L.,)184. Port and Harbour Regulations Clause 31 — Providing a Good and Sufficient Gangway.] — It is not enough, in order to comply with clause 31 of the "Port and Harbour Regulations," that the gangway should be ready for use, but it must be attached to the pier. If, however, all who are entitled to be on board are on the ship, it is sufficient if the gangway be ready to be attached to the pier when required. Mackersey v. Whitcher, 2 A.J.R., 62. " Passengers, Harbours and Navigation Statute 1865," Sec. 40 — Regulations Inoperative Outside limits of Port.] — The Governor-in-Council has no power under Sec. 4 of the "Passengers, Har- bours and Navigation Statute 1865 " to make regulations operative beyond the limits of the port for which they are made. A regulation which purports to make one offence continuing within and without the limits of the port is altogether bad, and the offence cannot be sepa- rated as to that within and that without the port. Segina v. Pearson, ex parte Smith, 6 V.L.R. (L.,)329; 2A.L.T., 63. And see also cases ante column 493, under Harbour Trust. (6) Removal of Wreck or Obstruction. " Passengers, Harbours and Navigation Statute" (No. 255,) Sec. 45— "Owner."]— The notice under Sec. 45 of the Act is properly served upon the person who is the registered owner of a ship at the time of its wreck, and it is to him the har- bour-master must look for repayment of any expenses incurred over what may be realised by the sale of the wreck ; the fact that the owner has given notice to the underwriters of total abandonment of the wreck puts him in no better position in respect to the harbour officials. Ramsdenv. Payne, 1 V.L.R. (L.,) 250. Notice to Remove Wreck and give Security — "Passengers, Harbours and Navigation Statute" (No. 255,) Sec. 45.] — A notice to the owner of a sunken wreck to remove it within a time men- tioned in the notice, and to give security for the removal of the ship within a further time men- tioned in the notice, is a proper notice under Sec. 45 of the '* Passengers, Harbours and Navigation Statute" (No. 255,) for the har- bour-master is not to be presumed to know whether the owner will exercise his option of removing the wreck within the original time specified or of giving security for its removal within the extended time, and by such a notice he rightly allows him to exercise his option. Payne v. Fishley, 1 A. J.R., 122. (18) Proceedings by Steam Navigation Board. Suspension of Engineer's Certificate.]— The Court granted a rule nisi to restrain the Vic- torian Steam Navigation Board from depriving an engineer of his certificate on the ground that notice at ten a.m. to attend the board at eleven a.m. the same day was not a sufficient " copy of the report or statement of the case" within Sec. 23 of 25 & 26 Vict., c. 63. Ex parte Dykes, 3 V.L.R. (L.,) 162. Suspension of Master's Certificate — Jurisdiction of Victorian Steam Navigation Board — Beyond. Territorial Limits of Colony — 17 & 18 Vict., Cap. 104, Sees. 242, 520—25 & 26 Vict., Cap. 63, Sec. 23— Act No. 255, Sees. 76, 77— Act No. 312, Sec. 2.]— The ship Gulf of Finland struck on a reef off the coast of South Australia, and the Victorian Steam Navigation Board suspended the master's certificate on the ground that he had omitted to take proper soundings. Held, per Stawell, C.J., and Stephen, J. {dissentiente Higinbotham, J.,) that the power given to the board by Sec. 242 of 17 & 18 Vict., c. 104, and Sec. 77 of Act No. 255, was to make inquiry into charges of incompetency, &c, there was no- power given to exercise jurisdiction, and that- the board had no jurisdiction beyond the terri- torial limits of the colony ; that Sec. 520 of 17 & 18 Vict., c. 104, only refers to offences and complaints of a criminal nature. Summons to. 1327 SHIPPING. 1328 prohibit the enforcement of the suspension of the certificate allowed. In re Victorian Steam Navigation Board, ex parte Allan, 7 V.L.R. .(L.,) 248; 3 A.L.T., 1. .(19) Jurisdiction and Practice of and in the Vice- Admiralty Court. {a) Jurisdiction of Vice-Admiralty Court. Claim for Necessaries Supplied in another Pos- session.] — Under no circumstances can the Court of Vice-Admiralty in this colony take into con- sideration a claim for necessaries unless they were supplied in the possession in which such Court is established. Dunn v. Hoyt, 4 A.J.R., 3. Claim for Compensation for Wrongful Dismissal.] — The Court of Vice- Admiralty has jurisdiction to entertain a claim by seamen for compensa- sation for wrongful dismissal. 'lhe "Ferret," 8 V.L.R. (A.,) 1. Claim over £50 — Several Claims — " Merchant Shipping Act 1854," Sec. 189.]— Seamen united in an action against a ship for wages, and the amount claimed by each was more than £50, but the Judge of the Court of Vice- Admiralty reduced the sum due to each to less than £50, but the whole amount exceeded that sum. Held, per Sir W. F. Stawell, that under See. 189 of the " Merchant Shipping Act 1854," he had not jurisdiction, but Held per Privy Council, that he had jurisdiction. The " Ferret," 8 V.L.R. (A.,) 1 ; L.R., 8 App. Cas., 329. Per the Privy Council. — Sec. 15 of an order in Council passed in pursuance of 2 Will. IV. , c. 51 , gives the Vice- Admiralty Court jurisdiction to entertain a suit brought by any number of seamen not exceeding six, to recover their wages ; and such right of suit is not taken away by Sec. 189 of the " Merchant Shipping Act 1854," so long as the total aggregate amount claimed by such seamen exceeds £50. Ibid. (6) Practice and Procedure. Plea of Tender.] — A respondent in a suit for wages is not barred by a plea of tender from afterwards raising a plea of want of jurisdiction, if it ultimately appear that the amount claimed is less than £50. The " Ferret," 8 V.L.R. (A., ) 1,6. Counter Claim.] — A master suing for wages is not allowed, though a counter claim may be raised by the owners, to introduce matters extrinsic to the accounts as between master and owner, since 17 and 18 Vict. , c. 104, in effect only allows the bringing forward of a mutual debt. Dunn v. Hoyt, 4 A. J.R., 3. Interest — Where Allowed.] — Interest on sums advanced by the master is only allowed in cases of bottomry and collision, and the rate allowed is 5 per cent. Ibid. Costs — Promoter Appearing in Person.] — A promoter who conducts his case in person in the Vice- Admiralty Court is entitled to the costs of engrossed copies of the pleadings made by his proctor, and for such notes of facts and proofs collected by the proctor as may be requi- site to enable the party to save the public time by giving to the Court a clear, connected, and succinct narrative of the case, which his neces- sity compels him to detail and prove in person. Re the "E. M. Young," 2 A. J.R., 85. Costs— Of Master Claiming lien for Wages and Disbursements.]— A master of a ship suing for wages and disbursements made by him, ob- tained a decree in his favour, with costs, which included his expenses as a witness, his main- tenance, and compensation for loss of time during the suit. The Registrar taxed the costs, and on appeal from the taxation, Held that where costs are given in an Admiralty suit they are full costs, and that nothing could be struck out for issues on which the promoter had failed ; that where, on the pleadings, an admission was made that wages were due, it will not deprive the promoter of expenses as a witness if he fails in other claims, unless the amount admitted to be due for wages be paid into court, or unless the admission be made in such form that appli- cation could be made for. payment into court ; that the amount allowed for maintenance should be what was actually paid for maintenance, and should not be arbitrarily fixed at so much per diem or per week ; that compensation for time lost should be made at the rates prevailing in or near the jurisdiction ; and that nothing could be allowed in respect of a delay by the promoter himself in bringing the suit. The promoter was also allowed his costs of obtaining security to refund money he took out of court. Dunn v. Hoyt, re the "Albion," 4 A.J.R., 9. Costs.] — Where the owners succeeded on a reference to the Registrar in reducing the claim, but did not produce the ship's accounts, they were not allowed the costs of the reference. Dunn v. Hoyt, 4 A. J.R., 3. Costs — Of Objection to Registrar's Report.] — Where an objector to a report of the Registrar substantially succeeded in his objection, but his application was very informal, Semble, that this was a ground for refusing him his costs of the objection. Ibid. Costs — Before Registrar — Counsel.] — Costs of counsel will not be allowed in proceedings before the Registrar to take accounts. Ibid. Attachment for Non-payment of Costs — 26 Vict., Cap. 24, Sec. 10— Rules 1, 31, 32, 36.]— The pro- moter P. was arrested under an attachment for non-payment of costs. On motion to set aside attachment on the grounds (1) that it was granted on a day which was not a Court day; (2) other irregularities, such as no notice to show cause, and that it was issued in a cause for "necessaries," whereas the suit was for "building and equipment," Held that there was nothing to show any irregularity after the issue of the attachment, and that it was not a step in the cause but only in personam. Appli- cation refused. In re the "Condor," 5 A.J.R., 93. 1329 SIGNATURE. 1330 SIGNATURE. Required by Statute — What is a Compliance •with.] — Where a Statute merely requires that a -document shall be signed, the Statute is satisfied by proof of the making of a 'mark upon the document by or by the authority of the sig- natory. Regina v. Moore, ear parte Myers, 10 V.L.K. (L.,) 322; 6 A.L.T., 151. Pawbroker's Signature to Pledge Ticket — What is Sufficient. ]— iSeeS.C, ante column 1142. Proof of Signature — Comparison.] — Regina v. Wright, ante columns 427, 428. Evidence as to Signature — Comparison of Hand- writing — Document in Dispute — "Evidence Act" (No. 100) Sec. 18.] — Regina v. Nathan, ante columns 313, 314. Forging Signatures.] — Regina v. Flynn; Regina v. Bourke, ante column 294. Special Case Stated by a Deceased Judge — Wo Signature.] — Regina v. Duffy, ante column 321. Signature of Notice of Appeal — Corporation.] — Melbourne and Hob/son's Bay United Railway Coy. v. Town of Richmond and Borough of Sand- ridge: and Victoria Sugar Coy. v. Borough of Sandridge, ante column 42. Signature of County Court Judge to Case for Appeal] — Ouy v. Peirce, ante column 270. Signature of Case on Appeal from Justices.] — Skene v. Allen, ante column 768. Signature of Decree by Judge of Court of Mines when Case Tried by Deputy-Judge.]— Vallancourt v. ■O'Horie, ante column 992. Signature of Notice of Appeal in Mining Matters.] — See ante columns 995, 1006. Signature of Petition for Winding-up a Mining Company.] — Osborne v. Oaunt, ante column 1029. Signature of Judge of Court of Mines to Order for Winding-up.] — Walker v. Jenkins, ante col- umn 1034. Signature of Assistant Mining Registrar— How Made.] — Thomson v. Begg, ante column 982. Signature of Notice of Objections to Petition for Sequestration.]— In re M' Donald and In re Brann, ante column 615. Signature of Petition for Sequestration J— See In re Murray; In re Barry; and In re Ritchie, ■ante column 604. Order Nisi— Signature of Judge Necessary in Copy for Service— Act No. 379, Sec. 44.]— In re Hang Hi, ante column 611. Petition for Alimony Pendente Lite— Need not be Signed.] — Fowler v. Fowler, ante column 529. Signature of Deputy Registrar-General— Evi- dence of.] — Kozminsky v. Schurmann, ante column 428. Signature of Deputy Registrar-General — Judicial Notice of.] — Teague v. Farrell, ante column 428. Signature of Deputy Registrar-General Sufficient as Evidence of Registration of a Company.] — Re- gina v. Walters, ante column 139. Indenture of Apprenticeship not Signed by Father — "Master and Apprentice Statute" (No. 193,) Sees. 6, 17.]— Regina v. Templeton, ex parte M'PJierson, ante column 46. Signature to Satisfy " Statute of Frauds"— What Necessary.] — Gladstone v. Ball, ante column 194. Signature of Returning Officer to Ballot Papers.] — In re Lloyd, ex parte Leaker, ante column 224. Signature of Voter to Ballot Paper.]— In re Hutton, ex parte Haynes, ante column 224. Distress Warrant— Signature by Agent— What Sufficient.] — Cowper v. Ninham, ante column 383. Distress Warrant— Name of landlord Written in Body of Warrant by Agent, but No Other Signature — Sufficient.] — Nicol v. Brasher, ante column 384. Student at law Omitting to Sign Roll-book— Allowed to Sign Nunc pro Tunc.]— In re ante column 89. SLANDER. See DEFAMATION. SLAUGHTER HOUSE. See ABATTOIRS. SOLICITOR. I. Articled Clerks. (1) Binding and Service, column 1331. (2) Articles, column 1331. (3) Examinationand Admission, column 1332. II. Solicitors. (1) Admission, column 1333. (2) Unqualified Practitioners, column 1334. (3) Misconduct. (a) Striking off Roll, column 1334. (b) Suspension from Practising, column 1335. (c) Summary Jurisdiction of Court, column 1335. (4) Retainer, column 1336. (5) Change of Solicitors, column 1337. (6) Liability of, column 1337. (7) Their Relation with Respect to Clients^ column 1339. 1331 SOLICITOE. 1332 (8) Costs. {a) Generally, column 1340. (0) Bill of Costs, column 1341. (c) Taxation of Costs, column 1342. (d) Practice on Taxation, columnlSH. (e) Lien for Costs, column 1346. (9) Relations between Country Solicitors and Town Agents, column 1347. Statutes — " Supreme Court (Conveyancing) Act," 11 Vict. (No. 33.) "Common Law Procedure Statute " (No. 274,) Sees. 387—398. I. Articled Clerks. (1) Binding and Service. What is Service.] — G. was admitted in 1854 to practise as a. conveyancer, and entered into partnership with F. as " conveyancer," and the firm of F. & G. was advertised as a firm of "conveyancers." During the partnership G. articled himself to F. an attorney. On motion for G.'s admission, Held, the service must be honest and true, and must be shown by a con- tinuance of the status papillaris, that G.'s acting as a principal in the conveyancing business was not consistent with his being in statu pupillari, and his service was not good. Admission refused. In re Carlich, 2W.4W. (L.,) 274. (2) Articles. Time of Serving Articles.] — Where it appeared that A. had served three years in Melbourne regularly, and had during the remainder of his articles been absent in Castlemaine managing his master's business, and frequently consulted his master as to matters of difficulty, Held that A. was not to be credited with the years he had so spent in Castlemaine, and admission post- poned. In re Garrard, 2 W. & W. (L.,) 229. 277. Death of Master — No Relation Back of Fresh Articles.] — An articled clerk had served about a year and a half when his master died. Held that the fresh articles into which the clerk might enter did not relate back to the death of the master; that the death de facto put an end to the former articles, and that the clerk might enter upon new articles without application to the Court. In re Jones, 1 V.L.R. (L.,) 57. Cannot Perform any other Office or Employment during Articles — Clerk a Member of Parliament.] — The fact that an articled clerk has been a member of Parliament during the term of his articles is not an obstacle to his admission as an attorney if it is not shown that his parlia- mentary duties have occupied him in office hours. Ex parte Duffy, 2 V.L.R. (L.,) 142. Motions for leave to file articles of clerkship nunc pro tunc should be made to the Full Court. In re Crabbe, 1 W.W. & A'B. (E.,) 66. Affidavit Verifying Assignment of Articles.] — An affidavit verifying the assignment of articles may be made by any one who is acquainted with the signature of the solicitor assigning. Leave given to file such an affidavit nunc pro tunc. In re Barrett, 3 V.L.R. (L.,) 126. (3) Examination and Admission. Practice.] — Where a motion for admission has been refused, and a renewed application is made on further affidavit, express notice of such renewed application should be served on the Law Institute. In re Garlick, 2 W. & W. (L.,) 274. y ees — Attorney Admitted in one Colony and Serving Further Time in Articles in this.] — An attorney who has been admitted in one colony, but who has had to serve a further time in articles before admission in this colony, must pay for admission here the sum of £42 for admission as an articled clerk, and the sum of £10 10s. as a person admitted in another Court. Ex parte Barrett, 2 A. J.E., 113. Notice to Board of Examiners — Bnles of Court.] — S. was articled in 1859, and served three years under them. After an interval of some years, during which he did not serve, he entered into new articles with another attorney, subse- quent to the making of the new rules, and served about three years. He had passed his University examinations, but failed to give a month's notice to the Board. Held that having entered into articles under the old rules, he was entitled to be admitted as under them, even although he had not had his articles assigned by his old master, which was the regular method. Ex parte E. H. Smith, 3 A. J.R., 29, 53. Notice— Supreme Court Rules, Eule 22.]— The Court will not, in the absence of some urgent reason, admit an attorney to practise before the expiration of the notice prescribed by Rule I'l of the Supreme Court Rules of 3rd December, 1872. In re Bushby, 4 V.L.R. (L.,) 487. Posting Notice.] — The rules of 1854, requiring an applicant to post notices at the prothono- tary's office, and at the Supreme Court, are re- pealed by the Rules of 1865, yet the old practice was followed. The Court did not feel justified in refusing admission to an applicant who had so failed to post notice under the words of Rule 24 of 1872. In re M'Kinley and Williams, 5 V.L.R. (L.,) 569 ; 1 A.L.T., 110. Examination.] — An applicant for admission must pass all four of the examinations pre- scribed by the Rules. In re Cowper, 5 A. J. K., 185. Examinations.] — Where a person has been ad- mitted to practise in another colony in which the time of service is shorter, he must, in addi- tion to making up the time by serving in Victoria, pass the two examinations in law and history prescribed by Rule 18 of December, 1872 (In re Barret, 2 A. JR., 113, not followed.) In re Morris, 1 V.L.R. (L.,) 262. Examinations — When Passed.] — Examinations at the University to be passed by an articled clerk, with an interval of one academic year between them, may be passed at the beginning and end of the same academical year if the University regulations allow the examinations in respect of two consecutive years to be so passed by students at the University. Re Wine- would, 6 V.L.R. (L.,) 60. 1333 SOLICITOR. 133t Examination Passed after Articles — Rules of 23rd December, 1865, K. 36.]— Where one of the two examinations in law and history prescribed in rule 36 of the Rules of 23rd December, 1865, had been passed after the expiration of the term of the articles, the Court admitted the applicant. Me Major, 6 V.L.R. (L.,) 305. Examination before the Time Appointed by « Beg. Gen." of 16th October, 1882.]— The Court has no power to allow an articled clerk, to be examined before the time appointed by Beg. Gen. of 16th October, 1882. In re Gair, 10 V.L.R. (L.,) 108. Examinations — Dividing.] — Where the passing of an examination in the same subject more than once during the course is not required by the University in the course for the degree of LL.B., the Court will act on such practice as regards the examination for attorneys ; but the prescribed examination must not be passed piecemeal. InreMoule; In re Skinner, 2 V.L.R. (L.,) 286, 287. Certificate.] — Rule 37 of the Rules regulating the admission of attorneys (23rd December, 1865,) which prescribes the delivery of a certifi- cate in the form "E" one year before giving notice of desire to be examined, must be taken to mean one year at least ; and the delivery of such certificate a longer time beforehand is sufficient. lie Kirby, 2 V.L.R. (L.,) 285. Duty of Board.] — The board of examiners should not raise any point for the opinion of the Court, by appending it to their certificate ; they should decide themselves, and, if neces- sary, make a special report. Ibid. Leave to File Certificate of Matriculation Ex- amination nunc pro tunc not to be granted unless in very Special Circumstances.] — In re Morgan, 5 A.J.R., 69. "Eeg.-Gen.," 11th April 1874 — Eule 18.]— An articled clerk who had omitted to produce to the board of examiners, before entering into articles, a certificate of having passed the matriculation examination was allowed to pro- duce it nunc pro tunc. In re Barbour, 3 A.L.T. , 25. Filing Certificate nunc pro tunc — " Beg. Gen." of 3rd December 1872, B. 20.] — The Court cannot allow the certificate required by Reg. Gen., 3rd December, 1872, rule 20, to be filed after the proper date has elapsed, nunc pro tunc. In re Perry, 10 V.L.R. (L.,) 47. II. Solicitors. (1) Admission. English Attorney — " Supreme Court Bules," Eule 23.] — The Court cannot entertain an application for the admission of an attorney, previously admitted to practise in England, to practise in this colony without having obtained a report from the board of examiners, as prescribed by Rule 23 of the "Supreme Court Rules" of 3rd December 1872, In re Pyman, 4 V.L.R. (L.,) 486. (2) Unqualified Practitioners. " Supreme Court (Conveyancing) Act," 11 Vict., No. 33, Sec. 13— Bill of Sale.]-A bill of sale is. not within Sec. 13 of 11 Vict. No. 33, and a per- son, being an unqualified practitioner, is not liable within that section for drawing a bill of sale for a fee. Franklin v. Drew, 3 A.J.R., 26. Liability of Unauthorised Person preparing a Transfer— 11 Vict. No. 33, Sec.13.]— See re Strong, ante column 179. liability of Unauthorised Conveyancer — 11 Vict. No. 33, Sec. 13— Practice under the Act.] — In re Heron, ante column 66. Commitment for Breach of 11 Vict. No. 33, Sec. 13.] — In re Thompson, ante columns 180, 181. Liability under Act 11 Vict. No. 33, Sec. 13 — Ignorantia legis neminem excusat, liow.Applied.J — In re Strong, ex parte Campbell, ante column 897. Act 11 Vict. No. 33, Sec. 13— Agreement for Sale of Goodwill and Lease of Hotel.] — W., a hotel broker, drew up an agreement by which W. , as agent for C, agreed to transfer the goodwill and lease of a hotel to B., and charged a fee therefor. Held that the agreement did not constitute a formal lease, and was not ' ' a con- veyance or other deed or instrument in writing"' within the meaning of Sec. 13 of Act No. 33. In re Wayth, 5 V.L.R. (L.,) 389; 1 A.L.T, 97. Penalty for Practising as a Legal Practitioner without dne Qualification— Acts 5 Will. IV. No. 22; 11 Vic. No. 33, Sec. 13; No. 159.]— -See Fenton o. Dry, ante column 1147. (3) Misconduct, {a) Striking off Boll. 22 Geo. II., Cap. XL VI., Sec. 11 — Offence against —Power of Court.]— The 22 Geo. II., cap. xlvi., Sec. 11, relating to offences by attorneys, for which they may be struck off the roll, is. not in force in this colony; but the Court, in its original jurisdiction, possesses adequate powers, to control and punish solicitors, as officers of the Court, to the full extent given under the Statute. In re Grieve, 1 W. & W. (L.,) 197. Eule Nisi to Show Cause against when Granted.] — A rule nisi calling upon a solicitor to show cause why he should not be struck off the rolls, will not be granted simply on depositions by an insolvent in the Insolvent Court admitting that he was allowed to participate in the solicitor's. professional profits. In re — . 1 W. & W. (L„) 204. When Allowed— Forgery.]— A solicitor will be struck off the roll on proof that he has been tried for forgery, admitted the offence, and been convicted. In re , 1 W. & W. (L.,) 211. For what— Fomenting Litigation.] — The cases in which an attorney will be struck off the rolls are where the attorney has been guilty of felony or gross misdemeanour capable of being tried by a jury, or cases of such misconduct as 1335 SOLICITOR. 1336 amounts to breach of trust, misappropriation of a client's money, or the signature of a name to some document without proper authority. Where an attorney had been guilty of writing letters which could only be construed as beiDg intended to foment litigation, and which were capable of being construed as intending to suborn witnesses to commit perjury, and as containing champertous proposals, the Court visited the offence by condemning the attorney in the costs of the rule to strike him off the rolls, and in the costs as between attorney and client, and by suspending him till the costs were paid. In re Oresson, 2 A. J.R., 120. (6) Suspension from Practising. Retaining Client's Money.] — For circumstances under which an attorney was suspended from practice for two years for retaining his client's money for his own use, by mixing up moneys so received and his own moneys in one account. See In re Dyer, ex parte Pearson, 3 A.J.R., 125. Appropriation of Client's Money— Suspension though Money Repaid— Costs.] — Where an attorney had appropriated his client's money, but had subsequently repaid it, nevertheless, on the application of the Law Institute to strike him off the rolls, he was suspended for two years, the Court holding that it was its duty to see that persons whom they accredited did not defraud their clients. As no person was named in the rule to strike off the rolls as liable for costs in the event of its being discharged, the Court gave no costs against the attorney. Re Scott, 4 A. J.R., 124. Remission of Suspension.] — In order to induce the Court to remit a sentence of suspension in whole or in part, it is necessary to show some new matters, some altered circumstances, or some omitted facts which, if they had been pre- sented at the time the sentence was awarded, would have affected the decision of the Court. S.C., 5 A.J.R., 185. (c) Summary Jurisdiction of Court. Attachment— For Non-Payment of Money with- held from a Client.]— G., a solicitor, was ordered to pay over money withheld from his client, and before doing so his estate was sequestrated under the Insolvency Act. After sequestra- tion a rule nisi was obtained to attach G. for contempt by disobedience of the order. Against this rule the sequestration was shown as cause. The Court were of opinion that a promise to pay made since the insolvency, though a, promise on which an action might well be founded, was no sufficient support to the rule nisi to attach granted before the promise, and the rule was discharged without costs, but without prejudice to re-open the rule at the applicant's own risk as to costs, if, after the intimation of the Court, he should choose to do so on the grounds of a promise to pay since the sequestration. In re Oilluw, 1 W. & W. (L,,) 300. Attachment— Delivery up of Deeds— Refusal to make an Affidavit.]— A rule nisi was moved for attachment of an attorney for non-delivery up of deeds pursuant to an order of Court. Held that the applicant must show that the attorney had the deeds in his possession. Per Stephen, J., that an attachment would not be granted, because the attorney refused to make an affi- davit. Re , ex parte Morris, 7 V.L.R. (L.,) 202. Petty Sessions — Wilful Misbehaviour — Act Ho. 267, Sec. 39.] — A solicitor was fined, or in default imprisonment, under Sec. 39 of Act No. 267 for misbehaviour at Petty Sessions. On a rule nisi for certiorari to quash the order of commitment, an objection was taken that there was no evi- dence to sustain it, but the Court held that there was evidence to show that he had persisted in renewing an application which had been struck off for non-appearance, and refused the rule. Regina v. Mollison, ex parte Faussett, 3 V.R. (L.,)3; 3 A.J.R., 26. Misconduct as Commissioner — Not Acting as Attorney.] — The Court has jurisdiction to punish an attorney for acting as a commissioner for taking affidavits after leaving the district to which his commission was restricted, although he was not acting as attorney in the cause in which the affidavit complained of was sworn. In re Purcell, 4 A.J.R., 79. Application to Punish under 3 Ed. I., Cap. 29.] — An application to the Court to punish an attorney under 3 Ed. I., cap. 29, must be made by counsel if, which is doubtful, the Act be applicable to this colony. Quirk v. Watson, 4 A.J.R, 117. Where an attorney refuses to deliver a bill of costs, and retains a sum of money belonging to his client, the proper remedy is to apply to a judge in Chambers for an order calling upon the defendant to deliver his bill. Ex parte Crawford, 1 A.L.T., 103. (4) Retainer. By Municipal Corporation — How made.] — An attorney who appears for a borough council in a complaint before justices for breach of a muni- cipal bye-law need not show that he was appointed by a resolution of the council, or that the appointment of a previous attorney of the council has been revoked. And, since the enforcement of the municipal bye-laws is one of the every-day purposes for which the muni- cipality was incorporated, an attorney so appearing need not produce any appointment under seal. Regina v. Freyer, ex parte Mayor of Williamstoum, 4 V.L.R. (L.,) 131. See S.P., Regina v. Call, ex parte QUlou', ante column 231. A retainer under seal is necessary when a solicitor appears for a municipal corporation to enable him to recover his costs. Shire of Colac v. Butler, 5 V.L.R. (L.,) 137; 1 A.L.T., 3. See S.C., ante column 230. But where the seal is attached the Court will presume it was duly attached. Jones v. Star Freehold Coy., 4 W.W. & a'B. (L.,) 223, ante column 160. When Wife's Retainer Treated as Husband's.] — Sieviorighl v. M'Evoy, ante column 537. 1337 SOLICITOR. 1338 (5) Change of Solicitors. Change of Solicitors — Order for, in Proceeding under "lands Clauses Consolidation Statute" — ■What are First Proceedings.] — See ex parte Wil- mot, ante columns 823, 824. Change of Solicitors — Effect on Taxation of Costs.] — Ex parte Mouatt, ante column 241. (6) Liability of. For Negligence.] — Where a contract was made by H., in Melbourne, by letter with S., at Newstead, for the delivery of flour by S. in Castlemaine, and on breach of contract a suit was brought in the County Court in Melbourne, and H. was nonsuited on the ground that the suit should have been brought at Castlemaine, and H.'s attorney did not get his costs on the ground of negligence ; Held, on appeal, that, even assuming the suit to have been brought in the wrong court, still as there was some doubt as to the court in which the suit should have been brought, the attorney was not liable for negli- gence. Bullen v. Hooper, 2 V.R. (L.,) 108 ; 2 A.J.R., 66. Practising in County Court — Taking Counsel's Opinion.]— Semble, that, as an attorney practises as an advocate in the County Courts, he would not in any case be protected in such courts by acting on the advice of counsel. Ibid. For Acts of Clerks.] — Per Molesworth, J. — If solicitors leave the management of their business to their clerks, and receive the profits of that business, they must submit to have their rights bound by the acts of such clerks. Jamiesonv. Allen, 2 W. &W. (E.,) 47, 54. For Costs— liability of Attorney for Costs Re- covered against Client after Settlement with Attorney.] — An attorney charged his client for attendance of witnesses " as per account," and in full satisfaction thereof took an acceptance from his client for five shillings in the pound of the sum charged, but did not give his client an indemnity. The witnesses sued the attorney for 25 per cent, of their charges, and the client for the other 75 per cent. , and recovered a part of their claim against the client with costs. The client there- upon sued the attorney in the County Court for the sums and costs so recovered as for "money paid and damages sustained in defending actions Drought to recover moneys which the attorney undertook so pay," and recovered a verdict; the judge refusing to nonsuit. Against this de- cision the attorney appealed. Held that the action was substantially for money paid ; that it was unnecessary to consider whether there was an indemnity given or not, and that the attorney was liable whether he had or had not given an indemnity, having accepted five shillings in the pound as satisfaction in full. Wkewould v. Lee, lW.(kW.(L.,) 388. Solicitor Instituting Suit without Plaintiffs Authority.]— In a suit which was instituted S.'s name was used as plaintiff without his know- ledge or authority. An order had been made in the suit allowing the plaintiffs to proceed and directing that the plaintiffs should pay defen- dant's taxed costs of the motion for dismissal. This order was served on S., and was the first intimation he received of his name being used as plaintiff. O. D., a solicitor practising at Wan- garatta, was named in the bill as plaintiff's solicitor, but the writ was issued by H., a, solicitor practising in Melbourne, who had how- ever only acted as O. D.'s agent. S. moved to strike his name out of the bill, and to make H. liable for the costs of the motion and the taxed costs ordered to be paid by S. Motion refused with costs as to H. , but granted as to striking out name without costs. Brew v. Jones, 2 V.R. (E.,)59; 2 A. J.R., 42. Attorney commencing Action without Authority.] — An attorney commenced an action of tort on behalf of a person and his supposed wife on instructions from the wife, and did not ascertain whether the husband had authorised the pro- ceedings. Subsequently the supposed husband, who was not cognisant of and had not authorised the proceedings, and who, in fact, was not married to the woman, and was not living with her at the time the action was commenced, nor had been for ten years previously, took out » summons to have his name struck out of the suit and all subsequent proceedings, and to have his costs paid by the attorney, and the defen- dant also took out a summons calling upon the attorney, in case the male plaintiff's name should be so struck out, to show cause why he should not pay the costs incurred by the defendant through the action being improperly instituted against him. The Court struck the male plain- tiff's name out as asked, and ordered the attor- ney to pay his costs, as between attorney and client, and also ordered him to pay the defen- dant's costs as between party and party. Hill v. Power, 6 V.L.R. (L.,) 109 ; 1 A.L.T., 169. Instituting Suit without Authority.] — A rule nisi calling upon a plaintiff's attorney to show cause why he should not pay the costs of the action, as brought without the plaintiff's authority, will not be granted where the materials upon which the application is made disclose some evidence of authority. Coffee Tavern Coy. v. De Young, 6 V.L.R. (L.,) 289 ; 2A.L.T., 44. A stranger to the action who is not an attorney is not amenable to this summary remedy. Ibid. No Authority to File Bill.] — Where a solicitor filed a bill by three plaintiffs, instructed by one of them only, and sent a letter to the other two requesting them to sign a written authority for them to proceed in their names, which letter was not answered, Held that their not answering was a sufficient refusal to give authority, and an order was made on motion by the two unwil- ling plaintiffs striking their names out, with costs as against the solicitor. Mitchell v. M'Douyall, 9 V.L.R. (E.,) 13. Solicitor Joining" a Plaintiff without his Con- sent.]— The name of a plaintiff having been inserted in a bill without his knowledge or authority, his name was ordered to be struck out with costs as between solicitor and client, 1339 SOLICITOR. 1340 to be paid by the solicitor inserting it, who also made himself a co-plaintiff. Lane v. Qoold, 8 V.L.R. (E.,) 236. Undertaking to Pay Costs.]— In order to make a solicitor liable on such an undertaking, the affidavit must state distinctly that he under- took to pay personally. In re Afoule, ex parte, Mitchell, 1 V.L.R. (L.,) 15. Motion to Set Aside Order for Substituted Ser- vice — Insufficient Grounds.] — Where an order had been made for substituted service upon a solicitor who had been defendant's solicitor in prior transactions in relation to subject matter of suit, and the solicitor moved for an order to set aside order, the Court not being satisfied with the materials on which the motion was made dismissed it with costs against the solici- tor. Howse v. Campbell, 7 V.L.R. (E.,) 145. Order to Supply Document "to Client — Unsatis- factory Explanation of Inability to do so.]— Where a solicitor was ordered to deliver to his client a bill of costs sent out from England in an appeal to the Privy Council, and failed to do so, giving an unsatisfactory explanation of his inability, and the matter was twice adjourned in order to admit of a satisfactory explanation being given, the Court ordered the solicitor to pay the costs incurred subsequently to the first adjournment, the solicitor having already been ordered to pay the costs of the day of such first adjournment. Re Hardy & Madden, ex parte Hand and Band Coy., 4A.L.T..40. (7) Their Relations with, respect to Clients. Attorney not Agent to Pay Money or Receive Demand for Payment.] — The attorney is the agent of the client for all purposes connected with the cause ; but is not, merely as the attorney, the agent of his client either to pay money or to receive a demand for its payment. Lee v. Melbourne and Suburban Railway Coy., 1 W. &W.(L.,)34. Authority to Bind Client — Compromise.] — An attorney has no power to compromise an action against his clients by an adjustment varying rights of property, unless expressly authorised ; and cannot be so authorised by a corporation, unless under the corporate seal. Shiel v. Colonial Bank of Australasia, 1 V.R. (E.,) 40, 47. Power to Bind Client by Consent to Enlarge- ment of Time for Transmission of Appeal Case under Sec. 172 of "Mining Statute 1865."]— See Odgers v. Waldron, ante column 1007. Fraud where Acting for Both Parties.] — K. was entitled to the issue of a Crown grant to certain land under Sec. 33 of "Land Act 1862," and agreed to convey to M.B. No grant was issued to K., and M.B. gave N., a solicitor acting for both parties, £20 to complete her title and to ob- tain the grant. N. failed to do so. Subse- quently J. bought K.'s interest in the land at a sheriff's sale under the " Transfer of Land Statute" and N., who was acting for him, obtained a certificate of title for him, and also the Crown grant to which K. was originally entitled. On bill by M.B. seeking to have J. declared a trustee for her, on the ground that his certificate had been obtained by fraud and in collusion with N., Held that N. had not been guilty of fraud, and bill dismissed against N\, but without costs. Brew v. Jones, 2 V.R. (E.,)20; 2A.J.R., 6. Disclosure of Confidential Communications to Other Party.] — M. had at one time acted as solicitor for S., and was by her directed to con- vey a message to the other side. At the trial for nullity of marriage M. gave evidence as to this message in the interest of S.'s husband. Held that the evidence being very conflicting as to when M. ceased to act for S., it being a matter of oath against oath, the Court would not interfere by making him answer as to his conduct, and even assuming that the relation of solicitor and client existed, M.'s lips were unsealed by the message given. In re Moule, ex parte Smith, 5 A. J.R., 121. What Papers may be Produced without Breach of Confidence.] — Bruce v. Ligar, ante column 430. Action Instituted without Authority — Costs.] — See Hill v. Power, 6 V.L.R. (L.,) 109, ante column 1338. (8) Costs. (a) Generally. For what Attorney may Charge or Not.] — A solicitor assisted an insolvent in preparing his schedule and acted as his solicitor at the meet- ings in the estate. There were items in the bill of costs for " attending insolvent with official assignee." Held, that the solicitor could not properly charge for his services in these matters. In re Amner, 1 W. & W. (I.E. & M.,1 100. ' Dismissal of Bill— Costs.]— Where the parties to a suit agree to compromise without the inter- vention of solicitors, and. a motion is brought for the dismissal of the bill, » defendant's so- licitor has no right, in the absence of fraud, to object to such dismissal on the ground that his costs had not been paid. Younghusband v. De Lacy, 2 W.W. & a'B. (E.,) 107. Costs against Municipal Corporation— Retainer under Seal must be Proved.]— Shire of Colac v. Butler, ante column 230. Right of Solicitor to Costs apart from Client.]— In an administration suit defendants were ordered to pay plaintiffs' next friend or solicitor the costs of the suit, but on appeal the defendants were allowed to set off the costs of the appeal against the costs of the suit. The costs of plaintiffs' solicitor were taxed at £497 0s. lOd. and there was a residue of £170 15s. lOd. in the Master's hands not invested. Upon application by the plaintiffs* solicitor for this sum to be paid him as costs, insisting that he had, by the decree on appeal, been deprived of his right to costs as against the defendants to the extent of the costs on appeal, Held that as the allowance as to a successful appellant was according to the common practice of the Court, the client would have no reason to object, and the solicitor's rights on the subject 1341 SOLICITOR. 1342 should not be regarded outside his clients', and application refused. Graham v. Gibson, 4 A.L.T., 111. Where Solicitor Liable to Pay Costs.] — See cases collected, ante columns 1337-1339. (6) Bill of Costs. " Common Law Procedure Statute 1865," Sec. 387 —Delivery of when Necessary — Question for Jury.] — Where an attorney has been employed in busi- ness not clearly professional, it is a question for the jury whether the employment was as an attorney, so as to render necessary the delivery of a signed bill of costs as a condition precedent to an action by the attorney for remuneration. Chambers v. Green, 2 V.L.R. (L.,) 194. Delivery of Signed Bill — Guarantee of Third Person to Pay — " Common Law Procedure Statute 1865," Sec. 387.] — Semble that the provisions of sec. 387 of the "Common Law Procedure Statute 1865," as to the delivery by the attorney of a signed bill of costs, merely regard actions between the attorney and client only, and not between the attorney and a third person guaranteeing to pay the bill. In re Lawler, 4 V.L.R. (LP. &M.,)8. Delivery of — Order for Delivery of Bill Several Years after Payment.] — On a rule nisi to rescind an order of a judge for delivery of a bill of costs five years after payment, the Court thought the balance of probabilities, upon a conflict of evi- dence as to whether a bill of costs had been delivered before payment, or at all, to be in favour of non-delivery at any time, and refused to disturb the order for delivery, though giving no intimation as to what was to be done with the bill when delivered. Re Duffett, ex parte M'Evoy, 8 V.L.R. (L.,) 160; 4 A.L.T., 6. Bad Item — Recovery on the Rest.] — Per Slawell, C.J. — Even supposing there be one bad item in an attorney's bill of costs, the attorney is not thereby prevented from recover- ing for the rest. Mathews v. Muttlebury, 2 W. & W. (L.,) 104. Action for— Costs of Old Firm— Set-off— Negli- gence.]— M. and E., solicitors, had delivered to their clients, M. and S., a signed bill of costs in January, 1862, and sued them for the amount thereof in February, 1862. The bill was for a sum of £175, of which £33 was due by M. and S. to an earlier firm, to whose business M.and E. succeeded. Costs were taxed, and the item £33 was struck out, and the particulars of demand amended accordingly. M. and S. pleaded a. set-off, and offered to give evidence of facts showing negligence prior to an equity suit, in which the costs were incurred. Held by the County Court Judge, and affirmed on appeal, that the finding of the taxing officer was conclusive on the matter of account, and that the evidence of negligence was inadmissible, since it did not furnish an answer to the present action. Ibid. Set-off against Debt.]— Complainant summoned T., a solicitor, for goods supplied, before jus- tices. T. set-off a bill of costs due to him from the complainant. It was objected that no signed bill had been delivered a month before the summons, and the justices disregarded the set-off. Held that T. was entitled to set-pff his bill, and case remitted to be adjudicated upon as to items in the bill. Begina v. Alley, ex parte Twigg, 5 V.L.R. (L.,) 151; 1 A.L.T., 9. (c) Taxation of Costs. Who may not Obtain— Trustees— " Common Law Procedure Statute," Sec. 393.]— H. paid to trustees a sum of money to be applied {inter alia) in payment of costs due to his solicitors. The solicitors delivered their bill, and the par- ties applied to have it referred to taxation, and the application was granted. On rule nisi to set aside the reference to taxation, Held that the trustees, not being liable either at law or in equity to the solicitors for payment of the bill, could not obtain an order for reference of the bill to taxation, and rule made absolute. In re Bennett & Attenborough, ex parte M' Mullen, 2 V.R. (L.,) 203; 2 A.J.R., 116. What may be Taxed.]— A bill of costs by a company's solicitor incurred in getting a private Act of Parliament passed for the company, is liable to be taxed under the "Common Law Procedure Statute, " Sec. 387. Ex parte Hopkins, 3 V.L.R. (L.,) 115. After Payment — " Common Law Procedure Statute," Sees. 387, 388.]— An attorney and the trustees to a deed of compromise in a suit ex- pressly agreed that the attorney's bill of costs should be paid subject to adjustment, and it was paid, and the receipt given as follows : — " Received this amount undertaking to supply detailed accounts if required, and subject to adjustment." This adjustment the attorney expressly swore was arranged not to include taxation, and no denial of this was made by the trustees. The detailed accounts were furnished and a release given by the attorney to the trus- tees. One of the trustees died, and after his death the others obtained an order under Sees. 387, 388 of the " Common Law Procedure Statute" to refer the bill to taxation. Held that in the absence of exceptional circumstances the bill could not be referred to taxation, and that no exceptional circumstances appeared in the case. In re Brodribb, Crisp, & Lewis, 1 V.R. (L.,)214; 1 A.J.R., 165. " Common Law Procedure Statute" (No. 274,) Sec. 388.] — A bill of costs will be ordered to be delivered under the Act only in case where a bill, if delivered, could be referred to taxation, and where a bill has been paid and more than a year has afterwards elapsed it cannot be ordered for taxation. In re Chambers, ex parte Speed, 6 A.L.T., 125. After Payment— Act No. 274, Sec. 396.]— Large items which require explanation afford sufficient evidence of special circumstances to justify an order for taxation of payment. Cer- tain costs were demanded from a mortgagor, another sum was offered by his agent, and finally both parties agreed to divide the differ- ence, and the sum so agreed upon was paid. Held that it was an arrangement made for the 1343 SOLICITOR 1344 best at the time, under the pressure to which the mortgagor was subjected, but that it did not preclude the taxation of costs. Order made. In re Bennett & Attenborough, ex parte Cameron, 3 V.R. (L.,) 220 ; 3 A.J.R., 112. After Payment— Act No. 274, Sees. 388, 396— Lapse of Time.] — The U. Company had been in- volved in litigation for a considerable time with a bank ; in one suit the company was success- ful, and a second suit was compromised. In January, 1881, the solicitors received the balance due on account of these suit", and a new board of directors considering that the charges were excessive, applied in July, 1881, more than a year since the first bill was paid, to have the costs taxed. Held that under Sec. 396 of Act No. 274, the payment of the first bill (re- lating to the first suit) made twelve months be- fore was an insuperable bar to taxation, owing to lapse of time ; but as to the second bill, there were special circumstances, e.g., charges for attendance of country solicitor, as well as town agent, documents used in second suit, which had been used in the first and charged twice over, which led the Court to interfere even after the bill had been paid. Order to tax costs of second suit. In re Hardy & Madden, ex parte United Hand and Sand Coy., 7 V.L.R. (L.,)266; 3A.L.T., 10. Effect of — Between Party and Party — Not Conclusive between Solicitor and Client.] — Taxa- tion of costs between the parties to a suit is not binding as between the client and his solicitor. It is quite open for the client to say that as be- tween him and his solicitor there are over- charges. Be Bead, 1 A.L.T., 130. Break in Suit.] — A judgment on demurrer, the effect of which is to compel the plaintiffs to amend the bill, and to create a pause in litiga- tion, is not such a break in the suit as would entitle the solicitors to demand payment of their bill of costs up to that time, and make such a payment final unless an application for taxation were made within twelve months. In re Hardy & Madden, ex parte United Hand and Band Coy., 7 V.L.R. (L.,) 476; 3 A.L.T., 76. Review of Taxation.] — Per Molesworth, J. (in Chambers.) — The Court has no jurisdiction under the " Common Law Procedure Statute 1865," part 27, tq make an order for review of taxation of a bill of costs after twelve months has elapsed from the payment. Attorney-General v. Huon, 1 A.L.T., 203. Inconsistent Taxation — Court Refusing to Inter- fere.] — Bowie v. Wilson, ante column 241. Reviewing Taxation — " Common Law Procedure Statute," Sec. 395.] — The Court will not direct the taxation to be reviewed at the instance of the attorney when he has allowed more than twelve months to elapse, and further steps to be taken, based on the result of the taxation, before making his application for review. Be Phelps, 6 V.L.R. (L.,)344. Summons to Review.] — A summons should be for a single purpose. It is improper, therefore, to ask in one summons for taxation of some bills of costs and for review of taxation of others. Be Phelps, ex parte Morris, 6 V.L.K. (L.,)417. Act No. 274, Seo. 440, Sched. 39.]— Costs taxed as between attorney and client were ordered to- be reviewed on the ground of one item being in excess of the amount allowed in Sched. 39. On motion to set aside the order, Held that the attorney should in such a case state distinctly the whole amount, and the portion which can be recovered from the opposite side ; and that, the client was only liable when he agreed to pay, having such knowledge. In re Hardy & Madden, ex parte M'lver, 1 V.L.R. (L.,) 145 ; 3 A.L.T., 1. [d) Practice on Taxation. Solicitors in Partnership.] — G. & E. were solici- tors in partnership when an action was com- menced by them on behalf of L. E, & G. had since dissolved partnership, and after that L. had obtained an order for G. to deliver a bill of costs for taxation, G. being the member of the firm who acted for L. in the matter. Held that, the dealings being with the firm, the firm might have a bill of costs against L. , which G. could not set-off if the order were made against him alone. Order set aside. In re Grave, ex parte Livock, 3 A.J.R., 46. Items Allowable or Otherwise.] — (In Chambers) — Molesworth, J. — Where the defendant had obtained time to answer on payment of £15,000- into Court, and had obtained an order varying the order which had allowed the further time ; but the varying order contained no direction as to costs, Held that the costs of the application for the varying order were rightly disallowed. Breese v. Fleming, 1 A.L.T., 129. Where affidavits had been read on a motion by the defendant, but had not been entered as read in the order made thereon, Held that the costs of the affidavits were properly disallowed. Ibid. Where the defendant had served notice of motion to dismiss the bill for want of prosecu- tion, and had abandoned the notice, Held that if the Master were of opinion that the plaintiff was liable to have his bill dismissed for want of prosecution when the notice of motion was served, and, in order to prevent such dismissal, set the cause down, then the defendant should have his costs of the notice. Contra if the Master should not be of such opinion. Ibid. Where the defendant had taken the advice of counsel on the decree. Held that the Master was right in disallowing the charges for the advice in the absence of some special reason, the Master being the proper person to judge of the utility of proceedings when the case is in his own office. Ibid. Where a proposal for the appointment of new trustees had been supported in the Master's office by affidavits, and the defendant had filed affidavits in opposition, to which the plaintiff replied by further affidavits, and the Master then directed that the evidence should be taken 1345 SOLICITOR. 1346 by affidavits, but the defendant objected to such evidence when the proposal came on for hear- ing, and the Master thereupon directed oral evidence, Held that the Master was the proper person to decide as to what took place before tim, and that the costs of the defendant's affidavits were in his discretion. Ibid. The defendant, though he had not the carriage of the decree, carried in proposals for the appointment of new trustees. Held that it was for the Master to decide how far it was defen- dant's business to carry in such proposals ; unless it were his business to do so, the costs incurred could not be costs in the cause. Ibid. Where the defendant had had a conference with counsel as to making objections to the report of the Master, which objections were overruled, Held that the Master was right in disallowing the costs of the conference. Ibid. Items Allowed — Barrister's Fees not Paid — Credit.]— A barrister's fees will be allowed on taxation of costs, though such fees have not been actually paid, but where the barrister has received a bill or undertaking from the solicitor, with which he is satisfied. Breese v. Fleming, 1 A.L.T., 192. Reservation of Dispute as to Retainer— Balance in Favour of Client — Attachment.] — An attorney's bill of costs was referred for taxation, with a re- servation of a right on the part of the client to dispute the retainer as to certain items. On taxation, the taxing officer certified that a balance was due from the attorney. Held that if the client abandoned the reservation of the right to dispute the retainer, it was then open to him to abide by the result of the taxa- tion, and to sign judgment for the amount in his favour, or to obtain a rule of Court for the payment of the amount, upon which rule an attachment for non-payment might issue. Me Phelps, 6 V.L.E. (L.,) 344. Several Bills Referred— Whole BiU Struck Off — One-Sixth Disallowed — "Common Law Procedure Statute," Sec. 389.]— If several bills of costs are referred together for taxation under an appoint- ment obtained within a month after their de- livery, a bill which is struck off altogether because it had been paid, is to be computed in ascertaining whether one-sixth has been dis- allowed. Be Phelps, ex parte Morris, 6 V.L.R. (L.,)417. Costs of Taxation— Disputing Retainer— More than One-sixth Disallowed.]— Where liberty has been reserved to the client to dispute the re- tainer as to certain items, or an action has been commenced on one or more of the bills, the client will not be disentitled to his costs of taxation where more than one-sixth of the whole has been disallowed. Ibid. And see Ex parte Mouatt, ante column 241. Costs of Application for Taxation— " Common Law Procedure Statute," Sec. 389.]— An order was made for taxation of costs, and the result was that a sum of £352 was taxed off a bill of £1060. Held that the solicitor must pay the costs of the summons and order for taxation. In re Hardy * Madden, ex parte United Hand and Band Coy., 7 V.L.R. (L.,) 450; 3 A.L.T., 75. Act No. 274, Sec. 398 — Judgment on Allocatur — Balance due by Attorney.] — Where, on taxation of costs, a balance is found due by the attorney, the Court, though holding that it could order judgment to be entered upon the allocatur, ordered execution to issue only to the extent of a proportionate part, deducting the share of a co-plaintiff who dissented from the applica- tion, and also of the solicitor, who was also a co-plaintiff. In re Hardy & Madden, ex parte M'lver, 7 V.L.R. (L.,) 324; 3 A.L.T., 25. (e) Lien for Costs. As against Third Person.] —Generally speaking a solicitor obtaining deeds from a client has a lien upon them for all business done for him, but as against third persons the client can confer no greater rights than he has himself : for a solicitor to be protected against claims of third persons he must show that he gave con- sideration by acting upon the faith of the possession of the deeds ; that he had no notice of rights of third persons, and that his costs remain unpaid. On a motion by a plaintiff in an administration suit that a solicitor bring certain deeds into Court on which he claimed a lien, it appeared that the defendant owed the solicitor a sum of £23 for legal proceedings against M. & D. which were treated in an affi- davit prepared by the solicitor as paid, and, in any case, this sum of £23 appeared to be in- curred after notice of plaintiff's claim to deeds. Held that the solicitor could not enforce his lien by retaining the deeds, and as to costs in the administration suit the plaintiffs rights were paramount as the claim to these costs arose pendente lite with most distinct notice of the plaintiffs claim, and if the solicitor received payment from the defendant administrator knowing whence the money came he would be liable to refund as for money misapplied by an administrator. Semble that a solicitor is liable to th« summary jurisdiction ordering him to produce the deeds. Order made. Jamieson v. Allen, 2 W. & W. (E,) 47, 51. Solicitor of Assignor — Order for Production of Deeds on Application of Assignee.] — In re Bennett and Taylor, ante columns 375, 376. As against a Trust Estate.] — Persons properly doing business for trustees as solicitors or other- wise have generally no claim against the trust estate ; no one can give a solicitor a lien upon deeds against a person from whom he could not himself withhold them. K. and others as trustees of a will employed N. & M. to act as their solicitors, and deeds relating to the 'pro- perty came into N. & M. 's hands. In an ad- ministration suit instituted after K. 's death it appeared that K. died indebted to the estate in a sum largely exceeding the costs. Held that K. being always indebted to the estate N. & M. had no lien on the deeds for their costs. Sawyers v. Kyte, 1 V.R. (E.,) 94, 97 ; 1 A.J.R., 64. Upon What— Fruits of Judgment.]— Although an attorney has not/ a lien, strictly so called, 1347 SOLICITOR 1348 upon the fruits of a judgment in favour of his client, for costs, yet he has an equitable right, which the Court will sustain, subject to any arrangements which may be made between the parties without an intention of defeating that right. The Court will not only recognise this right, but enforce it if the parties to the cause are obliged to apply to the Court for assistance. If the parties choose, however, to arrange matters between themselves, and without any collusion between them, though that arrange- ment has the effect of depriving the attorney of his lien, the Court will not interfere. Rutherford v. Powell, 4 V.L.E. (L.,) 384. A defendant entitled to costs of a nonsuit became insolvent before payment, but was indebted to the plaintiffs in a larger amount. Held that the plaintiffs before notice of the claim of the defendant's attorney were entitled to prove upon the estate for the balance of their debt after the amount due to the defendant for costs had been deducted ; and that the defen- dant's attorney was not entitled to a lien upon the costs. Ibid. Collusion to Deprive of Lien.]— By a family arrangement unknown at the time to a solicitor several actions were bond fide settled, under circumstances which showed no collusive intent to deprive the solicitor of his costs. Held that such an arrangement would not be disturbed by the Court although the effect was to deprive the plaintiffs attornies of their lien for costs. Langleyv. Hepburn, 3 V.L.R. (L.,) 119. Act No. 379, Sec. 133 — Examination of Insolvent.] A solicitor claiming a lien cannot refuse to pro- duce documents required for examination of an insolvent's dealings. In re M'Kay and Bell, 3 A. J.R., 98; and see S.C., ante columns 709, 710. Payment out of Court — Change of Solicitors — Xien claimed by Old Solicitors on a Deposit paid by Railway Company under " Lands Clauses Consoli- dation Statute."] — Ex parte Wilmot,ante columns 823, 824. <9) Relations between Country Solicitors and Town Agents. Authority of Town Agent.] — It is not within the ordinary duties of the town agent of a country solicitor to consent to the dismissal of the bill on condition of each side paying its own costs. Cleary v. Macnamara, 2 V.L.R. (E.,) 49. Delay of Client in Settling Accounts — Reference to Prothonotary]. — Where a client had allowed more than a year to pass without obtaining a settlement of accounts between himself and his attorney in the country, and such attorney afterwards died, the Court on an application by the client against the town agents to compel them to pay over money to him, referred the matter to the Prothonotary to ascertain the state of accounts between the country attorney and the client. Re Klingender, Charsley ana Dickson, ex parte M'Cullagh, 8 V.L.R. (L.,) 164. Town Agent's Lien on Client's Money.]— Semble that the town agents of a country solicitor have, as against the client, in respect of a debt due to them by the country solicitor, a lien on moneys of the client received by them, to the same extent as the country attorney has, up to the amount of the debt due by the country attorney. Ibid. Costs of Country Solicitor.] — The costs of the attendance in Melbourne of the country solicitor of a party to a cause will only be allowed, in taxation between party and party, when the Master is of opinion that his attendance was reasonably necessary. United Hand-in-Hand and Band, of Hope Coy. v. National Bank of Australasia, 4 V.L.R. (E.,) 271, 273. In no case where the costs of the attendance of the country solicitor are allowed will the costs of the attendance of the town agent of such country solicitor be also allowed. Ibid. Costs of Country Solicitor Ceasing to have Town Agent.] — Where a country solicitor ceasing to have a town agent opens an office in town for pending business, he is not entitled to the costs of attendance as a country solicitor at the taking of evidence and hearing. Hardy v. Wilson, 9 V.L.R. (E.,) 135. SPECIFIC PERFORMANCE. I. When Granted ok Refused. {a) Concluded Agreement, column 1348. (6) Certainty, column 1349. (c) In other Cases, column 1350. II. Matters of Defence. (a) Misrepresentation, Fraud, and De- lay, column 1356. (5) Statute of Frauds — Part Perform- ance, column 1357. (c) In other Cases, column 1360. III. Practice Relating to, column 1360. IV. On Sale of Real Property — See Vendor and Purchaser. I. When Granted or Refused. (a) Concluded Agreement. Agreement with Corporation not under Seal — Important Part left Unsettled — Effect of Resolution of a Corporation — Long Performance of Terms of Agreement.] — The plaintiffs obtained permission from the Gold Fields' Commissioner to take two sluice heads of water from a certain creek for mining purposes. This permission was renewed by the Warden of the goldfields. Then the rights in the water became vested in the defen- dant council under an Act (Act No. 105) with power to continue to previous holders of water rights granted under such permissions as above- mentioned the same average supply as before or to pay them a money compensation. The plain- tiffs applied for a supply of two sluice heads of water, and the council passed a resolution grant- ing such supply, and a draft of a guaranty to secure that supply with a qualification as to supply in seasons of drought was tendered to 1349 SPECIFIC PERFORMANCE. 1350 plaintiffs and rejected. Plaintiffs received their supply for a long time. On bill for specific per- formance, Held that the resolution of a corpora- tion is not a contract, and that as an important part remained unsettled there was no concluded contract ; that as the bill rested on that alone the demurrer must be allowed without prejudice to the equities the plaintiff had from a long performance de facto of the terms of the agreement. Connolly v. Shii-e of Beeclnvorth, 5 A.J.R., 50. There is a great difference between the right to bring an action for breach of contract, and the right to bring a suit for specific performance. In the latter case the plaintiff must show a fair, clear, and conscientious case, and not attempt to get the benefit of a contract snatched by surprise. Rawlings v. Hislop, 9 V.L.R. (E.,) 25. (6) Certainty. What is.] — Two companies agreed to divide auriferous land in dispute, in equal shares. No surveyors were appointed, but by consent their solicitors marked out on a plan obtained from another company a division line. On the plan the land was bounded by two concentric circles, and two common radii thereof, cut- ting off common segments thereof ; and the division line was drawn midway between the other two. One company receded from the agreement, but was held to it by the Court of Mines. Upon appeal Held that the agreement of compromise to divide the land, being assisted by an admitted plan which sufficiently described the land, was sufficiently certain between the parties, and might be specifically enforced, but Semble that standing alone without the plan it would not be sufficiently certain to be enforced. Nicholas v. James, 1 W. & W. (L.,) 255. What is.] — An agreement leading to difficulty in its working out, but intelligible, is not too uncertain for specific performance. Forbes v. Clarton, 4 V.L.R. (E.,)22. For facts see S.C., post column 1355. What is.] — D. and JR., licensees under the "Land Act 1865," held neighbouring allot- ments, and agreed to exchange each a portion of their respective allotments, and entered into a written agreement, so vague in the descrip- tion of the lands to be exchanged that it could not be enforced at law. They acted upon the agreement, however, by possession, fencing off and occupation afterwards till R. died. R.'s administratrix obtained a Crown grant of R. 's allotment, and she and plaintiff continued to occupy as plaintiff and R. had done. R.'s administratrix refused to complete, and D. brought a suit for specific performance, untruly alleging that he had obtained a Crown grant of his allotment, but before the hearing he did obtain such a grant. Held dubiiante curia that specific performance should be decreed on the ground of part performance. Semble that had D. not obtained his grant, the Court would not have decreed specific performance, because D. would not have been able to perform his part of it. Darcy v. Ryan, 8 V.L.R. (E.,) 36 ; 3 A.L.T., 108. What is.]— Semble, on motion for injunction that an agreement that a picture which had been painted by one person from notes and information furnished by another, should be the joint property of both, and that they should divide the profits of the sale of litho- graphed copies, could not be enforced for want of certainty. Mitchell v. Brown, 6 V.L.R. (E„) 168; 2A.LT„67. Held, after taking evidence, that the agree- ment to lithograph was too vague and too uncertain to be enforced, there being no terms as to how the picture was to be finished, cost, number of copies, &c.; and that as the picture was joint property, unless the parties could agree as to the disposal", it would be sold, and the profits equally divided, each party to be at liberty to bid at the sale. Mitchell v. Brown, 7 VL.R. (E.,) 55; 2 A.L.T., 154. "Land Act 1869"— " Subject to my Getting a Lease."]— A., being entitled to a lease under "Land Act 1869" (No. 360,) Sec. 20, signed a document: — "I (A.) sell, subject to my getting my lease, my house, land, and all appurten- ances, for the sum of £500, to B." B. did not sign any document. A. subsequently obtained his lease, and, with the consent of the Governor - in-Council, mortgaged it to S. Bill by B. for specific performance against A. and S. Held that the agreement was uncertain as to A.'s getting the lease, and as to the way the land was to be used in the meantime, and as to the time the £500 was to be paid, and that it was unilateral. Stewart v. Ferrari, 5 V.L.R. (E.,) 200. Where an uncertain written agreement for sale of land is contrary to the actual verbal agreement between the parties, a Court of Equity will not enforce it, but will leave the parties to their remedy at law . Ibid. " Seasonable Compensation."] — A corporation intending to erect a bridge entered into a parol contract with the administrator of a de- ceased selector to take a portion of the land for the purpose of a road thereto, giving him "a reasonable compensation." An attempt was made to fix the compensation by arbitra- tion, but the time lapsed without an award being made. Held that the parol contract b"eing enforceable on other grounds, it was not too vague, and a reference to the Master directed as to amount of reasonable compensa- tion. Specific performance decreed. Shire of Yeav. Roberts, 5 V.L.R. (E.,) 223; 1 A.L.T., 52. (c) In other Cases. Against the Crown — Agreement for Selection — Withdrawal of Land under Reservation "on Ac- count of Improvements" — "Land Act 1862," Sec. 46.] — Certain lands were thrown open for selec- tion by proclamation on 10th September. On 8th September a proclamation was made reserv- ing these lands from selection "on account of improvements," which proclamation was not gazetted till the 11th of September. K. duly applied for one of the allotments and fulfilled all the conditions precedent to entitle him to select under Sec. 16 et seq. On » petition by w w 2 1351 SPECIFIC PEKFORMANCE. 1352 K. for specific performance, Held, and affirmed on appeal, that under Sec. 46 the Governor-in- Council had power to reserve the lands, and that the proclamation was not too late. Kennedy v. The Queen, 1 W.W. & a'B. (E.,) 145. Against the Crown—" Land Act 1862," Sec. 23— " Amending Act 1865," Sec. 7.] — K. selected land under a certificate issued under the "Land Act 1862," Sec. 23, and the "Amending Act 1865," Sec. 7. -His selection was disallowed under a proclamation under Sec. 12 of the last-mentioned Act, on the ground that he had selected as agent for another. Held, on a petition under Act No. 241, that this proclamation was void, and de- clared that he was entitled to specific perform- ance of the agreement on the part of the Crown ■to grant him a lease. Kettle v. The Queen, 3 W.W. & a'B. (E.,) 50. Against the Crown—" land Act 1860 " (No. 117) — " Land Act 1862 "—Orders in Council.]— D. , C, and B., were pastoral occupants of the Lamp- lough run. Of this run 13,000 acres were pro- claimed a common under the " Land Act " (No. 117). The whole of this common was abolished under the "Land Act 1862,"and anew common of 3000 acres, portion of the 13,000 acres, was proclaimed. D., C, and B. claimed to resume occupation of the 10,000 acres under their pastoral license. This right was denied, and the 10,000 acres were sold as new runs. D., C, and B. refused to give up posses- sion, and an action of ejectment was brought against them by the Crown. They then filed a petition under the Act No. 49, seeking to restrain the action, to obtain specific perform- ance of an alleged agreement made with them by the Crown for a fourteen years' lease of Lamplough, with covenant for renewal under Orders-in-Council ; and in the alternative to have it declared that they were entitled to an annual license of Lamplough, including the 10,000 acres, up to 1870, under the "Land Act 1862." Held, per Molesworth, J., that the petitioners had no rights legally enforceable under the Orders-in-Council, inasmuch as the Crown was not bound by promises, as to Crown lands, of the Queen herself or any of her officers, though acted upon or partly performed, but only by grants under seal, or conveyances exactly conformable to Acts of Parliament authorising them ; but that, as following a supposed decision between the same parties at law, the petitioners were entitled to the alternative relief prayed. Ht Id, on appeal, that, conceding the existence of a contract with the Crown which could be en- forced in equity, the petitioners had so recog- nised the "Land Act 1862," and availed themselves of advantages under it, that they could not be permitted wholly to reject that enactment, and claim all the benefits to be had by leases under the Orders-in-Council repealed by that Act ; and that the remedy, if any, was at law ; and as to the alternative relief given below, that the decree arose from a misapprehension of the decision at law, and ought not to stand. Dallimore v. The Queen, 3 W.W. & a'B. (E., 18, 33, 44, 45. Against the Crown.]— Ettershanh v. The Queen ; Nash v. The Queen; Winter v. The Queen; see under Land Acts, ante columns 795, 796, 797. Against Crown— Application for Mining Lease — " Crown Remedies and Liabilities Statute" (Ho. 241) — "Mining Statute 1865."]— The plaintiff applied for a gold mining lease under the "Mining Statute 1865 " of certain land and was refused, but no reason was assigned for such refusal. The plaintiff then brought a petition under the Act No. 241 to compel specific performance of the alleged contract to grant a lease. Held, by Molesworth, J., and affirmed by the Eull Court on demurrer for want of equity, that there "was. no equity to compel the Crown to grant the lease, and that the fulfilment of preliminaries neces- sary for the application for the lease gave no rights as against the Crown such as would amount to a claim founded on a contract within the meaning of Act No. 241 ; that Sec. 39 of the "Mining Statute 1865" leaves it wholly dis- cretionary with the Governor-in-Council to grant a lease or not, and with that discretion the Courts will not interfere. Quaere, whether even if it is the duty of the Government to assign reasons for a refusal a mandamus would lie to compel the performance of that duty. Hitchins v. The Queen, 4 W.W. & a'B. (E.,) 133. Against Crown — Suit by a Corporation for Reser- vation of Land for Public Purposes — " Land Act 1862" (No. 145,) Sec. 6— "Amending Act 1869" (No. 380,) Sec. 38.]— In 1843 the council of the (then) town of Melbourne applied for a reserva- tion of certain Crown lands as recreation grounds, which was approved. In 1855 the Lieutenant-Governor approved of the corpora- tion undertaking the conservancy and planting of the Carlton gardens. Before and after this the corporation was in possession of the Carlton gardens, improving, fencing and maintaining them out of corporation monies and Government monies. Under Act No. 145, Sec. 6, the corporation applied for reservation of the land, and in February, 1864, the land was reserved "for purposes of public recreation" under Sec. 8. Afterwards in March, 1870, the Crown in the Gazette proclaimed part of the land as a road under Sec. 38 of No. 360. On petition by the corporation, Held, and affirmed on appeal, that although there was no grant to the council and although the reservation under Act No. 145 was only temporary, yet there was a valid contract entered into by the Government capable of enforcement and decreed that the whole of the gardens should be reserved. Mayor of Melbourne v. The Queen, 2 V.K. (E.,) 183; 2 A.J.R., 76, 125. Against Corporation — Not under Seal.] — By " The Beechworth Waterworks ^c<1860" (No. 105, ) the municipal council, represented by the defendant corporation, was entrusted with the construction and management of waterworks for the district, with power to continue to previous .holders of water-rights granted under the permit of a commissioner or warden, the same average supply as they were previously entitled to, or to pay. a money compensation ; any dispute as to either to be settled by arbitration. A mining partnership, of which the plaintiffs were at the time of suit the representatives, offered to take a certain supply in compensation of their water- rights, and the council passed a resolution accepting the offer, and the town clerk wrote a 1353 SPECIFIC PERFORMANCE. 1354 letter to that effect to the plaintiffs, adding a. request for a draft of the guaranty proposed in exchange for the prior rights. The guaranty was never executed, but the supply agreed upon was furnished for ten years. The council in constructing the reservoir cut across and utterly destroyed the plaintiffs' races so that it was im- possible to reconstruct them. Upon the council discontinuing plaintiffs' supply they filed a bill for specific performance. Held that the bargain, though not under seal, was a perfect contract on the part of those acting on behalf of the corpo- ration, and had been perfectly acquiesced in by the corporation ; that the corporation, having nothing affirmatively to do for the plaintiffs distinguishable from what they had to do in managing the waterworks, the Court could compel them to perpetually allow the plaintiffs the agreed-upon supply of water. Connolly v. The Shire of Beechworth, 2 V.L.B. (B.,) 1. With Variation — Contract under Seal — Cove- nant not to Build on Adjoining Land — Subsequent Variation] — Defendant entered into a contract under seal with plaintiff to sell to plaintiff cer- tain land, the contract containing a covenant by defendant not to build on certain land adjoining. The contract was afterwards varied by plaintiff initialling a memorandum on the contract allowing the defendant to build on this strip of adjoining land from the rear, up to a point a certain distance from the street ; de- fendant understanding this point to be 70 feet from the street, plaintiff under the impression that it was 74 feet from the street. Defendant built up to the point 70 feet from the street. It was then further agreed that plaintiff should use the wall of the building erected by defen- dant as a party wall. Differences arose as to this, and plaintiff filed his bill for specific per- formance of original agreement, and for an injunction restraining defendant from continu- ing a breach of covenant as so varied, held that as the memorandum initialled by the plaintiff specified 70 feet as the distance from the street, it ought not to be varied upon parol evidence of what was understood, and decreed that the contract was effectually varied by the consent of the plaintiff to the erection of build- ings erected thereon, and that the plaintiff was entitled to use the eastern wall as a party wall. Specific performance with that variation de- creed. M'Kean v. Francis, 5 A. J.R., 158. Mining on Private Property— Agreement not Illegal— Effect of a License in Writing not under Seal— Meaning of Words "all Legal Agree- ments. "]— There is no illegality in agreements about mining for gold on private property, the parties dealing remaining subject to the Crown s right being at any time asserted. B. was the owner of certain land, which he leased to L. for five years from January, 1870, L. having a right to purchase the fee at a fixed price. On 15th December, 1871, L., by letter, purported to assign to plaintiff (A. ) the right to mine on the ' property for a certain sum, and for the period of two years. D. was at this time negotiating for the purchase of L.'s interest, and on 2nd January, 1872, D. signed a paper by which he " agreed to recognise all legal agreements made by L. relating to the letting of his land lor mining purposes." On 4th January, 1872, L. signed an instrument acknowledging that he had sold to D. all his right, title, and interest in the said land. D. refused to recognise the agree- ment made by L. in plaintiffs favour, alleging it to be an illegal one. Bill by plaintiff against L. and D. to enforce such agreement. held that although the writing of 15th Decem- ber, 1871, not being under seal, was revocable at law ; yet as a clear contract it would entitle plaintiff to have a specific execution by a grant under seal to the same effect ; that the qualifica- tion in the instrument of 2nd January, 1872, introduced by the words ' ' all legal agreements" could not be read only as agreements binding in a court of law, or be read with reference to the rights of the Crown or the landlord ; that as L. was bound to confirm the contract to plaintiff, and as he had made it a condition pre- cedent in his agreement for sale to D. that such should be affirmed, the plaintiff was entitled as against D. , and also as against other defendants, lessees from D., who had notice of plaintiff's claim. Ah Wye v. Locke, 3 A.J.B., 84, 85. Agreement to Transfer Portion of Lease of Crown Lands — Fraud and Acquiescence — Improve- ments— Privity— Pleading.]— Where A., a lessee of Crown lands under Act No. 237, agrees to transfer a portion of his lease to B. , and B. enters into possession, and afterwards sells with A.'s knowledge to 0., who enters and improves, B.'s contract with A. is illegal under Act No. 237, Sees. 13, 14, 15 ; and without a distinct allega- tion in the bill to the effect that A. had notice of C.'s improvements, A.'s mere knowledge of the sale to C, and allowing him to enter and improve, do not amount to such fraud and acquiescence as will subject him to be com- pelled to confirm C.'s title, as C.'s improve- ments are not referable to any contract with A. Tozer v. Somerville, 1 V.L.R. (Eq.,) 262. For facts, see S.C., ante column 799. Registered Proprietor under " Real Property Act" (No. 140)— Agreement to Execute Mortgage.] —The " Heal Property Act" protects persons taking conveyances from registered proprietors, but does not protect registered proprietors from being compelled by Courts of Equity to fulfil their contracts. By a memorandum in writing G.M. agreed to advance to D.M. a sum of money to enable him to select land under the " Land Act 1862," and D.M. agreed to select land, and deliver to G.M. the receipt for the purchase-money and rent and the Crown grant, and D.M. agreed to pay the sum advanced at the end of five years, with 20 per cent, interest, and to secure such payments by a legal mort- gage of the land selected. D.M. selected land, and paid for it with the money advanced by G.M., and paid rents, and in November, 1864, obtained the Crown grant, and got himself registered as proprietor under the Act No. 140, and refused to execute a mortgage, alleging he had sold to B. In a suit by G.M. against D.M. and B. for specific performance of the agreement to execute a mortgage, Held that as ~B. had notice of the agreement before the pur- chase, such an agreement was enforceable, and decree made for specific performance. Maddi- ton v. MCarthy, 2 W.W. & VB. (E„) 151, 156. 1355 SPECIFIC PERFORMANCE. 1356 Of Agreement to Lend Money on Mortgage part Performed.]— 0. and D. having a mortgage from P. to secure £6102 Is. 2d., agreed to advance him £7000 over the same property, out of which the old mortgage was to be paid off, and a new- mortgage was to be given. In pursuance of this agreement, a deed releasing the old mortgage was executed in escrow by O. and D. , and a new mortgage executed by P., who received £178 Is. on account of the £7000. The solicitors for O. and D. subsequently objected to the title on the ground of lis pendens registered against P. , and refused to complete the advance, threaten- ing to enforce their remedies on the old mort- gage. On bill by P. for specific performance of the agreement to lend, Held that P. having executed the mortgage, and having incurred costs in substituting the new mortgage for the old, was entitled to the advance agreed upon, and to restrain proceedings under the old mortgage ; that although a bill does not gene- rally lie for the specific performance of a con- tract to lend money on mortgage, yet this might be regarded as a bill by a person who has in fact executed a mortgage containing a receipt for consideration, which has been ac- cepted and retained by a defendant refusing to pay the balance of the mortgage-money. Phelan v. O'Shanassy, 2 V.E. (E.,) 120; 2 A.J.R., 67. Of Agreement for Dividing Profits.] — The Court will enforce an agreement between several per- sons in the same trade, for the purpose of dividing the profits of all business obtained by any of them, so as to avoid competition. Collins v. Bobbins, 5 W.W. & a'B. (E.,) 194. Of Agreement for Partnership.] — See Leroy v. Herrenschmidt, ante column 1124. Of letter of Guarantee.] — Plaintiff's son having taken defendant into partnership for a fixed term of three years, plaintiff guaranteed the defendant against loss from the new firm assum- ing the liabilities of a former partnership. This was acted upon, and the plaintiff gave the guar- antee. Subsequently a deed of partnership was executed, which contained no express provision for the new firm taking the liabilities of the old, but it practically did so, and instead of the guarantee, plaintiff gave defendant a bill for £320. Afterwaids the defendant, before the expiration of the term, wished to dissolve the partnership, and the plaintiff, at his request, induced his son to retire, defendant by letter becoming security for the repayment of a sum of £320, borrowed to pay off the bill, and undertaking to pay half profits until that sum was paid, if the profits were not less than £40 per month, and in the event of defendant taking another partner, then half his share of profits, if not less than £40 per month. The defendant took another partner, and resisted all liability on the letter. On bill by plaintiff for specific performance of the letter of guar- antee, Held that the letter being an express contract in writing, signed by the defendant, it need not show consideration on its face ; and that, there being a sufficient consideration dis- closed by the collateral facts, the plaintiff was entitled to a decree. Forbes v. Clarion, 4 V.L.R. (E.,) 22. Against Purchaser with Notice— Effect of Regis- tration.]— Specific performance of an agreement decreed against the vendor and a purchaser with notice of the agreement, although the purchaser had obtained and registered her con- veyance and the plaintiff's agreement was unregistered. Vockensohn v. Zeven, 3 W.W. & a'B. (E.,) 11. Affirmed on appeal. Ibid, p. 122. Of Agreement for Partition.] — See Arlett v. Kinsella, post column 1359. Of Agreement for License to Mine — Hot under g ea l,] — See Miller v. Crawford, post columns 1358, 1359. Of Agreements for Leases and Option of Pur- chase.]— See cases under Landlord and Tenant, ante columns 106—108. II. Matters of Defence. (a) Misrepresentation, Fraud, and Delay. Fraud — Sale of Claim — Misrepresentation of Purchaser's Agents.] — The plaintiffs we're mining on land leased from the Crown, and the defen- dants were owners of an adjoining claim. The defendants offered their claim for sale to the plaintiffs, and the bargain was concluded on behalf of the plaintiffs by their agent, B., who made some misstatements disparaging the value of the defendant's claim. The contract was concluded. On a suit for specific performance to which a defence was raised, that the vendors had been induced to con- tract by B.'s representations, Held, per Molesworih, J., that although B. had mis- stated his opinion to the defendants and gene- rally untruly disparaged the property, and had misstated his authority and used some artitice to mislead the vendors on the subject, yet there was no evidence that defendants had been misled or had relied on his statements, and specific performance decreed without costs. Held, on appeal to the Full Court, that although B. did not state fully and truly his opinion on facts which must have been within his own know- ledge, yet conceding that B. made misrepre- sentations, and that the plaintiffs were bound by them, the defendants were not misled or induced to enter into the contract by them, nor were they made for the purpose of inducing the vendors to contract, nor was the contract ob- tained in consequence of them ; that the subject matter was difficult of estimation, and was a fit matter for an equity suit. Decree affirmed. Learmonth v. Morris, 6 W.W. & a'B. (E.,) 74. Fraud — Sale of Mining Claim — Misrepresenta- tions of Vendee's Agent.]— Where there is proof of the misrepresentations of a vendee's agent but no proof of the vendor being misled by them or being induced to enter into the contract in consequence of them, it is not such fraud in the eyes of a court of equity as to disentitle the vendee to a decree for specific performance of the contract. Ibid. Misrepresentation — Exchange of Lands — Puffing.] — A. & B. agreed to exchange leases granted under Sec. 20 of the " Land Act 1869." A. represented the land comprised in his lease as well timbered and suitable for the purposes 1357 SPECIFIC PERFORMANCE. 1358 of B.'s business, who was a sawyer. B. refused to complete the contract on the ground that A ,'s land was not well timbered ; there was evidence that there was a considerable quantity of timber fit for the purposes required. On a suit by A. for specific performance, Held that A. 's repre- sentations were within the class of vague and indefinite commendations which amounted to mere puffing and which ought to put a purchaser on inquiry, but that if there had been no timber at all or such a small quantity that the land could not be properly described as timbered at all, A.'s statement, if relied on, might have been a ground of defence. Specific performance de- creed. Bramley v. Parrott, 1 V.L.R. (E.,) 172. Misrepresentation — How Defendant Resisting Suit should Avail Himself of.] — In bargains be- tween vendor and_ purchaser, any representa- tion by the former considered important by the buyer should be incorporated in the con- tract by way of warranty. In cases where no such warranty is introduced, the representa- tions resting only upon conversations between the parties where wilful falsehood is indulged in by the vendor, the deceit releases the pur- chaser, but the purchaser must, at the time of the bargain, make the vendor understand definitely that he relies on the representation, and will hold him to it. A. brought a suit for specific performance against B. , B., the pur- chaser, resisting it on the ground of misrepre- sentations of A. as to certain stock-in-trade being included in the contract, and as to certain average takings in a hotel business being greater than in fact they were. Specific performance decreed, though Court believed that the representations were infact made, on the ground that B. had never alluded to a rescission of the contract, and by his conduct had led A. to believe that matters were going on smoothly. Bradshaw v. Goer, 5 V.L.R. (E.,) 26. (6) Statute of Frauds. What Signature Sufficient.]— D., the mort- gagor of gold mining shares, by indenture, 17th October, 1861, conveyed them to defen- dant for a fixed sum on conditions that W. (defendant) should prosecute certain suits for the redemption of some of the shares, and that D. should have the right to repurchase the shares at a fixed sum within twelve months. D. alone executed the deed. W. prosecuted successfully the suits, and the mortgaged shares so recovered were transferred to him. D. be- came insolvent in November, 1861, and the plaintiff was appointed his official assignee. On 20th August, 1862, the plaintiff wrote to de- fendant offering to repurchase the shares, and tendered the fixed sum named in the indenture; but the defendant refused to assign. Bill by the plaintiff for specific performance of the agreement for repurchase in the indenture. The defendant put in an answer pleading the "Statute of Frauds," as he never executed any agreement for the repurchase. Held that the plea failed; the defendant only took the pro- perty under the deed, and he could not use D. s signature as giving effect to the conveyance, and discard it as to the agreement for a repur- chase. Shaw v. Wright, 2 W. & W. (E.,) 57. What Signature Sufficient.] — Plaintiffs, Crown lessees, leased a mine to tributors under a, written agreement, and the defendant, a com- pany, by arrangement with the tributors, obtained possession, and worked the mine. Negotiations for a variation of the agreement were carried on between the solicitors for the plaintiffs and defendants, and a new draft was submitted by the former to the latter. The draft was returned with a memorandum by the defendants' solicitor: — "As altered by me, I approve of this draft on behalf of the company. " Plaintiffs' solicitors then investigated the title, and had the draft engrossed, which the defen- dants refused to execute. Upon bill for specific performance, Held, per Afolesworth, J. (affirmed on appeal,) that although on the facts proved the solicitor was authorised to act by the defen- dant company, and could bind it by a written contract under the " Mining Companies Act 1871" (No. 409,) Sec. 40, yet that his signing the draft as approved did not amount to a sign- ing of the contract within the "Statute of Frauds," as it was not contemplated by either party that the deed should at once be executed. Mogg v. Lord Raglan and St. Arnaud G.M. Coy., 4 V.L.R. (E.,) 138. Part Performance — Agreement on Dissolution of Partnership Partly in Writing, Partly Parol— Effect of Honorary Engagement.]— The plaintiff and defendant were partners carrying on busi- ness as storekeepers in premises built on certain allotments. They agreed to dissolve partner- ship on the following terms, viz.: — That the defendant should keep the assets and business, paying plaintiff £1500 for them; that defendant should keep allotments 11 and 12, and plaintiff 10 and 10a, these four allotments being pur- chased with partnership funds, but the partners took conveyances of them as tenants in common, and not as partnership property; and the plain- tiff entered into an honorary engagement not to compete in business. Afterwards they maile a written agreement on the above terms, but omitting all mention of the four allotments and the plaintiff's honorary engagement. The de- fendant kept the assets and carried on the business, and got conveyances of allotments 1 1 and 12, but on the plaintiff entering into a com- petitive business refused to convey allotments 10 and 10a, although he had title deeds to them, and had the use and occupation of the land. On a bill for conveyance of allotments 10 and 10a, Held that the verbal arrangements as to the four allotments would be an addition to the other terms of the written contract not inconsistent with them; and that as the defen- dant had got his allotments, and had allowed the plaintiff the use and occupation of the lots 10a and 10 and the title deeds, there was suffi- cient part performance, and that the plaintiff's engagement not to enter into business was at most an honorary one, and the defendant could not refuse to complete the contract because it had not been carried out. Decree for convey- ance of allotments. Jennings v. Tivey, 6 W.W. & a'B. (E.,) 152. license to Mine— Not under Seal— Part Per- formance.]— A license to mine is an interest in land, and as such can only be created by deed. And where the license is vague, loose, and 1359 SPECIFIC PERFORMANCE. 1360 indeterminate, the Court will not imply the doc- trine of part performance (the licensee having entered and expended money) in such a con- tract to make up for its want of formality; the relief given on the ground -of part performance has been given on the basis of something remain- ing to be specifically executed. Miller v. Craw- ford, 5 W.W. & a'B. (E.,) 199. Enforcement of Agreement for Partition — Part Performance.] — Where A. and W. as part- ners had acquired allotments 23 AB and 24 AB, it was agreed that upon dissolu- tion of the partnership A. should hold in severalty the allotment 24 AB, and the north- ern half of allotment 23 B; and that W. should hold in severalty allotment 23 A and the southern half of 23 B. The partners acted upon this agreement by building separate houses upon their respective portions. W. died and his widow re-married, and she and her husband K. denied any agreement. Held that there was an agreement to the above effect between A. and W. , and that the partners having acted upon it by building houses upon their several portions specific performance should be decreed, and that the parties should execute conveyances and releases accordingly. The decree was also made binding upon the infant child of W. unless within six months of coming of age he showed good cause to the contrary. A rlett v. Kinsella, 1 A.J.R., 2. Part Performance — Contract to Sublet part of Leased Ground — Consent of Crown.] — Plaintiffs were lessees under the Crown, and sued defen- dant in the Court of Mines for trespass. The defendant T. alleged a contract by plaintiffs to sublet part of the ground leased to him, and had erected a house upon the land. There was no evidence in writing of this contract. Held that there was nothing to show that the Crown had concurred in the sublease ; and that there was no contract under seal by the plaintiffs, who were trustees for a mining company ; and that defendant had acted foolishly in erecting a house without any bargain which would justify him in bringing a suit for specific performance in respect of it ; that defendant had offered no defence available at law or in equity. White v. Tippett, 3 A. J.R., 107. Part Performance.] — Per Full Court — Where a person was mining for gold under a contract with a mining company as to four acres, which he erroneously supposed to be valid at law, and he then entered into a second verbal contract as to ten acres, which included the four upon which he had previously been mining, and con- tinued mining only on the four acres, and in no way varying his manner of working or of money dealing with the company, Held, not sufficient part-performance of the second contract to take it out of the Statute of Frauds, as the indi- vidual was in no way prejudiced, or the com- pany benefited. Chun Goon v. Reform CM. (%., 8 V.L.R. (E.,) 128, 152; 3 A.L.T., 137. Part Performance.] — Possession taken before and irrespective of a contract is not part per- formance of it. Part performance to take a case out of Statute of Frauds must be by acts having reference to a complete agreement, and occurring after it. Mogg v. Lord Raglan and St. Arnaud O.M. Coy., 4 V.L.R. (E.,) 138, 144. Verbal Contract that Purchase should be for Plaintiff's Benefit — Subsequent Dealings on Faith of Contract.] — O'Rourkev. Huon, ante column 195. Agreement for Compromise — What amounts to Part Performance.] — Shielv. Colonial Bank, ante column 196. Part Performance — Parol Contract.] — Where a corporation intending to erect a bridge entered into a parol contract with the administrator of a deceased selector to take a portion of the land selected for the purpose of a road thereto, and the administrator approved of the plans and works, and permitted their construction, Held that the case was taken out of Statute of Frauds, and specific performance decreed. Shire of Yea v. Roberts, 5 V.L.R. (E.,) 223 ; 1 A.L.T., 52. Part Performance — Agreement to Grant a Fur- ther Lease.]— Where a landlord verbally agreed to renew a lease shortly before the old lease expired, and, in pursuance of such agreement, entered and painted the premises causing the tenant much inconvenience thereby, Held, on a suit by the tenant for the specific performance of the agreement, that the inconvenience suffered by the tenant amounted to part per- formance. Polleykett v. Georgeson, 4 V.L.R. (E.,) 207. Part Performance will not Validate a Contract Void by Statute.] — Chambers v. Chambers, ante column 799. For other cases of part performance see Shiel v. Colonial Bank, ante column 196; and see post under Vendor and Purchaser. (c) In other Cases. Exchange of Leases — " Land Act 1869."] — A. and B., lessees under Sec. 20 of the " Land Act 1869," agreed to exchange leases. B. refused, and to a suit by A. for specific performance, set up as a defence the proviso in the lease, that he should not assign it except by way of mortgage, without consent of the Governor-in-Council. Held that this proviso was not a good ground of defence, as the Court may compel both parties to do all they can, and B. had not shown that he had endeavoured to obtain such consent and failed. Quaire whether a lessee who has covenanted with his landlord not to assign without license, and has afterwards agreed to assign his lease, can resist a suit for specific performance, merely by showing that his land- lord has refused to coffsent. Bramley v. Parrott, 7 V.L.R. (E.,) 172. III. Practice Relating to. Reference to Master.] — Suit for specific per- formance. The bill averred an agreement for sale to the plaintiffs of land selected under the "Land Act 1862," and set out a deed executed in pursuance of the agreement, whereby the de- fendant granted to the plaintiffs the land and all his interest therein, and covenanted for further assurance that the land was alienated 1361 SPECIFIC PERFORMANCE. 1362 ,by the Crown subsequently to the passing of the "Real Property Act," and could not be re- gistered under that Act, and prayed specific performance of the agreement, and that defen- dant might execute the necessary documents for completing the plaintiffs title under the " Seal Property Act." The defendant denied ,the agreement with the plaintiffs, but admitted an agreement with H. G., not a party to the suit, and admitted the execution of the deed in blank, and alleged that H. G. had filled in the names of the plaintiffs, whose names appeared as assignees, H. G. having sold to them ; the .deed of assignment was in evidence. Held by the Primary Judge (Molesworth, J.) that the matter must be referred to the Master to inquire into the circumstances of the assignment. Further directions reserved. Held, on appeal, that the reference if unnecessary should not have been directed, and that if the plaintiffs can establish their title to relief, the Pull Court should not abstain from granting relief, merely because a decree adverse in express terms has not been made ; and the Full Court made a decree in the terms prayed. Glass v. Simson, 2 W.W. & a'B. (E.,)67. Parties — Two out of Three Trustees — Suit for Specific Performance.] — S., a testator, made his will, appointing the two plaintiffs and another as trustees. This third trustee renounced, and the widow under a power in the will appointed T. as trustee in his place. After the appoint- ment but before conveyance of the legal estate to the new trustee, the plaintiffs sold certain land to the defendant. The defendant refused to carry out the contract, and the two plaintiff trustees brought a bill for specific performance. Held that T. was a necessary party to the suit, and case ordered to stand over with liberty to join T. as a party, the costs of the day to be taxed in the ordinary way and not under General Orders of- 1828. Sargood v. Henry, 5 A.J.K., 62, 63. Parties to Suit— Mortgagee.]— A corporation which had the construction and management of waterworks entered into a contract not under seal to supply plaintiffs with water as compensa- tion for depriving them of their water-rights. Subsequently the corporation mortgaged the tolls to the Board of Land and Works. Upon suit by the plaintiff to enforce the contract, the defendant objected that the Board should be made a party. Objection overruled. Connolly v. The Shire of Beechworth, 2 V.L.R. (E.,) 1. Selection under "Land Act 1862"— Costs against Crown.]— On petition under the Act No. 49 by a selector of Crown lands under the " Land Act 1862" for specific performance of a contract for sale of Crown lands by the issue of Crown grants for the land selected, decree made for issue of grants. Per Molesworth, «/\:— Where the Crown has not unequivocally admitted the right of a petitioner but has put him to prove his case and put forward certain objections which were given up at the hearing, costs will be given against the Crown. Allnutt v. The Queen, 2 W. & W. (E.,) 135. Costs.]— Where a plaintiff failed clearly to establish acceptance of an offer by defendants for sale of land, bill for specific performance dismissed with costs. Rowlings v. Hislop, 9 V.L.R. (E.,) 25. Costs — Averments in Bill and Answer.] — Upon bill by a bank, prohibited by its Act from pur- chasing land except for banking purposes, for specific performance of an agreement for sale of land, Held that as plaintiff did not aver and prove intention of using land for banking pur- poses, and as it appeared from evidence that it was plaintiff's intention to use land for other purposes, the bill should be dismissed without costs, as the defence of illegality was not raised in the answer. Colonial Bank of Australasia v. Buchland, 9 V.L.R. (E.,) 29 ; 4 A.L.T., 143. STATUTE OP FRAUDS. Statutes Incorporating — "Instruments and Securities Statute 1864," Sees. 107, 108. "Landlord and Tenant Statute 1864," Sees. 4, 5. " Statute of Trusts 1864," Sees. 97-101. "Common Law Procedure Statute 1865," Sees. 282-284. (1) What Contracts are within the Statute, column 1362. (2) Forms and Conditions Required, column 1362. (3) Other Points, column 1363. (1) What Contracts are within tlie Statute. See cases ante columns 193, 194. Parol Agreement to give Executors a Commis- sion.] — Carter v. Murphy, ante column 488. Agreement of Hiring— For more than a Year.] — Dale v. M'Culloch <£• Coy., ante column 891. license to Mine.]— Miller v. Crawford, ante columns 1358, 1359. Contract partly in Consideration of Marriage, partly in Consideration of some other Act to he Done.] — Cordon v. Murphy, ante column 504. (2) Forms and Conditions Required. See cases ante columns 194, 195. Agreement to Settle Money in Consideration of Marriage— Deed Reciting Payment when Payment not made.]— See Gordon v. Murphy, ante column 504. Agent Ordering Goods to he Delivered Elsewhere than at Principal's Premises— Does not Constitute Acceptance.]— Mitchell v. Watson, ante column 1237. Verbal Contract by Licensee under " Land Acts" to Allow Crown Grant to Issue to Creditor as Security.]— Harrison v. Murphy, ante column 1049. 1363 STATUTES. 136t Letters as to Agreement that Sale of Equity of Redemption should Operate as a Second Mort- gage.] — Mouatt v. M'Kenzie, ante columns 1050, 1051. In Reference to Contracts for Sale of Goods.]— See ante columns 1289 — 1291. As Regards Contracts for Sale of Land.] — See Vendor and Purchaser. Operation on Guarantees.] — See ante columns 488, 489. (3) Other Points. When a Defence to Suits for Specific Perform- ance.] — See ante columns 1357 — 1360. N eed not be Pleaded to he Used as a Defence.] — See Jennings v. Tivey and Randall v. Mau, ante column 1161. Person Taking Advantage of Contract may Estop Himself from Denying that Written Con- tract is not Sufficient within " Statute of Frauds."] Ford v. Young, ante column 413. STATUTES OP LIMITATION. See LIMITATIONS (STATUTES OF.) STATUTES. (1) Construction and Interpretation. '(a) General Rules, column. (6) Particular Statutes, column. (2) Victorian Acts — Validity and Effect of, column. (3) Imperial Statutes — What are in Force in Victoria, column. (1) Construction and Interpretation. {a) General Rules. Schedule— Enacting Part.]— "Where there is any conflict between the schedule and the enacting part of a Statute, the enacting part must prevail. Goodman v. Mayor, 57, 70. Tender of Debt after Action Commenced must be Accompanied by Tender of a Sum for Costs of Plaintiffs Attorney.] — Smith v. Scott, ante column 1212. Tender of Lease — When Intending Lessee not Bound to Prove in Action for Bieach of Agreement to Execute a Lease.] — Brown v. Hardy, ante column 808. Declaration for not Granting a Lease — Plea that Lease was not 'J endered for Execution a Complete- Answer.] Finn v. Barbour, ante column 810. Bi'l of S'ale Void on Payment on Demand — Sub' sequent Acceptance — Non-payment — Seizure — Tender of Account on Condition of Bill of Sale and Acceptance being given up — Refusal — Bill for Injunction to Restrain Sale and for Rectification of Bill of Sale — Injunction Granted.] — Murphy v. Martin, ante column 113. Powers of Municipal Corporation in Accepting; Tenders for Contracts.] — See Attorney-General v. Mayor of Emerald Hill, ante column £11. Excessive Distress— Tender — Refusal to Accept — Subsequent Demand not at Once Complied with — Willingness to Pay.]— Quinlivan v. Varcey, ante column 381. Distress Warrant — Tender of Part of Amount Recovered — -'Justces of the Peace Stat. 1865," Sec. 117.] — Barry v. Dolan, ante column 763. Forfeiture under Land Acts — What will Prevent — Tender of Rent before Re-entry.] — Kickham v. The Queen, ante columns 794, 795. Plea'of Tender— Only Applicablejwhere Party ha» not been Guilty of Breach of Contract — M'Ewan. v, Dyncn, ante column 1221. Plea of' Tender docs cot Bar a Subsequent Plea o f want of Juiisdictioii.] — In re the Ferret, 8- V.L.E. (A.,) 1, 6, ante colxmn 1327. What Constitutes a C o d Tender in Oner to Releem a Mortgage.] — Armstrong v. Aobvnson,. ante column 105C. 1381 TIMBER. 1382 How lender Affects Interest on a Mortgage Security.] — Convoy v. Mason, ante column 1071. TERMS. Abolition of — "Judicature Act 1883," Sec. 18.] — See Husbands v. ffusbands, ante column 53 ; Regina v. Bailes, ex parte Pickup, ante column 1233. Enlargement of Term — Matters pending — Juris- diction.] — See in re Lyons, ante column 1207. Order nisi for Writ of Quo Warranto granted in Vacation — Not Returnable in Term.] — fiegina v. Mouatt, tx purte Sargeant, ante column 1256. THEATRE. Lease of Theatre, 'with Eight of using Corridor and Ornaments attached to Wall — Corridor and Ornaments not passing under Devise — Conversion.] — Aarons v. Lewis, ante columns 459, 460. Forfeiture of License by Keeping a Room "to which Persons shall be Admitted by Ticket"— Words do not include a Theatrical Saloon.] — Smith v. M'Cormiclc, ante column 830. Lease of Theatre — Covenant for Account, and for Affording Facilities for Ascertaining Correctness of Accounts — Construction of Covenant.] — Aarons v. Lewis, ante column 280. THISTLES. Statute — " Thistles Prevention Stat. 1865," No. 250. " Thistles Prevention Stat.,'' Sec. 4 — Service of Hotioe.] — "Where a service of notice to keep down thistles under See. 4 of the " Thistles Prevention Stat.," No. 250, was made on a water commission, by leaving it with a clerk at their office, and the justices did not consider it sufficient service, and dismissed the case, the Court granted a rule nisi to compel the justices to hear the case, and afterwards made the rule absolute, on the ground that the office of the commission came within the description of "usual place of abode," and that service on the clerk was sufficient. Regina v. Gaunt, ex parte Drummond, 4 A. J.E., 20, 79. " Thistles Prevention Stat. 1865," Sees. 4, 6— Description of Land.]— A notice to destroy thistles on land, which merely describes the land by stating in what shire and pariah it is situated, is insufficient, and will not render the owner of the land liab e to the penalties imposed under Sees. 4 and 6 of the " Thistles Prevention Stat. 1865," No. 250, for faring to comply with such not'ee. Lithgow v. Summers, 4 A.J.E., 90. "Thistles Prevention Stat." No. 250, Sec. 4 — Defendant Using a 1 Reasonable Means to Destroy.] — Where D. had, before notice served, been using all rea-onable means to destroy thistles on his land, and continued so doing after the notice, although he did not succeed in destroy- ing them within the fourteen days mentioned in the notice, the justices held that his efforts afforded no answer to the information, and fined him £5, sentence to be deferred for three weeks, and then to be executed whether thistles were destroyed or n"l. Held, on appea , that they were wrong. Order made for recording in magistrates' book that defendant had used all reasonable means for destroying the thistles. Lugdale v. Martin, 5 A.J.E., 28. Sec 4— "Owner."]— Where the defendant was an equitable mortgagee of the land where thistles « ere found, who had exercised acts of ownership by leasing the property, Held that there was sufficient evidence to show that defendant was the "owner." Haworth v. Hebbard, 5 A.J.E., 28. "Thistles Prevention Stat.," No.250— Land Forming One Farm, though consisting of various Allotments — Several Convictions.] — L. was m occupation of a large area of ground used as one farm, but consisting of various allotments, and notice was served upon him to clear off thistles, and three summonses were issued, upon each of which he was convicted and fined. Held that, as the land formed one farm and one notice was sufficient, there was only one offence and not three ; and that the Act being pena 1 , and therefore to be strictly construed, the Court would notinfer a power toprosecutefor repeated acts, when such power was not expressly given. Eule absolute for certiorari to quash second and third convictions. Regina v. Dowling, ex parte Laby, S A.J.E., 74. TIMBER. Covenant in Lease not to Fell Growing or Living Timber or Timber-like Ttees— Interim Iijunciion Granted, but Confined 10 the Cutting Down or Destroying any Growing or Living Bed-gum Trees.] — Munday v . Prowae, ante column 817. Motion for Injunction to Res: rain Waaie — Orna- mental and limbtr Trees — Plaintiff should show which Trees are Ornamental, and which are Timber Admission by Defendant that some Trees were Useful for Building Purposes.] — Bruce v. Atkins, 1 W. & W. (E.,) 141. post under Wastj. 1383 TOLLS. 1384 Agreements between Landlord and Tenant as to Timber should be Plainly Stated.] —Bruce v. Atkins, ante column 806. Timber — What the Word Comprises.] — Bruce v. At'-Aas, 1 W. A W. (E.,) 141, 144, 145, post under Words. Bailiff taking T.mber from Crown Lands without a Licence — -\'ot Necessary to Show his Appointment ■>— " Land Act 1869." Sec. 94.] — A'euina v. Mollison, ex parte Reed, ante column 803. Fern-trees not limber within the Meaning of " Land Act 1869," Sec. 94.j-.jR gina v. Rodd, em parte Bucknall, ante column 8u3 TIME, COMPUTATION OF. Fractions of a Day— Court Takes Notice of] — The Court will take notice of parts of a day. Chappel ■<.-. Moffatt, 4 V.L.E. (L.,) 189. Where an appeal case was transmitted to; and received by, the Prothonotary on a Satur- day before noon (the office closing at noon on Saturday.) and notice of the appeal was not served on the respondent till 6 p.m. the same day (the Act undm- which the appeal was made providing that notice of the appeal should Jirst be given to the respondent,) Held that the Court would take notice of acts being done at different hours of the day, and that the service was insufficient. Ibid. The Court takes notice of parts of a day only where it is necessary to determine which of two acts done on the same day is to have priority. Jieginav. 0' Hrien, ex parte Dalmatia Gold Mining Company, 6 V L.E. (L. ) 429 ; 2 A.L.T., 86. Where, therefore, justices made an order on the 14th of a month, for payment of a debt, with a stay of proceedings for one week. Held that the 14th counted as one day of the week, and that execution could properly issue on the 21st. Ibid. Notice of Mot'on— Computation of Time — Sunday.] — Sunday does not count in the computation of the two clear days required for a notice of motion. Brown v. Healey, 1 W. W. & a'B. (E„) 47. TITLE AND TITLE DEED. Pretended Title— 82 Henry VIII., Cap. 9] -The conveyance of an estate transferred by the decree of the Court from one trustee to another cannot be deemed a pretended title ; still leES can such a trustee be a purchaser within the meaning of the "Pretence Titles Act" (32 Henry VIII., Cap. 9 ) A'Bechettv. Matthewson, X W. & W. (L„) 29, 33. Parcel or no Parcel — Question for Jury.] — The question of parcel or no parcel is generally one for the jury, but when the whole description, as well as position, are given by a written instrument, the proper interpretation of such a document is for the Court. Small v. Glen, G V.L.E (L.,)154; 1 A.L.T., 197. Title in Actions of Ejectment.] — See ca.-es, ante columns 397, et. seq. Certificate of Title — Plan — Falsa Demonstrate, j" — The description of land comprised in a certificate of title, which gave the area approxi- mately, was merely a plan on the margin show- ing the abuttals at each end to be on a street, and on the plan the dimensions in figures of the boundary lines were marked, but those between the streets fell short by some feet of the actual distance between the two streets. Held that the position shown by the plan should govern the certificate, and that the land should be considered as abutting on the two streets, the dimensions marked in figures being excluded on the principle that falsa, demonstratio non nocet. Sm'ill v. Glen, 6 V.L.E (L.,) 154 ; 1 A.L.T., 197. And see under Tbansfer op Land — Cer- tificate of Title. Objections to and Requisitions on Title.] — See post under Vendou and Purchases —The Contract. TOLLS. [Note. — After 31st December, 1875, tolls are abolished by Sec. 419 of Act No. 5j6 (Local Government).] Statutes. 16 Vic, No. 40, repealed by Act No. 17ft. "Shires Stat. 1863," No. 176, repealed by Act No. 358. "Boroughs Slat.," No. 359, repealed by Aet No. 506. "Local Government Act 1874," No. 506. Proclamation of Common Toll Road, where Bad, No. 176, Sec. 254.]— A road extending f rom F. to H. was proclaimed a commou toll road by the Governor in- Council under Sec. 254 of Act No. 176. The road branched before reach- ing H., but the two branches united before reaching H., and both branches were used indifferently for direct traffic from F. to H., and the proclamation did not specify which of the branches was intended to be the common toll road. Held that, since it was impossible for the Eoad Board to know upon which branch to expend the moneys collected for tolls, the proclamation was bad. Gilchrist v. Meagher, 1 V.E. (L.,) 116; I A.J E., 98. [Compare Sec. 433 of Act No. 506.] Altering Lease of — Neglect of Lessors.] — The Shire Council of C. sued E. on a covenant in a lease for the payment of rent for tolls. The lease and counterpart were executed by both 1385 TOLLS. 1386 parties in December, and the lease purported to be a lease of the tolls to which the council was entitled ; formally, however, the tolls had not been delivered — the proclamation of the tolls not being made till the 1 4th of January following ; and the lease purported to com- mence from the 1st of February. The council did nothing to enable R. to collect the tolls, by putting up gates, &c, and in the middle of February, R. wrote, complaining of this neglect, and that he could not continue the lease unless steps were taken to" remedy what was com- plained of. Subsequently R. refused to con- tinue the lease, and, in point of fact, if he had not paid a month's rent in advance he would Dot have taken up the lease at all. The person from whom he had received possession retained possession, and R. was prepared to hand over what he had collected. After the lease was signed by R., a blank left for the date of gazet- ting the tolls was filled in, with the consent of both parties. Held that the lease was good, the council having power to insert the date with the consent of the lessee ; but that the council being solely to blame for the non-receipt of the whole of the ' tolls for the month must bear the loss, and that the damages which had been given to them in respect of five months' rent should be reduced by the amount of the first months' rent. Shire of Creswich v. Ryan, 1 A.J.R., J 69. Levying at a Check Gate.] —Where a main road is proclaimed a common toll road, and a scale of fees fixed in respect of it, and subse- quently a road diverging from it at the toll gate is declared a common toll road, and no separate scale of fees is proclaimed, but a check gate is erected at the junction, tolls may be properly collected at the check gate. Leary v. Patterson, 2 A. J.R., 57. Second Toll — When Demandable — Acts 16 Vic, No. 40, Sec. 20, No. 176, Sec. 249.]— A second toll is demandable, under the Acts No. 40, Sec. 20, and No. 17fi, Sec. 249, for the same horses and vehicle going in the same direction on the same day. Ryan v. Polwarth, 1 W. W. & a'B. (L.,) 6. [Compare Sec. 423 of Act No. 50B.] "Boroughs Stat.," No. 379, Sec. 327.]— Under Sec. 327 of the " Boroughs Stat." No. 359 toll cannot be demanded twice within twenty-four hours for the same horse and vehicle returning or going through any toll bar, there being no limitation to the number of times which a person driving the same horse and vehicle may return or go within the twenty-four hours. Maher v. Muleny, I A.J.R, 154. [Compare Sec. 423 of Act No 506.] In Respect of what Demandable.]— At a toll-gate tolls were payable as follow :— For every gig, chaise, coach, charot, or other such carriage constructed on sprint; s, if drawn by one horse, 6d.; for every cart, dray, waggon, warn, or other such vehicle drawn by one horse, Is. Held that an American express waggon suit- able for carrying passengers, constructed on springs, was under the first class, although used by the owner for the purposes of his trade as a storekeeper. Croll v. Linton, 6 W. W. & a'B. (L.,) 2:0.' N.C. 17. [.See Sec. 427 of Act No. 506.] Exemptions from Tolls— "Road Act," No. 40, Sec. 22 — Poundkeeper.]— A poundkeeper is not a person in the service of the Government within the meaning of Sec. 22 of No. 40, whereby such persons are exempted from tolls ; and where it did not appear that the personal attendance of a poundkeeper was indispensably necessary at the Treasury to pay in his receipts, Held that even if a poundkeeper were a person " in the service of the Government within the meaning of the section, he could not while on such an errand be deemed to be " in the employment and service of tlie Government. Robinson v. BonfiM, 1 W. & W. (L.,) 302. Exemption from— Who "not Entitled to— Officer in H.M.'s Service.] — An officer in Her Majesty's service is not exempt from payment of tolls when proceeding on duty, in a carriage or other vehicle, since the Act 18 and 19 Vic. Cap. 2, Sec. 79. only exempts him when on horseback. NiaU v. Page, 5 W. W. & a'B. (L„) 38. 27 Vic, No. 176, Sec. 252 -"Manure.']— De- cayed vegetable matter taken from a swamp and kept in a heap, and which is used as a fertilising agent, may, as a matter of law, be regarded as "manure," and therefore a cart conveying such may be regarded as exempt from tolls under Sec. 252 of Act No. 17(3. Cuth- bert v. Daley, 4 W. W. & a'B. (L.,) 195. [Compare Sec. 423 of Act No. 506.] Act No. 176, Sec. 252— Bone D'jst Partly for Export, Partly for Local Use.] — Two cart loads of bone dust were charged with toll, oue of them containing such manure for exportation to Ceylon, the other for local use. Held that the cart bearing manure for local use was exempt, that for exportation not exempt. Jopling v. Lawlor, 6 W. W. & a'B. (L.,) 3. [Compare Sec. 423 of Act No. 506.] Evasion of— What is— No. 359, Sec. 333.] — In order to render a person liable to a penalty, under Sec. 23 of the "Boroughs Mat.," No. 359, for evading a toll, there must be proved on his pare a fraudulent intention to deprive the toll-keeper of his legitimate revenre. Ryan v. Roach, 2 V.R. (L.,J 183 ; 2 A.J.E., H>7. A., on a certain day, drove a leading horse as far as an inn, sixteen chains distant from a toll-gate, and, on arrival at the inn, unyoked one horse, leavic g it at the stable till his return. He remarked that he was going to "slew the tollman," and drove through the gate with one horse only, and on his return the horse left behind was again yoked up, and driven home. A.'s employer stated that he was the person who paid the tolls; that A. was not authorised to say he would " slew the tollman;" that the nature of the roads required two horses as far as the inn ; that the loading on the way required two horses as far as the inn ; that he had rented a stall at 1387 TRADE. 1388 the inn for the purpose of leaving one horse there; and that the second horse was not taken off for the purpose of evading toll. Held, that there was evidence from which the justices could properly arrive at the conclusion that no fraud was intended, and that there was no evasion of toll intended. Ibid. [Compare Sec. 426 of Act No. 503.] Evasion of Toll — Jurisdiction of Justices.] — A person who uses a toll road, but leaves it at a considerable distance from the toll-gate, and passes over a common, thereby contriving to get past the toll-gate without passing through it, commits the offence of evading toll; but the amount of the toll cannot be recovered before justices, for the toll is only payable under Sec. 420 of the *' Local Oovemment Act 1874," when the gate has been passed through. Begina v. Gall, ex parte Hazard, 2 V.L.R. (L.,) 107. Remedy for Recovery of — "Boroughs Stat.," No. 859, Sec. 326.]— The remedy pointed out in Sec. 326 of the statute, viz , a proceeding before a justice, as to recovery of tolls, must be followed. Cotter v. Harm, 3 V.E. (L.,) 12; 3 A.J.E , 31. " [Compare Sec. 422 of "Local Government Act," No. 506.] TORTS. Actions for.] — See Action— Neqligence- Trespass — Trover. TOWAGE. See SHIPPING. TRADE. I. Trade Mark. 1. What is, column 1388. 2. Proceedings to Restrain Infringement of , column 1389. 3. /Registration, column 1391. 4. Ofences against the Trade Marks Stat., column 1392. II Covenants in Restraint or. — See Con- tract — Covenant. III. Slandek of Title. — See Defamation. Statutes : "T.nde Marks Stat. 1864," No. 221. ' Trad,* Marks Registration Act 1876," No. 539. I. Trade Mark. 1. What is. Combination of Words — "Aromatic Schiedam Schnapps."]— Plaintiff was the proprietor of a cordial termed "Wolfe's Aromatic Schiedam Schnapps." Defendant, the proprietor of a rival article, described it as " Hart's Imperial Schiedam Schnapps," and " Imperial Schiedam Aromatic Schnapps." Plaintiff prayed for an injunction to restrain defendant from so doing. Held, per Molesworth, J., that from their respec- tive signification, these words "Aromatic," "Schiedam," " Schnapps," and the combina- tion, were public property, and that plaintiff was not entitled to the injunction. Wolfe v. Bart, 4 V.L.E. (E.,) 125. Plaintiff also sought to restrain the de- fendant from using bottles, labels, and wrap- pers, similar to. or only colourably differing from, these of the plaintiff. Held, per Moles- worth, J., that the combination before referred to being uncommon, ought to be regarded in this part of the motion; and that, although dealers in spirits might not be deceived, yet, there being a probability, by the use of such bottles, labels, and wrappers, of a confusion between the articles, by consumers purchasing from such dealers as vendees of the plaintiff and defendant respectively, the plaintiff was entitled to an injunction to restrain their use. Affirmed on appeal. Ibid. Schiedam Schnapps.] — W. was registered as the proprietor of the trade mark in " "Wolfe's Aromatic Schiedam Schnapps." He was in partnership with B., and the deed provided that B. should not use the words, " Aromatic Schiedam Schnapps," after the dissolution. After the dissolution B. manufactured a similar liquor, which he sold as " B.'s Schiedam Schnapps," and affixed to the bottles labels, statins that he had been W.'s partner; but the labels in no way resembled W.'s labels. Injunction motion by W. against A., who was selling as B.'s agent in Victoria. Held that there was no trade mark in the name, '■ Schie- dam Schnapps *' (following Wolfe v. Hart, 4 VI.E. (E.,) 125;) that those words were pubVci juris, and that B. was perfectly entitled to state on his labels that he had been W.'s partner. Wolfe v. Alsop, 10 V L.R. (E.,) 40. " Neva Stearine.'] — In 1861, plaintiff com- pany, established on the river Neva in Russia, imported into Victoria candles with labels bearing the words, "Neva Stearine." In 1863 German candles, with labels containing the words, 'Neva Stearine," were imported and sold; and in 18H7 the defendant's predecessor manufactured candles in Victoria, with labels bearing the same words, of which fact, in 1 870, plaintiff 'o agent was coguisant. In J 881 the plaintiff filed a bill to restrain defendant from using the words, " Neva." Held (affirmed on appeal) that plaintiff's acquiescense and delay, since 1 870, defeated its title ; and that the words, " Neva Stearine," had become publici juris, and that the distinctive character of the name had gone. Neva Stearine Company v. Mowling, 9 V.L.E. (E.,) 98, 104; 5 A.L.T., 9. 1389 TRADE. 1390 Per Moleswnrth, J.— Title to a trade mark may be lost by acquiescence in its use by others. There is a property in trade names. Ibid. p. 102. " Hop Bitters."]— The term "hop bitters " is a mere description of an article, and may be used by any person who makes bitters from hops, and no peison can have an exclusive right to -use such term. Hop Bitters Company v. Luke, 10 V.L.R (E.,) 234;6A.L.T. 89. See also S.C , post column 1391. " Hop Bit'ers."] — Action under the " Judica- ture AH 18S3" for an injunction to restrain the infringement of a trade mark. The plain- tiffs' trade mark, which was duly registered, •was a sprig of the ho'n vine and a bunch of hops "between the words "hop" and " bitters." The defendant manufactured hop bitters, and sold them in bottles of the same shape as the plain- tiffs', with a label on them bearing a sprig of the grape vine with a bunch of grapes between the words " hop " and " bitters." Held that though the registration of the words "hop bitters" was of no effect, and could not be regarded as giving the plaintiffs any special right to the use of those words, the registration of the design was efficacious, and prima facie gave the plaintiff the exclusive right to the use of that design, and that the defendant's label resembled that of the plaintiff so as to be likely to deceive incautious purchasers, and that plaintiff was entitled to nominal damages, an injunction and costs. Hop Bitters Company v. Wharton, 10 V.L.R. (L.,) 377; 6 A.L.T , 176. 2. Proceedings to Restrain Infringement of. Imitation of Labels — Corks — Infringement.] — The plaintiffs, H. and Co., brandy manufac- turers, exported brandy to Victoria in bulk and in bottle, the latter being of a superior quality, and with a distiuctive flavouring from the former. W., the defendant, bought H. and Co.'s bulk brandy, and sjld it in bott ! es which were apparently the same as the plaintiffs'. The labels wore alike in shape, colour and design , except that defendant had, as a device, -a. spread eagle, and the plaintiffs an arm holding a battle axe. The words on the labels "were as follow : On plaintiffs' were words, "Jas. Hennessy and Co. Cognac," and in small type, "Registered at 304 Stationers' Hall;" on defendant's, "Jus. Hennessey and Co.'s Cognac," and in small type, "Bottled by T. and W. White, Melbourne." The plain- tiffs' capsules had an amber coloured rim with the device and prominent words of their labeis ; the defendant's capsules had no such rim, and had the device and prominent words of his labels. The plaintiffs' corks were stamped with the words, " Jas. Hennessy and Co., •Cognac," with a small star; the defendant's, "Jas. Hennessy and Co.'s Cognac," without the •star, and both stamps could be seen through the necks of the bottle. Held on appeal, dis- tinguishing Farina v. Silverlock [6 De G. M. & G., 2i4] and affirming Molesworth, J., that the mere substitution of one device f ■ r another, both being in the same losition and of the same colour does not neutralise the effect of the other points of resemblance, and that plaintiffs were entitled to restrain defendant from selling the brandy in bottles, with labels, &c, so c dourably imitating the plaintiffs'. Injunction granted. Per Molesworth, J., that the imitati'in of the brands on the corks afforded very strom* evidence of an intention to produce an impression on minds of pur- chasers that it was H. and Co.'s bottled bro.ndy. Hennessey v. White, 6 W. W. & a'B. (E„) JS16. In a case similar to the last, except that the name of the plaintiffs was not on the corks and capsules, and that defendants used as a, device an arm holding a dart, and there appeared on the defendants' labels the words, " Bottled by H. M. & Co." in comparatively large type, field, by Molesioorth , J., that although there was no imitation of the cork, and though the words " Bottled, &c," appeared in larger type than in the last case, yet that the label of the defendants so closely resembled the plaintiffs' that the case was on the whole not distinguishable from Hennessy v. White. Injunction granted. Hennessey v. Hogan, 6 W. W. & a'B. (E.,) 225. Old Bottles Re-used.]— The plaintiffs sold bit- ters in bottles with the words '• Dr. J. Hostetter's Stomach Bitters " stamped in the glass, and labelled "Hostetter's Celebrated Stomach Bit- ters." The defendants made bitters and sold them in bottles which had been used for the sale of plaintiffs' bitters and stamped as above, and labelled them as " Celebrated Stomach Bitters." The defendants' labels did not in form or colour resemble the plaintiffs', and defendants' bottles were sold in cases branded with the initials of the firm. An injunction was granted to restrain the defendants from selling in bottles so stamped and labelled until further order. Hostetter v. Anderson, 1 V.R. (E.,)7; 1A.J.R., 4. Maker's Name— No Patent.] — .The plaintiffs had established their right to the sole use of a device and name by legal proceedings in Scot- land. Defendant sold articles which had upon tbem a/ac simile of the plaintiffs' device and the name used by plaintiffs, the only difference being the addition of another word in small letters. At the time the injunction was prayed for, the defendant had but one article bearing the imitation of plaintiffs' device. Upon these facts the Court granted an interim injunction, and upon the consent of the parties a perpetual injunction. Singer Manufacturing Company v. Harold, 4 A.J R., 128. Fraud not Essential.] — In cases of an imitation of a tradesman's packages, labels, &c, it is not necessary to prove fraud or actual deception in order to obtain an injunction. Wolfe v. Hart, 4 V.L.R (E.,) 125, 134. Fraud not Essential.] — Per Molesworth, J. To stop the improper ate of a trade mark, it is not necessary that there should be an intent to deceive, if the effect of deception be produced. Neva Stearine Company v. Jdowling, 9 V.L.R. (E.,) 98, 102 ; 5 A.L.T., 9. 1391 TRANSFER OF LAND (STATUTORY.) 1392; Trade Name.] — H., a testator, carried on a druggist's business as H. & Co., and manu- factured and sold a composition known as "H. & Co.'s Soluble Sheep Dip." H.'s executors, upon his death, sold the business, stock-in-trade and goodwill, except the " Sheep Dip," to defendant, and sold the " Sheep Dip" to plaintiff. Defendant carried on the busi- ness under the name of H. & Co., and sold a, composition under the name of " T.'s Sheep- dipping Composition, manufactured by H. and Co." On a motion for injunction, Held that defendant should be scrupulously cautious in using the name " H. & Co." to any sheep and he was to a. certain extent reprehensible, but motion refused on ground of delay. Chinn v. Thomas, 5 V.L.K. (E.,) 188; 1 A.L.T., 26. Sale of Inferior Ale as Ale of a Certain Name and Kind — Misrepresentation.] — See Degraves v. Whiteman, ante column 568. Injunction when Granted.] — An injunction will not be granted to restrain the use of a, trade mark where the words sought to be protected are merely words of description, and are publici juris. Hop Bitters Company v. Luke, 10 V.L.K. (E.,) 234; 6 A.L.T., 89. The words "hop-bitters" are such words. /bid. Costs.] — Where the defendant intended to imitate the plaintiffs' labels, so as to deceive the public, though he did not infringe the plaintiffs' trade mark or tradename, the Court, in dismissing a motion against him for an injunction, left him to pay his own costs. Ibid. And see S.C. ante column 1389. 3. Registration. Act No. 539, See. 7 — Rectification of Register.] — D. claimed to be the owner of a trade mark, the use of which he had enjoyed without interference or disturbance for 11 years, but in respect of which he was not registered. R. and P. were registered at the end of the 11 years in respect of a trade mark, which so closely resembled D.'s as to be likely to deceive. D. opposed the application for registration. Held that the register must be rectified by expunging R. & P.'s trade mark. In re Rowley and Pyne, ex parte Dalton, 9 V.L.R. (L..) 3U7; 5 A.L.T., 91. Similarity.]— The word "deceive" means to deceive an incautious person. A trade mark was registered, and an application was made by another person to register a sin ilar trade mark, the application being opposed on the ground that the mark sought to be registered was a colourable imitation of the one registered, and calculated to deceive. The Registrar refused the application. On a rule nisi to rectify the register by registering the trade mark, Held that the, two were so neai'ly alike as to mislead incautious purchasers, and rule discharged. In re Eno's Trade Mart, ex parte Kennedy, 9 V.L R. (L.,) 335. 4. Offences against the " Trade Maries Stat." Using Forged Mark— No. 221, Sec. 6.]— S. was informed against for forging a trade mark witfe intent to defraud ; but there was no count for uttering. On the evidence, it appeared that S. was merely acting as agent for another, and had sold goods for his principal, bearing the forged trade mark. S. was convicted of forging the trade mark, and appealed. On appeal, Held that there was no evidence of forging by S. to go to the jury; that selling was not "using" within the meaning of Sec. 6 of the " Trade Marks Stat. 1864," No. .'21 ; and that there being no count for uttering, the con- viction must be quashed. Schemmel v. Call, 2 V.R. (L.,) 121; 2 A J.R.,65. Counterfeiting Trade Mark— Prosecution for.] — For circumstances in \vhieh the Court held that there was no evidence that the defendant wilfully and knowingly imitated the plaintiff's trade mark, see Bowman v. Webster, 5 A.L.T.,. 168. TRANSFER OF LAND (STATUTORY.) 1. Bringing Landunder the Act and Registration of Applicant as Proprietor. (a) General Principles, column 1393. (b) Duties of Registrar, column 1395. (c) Practice on Applications for, and Caveats against, column 1395, 2. The Certificate of Title. (a) Issuing, Correcting, and Cancelling the Certificate, column 1397. (b) Conclusive Effect of, column 1399. \c) Exceptions thereto under Sec. 49 of Act No. 301, column 1400. (<2) Other points, column 1403. 3. Transfers. (a) Generally, column 1403. (6) Provisions as to "Fraud" and "Notice," column 1404. (c) Transfers under Sales by Sheriff, column 1407. 4. Registration generally, and Duties of Regis- trar, column 1409. 5. Caveats, column 1410. (a) l''orbid"ing bringing Land under the Act and Registration of Applicant. See ante, under 1, (c.) (b) Forbidding Registration of Dealings in Land under the Act, column 1410. 6. Dower, column 1411. 7. Eas- merits and Registration thereof, column 1411. 8. L'ases under the Act, column 1413. 9. Mortgages under the Act. (a) Equitable Mortgages, column 1414. (o) /fights and Liabilities of Mortgagors and Persons claiming through them, co umn 1414. (c) Powers, Remedies, and Liabililies of Mortgagees and Persons Claiming through them, column 1415. 1393 TRANSFER OF LAND (STATUTORY.) (d) Other Points, column H16. 10. Remedies in Respect of Deprivation of Land, column 1417. 11. Miscellaneous Points, column 1418. Statutes — "Real Property Act 1862/' No. 140, and Amending Acts, Nos. 180, 210, 223, repealed and re-enacted by " Transfer of Land Stat. 1866," No. 301 ; " Transfer of Land Stat. 1869," No. 353; "Amending Act 1878," No. 610. 1. Bringing Land under the Act, and Registra- tion as Proprietor. (a) General Principles. Act No. 301, Secs.24 and 152— Injunction to Ees- traln Registration — Demurrer — Jurisdiction of Court ]— Bill by H. and others against Hunter, alleging an equitab'e title by the plaintiffs under an agreement in writing for a price paid with persons originally seised, an application and advertisement to bring the land under Act No. 301 by defendant, and lodging of caveats against such application, and praying for declaration of plaintiff's rights and an injunc- tion to restrain defendant. Held, on demurrer, that as the bill did not negative the defendant's possession, did not show strictly thut defendant claimed title, and did not show any obligation or relation between the plaintiffs and defen- dant, the bill would have been demurrable as to want of equity and indistinctness, and that Sec. 24 of the statute does not. create a new jurisdiction of Courts of Equity to protect persons having legal or equitable titles against, the inconveniences resulting from improper registration : it merely directs such proceedings as would be right before, according to the interest of the caveator being legal or equi- table, and makes notice of that proceeding upon the Registrar a stop to him : that Sec. 152 makes it competent for judges to direct the details of any special procedure under the Act. Hodgson v. Hunter, '6 A.J.R., 13. Eestraining Registrar — Sec. 24 — Tenant for Life in Possession Using the Act in order to Obtain Fraudulently a Fee Simple — Privity between Plaintiff and Defendant.] — The plaintiff, G., lent his mother, who was married again to R., a sum of J2I0O, to go in part payment of the purchase money of certain land. The Crown grant issued to R., and by deed the southern half, was conveyed to G. as for .£100 paid. G. entered into possession of this half, and built a house upon it. G. afterwards lost the deed. Disputes arose as to the land, and G. afterwards executed a lease for lives to R. and his wife, August, 1870. This lease re- mained with R. Defendants, after being in possession for a few years, attempted to bring the land under the Act No. 301, and the plaintiff lodged a caveat, and brought a bill to restrain the Registrar from bringing the land under the Act. Held that, as there was a privity between the plaintiff and defendants, and the plaintiff could not bring ejectment because of his lease to the defendants, these facts, coupled with Sec. 24, gave the plaintiff an equity to restrain the Registrar. Injunction granted, also permanent injunction against 1394 the defendants attempting to bring the land- under the Act under the prayer for general relief. Geraghty v. Russell, 5 A.J R., 89, 90. Act No. 301, Sec. 24— Possession— Pjectment— Demurrer.]— There is nothing in Act No. 301,. generally enabling a plaintiff to transfer a legal rght to a Court of Equity, or to compel a defendant to disclose his title. Where a bill was filed by plaintiff, alleging legal title to- land sought to be brought under the Act against which plaintiff lodged a cavent, but alleging nothing as to possession of the land, and seeking discovery of defendant's title, and ■an injunction against the defendant and the Registrar, Held, on demurrer, that possession by defendant might be assumed, in which case plaintiff could bring ejectment, and demurrer allowed. Jamison v. Quintan, 3 V.L.R. (E.,) 230. Jurisdiction of Court to Interfere.] — Under Pec. 24 the Court has jurisdiction to interfere and prevent an injustice being done, whether a suit in Equity or an action at law has been instituted or not. In re " Transfer of Land. Stat.," ex par' e Beissel,5 V.L.R. (L.,) 53, 57. Order to Restrain— Caveat — Act No. 301, Sec 24 — Adverse Possession.]— B. lodged a caveat against M.'s application to bring land under the Act. B. was in possession, and had been so since 1861, and claimed under a conveyance from C. (1861,) who had been in possession from 1850 until 1861. Held that B. might remain in possession, and successfully resist an action of ejectment by reason of his adverse possession, and that to entitle a person to- invoke the remedy in Sec. 24, he must show good documentary title independently of adverse possession. In re " Transfer of Land Stat.," ex parte Brown, 5 V.L.R. (L.,) 5. Act No. 301, Sec. 24 — Power of Court to Restrain. Registrar from Bringing Land under the Act.] — Where a person is seeking to oppose th e bring- ing of land under the Act, and after the expiration of his caveat, has no remedy by ejectment or in Equity, the Court will on a. rule nisi restrain the Registrar under See. 24 from bringing the land under the Act. In re " Transfer of Land Stat." ex parte, Gunn 3- V.L.R. (L.) 36. Act No. 301, Sec. 24 — Jurisdiction of the Court where the Crown is Seeking to Enforce an Escheat.] — Where the Crown seeks to establish and enforce an escheat, the Court has jurisdic- tion to restrain the bringing of the land under the Act at the instance of the Crown, although the information shews a, legal title in the Crown, and alleges no special equity. Attor- ney-General v. Hoggan, 3 V.L.R. (E.,) 111. Act No. 301, Sec. 24 — Lost Will — Injunction — Trial of Title at Law.] — A. died in 1853, leaving a widow and six children, two daughters, a son W., the plaintiff, a son T., and the defendant- There was long in the widow's possession a document, purporting to be the will of A., dated. , 1850, and with an imperfect attestation clause. By this certain land was devised to- J 395 TRANSFER OF LAND (STATUTORY.) 1396 defendant. "W. died in 1868 (then of age) intestate, without claiming any of A.'s pro- perty, leaving plaintiff his heir-at-la.w. In 1874 widow died, by her will leaving this land to plaintiff, who proved the will. In 1874 .plaintiff got administration to "W.'s estate, and in 1878 plaintiff obtained a rule to administer A.'s estate. In 1874 defendant got posses -don of the land, and conveyed it to defendant H. Bill by plaintiff against defendant, H. and Registrar to restrain land being brought under operation of Act No. 3 '1. f/eld that if the document of 1850 was an invalid will, plain- tiff's title as heir was clear, and plaintiff was entitled to an injunction until further order without prejudice to the question of title, which should be tried at law. — Archibald v. Archibald, 5 V.L.R. (E.,) 180. (6) Duties of Registrar in Respect Thereto. Duties of Registrar — Court Certifying as to " no Probable Grounds for Refusal" — Act Ho. 301, Sec. 135.]— The Registrar refused to bring certain land under the Act, in consequence of his put- ting upon a devise a construction put upon it by the Court of New South "Wales, the opposite of a construction put upon the same devise by the Court in Victoria. Against the New South "Wales decision an appeal to the P.C. was pend- ing. Held that the Registrar was not justified in refusing, but that under the circumstances ie might have postponed the further investi- gation of title ; that as he was the guardian .of the assurance fund, the Court would not certify that *• there was no probable ground jor such refusal" under Sec. 135. In re " Transfer of Land Stat.," ex parle Bowman, 7 V.L.R. (L.,)314; 3 A.L.T., 25. Evidence to be Considered by Registrar — Surplus Area.] —An application was made to bring a Crown allotment under the Act, and to include in the certificate of title more land than by admeasurements and parcels was specified in the Crown grant. As to this surplus the applicant tendered evidence to shew that he was entitled, but the Registrar refused to /accept such, and refused the application until the applicant could show that the plan was correct by the Lands Department issuing an -" adjustment certificate." Held that the Registrar was bound to accept all material evidence tendered, and was wrong in insisting 4ipon an " adjustment certificate" as the only evidence which he would receive and act upon. In re " Transfer of Land Stat.,'' ex parte Y^. ware, 9 V.L.R. (L ,) 28d ; 5 A.L T., 87. And see generally as to registration and duties of Registrar, post column 14u9. (c) Practice in Applications for. "Real Property Act" (No. 140,) tecs. 21, 22, 23, 81 — Summons to biing Land under the 4ct.] — Sec. 81 does not give jurisdiction to a Judge in Chambers to deal with matters of such vast importance as might arise under a caveat against the first bringing of land under the operation of the Act. That remedy only applies in the case of caveats as to dealing -with land under the Act, and not to caveats under Sees. 21, 22, and 23. (In Chambers.) In re Williamson, 2 "W. "W. & a'B. (L.,) HO. [N.B.— Sec. 81 of Act No. 140 did. not give the power of summoning the caveator con- tained in Sec. 23 of Act No. 301.— Ed.] "Transfer of Land Stat." (No. 301,) Sec. 24— Jurisdiction of Judge i;i Chambers.]— The "order of a Judge " in Sec. 24 does not mean " of a- Judge in Chambers." The only way to read Sec. 24, which entitles the caveator to an order restraining the Registrar from bringing land under the Act, is that the caveator must bring an action of ejectment, or file a bill in Equity. In re Power, 6 "W. W. & a'B. (L.,) 81. But see ex parte Gvnn, ante column 1394. Application to bring Land under Statute — Notice of Summons under Sec. 25 to Produce Deeds.] — All persons who have any claim upon land which is sought to be brought under the " Transfer of Land Stat." must have notice of a summons under Sec. 25 of the Act to produce the deeds relating to the land for the purpose of bringing the land under the Statute. In re " Transfer of Land Stat.," ex parte Morgan, 4> A JR., 117. Act No. 301, Sec. 25 — Production of Deeds.] — Per Stawell, C. J. (in Chambers.) "Where a solicitor retained deeds claiming a lien on them for costs, and an application was made to compel their production under Sec. 25, Held that such a matter could not be disposed of in Chambers. In re Craig, 5 A.L.T., 54. Order to Produce Deeds under Sec. 27 — Ex parte.] — An order of a Judge to the Registrar to produce the title deeds of land under the Statute, which deeds had been lodged in the Registrar's office, may be made ex parte. Re the " Transfer of Land Stat.," Slack «. Winder, 4 A.J.R., 117. Caveat Forbidding Bringing of Land under the Ac-.— Act No. 301, Sees. 23, 24— Wiit of Ejectment whether Sufficient to Pievent Lapse of Caveat.] — Rule nisi under Sec 23, calling upon S. to show eiuse why a caveat should not be removed. S. had issued within the month allowed under Sec. 24, a writ of ejectment, but he hid not served the writ. Held that the Legislature referred to the commencement of legal pro- ceedings as sufficient to prevent the caveat from lapsing. Rule discharged. In re Slack, ex parte Winder, 5 A.J.R., 83. Caveat Forbidding the Bringing of Land under the Act — Service of Kule Nisi to Remove Caveat.] — A caveat was lodged under Sec. 22 of the Act No. 301 and an address of the place at which notices were to be served was duly given. The caveatee (W.) summoned S., the caveator, by rule nisi to shnw cause why the caveat should not be removed, and stating that rule was made absolute upon an affidavit that it had been served at the place mentioned in the caveat. It appeared that the service had been effected on Saturday afternoon when the office was closed, but that S. had knowledge of the 1397 TRANSFER OF LAND (STATUTORY.) 1398 service before the rule was returnable. HM dissentiente, Barry, J.) that the Act being very -.strict as to service, there luid beeu no good service of rule nisi and that the defect in the service had not been cured by the admission of Y.Jj.R. (L.,) U6. Notice of Application to restrain bringing under the Act— Service.] — Service of notice of an application is good if given to the Registrar ; it need not be given to the applicant also. In re -" transfer of Land Stat.," ex p'irte Beissel, 5 V.L.R. (L.,) 52, 58. Order Restraining Registration as Proprietor — ■Obtained in Vacation — " Transfer of Land Stat.," Sec 24.] — An order, under Sec. 24 of the '• Transfer of Land Stat.," restraining the registration of an applicant as proprietor, may be obtained from a judge in Chambers during vacation, though the lvmedy by a bill in equity is open to the caveator. In re " Transfer ■of Land Stat.," ex parte Mahoney, 1 A.L.T., 132. 2. Certificate of Title. (a) Issuing, Grrec'ing, and Cancelling Certificate. When Issued— Act. No. 140 — Receipt for Crown Grant.] —A purchaser from a Crown grantee of lands selected by such grantee applied to the Registrar-General for a certificate of title. He held" merely the Treasury receipt for the pur- chase money and an instrument of transfer from the Crown grantee to himself. On a summons calling on the Registrar to sub- stantiate and uphold the grounds of his refusal to issue a certificate of title to him, Held that such certificate should not be issued until the Crown grant to the original grantee was delivered up to be cancelled under the Act No. 140. Fitzgerald v. Archer, 1 W. W. & a'B. (L.,) 40. [See also Sec. 35 of Act No. 301— Ed.] Summons to Registrar under Sec. 135— Decision of Court upon.]— Per SUphen, J.— On a summons to the Registrar of Titles to show cause why he should not grant an unconditional certificate of title, the Court is not called upon to give an absolute and final decision upon the point sub- mitted, as it might do if the parties adversely interested were litigating it. In re " Transfer of Land Stut.," ex parte Folk, 6 V.L.R (L.,) 405. Mandamus to Registrar.] — Sec. 135 of the " Transfer of Land Stat." renders a mandamus to the Registrar to issue a certificate unneces- sary, and it is his duty to issue a clear certi- ficate, unaccompanied by a memorandum, stating that it was issued in compliance with the decision of the Court, when called upon to issue a certificate. Re the " Transfer of Land Mat.," ex parte Puterson, 4 A.J.R., 26. Compelling Registrar to issua a Certificate — Act No. 301, Sec. 135.] — In the matter of the " Trans- fer of Land Stat.," ex parte Ross. 2 V.R. (L.,) 10 ; 2 A. J.R., 19, ante column 434. Correcting Certificate Obtained by Fraud.] — Even if a Court of Equity cannot correct a certificate of title procured by fraud, which ia the special relief prayed, it can, under the prayer for general relief, make a decree order- ing defendant to transfer and vest in the plaintiff the land included in such certificate. Campbell v. Jarrett, 7 V.L.R. (E.,) 137 ; 3 A.L.T., 49. Act No. 301, Sej. 132— Issued on Incorrect Re- presentations — Cancellation.] — A bank had a certificate of title to certain land issued to it, and was registered in respect thereof. The certificate of title was issued on the under- standing that R., who was then grazing cattle on the land, was only a trespasser, whereas it appeared afterwards in an action of ejectment brought by the bank against R., that R. had been in possession of the land for more than fifteen years, and a verdict was returned in R.'s favour. On a summons under Sec. 132, Held that the certificate was issued in error and ordered that it be delivered up to be cancelled. Inre " Transfer of Land Stat.," ex parte Rigby, 9 V.LR. (L.,) 417; 5 A.L.T.,128. Error — Sec. 132.]— The error alluded to in Sec. 132 of the " Transfer of Land Stat." does not allude only to a misdescription of parcels ; but anything improperly done or omitted to be done may be considered an error under the section. Re the " Transfer of Land Stat.," ex parte 1'aterson, 4 A.J.R., 26. Per Stawell, C. J.— "Error" in Sec. 132 means not only a mistake of fact, but also an error of law. Inre " Transfer of Land Stat.," expa te Bond, 6 V.L.R. (L ,) 458, 463. Cdrtificats of Title Wrongly Issued — Act No. 301, Sec. 132— Eight of Equitable Mortgagee to Retain.] M. was the registered proprietor of two leases of certain Crown allotments. In October, 1871, A. issued a writ of fi. fa. against M. On 20th October a copy of the. writ was served on the Registrar of Titles, specifying the allot- ments as those sought to be affected by the writ. Before the three months, before the expiration of which the fi. fa could not operate as a charge upon the land, had expired, i.e,on5th January, 1872, A. served an alias writ, and under this the land was sold by the sheriff to one P., the transfers from the sheriff, beiug registered 2nd and 28th March. On 2nd January M. trjnsferred the land to B. for value, and B. obtained a certificate of title. TRANSFER OF LAND (STATUTORY.) 1399 On application by P. to have his transfers from the sheriff registered, the Registrar refused, but the Court compelled him to register them. The registrar then sought to compel B. to return his certificate of title. B. had deposited the deeds with S. as security for an advance, and S. refused to give them up without pay- nii-nt of this advance. Held that, in the absence of fraud, S. was entitled to retain the certificates till his charge upon the land was paid. Be the " Transfer of Land, Stat." ex parte Patterson, 4 A.J.R., 110. When Mandamus to call in Certificate will be Granted.] — The Couit will not grant a minda- mus calling upon 1he Registrar of Titles to call in a certificate of title or give his reasons for not doing so, unless it is proved to the Court that it appeared to the satisfaction of the Regis- trar that the certificate had been issued in error, or contained a misdescription of the land, or had been fraudently or wrongfully obtained. Be O't'onnell and the " Transfer of Land Stat.," 6 A.L.T., 85. Act No. 301- Sec. 132— Calling in Certificate.]— The Court will not grant a rule to compel the Registrar of Titles to call in a certificate of title granted to the wrong person, upon an analogy to the proceeding under See. 1 32 of the " Transfer of Lund Stat." (under which section the Registrar is the applicant) especially where the applicant has not proved his right to a certificate. The " Transfer of Land Stat.," ex parte Slack, 4 A.J.R.,114. Cancelling Certificate.] — The Supreme Court in its equitable jurisdiction has no jurisdiction to order certificates of title to be cancelled, the proper relief being to order the inequitable holders to transfer. Gunn u. Harvey, ante columns 403, 980. (b) Conclusive Effect of ' Certificate. Act No. 301, Sees. 47, 49.]— As regards the parcels the certificate is under Sec. 47 incon- trovertible, and the "reservations and excep- tions" mentioned in Sec. 49 have no reference thereto. Alma Consols Gold Minim Company v. Alma Extended Company, 4 A.J.R., 190. Act No. 801, Sec. 159— Title of Certificate Holder in Ejectment.] — The title of a plaintiff in ejectment which is based on a. certificate of title to a lease under "Land Act 1865," is not affected as to its conclusive character by Sec. J 59 of Act No. 301, and a plaintiff relying on such a certificate without going into evidence prior to the title cannot be nonsuited. Miller v. Moresey, 2 V.R. (L.,) 193; 2 A.J.R., 115. For facts see S.C. ante column 399. See also Vallence v. Condon, ante column 399. Under Act No. 140.] — An owner out of posses- sion who receives a certificate subject to rights subsisting under any adverse possession receives evidence of a good title in ejectment until those rights are proved. Murphy v. Michel, 4 W. W. & a'B. (L.,) 13 ; for facts see S.C. ante column 844. 140O Conclusive Effect of Ceitificate under Sfc. 47 of Act No. 301 — Selection of Land by a " Dummy."] — Where M. had selected land really as a "dummy" for H., and after obtaining the- Crown grant had transferred to H. under the- Act, and H. obtained a certificate of tit'e, Held per Molesworth, J., that the certificate con- clusively estublished H.'s title under Sec. 47, although the transaction was set aside as contrary to the poiicy of the "Land Act" (No. 237) M'Cahillv. Henty, 4 T.L.R. (E.,) 68, 73. Per S'ephen, J. (at page 157.) — " The certifi- cate is merely an epitome of a prior title; it is- nothing on the question of parcels" and the- Full Court held that, where 1he-e was a Variance between the plan and the figures in the body of the certificate, the description in the plan was to govern, rejecting the figures on the principle "falsa demonstra'io non noc-t." Small v Glen, 6 V.L.K. (L.,) 154, 157, 159; see S.C. ante column 1384. To an action for breach of contract for not giving possession of land, it is not a good plea to urge that before breach vender acquired a, certificate of title. Phcenix Foundry Company v. Hunt, 5 A J.R., 70. A certificnte of title to leaseholds does not defeat the right of the Crown to determine the lease. Matt v. Peel, 2 T.R. (M.,) 27; 2A.J.R., 133. In Trespass— Plaintiff Obtaining a Certificate of Title under Sale by Sheriff— Sufficient Title.] — House v. O' Farrell, ante column 1312. (c) Exceptions thereto undtr Sec. 49 of Act No. 301. Fraud.] — See cases post column 1404, et sequitur. Prior Grant of Certificate.] — The exception in. Sec. 49, viz., " except the estate or interest of a proprietor claiming the same land under a prior grant or certificate," does not apply to the case where a proprietor's land has been sold by the sheriff, a transfer under such > ale has been registered, and a new certificate issued to the sher ff's vendee. Hasselt v. Colonial Bank, 7 V.L.R. (L.,) 380, 389 ; 3 A.L.T., 38. For facts see S.C. post column 1409. Volunteer Holding a Certificate — Specific Per- formance Prayed by a Sub^equi-nt Purchaser.] — A. was owner of land, and brought it under the Statute.the certificate of title being issued to B., his son. Shortly afterwards A. contracted to sell the land to V. Bill by C. for specific per- formance and to have transfer declar d void as against him. Held that the transaction was void as against C. under 27 Bliz., Cap. 4, and that it was not protected by Sees. 49 and 50 of Act No. 301, their protection being intended for real purchasers under the Act, and persons dealing with them, not to sons takinsr presents from their fathers. Colechin v. Wade, 3 V.L.R. (E.,) 266. 1401 TRANSFER OF LAND (STATUTORY.) 1402 Act No. 301, Sees. 49, 51 — Certificate Issued to Official Assignee Subject to Sights of Dover and Bights under a. Voluntary Settlement.] —Where H., an insolvent, paid part of the purchase money of land before his d scharge from his first insolvency, and the balance after dis- charge, and 'voluntarily settled land by post- nuptial settlement upon trustees in trust for his wife and children, and a certificate of title was issued to J., the official assignee under the .first insolvency, subject to the rights of dower in H.'s wife and the rights under the settle- ment, and the settlement was set aside as void at the suit of the official assignee under H.'s second insolvency, Held, per Molesworth, J., that the vesting of encumbrances on a certifi- <;ate has no further effect under Sec. 49 than to leave the rights under the settlement unaffected though it might be otherwise under Sec. 51. Shaui v. Scott, 3 A.J.E., 16, 17. Act No. 301, Sec. 49 — Who is a "Tenant" — Person in Possession under Unregistered Kight.] — Defendant obtained a judgment against W„ the registered propi'ie tor of c rtain land, part of which had been sold to the plaintiff. The sheriff sold W.'s interest under execution to defendant, who registered the transfer in due form, and became registered proprietor. Before and at the time of sale plaintiff gave notice of his protest but did not lodge a caveat. Defendant brought an action of ejectment against plaintiff. Bill by plaintiff to restrain proceedings in ejectment, and praying to be constituted proprietor of the land he had "bought. Held that the provisions of Sec. 49 provide for all cases of possession, distinguish- ing merely adverse possession and teuancy binder non-adverse possession, that the saving of tenants' interests has nob reference merely to tenants in ordinary parlance as to their -tenant interests, but to persons holding under no -adverse possession, and that plaintiff was such a tenant within the meaning of Sec. 49, and relief granted as prayed Robertson v. Keith, 1 V.E. (E.,) 11 ; 1 A.J.E., 14. See also S.P. Cunningham v. Gundry, 2 Y.L.E. (E.,) 197, 201. " Transfer of Land Stat ," Sec. 49— Interest.] — A tenancy-at-will is an " interest" within the meaning of Sec. 49 of the " Transfer of Land Stat." Colonial Bank v. Koache, 1 V.B. (L.,) 165; 1 A.J.B.,136. Tenant's "Interests" under Sec. 49.]— The protection afforded to a tenant under Sec. 49 does not extend to protect the landlord's title. ■Cullen v. Thompson, post column 1400. Act No. 301, Sec. 49— "Eight or Interest."]— The holders of a mining lease of Crown land ^registered under the " Transfer of Land Stat, of which another person has a grant in fee from the Crown, by mining on such lands,do not interfere with any "right or interests" of the Orown grantee within the meaning of Sec. 49 of Act No 301. Alma Consols Gold Mining Company v. Alma Extended Company, 4 A.J.R., 19 j Object of Proviso in Sec. 49.]— The object of the proviso in Sec. 49 of the '' Transfer of Land Stat.," " that the land included in any certi- ficate of title or registered instrument shall be deemed to be subject to the reservations, exceptions, conditions, and powers (if any) contained in the grant thereof," is to prevent the severance of the relation of landlord and tenant ; and where persons wei'e in occupation under a mining licence, and a subsequent mining lease was granted to plaintiffs by the Crown subject to the occupation licence, and afterwards the licensee got a grant in fee and leased to the defendants, Held that the plaintiffs were not ousted thereby, but were entitled to restrain the defendants from mining on the property. Ibid. Reservations in Sec 49 of the " Transfer of Land Stat."] -J. E. applied for a mining lease, and went into possession of the land applied for. By mistake the lease, when ready for issue, was taken up and executed by another person of the name J. E. Upon discovery of the error the lease was cancelled, and a new one issued to the original J. E., who obtained a certificate of title under the " Transfer of Land Stat.," and transferred it to plaintiff. Between the issue of the two leases defendants had taken up the land under miners' rights, and pleaded that the certificate of title was subject to such, occupatiou under Sec. 49 of the "Transfer of Land Stat." Hed that the certificate was not subject to such occupation. Munro v. Suther- land, 4 A.J.K., 166. Act'No. 301, Sec. 49— "Mining Stat." No. 391, Sees. 5, 24— Holder of Miners' Eights — Certificate not Conclusive as to Mine.] — A holder of miners' riglits is only a tenant-ar-will with the q ia;li- fication that the will is not to be determined in favour of another gold miner (Sec 29, Act No. 29 1 ;) he has no title against the Crown (Sec. 3,) and is not a " tenant" within the meaning of Sec. 49 of Act No 301 as to the land. Plain tiffs held a mining lease from the Crown, and succeeded in an action of ejectment as to the land against the defendants, who claimed under miners' rights. In an action for the gold as mesne profits in which plaintiffs recovered a verdict, Meld (disseiitienle Stephen, J.J on rule nisi, that, as the certificate of title was silent as to the mine, and the plaintiffs had to fall back on their lease to show title to the gold, plaintiffs must establish that the gold mine is included iu the parcels of the lease, which they could not do, as the defendants claimed under miners' rights, and, therefore, as to the^oid, the lease was subject to such rights as " rights and interest subsisting at the time of the" lease." New trial unless plaintiff con- sented to a reduction to nominal damages. Munro v. Sutherland, 5 A..T.E , 139. Act No. 301, Sec. 49— Eights of Tenant.] -S. brought ejectment against D. D. w rtgagees transferring certain lands and against H. a purchaser from registering a transfer from the mortgagees. The mortgage given by the plaintiff mortgagor to the defendant mortgagees, was under the Act No. 301, and provided for giving of notice under Sec. 84 in c«se of default being continued for seven days, and power of sale under Sec. 85 within seven days after service of the notice. In December, 1871, half a year's interest was due, and an agent for the mortgagees sent to the plaintiff a letter, not registered, informing him that unless "the money due under the mortgage be forthwith paid," the mortgagees would proceed to sell. The mortgagees sold part to one purchaser who was not a party to the suit, and part to D., who had no notice of the circumstances. Held, upon motion for injunc- tion, that the notice reaching the mortgagor, though by unregistered letter, was sufficient, the provision in Sec. 84 as to registered letters meaning that the precaution of sending a registered letter must be shown to have been observed where the mortgagee is unable to prove actual receipt; that the notice Of December* 1871, was defective (1) in not dis- tinctly ' showing whether the mortgagees exercised their option of requiring payment of both principal and interest or of interest only ; and (2) in requiring payment "forthwith" and not after seven days' default ; that, as H, was a purchaser for value without notice, his purchase was protected ; that Sec. 85 validates ^ Contracts as well as conveyances and transfers, where registered under the Act, and protects contractors knowing nothing at the time of anything to impugn the validity of the contract. Injunction refused as to H., granted as to defendant mortgagees, until after they had given notice as by Sec' 84 provided. M'Donald v. R;we, 3 A.J.R., 90. At the hearing, Held that the mortgagor was entitled to charge the defendant mortgagees at his option with the value of the land at the time of the sale or at the time of the decree. M'Donald v. Rowe, 4 A.J.E., 134. " Transfer of Land Stat ," No. 301, Sec. 85.]— Quaere, per Molesworth, J., whether the protec- tion given to a purchaser from a mortgagee by Sec. 85 of the " Transfer of Land Slat.," exempting him from inquiring as to default or notice of sale, extends to a person having only a contract of purchase. M'Donald v. Rowe, 3 A.J.E., 90, doubted. Ross v. Victorian Per- manent Building Society, 8 V.L.E. (B.,) 254, 265; 4 A.L.T., 17. A power of sale exercised under Sec. 85 is bad, if with the land under the Statute, there be also sold land under the general law, all being sold under one contract and at one price. Ibid., see facts ante column for 1060. Sale by Mortgagee — No Interest Passes to Pur- chaser till Registration.] — Where the mortgagor is a registered owner of leasehold estate under the " Transfer of Land Stat. " and a mortgage is made and registered under Sec. 83 and the following sections, so that the only way in which the mortgagee can extinguish the rights of the mortgagor is by foreclosure, under " The Transfer of Land Statute Amending Act," No. 317, Sec. 2, or sale under Sees. 84, 85, and 87 of the " Transfer of Land Stat. ;" then whether a sale of such leasehold estate is made by the mortgagee under the statutory power of sale, or as absolute owner, no interest therein passes to the purchaser until registra- tion; see Sees. 42 and 87. • Nation al Bank of Australasia v. United Hand-in-Hand and Band of Hope Company, L.R., 4 Ap. Ca., 391. Remedies of Mortgagee when Principal Debt or Interest Unpaid, Act No 301, Sees. 84, 85, 87 — Act No. 317, Sec 2.]— The only way in which a mortgagee can extinguish the rights of the mortgagor, is by foreclosure under Act No. 317, Sec. 2, or by a sale under Act No. 301, Sees. 84, 85, 87. Ibid. ActjNo. 301, Sees. 98, 99 J— The remedy of a mortgagee as to foreclosure is not in the old way by a suit in Equity for that purpose, but by following the remedies prescribed in Sees. 98 and 99 of Act No. 301. Greig v. Watson, T V.L.E. (E.,) 79, 84; 3 A.L.T., 13. (d) Other Points. Attesting Witness to a Mortgage — Who may be — "Transfer of Land Stat.," Sec. 115.] — The manager of a bank, who is also a Justice of the Peace, is not" incapacitated from acting as attesting witness, under Sec. 115 of the "Transfer of Land Stat.," to the execution of a mortgage, made under the Statute, to his bank, there being no proviso in the section restraining an interested party from attesting. Bank of Victoria v. McMichael, 8 V LE. (L,) 11. Consolidation of Mortgages — Mortgages of Land under ;the Act and under the General Law— No Fower to Consolidate] — Greig u. Watson, ante- column 1054. 1417 TRESPASS. 1418" 10. Remedy in Respect of Deprivation of Land. Act No. 140 — Actions by and against Registrar of Titles— Sees. 116, 118.]— A person fraudu- lently personated the owner of certain land, brought it under the "Red Property Act" (No. 140,) and had the name of a purchaser from him registered as proprietor thereof. The real owner brought an action for damages, under Sec. 1 1 8 of the Act, against the Registrar of Titles. Held that the action did not lie against the Registrar but against the person who had personated the owner, under Sec 116 of the Act, though such person had never been registered as proprietor. Foiheringham v. Archer, 5 "W. W. & a'B. (L.,) 95. [Note -Sec. 146 of Act No. 301, closely follows Sec. 116 of Act No. 140.— Ed.] Action against Assurance Fund — Omission of Registrar to Endorse Memo, that Land was Brought under the Act — "Transfer of Land Stat.," Sees. 27, 146.] — T. applied to have certain land brought under the " Transfer of Land Stat.," and lodged the title deeds. The Registrar omitted to endorse, under Sec. 27, on the last material registered document lodged by T., a memo, that the land was brought under the Act. T. applied to O. to advance money to him, and O. advanced it on mortgage of the land, as under the general law, without notice that the land had been otherwise transferred. T. became insolvent, and the mortgage was discovered to be valueless, whereupon O. brought an action against the assurance fund. Held, per Stawell, C. J. and Holyroyd, J. (dissentiente Higva- botham, J.) that Sec. 146 of the Statute only applied to a loss by deprivation of an actual interest in land ; that the fund was protected against all claims for which the sufferer could reasonably be required to seek redress against any other person, or which did not directly arise from the operation of the Act ; that the section did not apply to a loss of an expect- ancy of an interest sustained by a person through a fraud which another person was enabled to commit owing to the neglect of the Registrar ; that O.'s remedy was against T. ; and verdict for defendant. Oakden v. Gibbs,, 8 V.L.R. (L.,) 380. Limitation of Action against Assurance Fund for Loss of Dower— Act No 801, Sees. 66, 149 — Act So. 353, Sec. 9.] -.See Muyle v. Gibbs, ante columns 538, 539. Error or Misdesc.iption of Land — Remedies in Respect of— Act No. 301, Sees. 49, 106, 144, 146.]— The plaintiff was registered proprietor of cer- tain land held by him as a lessee under the "Land Act 1869 ;" his uncle, bearing the same name, was indebted t > the defendant bank, and the bank, as execution creditor under a writ of fi. fa., directed the sheriff to get a description of the land to be levied upon, and served the Registrar with a copy of the writ, erroneously specifying the plaintiff s land as the land to be levied upon. The bank bough t at the sheriff's sale, procured a transfer from the sheriff, was registered as proprietor, and after- wards sold the land to one F., to whom the plaintiff gave up possession. Held that the plaintiff was deprived of his land in conse- quence of the error or misdescription, and the case fell within Sec. 144; that the sheriff's sale and transfer to the defendant put an end to the plaintiff's certificate of title under Sec. 106, so that the objection of a prior registered certificate made under Sec. 49 could not be sustained, and that, under the circumstances, . the plaintiff's remedy was not against the Registrar as the guardian of the assurance fund, under Sec. 146. Hassett v. Colonial Bank of Australasia, 7 V.L.R. (L.,) 380; 3 A.L.T., 38. 11. Miscellaneous Points. Misdescription in Application— Fraud — " Transfer of Land Stat.," Sec. 163 — How Remedied.]— A misdescription in an application to bring land under the " Transfer of Land Stat.," as that the land was unoccupied, when it was not in fact so, is not fraud within Sec. 153 of the Act, which is fraud with a guilty intention. Wiggins v. Hammill, 4 V.L.R. (L.,) 63. Semble, that as regards fraud under Sec. 153, the matter could not be considered inci- dentally, and the certificate treated as void in a civil suit ; but the person charged with fraud should first be convicted as for a criminal offence, and then proceedings might be taken to cancel the certificate of title. Ibid.' TRESPASS. 1 To Lands and Houses, column 1418. 2. To the Person, column 1421. 3. To Guods, column 1424. 1. To Lands and Houses. What Amounts to — Entry under Contract — Exceeding Terms of Con'ract.] —An action for trespass is maintainable where the defendant ■ has entered under a contract to cut a certain quantity of timber, and has greatly exceeded . the quantity mentioned in the contract. Bond v. Kelly, 4 A.J.R., 153. What Amounts to.] — The party fence between the land of N. and B.was burnt down, and N. and B. each erected half of a new one. During such erection, B. placed some of the half burned logs of his half of the old fence upon the land of N. in order to make way for the new fence, whereupon N. sued B. for trespass, in the County Court, but failed to obtain a t verdict. On appeal, Held that the verdict should not be disturbed, since the placing of the logs on either side to make way for the , new fence did not necessarily amount to a trespass. Neaves v. Barrett, 6 V.L.R. (L.,) 165. Wilful and Malicious— Notice not to Trespass.]— Proof of prior proceedings in ejectment is not proof, in an action for mesne profits, of such a 1419 TKESPASS. 1420- " notice not to trespass " as will make the trespass wilful and malicious, under See. 3 of 3 & 4 Vic, Cap. xxiv. ; a distinct notice should be served. Laidlaw v. Lamg, 1 "W. W. (L.,) 64. Who may Maintain Action — Reversioner.] — A reversioner, whose tenants are in possession of the property, may maintain an action for tres- pass for pulling down a fence upon the land. O'Grady v. Boulter, 2 A.J.E., 118. Purchaser at Sheriff's Sale obtaining Certificate ofTitle under Act No. 801.]— See Housev. O'Farrell, ante column 1312. Suit by Town Council — Occupation of Land Reserved for Public Purposes as a Residence Area- Exemption of Land from Mining — Irregular, but de facto Possession of Council.]— Mayor of Sand- hurst v. Graham, ante column 945. No Damage done— Plaintiff Entitled to Recover.] — A plaintiff is entitled to recover damages for a trespass to land, even though no actual damage be done by the trespass ; though such damages are merely nominal. Dumont v. Miller, 4 A.J.E., 152. Committed by Stock — Acceptance of Trespass Rates for One Trespass no Bar to Action for Previous Trespass.] —The accepting by the owner of land of trespass rates for damage done by sheep, is no bar to an action by him for damages in respect of previous similar trespasses. Mitchell v. Wright, 4 V.L.E. (L.,) 273. Trespass by Dog — Liability of Owner.] — See Doyle v. Vance, ante column 28. Adoption of Trespass by Taking Advantage of it.] — A defendant is not liable unless he is shown to have been present at. and taken part in, the trespass, or to have authorised or instigated others to commit it for him. Where third persons committed a. trespass without the authprity of the defendant, Held that he was not liable, though it was done for his benefit, and he took advantage of it when completed. Doolan v. Hill, 5 V.L.E. (L.,) 290. Replication of Private Right-of-Way to Plea that Sheep were Trespassing — What must be set out.] — A replication to a plea, th«t certain sheep were wrongfully in a close of the defendant, &c., setting forth that the sheep were being driven along a certain road over which the plaintiff had a right-of-way, and that the sheep escaped for want of a fence into the defendant's close without plaintiff's negligence is not sufficient ; but must aver the existence of the essentials of the right-of-way, e.g., its termini, &c, other- wise it will not appear that the right-of-way existed over the part of the road in question. Butcher v. Smith, 5 W. "W. & VB. (L.,) 223. "Land Act," No. 360, Sec. 80— Sheep Tres- passing — Land not properly Fenced.] — A licensee, under Sees. 19 and 20 of the Act, who has fenced with a fence which is not sheep-proof, may, sue for damages for sheep trespassing,, although, under Sec. 30, he may not, under such circumstances, impound. Rutherford v Hayward, 3 V.L.E. (L.,) 19. Plea of Impounding in Actions of Trespass — What. Plea must set out.] — See Jones v. Campion, O'Shea v. D'Arcy, and Sanderson v. Fother- ingham, ante coVwm/n. 1155. Equitable Title in Defendant — No Notice thereof to- Plaintiff.] — A. brought an action of trespass againstB. B. pleaded on equitable grounds that the land belonged to C, who hadsoldit to E.,that E. being in possession, and entitled in equity, assigned his interest by memorandum of" agreement to F., who had assigned his equi- table interest to B. ; but the plea alleged no notice to A. of B.'s equitable interest. Held,. on demurrer to the plea, that B. being out of possession, and not having given A. notice, had no equity to support his plea. Demurrer allowed. Hunter v. Hodgson, 3 A.J.E., 31. ' Substantive Trespass — Matter of Aggravation — Pleading.] — In an action for trespass, the decla- ration was for breaking and entering plaintiffs close, remaining there a long time and driving away plaintiff's cattle therefrom, defendant pleaded inter alia that the land was not the plaintiff's. Held, on demurrer to p!ea. that the driving away the cattle was a separate and substantive trespass, and not a matter of aggravation, and that the plea was not a suffi- cient answer to the declaration being bad as regards the cattle, but good as regards the land. Plaintiff allowed to amend by limiting demurrer to the driving away of the cattle. Cummins v. Dickson, 3 V.E. (L.,) 216 ; 3 A.J E., 111. Admission of Plaintiff's Title — Estoppel.] — "Where a defendant had said that he knew that plaintiff was owner, and offered to give him five shillings a week for the property, the Court discharged a rule nisi for nonsuit, thinking it impossible to contend against such an admission. Byrne v. Bateman, 5 A.J.E., 78. Evidence of Possession — Crown Lands — Pastoral License — Parol Evidence.]— In an action for trover for the conversion of sheep, the defen- dant pleaded that they were trespassing upon, land held by him under a pastoral license from the Crown, and put in as evidence in addition, to the plan annexed to his license, parol evi- dence to show that a certain fence over which the sheep had passed was the boundary of his land, and also conversations held in the absence of the plaintiff between the plaintiff's father, who was joint owner of the sheep, and the defendant, which would support defendant's case. Held that the parol evidence was admissible, as also were the conversations with the plaintiff's father, even though plaintiff was absent when they took place. Coutts v. Jay, 4 V.L.E. (L.,) 10. Costs — Action to Try a Right]. — Certain land- was claimed by Q-., and was also claimed and trespassed on by E. Before action brought* 1421 TRESPASS. 1422 E. gave up the land, but afterwards contested G.'s title by a plea of " not possessed," and proceeded to a trial on that plea, which resulted in a verdict for Gr., with 40s. damages. Held that it was an action to try a right, and certificate for costs granted. Gill v. Mlerman, 2 W. W. & a'B. (L.,) 88. No Certificate of Costs at Trial— Act No. 274, Sac. 429— Act Ho. 345, ?ec. 41— Order to Tax.]— Pearce v. Thomas, ante column 212. Certificate of Costs— 3 and 4, Will. IV. Cap. 42, Sec. 32—81 and 9, Will. III., Cap. 2.]— Dakin v. Heller, ante columns 242, 243. Trespass as an Offence under Act No. 265.]— See Offences (STATtrTOKr.) Trespass to Mining Claims and Mining Interests.] — See Mining. 2. To the Person. False Imprisonment— Action against Justices — 11 and 12 Vic, Cap. 44, Sec. 13.]— In Sec. 13 of 11 and 12 Tic, Cap. 44, Sec. 13, the words " no greater punishment than that assigned by law for the offence of which he was so con- victed," do not refer to the imprisonment which the justices actually andlegally imposed, but to the maximum term of imprisonment to which the person sentenced might under the law have been subjected. Where, therefore, S. was fined .£20 and £2 2s. costs for assault. but no mention was made by the bench of a term of imprisonment in default, but the clerk in filling up the conviction inserted the usual alternative of one month's imprisonment, and S. was summoned to show cause why he should not be imprisoned, a return of nulla bona hav- ing been made, and the case coming on before one of the former justices and another who had taken no part in the original adjudication, and they both in ignorance of the clerk having filled up the conviction as described, com- mitted S. for two months, and he was im- prisoned for a few days and then paid the fine, and brought an action for trespass in respect of this imprisonment, Held that the payment of 2d. into court by the defendant magistrate was sufficient compensation, and, upon a rule for a new trial, confirmed. Smith v. 0' Brien, 1 W. & W. (L.,) 386. False Imprisonment — "Melbourne and Hobson's Bay Railway Company's Act,' Sec. 63 — Nearest Justice — " Management of Railways Act," Sec. 31.] — An engineer of a railway company arrested a workman of a municipal council for using a right-of-way which the council claimed over the railway. To an action for false imprison- ment, the engineer pleaded justification under the Company's Act (16 Vie.,) Sec. 63, and under the "Management of Railways Act," No. 186, Sec. 31. Held that the requirements of the 63rd Section of 16 Vic. were complied with 'if the person arrested were taken before a justice having jurisdiction in and for the dis- trict or place in which the offence was com- mitted, there being no provision expressly requiring the person arrested to be taken before the nearest justice, r.or any reason for extending the words "in the district or place " beyond their plain meaning; that the words of the Act No. 18^, Sec. 3 , which enacts that an officer of the company may seize and detain an offender whose name and address may be unknown to such ofiicer, and give him in charge to a constable, who may without warrant con- yey him with all convenient despatch before a justice, have as their object the enabling the officer to arrest a transient offender whose name and address the officer does not possess the means of ascertaining ; that the section does not require that the name and address of the trespasser should be known personally by the officer before arrest ; that if the officer decline to act on information offered on which he ought to act, his declining so to act, with the means of knowledge at hand, will not leave the offender's name and address " unknown " to the officer ; that in such case the jury must decide whether the information offered before arrest is sufficient or not ; and that the officer must at his own risk arrest a person whose name and address he had the means of knowing. JenTcyns v. Elsdon, 1 W.W . & a'B. (L ,) 145. False Imprisonment — Sequestrationbefore Arrest.] — Defendants arrested plaintiff under a war- rant, obtained by them under an order for imprisonment in default of payment of a, judgment debt, made on a fraud summons. After the judgment, but before arrest, the plaintiff sequestrated his estate, and defendants had notice thereof. Plaintiff sued in trespass for false imprisonment. Held that such an arrest and imprisonment formed no ground for an action of trespass. Malcolm v. Milner, I V.E. (L.,) 74; 1 A.J.B., 112. False Imprisonment — Justification.] — An action for false imprisonment will not fie when the plaintiff has been imprisoned under a writ of capias issued under a Judge's order, although such order, and all subsequent proceedings under it, have been set aside by an order of the same Judge. Westnn v. Collingwond Gas Company, 1 V.E. (L.,) 98;. 1 A.J.B., 90. False Imprisonment and Malicious Conviction — "Justices of Peace Stat. 1865" (No. 267,) Sec. 164 — Quashing Convjetion.] — W. summoned H, for trespass under No. 267. S., the justice who tried the summons, stated an appeal. This case was remitted, and S. decided on the facts, that H.'s claim of title was not made bond, fide, and adjudged that H. should pay a certain fine and costs, or be committed in default. H. was committed and liberated on habeas corpus. S. then stated another case, and on that the Supreme Court reversed his determination. H. then sued S. for false imprisonment and malicious conviction, and got a verdict. On rule nisi for a nonsuit, Held that, under Sec. 164 of Act No. 267, it was necessary to have the conviction quashed before H. could obtain a verdict; that it might have been quashed on certiorari, or by appeal to the General Sessions ; that the reversal of the magistrates' determi- nation by the Supreme Court was not " quash- ing." Bule absolufe. Hunter v. Hherwin, 6 W. W.&a'B. (L.,) 26. 1423 TRESPASS. 1424 False Imprisonment — Justification — Commitment by Coroner at Inquest for Contempt — " Coroner's Stat. 1865," No. 253, Sec. 4, "Justices of the Peace Stat. 1865," Sec. 89.] — C. sued a coroner for false imprisonment and assault and the defendant pleaded not guilty and justification ; that the trespass was committed by him as coroner, whilst holding an inquest, for contempt of Court. The Judge directed a verdict to be entered for defendant. On rule nisi for new trial or verdict for plaintiff, Held that such a plea of justification was as avail- able by a Judge of an inferior Court of Record as by a Judge of a superior Court of Record, and that the Coroner's Court is a court of record in Victoria; that the power of impri- sonment is limited by Sec. 4 of the Act, and by Sec. 39 of Act 267, to 48 hours, which was not exceeded. Rule discharged. Casey v. Candler, 5 A.J.R., 179. Entire Trespass.] — R. sued M. in trespass, alleging three counts — (1) Assaulting and compelling R. to go on board a ship sailing from Sydney, and imprisoning him there. (2) Keeping him imprisoned until the vessel arrived in Victoria. (3) Compelling him to go to a police station in Melbourne, and impri- soning him until his acquittal. Held that the trespass was entire, and was not capable of being severed so as to allow any of its parts being justified severally; and that there was no power in the Legislature of New South Wales to send R. in custody to Victoria. Judgment for plaintiff. Ray v. M'Machin, 1 V.L.R. (L.,) 274. S^e S.C., ante column 178. Imprisonment — Sheriff— Arrest — Negligent Escape — Rearrest out of Bailiwick and Lodging in Gaol.] — See Wall v. Meyrick, ante columns 1314, 1315. False Imp iy Cestuis que Trustent.]— A plain- tiff, having a right to account for rents, after a trust of the rents has ceased, and doing nothing for six years, is bound by acquiescence. Cestuis que trustent by deed, August, 1869, released a trustee from liability to account for previous rents, and conveyed the estate in the land to the trustee. In a suit in 1882, in which it was declared that they were entitled to set aside conveyance to the trustee, Held that they were debarred by their acquiescence for six years after the suit from seeking an account of previous rents, but an account of rents since August, 1869, directed. Bennett v. Tucker, 8 V.L.R. (E.,) 20; 3 A.L.T., 108. Acting upon Erroneous View of a Will.]— Where trustees had spent more money in maintenance than the Master had reported as permissible, Held that they ought not to be indemnified because acting upon an erroneous view of the construction of the will. Osborne v. Osborne 6 V.L.R. (E.,) 132. Liability for not Investing.]— See post under sub-heading Investment. 1445 TRUSTEES. 1446 V. Appointment op Trustees. (a) By the Oourt. Who may lie Appointed— Near Relative of Beneficiary.]— Although the Court is generally averse to appoint as trustees near relatives of persons interested under the trusts, yet such appointments are sometimes necessary, and will be made by the Court. Waddell v. Patterson, 2 W.W. &a'B. (E.,)36. Who may be Appointed —Persons out of Juris- diction.] — The Court is loth to appoint as new trustees persons resident out of the jurisdiction. In re Mitchell's Trust Estate, 5 V.L.R. (E.,) 42. New Trustees— Breach of Trust by Former Trustee.] — Where a settlement contained a power in the trustee appointed to appoint a person or persons to be a new trustee or trustees, and the last trustee committed a breach of trust, and made away with a portion of the estate, the Court after his death, appointed two new trustees, and vested the estate in' them, with- out reference to such breach of trust. In re Fisher, 6 V.L.R. (E.,) 73. Charitable Trust — Diminishing Number of Trustees.] — By indenture certain land was vested id thirteen trustees, upon trust to per- mit a chapel, &c, to be built thereon. Five of the trustees were dead, two were out of juris- diction, and three had ceased to be members of the religious denomination, to which the land belonged. Petition by the three remaining trustees for appointment of new trustees seek- ing to diminish the original number. Order made for appointment, but Court refused to diminish the number fixed by the indenture. Ex parte Scott,! V.L.R. (E.,) 58. Where trustees named in a will declined to act, the superintendent and a committeeman of an Orphan Asylum in which the beneficiaries were maintained, were appointed new trustees in their stead. In the Will of Mitchell, 3 A. J.R., 43. In Place of Retiring Executors — Gift to Charit- able Institution.] — On petition under Act No. 234, M. and S. appointed by will executors, but not trustees, and directed to pay income of de- bentures to a charitable institution, were dis- charged from the trust, and the chairman and treasurer of the institution appointed trustees, such trustees being by the order directed to execute and deposit a declaration of trust as to the debentures. In re the Will of Sonnenschein, •5 V.L.R. (E.,)276. Retirement of Old Trustees wishing to be Relieved— Infant Trustee.]— A will appointed A. and B., an infant, trustees. A. proved the will, leave being reserved to B. A. and B. then sought to be discharged, and a petition was presented for the purpose, and for appointment of new trustees. A. was allowed to retire on ground of ill-health, and B. on ground of in- infancy. Order made appointing two new trustees without prejudice to B.'s restoration on coming of age. In re Will of Phillips, 5 V.L.R. (E.,) 274. Appointment by Executor of last Acting Trustee— Discretion— Interference by Court]— A., by will, appointed B. and C. executors and trustees, with a power for trustees or the exe- cutor of survivor to appoint new trustees, aug- menting or decreasing their number. B pre- deceased A. C. acted in trusts and died; by his will devising trust estates to D. and E., whom he made trustees and executors d' proved, but E. did not, though leave was re- served to him. Suit by one beneficiary against D. and other beneficiaries to remove D., and for appointment of new trustees and adminis- tration. Held that as D. had not been guilty of any misconduct, the Court would not inter- fere with C.'s appointment of him as trustee, except by referring to the Master for approba- tion. [Note.— This reference does not appear in the judgment, but was contained in the directions.] Dredge v. Matheson, 5 V.L R (E.,) 266; 1 A.L.T., 73. ' Trustees Declining to Act.]— Petition for ap- pointment of trustees in place of two appointed by the will, who declined to act. Order made appointing new trustees to be trustees not only as regarded the trusts of the will, but also as regarded infant heir. The right to sue for any chose in action, subject to trusts of will, to be vested in the new trustees, so far as regarded any chose in action resulting from testator's real estate. In the Will of Mitchell, 3 A.J.R., 43. " Statute of Trusts 1864" (No. 234,) Sees. 36, 37— Trustee Insolvent and out of Jurisdiction- Service.]— One of three trustees appointed by a will had become insolvent and had gone abroad, it not being known where. On petition for new trustee, Held that a trustee should not be removed without notice being served upon him, unless it was impossible to find him, and the affidavits not stating that anything like a. diligent inquiry had been made to discover him, petition refused. In the Will of Alex. M'Bean, 5 A.J.R., 64. New Trustees— Trustee Resident out of Juris- diction—Service.] — Where a, trustee is resident out of the jurisdiction, and it is desired to appoint a new trustee in his place, the appli- cant should serve him, if practicable, with notice or account; or, in case of not being able to do so, communication by letter is sufficient. In re Ayres' Trusts, 4 V.L.R. (E.,) 220. (J) In other Cases. Construction of Power of Appointment.] — B. purchased land of C, and B., by his will, devised all his real estate to L. and S. on certain trusts therein declared, and directed "that in case any .or either of them, the said trustee or trustees," or any future "trustees or trustee," should die, or wish to be discharged, or neglect or refuse to act, it should be lawful for the survivor and survivors of them, and, the heirs, &c, "of such survivor" from time to time to appoint "any other person or persons to be a trustee or trustees in the place or stead of the trustees so dying or desiring to be dis- charged," &c, and to convey the estate, which "should then be vested in the trustee or trus- tees so dying," &c, so that it might be " effec- tually vested in the surviving trustee or trustees" z z 2 1447 TRUSTEES. 1448 upon the subsisting trusts. In a suit by the then trustees of B.'s will against the representa- tives of a second purchaser from P. to set aside the second sale by C. as fraudulent and void, Held that an appointment of two new trustees by the two original trustees (L. and S. ) jointly was not a due exercise of the power of appoint- ment in B.'s will, on the principle that, looking at the terms of the power, the two trustees can- not retire together, and that the new appoint- ment must be done by steps; in other words, that there must be two successive appointments. Dalton v. Ptevins, 1 W. & W. (E.,) 177, 185. Under Management of the Court.] — Where the Court has taken the management of a testator's property into its hands, a power in the will to appoint new trustees cannot properly be exer- cised without its sanction. Mortimer v. Braith- waite, 1 W.W. & a'B. (E.,) 139. Absence of Trustee — Appointment of If ew Trustee.] — The term ' ' incapable " in the English language does not mean a voluntary inability to act but an involuntary one. Where, therefore, during the absence of a trustee in England his co-trustees appointed a new trustee, and con- tracted to sell the trust property, Held that the absent trustee was still a trustee ; that the appointment of the new trustee was bad ; and that the contract for sale was void. Iffla v. Beaney, 1 W. & W. (E.,) 110, 116, 117. New Trustee appointed in Excess of Power.] — A settlement contained a power of sale by trus- tees or the trustee for the time being, with the consent in writing of the persons for the time beneficially interested ; and a power to appoint a new trustee, if either of the trustees should die or become incapable, or be unwilling to act. One of the trustees being absent in England, an instrument was executed which recited that he was incapable to act, and appointed a new trus- tee. A contract was made by the trustees for a sale of the property, with the consent of the person beneficially interested. The purchaser having refused to complete, the trustees brought a suit for specific performance. Held that the appointment of the new trustee was bad ; that the absent trustee had » duty to exercise an independent discretion as trustee, and that he was not bound by the contract made on specula- tion of what he would do afterwards ; that the sale was made by a person who had no right to sell ; and that the whole contract was void. Ibid, Devise of Estates vested in Testator as Trustee — Whether Devisees Trustees.] — A. left by will all his property to B. under an arrangement that B. should hold it upon trust for A. 's widow and children. B. executed a declaration of trust declaring that he held the property upon frust to pay widow " £100 per annum," and remainder in trust for A.'s children. B. died, leaving his property to X. and Y., devising estates vested in him as trustee to X. and Y. subject to trusts affecting same. Held that X. and Y. were not the persons to carry out execution of the trusts, and reference to Master directed to approve of fit persons to act as trustees. M'Kinnon v. M'Innes, 3 V.L.R. (E.,) 253. Power to Appoint — Persons Resident out of Jurisdiction— Commission.] — A testator appointed three persons resident in Australia as trustees of his Australian property, and three persona resident in England as trustees of his English property : the will contained a power for the widow to appoint new trustees. One of the Australian trustees died, and the widow ap- pointed two of the English trustees in his place. A suit was instituted to administer the trusts of the will. Upon further directions, Held that the appointment though opposed to the testator's intentions was valid, as the power was unfettered, and the two substituted trus- tees were allowed the commission by the will directed to be allowed to Australian trustees as from the date of appointment. Green v. Nichol- son, 6 W.W. & a'B. (E.,) 147. Report of Master as to Proper Persons.] — Where a settlement contained a power for trustees for the time being to appoint new trustees subject to the consent of the tenants for life, and by reason of the disagreement of the tenants for life no appointment could be made, the Court referred it to the Master to approve of and report as to proper persons to be new trustees. In re Murphy's Trusts, 4 V.L.R. (E.,) 112. VI. Vesting Orders. Vesting Estate in New Trustee in Absence of Old Trustee.] — A deed contained a provision for appointment of a new trustee in the event of any one of the trustees ' ' refusing or declining to act, or going more than ten miles from Kyneton." On an application under the " Trustee Act," Sec. 10. the Court would not make a vesting order without proof that the old trustee was not in one of the neighbouring colonies, and was not likely soon to return to this colony; but offered to refer it to the Master to report whether the new trustee had been properly appointed, and whether there were any and what difficulties in obtaining the execution of the conveyance of the trust property by the old trustee. Per Molesworth, J. — " I think, if he (the trustee) is in England or any- where that would occasion great delay and trouble in obtaining a conveyance from him. I should make a vesting order; but if he is in one- of the adjoining colonies, or if he is likely soon to return to this colony, I do not think I should make a vesting order. " In re Lewis, 1 W. & W. (E.,) 118. [Note.— Sec. 10 of the "Trustee Act,"lQ Vict., No. 20, corresponds with Sec. 12 of Act No. 234.] " Trustee Act" 13 & 14 Vict., Cap. 60—" Trustee Extension Act," Sec. 1 — " Trustee out of Juris- diction."] — The interpretation clause of the " Trustee Act" (13 & 14 Vict., c. 60), providing that " the word ' trust' shall not mean the duties incident to an estate conveyed by way of mortgage" does not override the 1st Section of the " Trustee Extension Act" (15 & 16 Vict., o. 55), which expressly says that every party to a cause shall be within the Act, no matter what his position may be. Where under a decree a sale of land vested in trustees out of the juris- diction is made, not in execution of the trusts, 1149 TRUSTEES. 1450 but in some respects independent of them, a vesting order under the "Trustee Act" is rightly made to vest the land directly in the purchasers, without passing it through a trustee within the jurisdiction. Williamson v. Cuurtney, 2 W. & W. (E.,) 79. [Note. — The interpretation clause in 13 & 14 Vict. , c. 60, corresponds with Sec. 3 of Act No. 234, and Sec. 1 of 15 & 16 Vict., c. 55, corres- ponds with Sec. 31 of the Act No. 234.] " Trustee Act 1856" 19 Vict., No. 20—13 & 14 Vict., Cap. 60, Sec. 9— Loss of Title Deeds.]— The Court will not make a vesting order under the "Trustee Act" (19 Vict., No. 20,) i.e., Sec. 9of 13 & 14 Vict., c. 60, merely by way of getting over a difficulty arising from loss of title deeds. In re Weston, 2 W. & W. (E.,) 55. [Note. — Sec. 11 of Act 234 is the correspond- ing section. ] Discharge of Contingent Interests under " Trus- tees Act 1856," Sees. 16, 20, and 29.]— V., by will dated in June, 1855, gave to his wife his real estate for her life, and directed that his Flin- ders-lane property at their mother's death should go in equal proportions to his chil- dren and to their children afterwards. One •of the children was, at the date of the will, married and had issue. Other children are still (7th November 1861) infants, but are married and have issue. A decree for sale had been made in two suits {Bank of Australasia v. Vans and Bank of Australasia v. Gihb), instituted by the bank as a creditor of V. On a motion for a purchaser under the decree, all parties ap- pearing and not opposing, the Court, under the " Trustee Act 1856," Sees. 16, 20 and 29, made a declaration that the purchased lots be dis- charged from contingent rights under the will of persons unborn, and that the infant defen- dants were trustees for the purchaser ; and appointed an officer of the Court to convey the interest of each infant defendant to the pur- chaser. Bank of Australasia v. Vans ; and Bank of Australasia v. Gibb, 1 W. & W. (E.,) 120. [Sees. 18, 22 and 30 are the corresponding sections of Act No. 234.] Heir-at-Law not to he Found— Disputed Will.]— A testator devised all his real estate to B., upon trust, for sale and investment; probate of another instrument purporting to be a later will of the te-tator was obtained. B. formally disclaimed the trusts of the original will. Upon petition by the beneficiaries under that will averring that they were desirous of testing the validity of the will by commencing actions of ejectment, but were unable to do so by reason of B. refus- ing to act or to allow his name to be used in any action, and that the heir-at-law of the testator could not be discovered, Order made, without confirming the validity of the first will, for the appointment of a new trustee, and for vesting in such new trustee the property devised by the first will. In re Barnes, 1 W.W. & a'B. (E.,) 72. [Sec. 17 of Act No. 234 is the corresponding section.] "Trustee Act 1856," Sec. 15— Trustee whose Heir cannot be Found — Conveyancing Difficulties.] — Petition for vesting order vesting legal estate then in the heir-at-law of O. , deceased, in the ap- plicants as beneficiaries. O. died in England and left a will of which there was no copy in Victoria. Held, per Molesworth, J., and affirmed on appeal, that the " Trustee Act 1856 " was not intended to obviate conveyancing difficulties which may be got over by a little trouble, delay and expense. Semble that the Court will not make a vesting order where there is an absence of conveyancing evidence that a certain person is heir-at-law, but there is no probable doubt of heirship and which fact can be easily proved . In re Orr, 2 W. W. & a'B. (E.,) 100. Per the Full Court — The words "not known" in Sec. 15 of the " Trustee Act 1856" imply an uncertainty — an absence of facts of general be- lief, from which, not regarding the rules of evidence, it may be reasonably inferred who was the heir or devisee. But if this inference may be fairly drawn, an absence of absolute convey- ancing proof will not render the fact "un- known. " Ibid. [Sec. 17 of Act No. 234 is the corresponding section.] Intestate Trustee — Notice to Crown.] — T., a trustee of real estate for L., by his will devised all property in which he was beneficially inter- ested ; but died intestate as to property vested in him as trustee, and without an heir. Order made under " Trustee Act 1856," but without notice to the Crown, vesting the real estate in L. In re Thornhill, 3 W.W. & a'B. (E.,) 110. Trustee Refusing to Convey— The "Statute of Trusts 1864," Sec. 19.] — Where one of two trustees is out of the jurisdiction and the other has been removed by the Court and an order made that he should execute a conveyance to a new trustee appointed in his place, a demand by the solicitor of the new trustee upon such displaced trustee to execute a conveyance is not a sufficient demand upon which to base an application under Sec. 19 of " The Statute of Trusts 1864," for an order vesting the estate in such new trustee. Semble that one trustee could not apply without the other for such vesting order. Kendell v. Thomson, 5 W.W. & a'B. (E.,) 135. Heir-at-law of Mortgagee out of Jurisdic- tion] — A mortgagee of land died, leaving a will appointing executors, but not devising the legal estate in the land. The heir-at-law being in Scotland, the executors applied under the "Trustee Act 1856" for an order vesting in them the legal estate in the land. Held that though the section did not appear to contem- plate, either in language or spirit, the case which had arisen, yet that the case of In re Boden's Mortgage Trust (1 De G. M. & G., 57), on appeal was an authority on all essential points for the application, and was coercive on the Court. In re McLeod, 1 W. & W. (E.,) 133. [Sec. 21 of Act No. 234 is the corresponding section .] 1451 TKTJSTEES. 1452 " Statute of Trusts 1864" (Ho. 234,) Sec. 21 — Legal Estate in Heir-at-Law of Mortgagee out of the Jurisdiction — Debt on Mortgage of Seal Estate in Victoria — Vesting Order on Payment of Debt— Administration Granted in Another Colony.] — Property in Melbourne was owned by M. G. and Co., of Sydney, the legal estate being in M. M., as if seized in fee solely, executed a mortgage as for £2500 advanced to secure this advance to H. On dissolution of partner- ship by arrangement, G. took the mortgaged property subject to the debt. H. died in Ireland and M. obtained administration c.t.a. in New South Wales to H. 's estate. H. left an infant heir-at-law in England, in whom was the legal estate in the property. M. as for a nominal consideration conveyed the equity of redemption to G. , who undertook to indemnify him as to the mortgage debt, and M. as in con- sideration of the mortgage debt of £2500 paid to him as administrator by G. released the mortgaged land. Petition on behalf of G. to vest legal estate in him. Held that the adminis- tration granted in New South Wales did not authorise M. to receive the mortgage debt as assets in H ew South Wales, that the locality of the mortgaged land overruled that of the specialty debt in the covenant to pay, that ad- ministration in Victoria was necessary and that the petition should have alleged that G. was entitled, and that the £2500 was actually paid and that there should have been a state- ment as to who received the proceeds since the date of the mortgage, and that the evidence of the deeds of conveyance of the equity of re- demption and of the lease by M. were not sufficient. In re Monte/iore, 5 A.J.R. 1. " Statute of Trusts 1864" (Ho. 234,) Sec. 23— Petition — Trustees Dead or out of Jurisdiction.] — The petitioner, resident in Sydney, was entitled to some shares in a railway company represent- ing certain money granted to her husband by the Government of Victoria and on her account invested by S. andM. in the purchase of the shares. S. and M. paid her the dividends but no deed of trust was ever executed. S. died in 1867 and M. had not been heard of for many years. Upon further materials consisting of order of the petitioner to the Treasury to pay to S. and M. , with their receipt, and an affidavit by the manager of the railway company stating payment of dividends to M. and setting out an order from M., in 1868, to remit divi- dends to petitioner, Order made under Sec. 23 of Act No. 234, authorising petitioner to transfer shares and receive dividends. In re Mitchell's Trust Estate, 5 V.L.R. (E.,) 42. "Statute of Trusts 1864" (Ho. 234,) Sec. 25 — "Stock" — Personal Representative out of the Jurisdiction.] — Shares in a joint-stock mining company are ' ' stock" within the meaning; of the "Statute of Trusts 1864," Sec. '25, which provides for the transfer of stock standing in the name of a deceased person and, where the surviving representative of such a person is out of the jurisdiction, an order may be made under that section, vesting the right to transfer them. Bryant v. Saunders, in re Saunders, 4 V.L.R. -(E.,)215. "Statute of Trusts 1864" (Ho. 234,) Sec. 34— Death of Trustee— Land under " Transfer of Land Statute" in Hame of Surviving Executor.]— P. devised realty to his wife for life, remainder.to children, and appointed two executors, but no trustee. One executor died, and the other brought the unsold land under the " Transfer of Land . Statute," obtaining the certificate in his own name. Upon petition by the widow and children, praying for a new trustee in the place of the deceased executor, and a vesting order vesting the unsold land in such trustee and the surviving executor, the Court made the order as sought. The death since Act No. 427 vested property in executors as constructive trustees under the will and constructive trusts are within Sec. 34 of Act No. 234. In re Phil- pott, 4 V.L.R. (E.,)20. Vesting Orders do not Dispense with necessity for Conveyances.] — The extraordinary remedy given by Sec. 31 of the "Statute of Trusts 1864," i.e., the granting of vesting orders, is not intended to supersede the ordinary convey- ances between the parties. Weigall v. Barber, 10 V.L.R. (E.,) 90. But where one of three trustees was out of the jurisdiction and it would have been incon- venient and have caused increased expense to get him to join in a conveyance of trust estate sold under the order of the Court, the Court granted an order vesting his estate in the pur- chaser. Ibid, and see S.C., 5 A.L.T., 198. Trustee out of the Jurisdiction.]— Where an order had been made in a suit that a trustee should convey lands to the plaintiff, and the trustee was out of the jurisdiction and could not be found, the Court refused to make a vesting order, but made an order appointing a person to convey in the stead of the trustee- Curwen v. Mullery, 9 V.L.R. (E.,) 151. Deceased Trustee — Particular Property.] — Where an order is sought appointing a new trustee in place of one deceased, and an order vesting particular trust property in the new trustee, the Court will not make such vesting order without very clear evidence that the deceased trustee held such property as trustee only, hi re Hay ward's Settlement, 10 V.L.R. (E.,) 38. Hot Granted where Devolution of Legal Estate Doubtful.] — A testator devised the income of real estate to certain persons during the life of one of them, and directed that upon the death of such person the estate should be sold and the proceeds divided amongst the others, but did not say by whom the sale and division were to- be effected, and appointed three executors, o£ whom only one was surviving at date of peti- tion; and it was doubtful in whom the legal estate should vest. Upon petition for the appointment of the surviving executor as trus- tee, and for a vesting order, Held that there being a doubt as to the devolution of the legal estate, and as to the concurrence of certain of the petitioners, who were out of the juris- diction, without evidence that they concurred in the petition and its object, the petition should be dismissed. In the Will of Orosby, ft V.L.R. (E.,) 96; 1 A.L.T., 194. 1453 TKUSTEES. 1454 Practice.]— The Courb may, under Sec. 45 of Act No. 234, make a vesting order at the hear- ing of a cause, although it is not prayed for by the bill. Flower v. Wilson, 3 W.W. & a'B IE.,) 84. VII. Devolution and Removal prom Office. Jurisdiction of Court—" Trustee Act 1856," Sec. 32.]— The Court has no jurisdiction under the "Trustee Act 1856," Sec. 32, to displace a trustee who resides in England, and who, hav- ing been served with notice of motion for the appointment of a new trustee in his place, expresses his intention to remain a trustee and to take steps to enable himself to act, although he has allowed some years to elapse without having acted. In re Postlethwaite, 1 W. & W. (E.,) 173. Qucere — Whether in any case the Court can, under the " Trustee Act 1856," remove a trustee who states that he is unwilling to withdraw from the trust. Ibid, 175. [Sec. 34 of Act No. 234 is the corresponding section.] Trustee becoming Insolvent — "Insolvency Statute 1871" (No. 379,) Sec. 90.]— Upon a petition, under Sec. 90 of Act No. 379, for removal of trustee on ground of insolvency, it appearing that a firm of which the trustee was a member had sequestrated its estate, and that a business had been carried on in connection with the trust estate, in which liabilities and engage- ments had been undertaken, Held that the official assignee should be before the Court, and that as trustee had asked for an order for accounts, and it being doubtful whether Sec. 90 applied to a complicated case like this, the proper course was by suit. Petition refused. In re Clarke's Trusts, 5 V.L.R. (E.,) 28. "Insolvency Statute 1871" (No. 379,) Sec. 90 — Insolvent Trustee.] — Qucere, whether there is any jurisdiction to remove an insolvent trustee apart from Act No. 379 except in a suit, and as to whether Court could make such an order under that Act as would protect the cesluis que trustent. In re JJealey's Estate, 7 V.L.R. (E.,) 1. Permanent Absence — Ground for Removal.]— Permanent absence from the colony resulting in injury to the trust estate, in loss of income owing to trust moneys lying idle in a bank, is a sufficient ground for the removal of a trustee, although the testator may have known of such permanent absence when appointing him a trustee, there being at his death two Australian trustees, one of whom had died after the testa- tor. Knox v. Postlethwaite, 1 W.W. & a'B. (E.,) 62. Ground for Removal.] — Where a trustee places himself in a position antagonistic to his duties as trustee, as by taking an assignment of a, security given by, and thus obtaining possession of goods of persons who owed rent to the trust estate, and thus making himself unfit to enforce this liability to the estate, he should be removed. Officer v. Baynes, 3 V.L.R. (E.,) 115. Trustee Sought to be Removed a Partner with Testator — Right to Accounts.] — B. and L. were partners in a sheep station in New Zealand. B. died, having by will left all his property to Mrs. B., L., S., and W. as trustees and execu- tors, in trust for infant plaintiffs and Mrs. B. L. failed to account for the partnership assets. On a bill by Mrs. B., S., and the infants against L. and W seeking a declaration of partnership, partnership accounts, and removal of L. from being a trustee, Held that L. was not entitled before removal to a partnership account, but only an account of his own receipts and dis- bursements. Bruce v. IAijar, 6 W.W. & a'B. (E.,) 240, 259. Discharge of Trustee Appointed and Having Accepted Trusts — Decreasing Number of Trustees.] — On application for advice of court as to power of a trustee to withdraw, the trustee being one of five appointed and having accepted, but proposing to go to England she wished to withdraw, Held that the Court would not be justified in sanctioning any diminution of the number of trustees appointed by the testator. Application refused. In re the Will of James Butchart, 5 A.J.R., 4. Practice — Service upon Beneficiaries — Insolvent Trustee— "Insolvency Statute 1871" (No. 379,) Sec. 90. ] — Where a petition is presented under the " Insolvency Statute 1871," Sec. 90, to remove an insolvent trustee, it should be served upon all parties interested, including children entitled in remainder. In the Trust Estate of Healey, 6 V.L.R. (E..) 240; 2 A.L.T., 107. Practice— Service upon Trustee out of Jurisdic- tion.] — Sfmble, where it is sought to displace a trustee who has never acted, and who has been for a long time out of the jurisdiction, that it is not necessary to serve such trustee with notice of a petition under the " Trustee Act 1856," for the appointment of a new trustee in his place. In re Postlethwaite, 1 W. & W. (E.,) 173, 174. Practice — Parties. ] — Where infants are entitled as beneficiaries of certain property; if they are served with notice of petition for removal of a trustee, that is sufficient, and a guardian ad litem need not be appointed. On such an application all persons entitled in possession should concur in the petition. In re Healey's Estate, 7 V.L.R. (E.,) 1; 2A.L.T., 107. Costs.] — The above-mentioned petition being dismissed without costs, the order was made with- out prejudice to the right of D. , the insolvent trustee, whose removal was sought to retain his costs out of the estate. S.C., 7 V.L.R. (E.,) p. 6. VIII. Proceedings by and against Trustees. Two Suits — One Friendly, the other Hostile — Reference to Master.] — Where two suits were brought against trustees, one friendly and ask- ing for a continuance of the unauthorised invest- ment, the other hostile, charging wilful default, and praying removal of the trustees and ap- pointment of a receiver, it was referred to the Master to report which would be the most beneficial. Waddell v. Patterson, 1 W. & W. (E.,)43. 1455 TRUSTEES. 1456 Defence — leave to Defend Second Suit.]— Pend- ing the taking of accounts under a decree in a creditor's suit for administration of the trust estate, a second suit was instituted against the trustees of the deed, relative to a portion of the trust estate conveyed by deed. On motion in the first suit for leave for the trustees to defend the second suit, ordered that the trustees he at liberty to act as they might be advised as to defending the new suit, notwithstanding the decree in the first suit. Heape v. Hawthorne, 2 W.W. &A'B. (E.,)13. Prosecution of Trustee under " Statute of Trusts 1864" — Sanction of law Officer.] — The consent of a law officer to the prosecution of a trustee under the " Statute of Trusts 1864," Sees. 82-96, is suffi- ciently proved by a document signed, but not qua Attorney-General, by a person admitted to have been Attorney-General when he so signed. Reginav. Taylor, 1 V.R. (L.,) 84; 1 A.J.R., 80. [Sees. 82-96 of Act No. 234 are repealed by Sec. 3 of the " Criminal haw and Practice Amendment Act" (No. 399.)] Prosecution for Appropriating Trust Funds — Executor—" Statute of Trusts 1864," Sec. 82.]— An executor is a trustee within Sec. 82 of the "Statute of Trusts 1864." so as to be liable to be prosecuted under that section for appropriating trust funds, although there be no express trust created by the will. Ibid. Distress for Rent — All the Trustees need not Sign the Warrant.] — See Moore v. Lee, ante column 380. Parties — Supreme Court Rules, Cap. V., Sec. 10.] — Semble, that trustees do not sufficiently repre- sent cestuis que trustent in suits where rights arising from proceedings against the cestuis que trustent are concerned, though they do as to liabilities, &c. , arising from acts of the testator or deceased, and perhaps themselves. Randall v. Mau, 2 V.R. (E.,) 158, 161; 2 A.J.R., 81. When Trustees do not Represent Cestuis Que Trustent — Suit to Set Aside a Settlement.] — Where a suit is brought to upset a settlement, the trustees of the settlement do not, under rule 10 of cap. v. of Supreme Court Rules, represent the cestuis que trustent. In re Healey, 2 V.R. (I. E. & M.,) 34; 2 A.J.R., 132. Suit to Set Aside Deed of Assignment.]— In a suit to set aside a creditor's deed of assignment the trustees do not represent the cestuis que trustent. Goodman v. M'Callum, ante column 627. Suit by Trustees of a Marriage Settlement to Charge Real Assets of Testator against Trustees of Testator — When Trustees Represent Benefi- ciaries.] — Bullen v. Phelan, ante column 1191. Suit by Person Claiming Devised Property Acquired by Testator's Fraud — When Executor Represents the Property.] — Bennett v. Tucker, ante column 1192. Suit by Cestuis Que Trustent to Set Aside a Con- veyance by one of them Made in Mistake— Trus- tees not Necessary Parties.]— Ronalds v. Duncan, ante column 1307. And see cases ante columns 477, 478, as to Fraudulent Settlements. Parties— Suit for Account Only— Creditors' Deed — Whether Unpaid Creditors Necessary Parties.] — Where A. assigned his estate to trustees in trust for creditors and afterwards brought a suit against the trustees for an account without praying for any payment, Held that unpaid creditors were not necessary parties. Arthur v. Moore, 5 V.L.R. (E.,) 207 ; 1 A.L.T., 29. Suit Relative to a Settlement — Trustee of Equitable Interest not a Necessary Party.] — Dallimore v. Oriental Bank, ante column 1188. Suit for Account by One Trustee against Agent of Trustees — No Privity between Agent and Co- trustee or Cestuis Que Trustent.]— Phelan v. Macoboy, ante column 1190. Parties — Representative of Deceased Trustee — Suit by Surviving Trustee against a Third Per- son.] — Where a surviving trustee brings a suit against «, third party participating in a breach of trust by a deceased trustee with notice of trust, the representative of the deceased trustee is not a necessary party. Mackay v. Caughey, 1 V.L.R. (E.,)56. Procedure — Account — Default.] — In an action by cestui que trusts against trustees to entitle the plaintiffs to an account of what trustees re- ceived, or without default, might have received, some instance of loss by mismanagement must be alleged and proved. Snaith v. Dove, 4 A. J.R., 140. And see cases ante under Liability of Trustees. Costs of Trustees when Allowed.] — Costs are not necessarily withheld from trustees acting irregularly, but not corruptly or mischievously, or given to a cestui que trust establishing such irregularity in her own right, and as next friend of other cestui que trusts. Snaith v. Dove, 4 A.J.R., 140. Costs of Trustees.] — Suit by official assignee to set aside a voluntary settlement as fraudulent, and to make trustees of settlement liable for mortgage money of insolvent's land received by them. Costs of pleading and hearing, but not of evidence allowed trustees. Halfey v. Tait, 1 V.L.R. (E.,) 8 ; for facts see S.C., ante column 474. Costs will not be given against trustees except where they have been guilty of improper conduct. But where unsuccessful on appeal, they may be left to pay their own costs. Attorney-General v. M'Pherson, 4 V.L.R. (E.,) 51. When Trustees Deprived of Costs.] — Dryden v. Dryden, ante column 245. 1457 TRUSTEES. 1458 Costs against Trustees.]— Costs will not be given against defendant trustees, who do not appear when bill does not pray for them. Pliair v. Powell, 5 V.L.R. (E.,) 264. Delay of Cestins que Trustent in Bringing Suit —Costs.]— Bennett v. Tucker, ante column 1439. IX. Petitions for the Advice of the Court. Under " Statute of Trusts 1864," Sec. 61— Form of.]— The proper form of a petition under the " Statute of Trusts 1864," Sec. 61, is a request for advice, and not for directions as to the management of the property. In re M'ICaii. 2 V.L.R. (E.,) 105. Construction of Will or Deed— Court will not Advise upon on Petition.]— The Court will not advise upon the construction of a will or deed under Sec. 61, there being no appeal from the opinion, and where there are conflicting inter- ests it might be advisable to appeal. In. re. Young-man, 4 A. J.R., 66. Will difficult to Construe — Matters which afford Ground for litigation.] — Where a will is very difficult to construe, and there are materials for litigation between the parties interested, the Court will not answer questions by an executor for advice and direction under the "Statute, of Trusts 1864," Sec. 61. In re Make., in re O'Neill, 2 V.L.R. (E.,) 171. But where the property was small and the children took parallel interests on attaining the age of twenty-one, and there were no conflicting interests the Court answered the questions as to advice though they involved the construction of the will. Jure Stillrnan's Will, 1 V.L.R. (E.,) 15S. " Statute of Trusts 1864," Sec. 61— Doubtful Pacts.] — Two trustees, A. and B., under a settle- ment, having entered into negotiations with C. to grant him a lease, B. left the colony, and had not been heard of for some months. Petition for advice whether A. should appoint a new trustee under power in the settlement, and apply for a vesting order. Held that Court would not advise on doubtful facts. In re Wills' Settlement, 5 V.L.R. (E.,) 292. Petition under 15 Vic. No. 10, Sec. 16, and Act No. 112, Sec. 51— Court will Not Investigate Facts.] — See in the Goods of Holdsworth, ante column 451. Complicated Will — Trustees Appointed by Tes- tator — Others by High Court of Justice — Ad- ministrator c.t.a.] — A testator in England made a complicated will and appointed A. and B., resident in England, trustees of Australian pro- perty ; A. and B. gave a power of attorney to petitioner, who obtained in Victoria administra- tion c.t.a. • The Court, on a petition for advice, refused to advise under Sec. 61 as to the position of C. and D., who were appointed Australian trustees by the High Court of Justice, or as to apportionment of costs of repairs and other matters relating to application of a fund in his hands. In re the Will of Ruddock, 5 V.L.R. (E.,) 297 ; 1 A.L.T., 89. When Court will Advise upon.]— The Court will not, on petition under sec. 61, decide between co-plaintiffs in a suit, urging conflict- ing claims on a legacy which had lapsed, owing to the death of one of the class. Such a question must be brought forward by a supple- plemental bill. Osborne v. Osborne, 9 V.L R. (E.,)l. Note. — The supplemental bill was afterwards filed by five infant daughters, through their next friend, against the trustees of the will, the original defendants in the suit, and the four sons who claimed adversely to the daughters, as new defendants. When Court will Not Advise upon — Construction of Charitable Bequest.] — See Attorney-General v. Wilson, 8 V.L.R. (E.,) 215; 4 A.L.T., 14. " Statute of Trusts 1864" (No. 234,) Sec. 61— Will — Complicated Matters.] — Where, in the con- struction of a will, advice was sought as to whether a life estate was chai'geable with a certain debt, the Court being uncertain as to the facts and considering the matter too com- plicated, refused to advise. In re Leon's Trusts, 9 V.L.R (E.,) 74. " Statute of Trusts" (No. 234,) Sec. 61— "Duties on the Estates of Deceased Persons Act" (No. 388).] — The Court will not give advice on a petition under Sec. 61 of Act No. 234 as to construction of Act No. 388, especially in the absence of the Crown, although the Attorney-General has been served with notice of the petition. In re Wil- liamson, 7 V.L.R. (E.,) 48. " Statute of Trusts," Sees. 61, 56— Sum in Hands of Executor of Official Assignee — Payment into Court.] — A sum of money was at the death of C, an official assignee, in his hands, belonging to the estate of an insolvent . No claims were sent in in respect of this in answer to advertise- ments. Petition under Sec. 61, by C.'s executor for advice as to whether the executor could pay it into Court under Sec. 56. The Court refused to advise. In re Courtney's Trusts, 7 V.L.R. (E.,) 149. Difficult Point — Domicil — "Married Women's Property Act" (No. 384,) Sec. 10.]— Where a testator domiciled in Victoria died, leaving property in Victoria to a sister domiciled in England, the Court refused, on application under Sec. 61 of No. 234, to advise the trustees whether they could pay her share to the sister as being separate property, under Sec. 10 of Act No. 384, or whether the consent of her husband was necessary under the English law, on the ground that the question was one of great doubt. In re Dickason's Trusts, 7 V.L.R. (E.,) 184; 3 A.L.T., 85. Matter Arising in Administration of Estate.] — Trustees were directed by will to purchase land in the Melbourne cemetery for a family grave and to erect a tombstone thereon at a cost of £200. The testator by his wish was buried in the Boroondara cemetery. Upon petition by the trustees under Sec. 61 asking whether they could expend the money in the erection of a tombstone in the Boroondara cemetery, Held 1459 TRUSTEES. 1460 that, as the matter was one arising in the ad- ministration of the estate, a petition for advice -would lie. In re Campbell, 9 V.L.R. (E.,) 138. And see In re Folk's Will, ante column 1433; ire re Geo. Rolfe, ante column 1437; in re Dur- bridge, ante column 1434 ; and In the Will of Downing, 7 V.L R. (E.,) 22 ; 2 A.L.T., 133, post under Will — Incidents, &c. — Advance- ment, for instances where the Court advised upon matters of management and administra- tion. To Whom Petition should he Addressed.] — A petition under Sec. 61 of the " Statute of Trusts 1864" by the trustees of a will seeking the advice of the Court as to whether a proposed investment would be proper, was addressed to all the judges. Held that it should have been addressed to a single judge. In the will of Russell, 1 A.J.R., 52. Practice.] — Where the opinion of the Court is sought under Sec. 61 of the " Statute of Trusts 1864," unless it is clear that the power sought in the petition exists, the Court answers in the negative. In re Bowman's Trusts, 6 V.LR. (E.,) 124; 2 A.L.T., 13. Practice—" Trustee Act 1864" (No. 234,) Sec. 61 — Evidence of Statements— Complicated Matters.] — The petitioner states facts at his peril and advice is given on the assumption that they are true. The Court will not hear affidavits in reply, as in case of misstatement the order affords no protection. In re Trusts of Leon's Will, 9 V.L.R. (E.,) 74. Costs. ] — Upon a petition for the advice of the Court under Sec. 61 as to whether the adminis- . trator (the petitioner) of an intestate was a trustee within the meaning of Sec. 77 of the Act No. 234 ("Statute of Trusts 1864,") the Court directed that the costs of the petition should be thrown rateably upon the shares of the infant children. In re Bowman's Trusts, 6 V.L.R. (E.,)124; 2 A.L.T., 13. X. Rights of the Cestui Que Trust. A cestui que trust in possession by permission of the trustees is a tenant-at-will of the trustee, and he may, therefore, bring trespass against a stranger. Cuvet v. Davis, 9 V.L.R. (L.,) 390, 396. Cestui Que Trust of Age — Payment to.] — Where a cestui que trust is of age the Court may direct that his share be paid to him by the trustee. Richardson v. Shira, 6 A.L.T., 48. XI. Funds in Court. Service of Petition.] — Service of a petition under No. 234, Sec. 57, for payment out of moneys paid into Savings Bank, with privity of the Master, under Sec. 56, is not properly effected upon respondents (husband and wife) by leaving it with their daughter at their dwelling-house. In re Edwards, 4 V.L.R. (E.,) 109. Costs.] — A respondent to a petition is entitled to appear and defend himself when the petition prays for costs against him. Ordered that the petitioner pay costs of such appearance. Ibid. Direction for Investment— Application of In- come.]— Where trustees under a will had paid into Court money to which infants were entitled as tenants in common, the Court, upon petition by them that the Master be directed to invest the sum in Government debentures and pay the income to their father for their maintenance, and, on their respectively attaining twenty-one, to sell the debentures, and pay the proceeds in accordance with the trusts of the will, directed the sum (without any reference) to be invested in debentures and the income paid to the father, who was in poor circumstances, as prayed; but refused to make any order as to the distribution of the sum on the infants attaining twenty-one. In the will of Cameron, 6 V.L.R. (E.,) 74; 1 A.L.T., 184. Payment out of Court — Petition is the Proper Course.]— In re Bourhe's Trusts; In re Benson; and In re Stanton, ante column 1205. XII. Investments. In Squatting Property — Court will not Autho- rise.]— Per Molesworih, J. (p. 64):— The Court will not authorise an investment of the estate in squatting property because such property is not a security ; it is a speculative trade subject to many vicissitudes and to a variety of diseases which may sweep off the stock, and (in 1861) owing to the political condition of the country is an investment of peculiar risk and liazard ; it is far more difficult to ascertain the honesty of the trustee's dealings in such a case, and the Gourt has not the same control over the trustee as in other classes of investments. Where a testator had directed the sale of the station property and the trustees had with great success continued the station, and two suits were insti- tuted, one a friendly suit praying for a continu- ation of the investment, and the other hostile praying for a receiver and charging wilful default, although the former suit was reported to be more beneficial, Held and affirmed that the Court would not sanction the investment, and decree made for a sale. Waddell v. Patter- son, lW.iW. (E.,) 43, 55, 57, 64. Where Settlement is Silent as to Investments.]— Where trustees have made a sale of real estate under a power authorising them to dispose of real estate by sale or in exchange for other hereditaments, but containing no provision for investment, it is the duty of the trustees to invest the proceeds in the purchase of real estate or leasehold premises, in accordance with the "Statute of Trusts 1864," Sec. 66; and, until advantageous investments in such property can be found, to invest upon Government stock or debentures, but not upon mortgage. In re Weir, 2 V.L.R. (E.,) 168. Power to Invest in Government Stocks and Debentures.] — Where a testator, by his will, gave his trustees powers to invest in Govern- ment stocks and debentures, and upon real securities within the colony, and upon securities of dividend paying companies incorporated by Act of Parliament other than mining companies, the Court, upon motion after decree to admin- ister his estate, continued the discretion vested in the trustees, but limited the investments to Government stocks and debentures in Victoria, and real securities. Gibbs v. Gibbs, 6 V.L.R. (E.,)30. 1461 USE AND OCCUPATION. 1462 Liability of Trustees.]— A trustee may be charged with loss arising from a mortgage made in contravention of his powers, without impugning the mortgage. Snaith v. Dove. 4 A.J.R., 140. Improper Investments— What are— loans on Personal Security— Investments in a, Distillery and in a Mining Company.]— See Sawyers i: Kyte, ante column 1441. Mining shares are undesirable and incon- venient as an investment for trust property. Knight v. Knight, ante column 449. Liability for not Investing Trust Funds— In- terest.]— Where a trustee retained balances in his hands uninvested, he was charged simple interest thereon at the Court rate. Sichel v. O'Shanaaxy, 4 V.L.R. (E.,) 250. There is an obligation on trustees to invest moneys in their hands, even where there is no direction in a will for investment, although the will provides for accumulation ; and trustees having retained a sum of money in their hands for six months, without presenting any diffi- culties to excuse their non-investment, were Held liable to pay interest thereon not at the Court rate (8 per cent.), but at the rate (6 per cent.), which would have been received had they invested it for that period in Government de- bentures. Adamson v. Reid, 6 V.L.R. (E.,) 164; 2 A.L.T., 69. UNDUE INFLUENCE. Voluntary Conveyance — Fraud — Undue Influence — Fiduciary Relationship — Pretended Purchase — False Recitals— Evidence— Onus of Proof.]— W. the male grantee under a deed and S. the female grantor lived together in the same house on terms of the greatest intimacy. By the deed of 30th July, 1874, which purported by its recitals to be a purchase deed, but which was in fact voluntary, S. conveyed certain land to W. S. was at the time prostrated by illness. She had no independent advice, no instructions were given by her for the deed, and no draft was submitted to any solicitor on her behalf. Held, per MoUsworth, «/., and Full Court that devisee under S.'s will who sought to set the deed aside was entitled to do so, as it was procured by fraud or undue influence, the bill setting up both charges. Held, per Full Court, that though it is necessary to establish something like a fiduciary relationship to constitute undue influence, yet it is dangerous to attempt a strict definition and Courts of Equity avoid such a definition as might exclude other cases which might after- wards arise ; the jurisdiction is founded on the principle of correcting abuses of confidence and should be applied in every case where two persons are so situated that one may obtain con- siderable influence over the other. By Full Court that where there is a variance between the recitals in a deed and actual facts the onus of reconciling the facts with the operative part of the deed is always on those claiming under the deed. Symons v. Williams, 1 V.L.R. (E.,) 199. And see post under Will — Testamentary Capacity. USE AND OCCUPATION. When Action Lies.]— B. and P. entered into- an agreement for a lease. After P. had entered into possession under the agreement, and under the supposition that the lease would be issued, B. wrote to say that instead of P. preparing the lease, he, B., would get the lease prepared for him. He did not do so, however, and no steps were taken to prepare the lease by either party. P. still continuing in possession, and not paying any rent, was sued for use and occupa- tion. Held that the action would lie. Barbour v. Pinn, 1 V.R. (L.,) 222 ; 1 A. J.R., 166. When Action Lies — Jetty.] — Defendant, with the permission of plaintiff, moored his ship to- plaintiff's jetty and placed a landing stage from the jetty to his ship, and he and his men used the jetty in passing to and from the ship. The ship's cargo consisting of timber was not dis- charged on the jetty but into still water under the shelter of the jetty. Held that the possession and right to possession were always, in the plaintiff and an action for use and occupation would not lie. Solomon v. Fitz- simmons, 2 W. & W. (L.,) 42. Action for by Executors — Title— Defence— Pay- ment to Persons previously Allowed to Receive Rents and Profits.] — In an action by executors for use and occupation, if the defendant have pro- mised to pay, it affords evidence for the jury 1 to infer his liability, and the plantiffs need not prove title. And it is no defence for the occupier in respect to a period subsequent to a notice not to pay any one but the plaintiffs that he has paid in advance to the widow of the testator, who had been for a long time before such notice allowed to receive the rents and profits of the land. Mornane o. O'Brien, 6 V.L.R. (L.,) 61; 1 A.L.T., 161. Action by Mortgagor before Mortgagee enters into Possession — Recognition of Mortgagor's Title by Defendant — Act Mo. 301, Sec. 93.] — See Louch v. Ball, ante column 1414. Use and Occupation — Landlord's Title — Un- authorised Occupation of Crown Lands — Act Ho. 360, Sees. 4, 93.] — A. was in unauthorised, occupation of Crown lands basing her claim to possession under a purchase of the interest of a previous holder of a miner's right in the house on the land — the memorandum of sale also speci- fying a well and other improvements — and she let the "house and premises" to B. A. brought, a complaint before justices against B. for use and occupation. On a rule nisi for prohibition it was contended that it was contrary to the policy of Act No. 360, for a person in unauthor- ised possession to traffic in Crown lands. Held that A. could not recover, even although the Crown had not attempted to dispossess her, and that B. might take the objection that she was in unauthorised possession to her title. Rule absolute. Regina v. Hare, ex parte Young, 9 V.L.R. {I,.,) 38, S.C., 4 A.L.T., 152, sub nom. ex parte Young, where it appears to have been decided on the ground that A. was the holder of a residence area which it was illegal, under Sec. 5 of Act No. 291, to sublet. 1463 VENDOR AND PURCHASER. 1464 VACATION. Writ of Prohibition made by Vacation Judge — Practice on — Power of Judge.] — In re Brewer, ex parte Webster; Regina v. Strutt, ex parte Chatty; and Scott v. Ruddock, ante column 780. Rule for Prohibition may be Obtained in Vaca- tion — 15 Vict., Ho. 10, Sec. 19.]— Dennis v. Vivian, ante column 780. Application for Prohibition under " Emergency Clause" in Vacation moulded into one under Act Ho. 571.] — Reginav. Mairs, ex parte Vansuylen, ante column 780. Order Hisi for Writ of Quo Warranto Granted in Vacation— Hot Returnable in Term.]— Regina v. Mouatt, ex parte Sargeani, ante column 1256. "Emergency Clause"— Reference to Court.]— Regina v. Mairs, ex parte Vansuylen, ante ■column 1210. Setting aside Order made in Vacation under "Emergency Clause"— Order should be Filed.]— Ex parte Nyberg, in re Nicholson, ante column 1211. Repeal of " Emergency Clause"— Act Ho. 761, Sec. 13.]— Regina v. Bailes, ex parte Pickup, ■ante column 1233. Order Restraining Registration of a Person as Proprietor of Land under the " Transfer of Land Statute" (Ho. 301) may be Obtained from Judge in Chambers during Vacation.]— In re " Transfer of Land Statute," ex parte Mahoney, ante column 1397. VENDOR AND PURCHASER. I. The Contract and Matters Relating THERETO. (a) Contract, column 1464. (b) " Statute of Frauds," column 1465. (c) Conditions of Sale, Inquiries, &c. , column 1467. (d) Title, column 1470. («) Notice, Effect on Purchaser, and Causing Inquiry, column 1471. II. Parties, column 1472. III. Enforcement, Discharge, and Rescis- sion. (a) Specific Performance, column 1472. (b) Rescission of Contract, column 1478. (c) Rights and Duties of Vendor and Purchaser, column 1479. (d) Purchase Money and Lien, column 1480. ( Power.] — A testator appointed an executor, 1527 WILL. 1528 ■with power to appoint another person to act with him or instead of him. The Court granted probate to the executor without prejudice to his right to nominate another person, and inti- mated that if the power were exercised a subse- quent application might be made by the nominee to be substituted. In the Will of Hill, 6 V.L.R. (I. P. &M.,) 16 ; 1 A.L.T., 179. Where leave has been reserved to one executor to come in and prove, it is not necessary for him to move the Court for that purpose, such probate imay be taken out in the office. In the Will of M' Donald, 4 W.W. & a'B. (I. E. & M.,) 17. Separate Application by Executors.] —Where one application was made for probate to two executors reserving leave to the third to come in and prove, and at the same time application was made for probate to the third executor, the Court refused to make two orders but would grant one order for probate to the three executors. In re Taylor, N.C., 32. Wife Appointed Executrix — Trustees Appointed to Advise Executrix.] — Where a testator made a will leaving his property to his wife (the execu- trix) for life, the remainder to the children, and appointed two persons as trustees merely to advise her, the Court granted probate to the executrix reserving leave for trustees to come in and prove as in the event of her death before the children came of age they might have to act. In the Will of Davey, 5 A.J.R., 130. Wife Appointed Executrix — Gift to Trustees if they should Prove the Will.] — A testator ap- pointed A. and B. trustees, and bequeathed a sum to be equally divided between them if they should prove the will, and appointed his wife sole executrix. Probate granted to wife solely. In the Will of Gillibrand, 5^,L.E. (I. P. & M.,) 94. Contingent Appointment of Executor — Provision for Substitution on a Certain Event.] — Under a willC. was appointed executor "if he shall have attained the age of twenty-one at my decease," and then followed a provision for trustees being appointed executors in the event of C. not being of age. C. was not twenty-one when the testator died but was when he applied for probate, the trustees having renounced. The Court granted administration with the will annexed to C, not granting him probate because there was no ab- solute appointment followed by a provision for substitution on a certain event. In the Will of Ogilvie, 5 A.J.R., 170. And see generally as to Appointment of Execu- tors' Cases ante columns 1508 — 1514. On Renunciation of Executors.] — Where execu- tors had filed a deed of renunciation, February, 1879, but no one had applied for probate in the meantime, probate was granted to them in April, 1879, the deed being left on the file. In the Will ofBoardman, 5 V.L.R. (I. P. & M.,) 70. Renunciation — In Tasmania.] — A testator died In Tasmania, and in Tasmania an executor ap- pointed duly renounced, the renunciation being duly filed in Tasmania. Held that the Court was not bound by such renunciation, and probate granted, reserving leave to him to come in and prove. In the Will of Wherrett, 9 V.L.R. (I. P. & M.,) 25. Renunciation of Probate by Executors Abroad — Effect of.]— The renunciation by an executor of the trusts of a will in another colony does not affect proceedings for probate in this colony, and probate will be granted in this colony of an exemplified copy of the will, with leave reserved to the executor who has renounced to come in and prove. In the Will and Codicils of Levey, 6 A.L.T., 117. Renunciation When Allowed.] — An executor may be allowed to renounce probate when he has never acted, the order has not been taken out, and probate has not passed the seal of the Court. In the will of Parnell, 2 V.R. (I. E. & M.,)56. Executor of Executor — Renunciation.] — An exe- cutor of an executor, who has taken out probate, to his testator, cannot renounce the executor- ship of his testator's testator. In the Will of Pirie, 10 V.L.R. (I. P. &M.,) 43; 6 A.L.T., 33, sub nom. In the Estate of Pirie. Executors out of Jurisdiction.] — Where execu- tors appointed by the will were resident in Albury, N.S.W., and the property was all situate in Victoria, the Court granted probate to them in the usual form. In the Will of Burke, 5V.L.R. (I. P. &M.,)69. One Executor out of Jurisdiction — Attorney — Probate not Granted to Attorney but Granted to Executor within the Jurisdiction with leave to the Other to Come in and Prove.] — See In the Goods of Hickman, ante columns 1525, 1526. Executors in Sydney— Security — Justifying.] — The Court, in granting probate to an executor resident in Sydney, required the security usual in the case of a grant of administration, and allowed the executor and his sureties to justify in New South Wales before a Commissioner of the Supreme Court of Victoria. In the Will of Neville, 8 V.L.R. (I. P. &M.,) 29; 4 A.L.T., 15. See S.P., In the Will of Cullen, 9 V.L.R. (I. P. & M.) 30. Executor Resident in England.]— The Court will not grant probate of a will to an executor resident in England. In the Will of Slack, 8 V.L.R. (I. P. & M.,) 23. Separate Executors to Different Portions of Pro- perty in Victoria.] — Where a testator's property was situate in Victoria, and he appointed his wife executrix so far as a certain business was concerned, and A. the executor of the residue, the Court refused to grant separate probates, but offered to grant probate to A. subject to the wife's consent. In the Will of Danes, 5 V.L.R. (I. P. &M.,)93. To Executors according to the Tenor.] — See cases ante columns 1509 — 1514. 1529 WILL. 1530 Where Executors or Administrators are Entitled to Grant of Administration de bonis non.] — See cases post columns 1532—1534. Application for Grant on Coming of Age — Notice to Administrator durante minore setate.j— On an application for a grant of probate to executors upon their coming of age, notice of the intended application should be served upon the adminis- trator durante minore estate. In re Patten, 2 V.L.R. (I. P. & M.,) 97. Executrix Marrying — Executor Coming in Pur- suant to Leave Reserved.] — Upon the marriage of a person who was appointed executrix during widowhood, probate was granted to an executor coming in under leave reserved upon her mar- riage without revocation of the probate to her. In the Will of Fitzpatrick, 4 V.L.R. (I. P. & M.,) 45. Executor durante absentia — 38 Geo. III., Cap. 87— Act No. 427.]— 38 Geo. III., cap. 87, pro- viding for the appointment of an executor durante absentiA, only applies to personalty, and the Court refused to make an appointment of an executor durante absentia of an executor appointed under Act No. 427. In the Will of Ryan, 7 V.L.R. (I. P. & M.,) 38; 2 A.L.T., 143. (g) To Persons under Special Circumstances. What are Special Circumstances.] — Semble, that immorality is not a ground for withholding a grant of letters of administration from the nephew of an intestate. In the Goods of Peebles; Hall v. Nelson, 2 V.R. (I. E. & M.,) 52 ; 2 A.J.R., 38. Joint Administration.] — The Court under cir- cumstances which showed that sureties could not be obtained if administration were granted to a widow alone, granted a joint administra- tion to widow and eldest son. In the Estate of Keman, 3 V.L.R. (I. P. &M.,) 50. Executrix Refusing to Prove or Renounce— "Administration Act 1872," Sec. 36.]— On an application under Sec. 36 of the ' 'A dministration Act 1872," it appeared that the executrix had possessed herself of the will, and refused either to prove it or renounce probate, and moreover, would not bring it into Court. The Court made an order for administration during the absence of the will to a creditor applying under the section with costs against the executrix. In the Estate of Jones, 8 V.L.R. (I. P. &M.,) 26. Donee of a donatio mortis causa.] — Admin- istration granted to the donee of a donatio mortis cans A, but order to stand over till an ad- vertisement settled by the Court had been in- serted twice in a certain newspaper, such ad- vertisement calling attention to the donatio mortis caund, and the donee's claim to it. In the Goods of Tully,4W.W. & a'B. (I. E. & M.,) 15. See S.P., In the Goods of Holton, 6 W. W. & a'B. (I. E. & M.,) 40. (h) In other Cases. Person not Proving Himself of Full Age.]— Where plaintiff filed his bilLfor the grant to him of letters of administration, and the defendant pleaded the infancy of the plaintiff, and the- only evidence that the plaintiff was of age was his own statement : Held that the plaintiffs, statement did not amount to proof of his age ; and that not having proved his age the bill should be dismissed without costs. In the Goods of Peebles j Hall o. Nelson, 2 V.R. (I. E. &M.,)52; 2A.J.R..38. Letters of Administration— Mother Entitled before Brother.] — The mother of an intestate is- entitled to administration in priority to the brother. Before administration can be granted to the brother, there must be a consent by the mother, or an affidavit that she declines to take out administration. In the Goods of M'Farlane, 3 VY.W. & a'B. (I. E. & M.,) 66. Joint Grant — Widow and Son.] — A joint grant of administration will not be made to the widow and son of an intestate, although the widow consents. In the Goods and Real Estate of Moylan, 2 V.R. (I.E. & M.,) 69. Nephew of Intestate Improperly Using Assets.] — Where an intestate had during his life become lunatic, and upon his so doing, his nephew took possession of his stock-in-trade and shop, and continued to carry on the business in it, and kept no proper or distinct accounts as to the stock-in-trade as it stood at the time he took possession, and as it stood at the time of his. applying for administration, having sold some of the stock, and added other stock, Held that the confusion thus created would in itself be a ground for refusing the nephew adminis- tration of the estate. In the Goods of Peebles; Wall v. Nelson, 2 V.R. (I. E. & M.,) 52; 2 A.J.R., 38. Heir-at-Law.] — An intestate died in 1864, and left a widow and two sons, and from his death the real estate had been in the joint occupation of the widow and two of the intestate's, brothers, and was used for the benefit of the widow and the sons. The Court refused a motion by the eldest son and heir-at-law for a grant of administration of the real estate to him on the ground that by giving him the grant a conclusive title would be given to him to a matter which might be disputed. In the Real Estate ofCropley, 4 V.L.R. (I. P. & M,,) 61. Son — Daughter.] — A son is entitled to ad- ministration as against a daughter, especially if the latter be married. In re Dunn, 1 A.L.T., 60. Eldest Son — Affidavit.] — The affidavits, in an application for administration to an eldest son, should distinctly state that there was no widow, or she should consent to the application. In the Estate of Trail, 3 A.LT.,27. Next-of-Kin within Jurisdiction Preferred to one Resident Without — Married Woman.] — Letters of administration will be granted to a next-of- kin resident within the jurisdiction in preference to one temporarily resident out of it, although the former may be a married woman. In the Estate of Chambers, 4 V.L.R. (I. P. & M.,) 21. 1531 WILL. 1532 One of Next-of-Kin— Sole Legatee and Executor Predeceasing Testator.]— Where P., appointed sole legatee and executor under a will, had predeceased the testator, the Court granted administration e.t.a. to one of the next-of-kin. In the Will of Plammer, 5 V.L.R. (I. P. & M.,) 81. Act No. 230, Sees. 4, 12— Contest between Curator, Eldest Son of Intestate by a Former Husband, and Creditor Administrator to Second Husband who had Obtained Administration to the Intestate.]— Gr. , a married woman, died intestate, her second husband obtained a rule to administer and died leaving a will but no executor, M., a creditor of G., took out administration c.t.a. to the second husband's estate, D., a son of G. by her first husband, also applied. Held that as between curator and others the curator was not entitled under Sec. 12 of the Act, and as between M. and T>., although under See. 4 G.'s husband might have been entitled to half G. 's property, yet M.'s right to be preferred as re- presentative to G. only arose where G.'s next-of- kin took no beneficial interest, and as D. was first in the field with his advertisement he should be preferred. Rule to D. Qumre whether the rule as to husband's preference to •children to administration of personalty applies to obtaining a rule to administer realty under Sec. 4 of the Act. In re Gallogly, 5 A.J.R., 49. Contest between Foreign Administrator and Persons nearer of Kin.]— C. died in India, leaving a brother and a mother. The brother obtained administration in India. Held that that did not give him or his attorney under power a better right than the mother. In the Estate of Crowe, 5 V.L.R. (I. P. & M.,) 65. Administration c.t.a.— Trustee of Part of Pro- perty and Guardian.] — Where a testator devised certain property to an infant and the residue of the personal property to his brother out of the jurisdiction, and appointed P. trustee and guardian of the infant till she came of age, the Court refused to grant administration c.t.a. to P. In the Will of Walker, 5 V.L.R. (I. P. 6 M.,) 74. Trustees, Executors, and Agency Company- Person Entitled to Administration Substituting the Company.] — If a person who would be entitled to administration, resides within the jurisdiction of the Court, he cannot substitute the Trustees, Executors and Agency Company, or any other person for himself ; though if he resided out of the jurisdiction he could do so by power of attorney, &c. In the Will of Payne, 6 A.L.T., 116. , To Nominee of a Company.]— A testator ap- pointed as executors such persons, being direc- tors of the company, as the Trustees and Agency Company might under its seal nominate; the company duly nominated two of its direc- tors as executors. The Court granted probate to them as individuals. In the Will of Hodden, 5 V.L.R. (I. P. & M.,) 91 ; 1 A.L.T.,'74. Power to Appoint new Trustees.]— A will appointed two persons " executors and trustees" and contained a power to appoint new trustees. The trustees and executors disclaimed, and the person appointed by the will for the purpose appointed two others as trustees. The Court refused to grant probate to these persons, on the ground that the power was not to appoint executors. In re Campbell, 1 V.L.R. (I. P. & M.,) 32. (2) When Grant Limited. Limited Administration — Equity Suit.] — For form of order where administration was granted to a nominee of plaintiffs in an equity suit touching the rights of the intes- tate under the will of another person, the object of the suit being to determine the con- struction of the will, see In the Estate of Morton, 3 A.J.R., 102. In what Cases.] — See In the Will of Brown, 4 V.L.R. (I. P. & M.,) 47 ; ante column 1510. Separate Executors to Different Portions of Properties in Victoria — Probate only Granted to One, with Consent of Other.] — In the Will of Davies, ante column 1528. Executor also Husband and Father of c.q.t.s. — Conditional Grant.]— C. died domiciled in N.S.W., having by will appointed H. and another his executors. They proved the will in N.S.W., and H. applied for probate in Vic- toria, the other executor being resident in N.S.W., and not joining in the application. Some time before his death, C ., by deed poll, declared himself trustee of a mortgage under the " Transfer of Land Statute" in favour of H. 's wife for life, and after her death for her children. C. left no other real or personal estate in Victoria. The Court made the grant to H., upon his undertaking to have new trustees of the settled property, and to con- vey to them, such undertaking being incor- porated in the order granting the probate. In the Will of Cameron, 6 V.L.R. (I. P. & M.,) 87 ; 2A.L.T, 16. (3) Of what Instruments. See ante column 1500 et seq. (ii.) Particular Kinds of Administration. (a) Administration de bonis non. Administration de bonis non — Contest between Husband and Surety of Original Administratrix — " Divorce Act " (No. 125,) Sees. 7, 11, 48.]— M'V. died intestate, and letters of administration were granted to his widow, A. joining in the bond as one of her sureties. The widow subse- quently married M., and after marriage M. deserted her, and she obtained a protection order under the "Divorce Act " (No. 125,) Sec. 7. During the desertion she carried on business as a, feme sole, and became indebted to A. Co- habitation was resumed which continued till her death, A. 's debt being still unpaid. A. published notice of his intention to apply for administra- tion de bonis non of M'V.'s estate, to which no caveat was lodged, and M. applied for administra- tion to the widow's estate, against which A. lodged a caveat. Held that under Sees. 7, 11, and 48 of Act No. 125 the resumption of cohabitation 1533 WILL. 1534 after a protection order based upon desertion places the parties in the same position as to liabilities and rights of separate estate as in the case of a man and woman originally marrying ; that the property acquired during the separa- tion became the husband's on resumption of cohabitation, and there was no need for him to take out administration. Administration de bonis non to M'V.'s estate granted to A. In the Goods of M'Vea, Murray v. Aitken, 2 W.W. & a'B. (I. E. &M.,)44. Administration de bonis non — Nominee of Sure- ties — Nominee of Infant Children of Intestate — Costs.] — A. died intestate, and his widow took out administration and died shortly afterwards. D., the sister of A. and nominee of the sureties to the widow's bond, applied for administration de bonis non to A.'s estate. B., the maternal grandmother of A.'s infant children and their nominee, also applied. The Court granted ad- ministration to B., B. to pay D.'s costs of application as between party and party, D. being first in the field, and B. during the argu- ment agreeing to pay her costs if B. got adminis- tration. Semble, if there is no imputation of misconduct a surety is a fit and proper person to be entrusted with administration de bonis non. In re Austin, 3 V.L.R. (I. P. & M.,) 111. When Granted to Surety of Administratrix.] — See M'Kay v. Edwards, ante column 1523. When Granted to Testamentary Guardian.] — In the Estate of Stanton, ante column 1524. Administration de bonis non — Executor of an Executor.] — A. appointed B. C. and D. executors, of these only B. proved; B. died having partially administered, and appointed E. F. and 6. executors. Application was made for adminis- tration de bonis non to E. with the consent of F. and G-. The Court refused the application as being unnecessary. In the Will of De Little, 9 V.L.R. (LP. &M.,) 32. Next-of-Kin— Executors of Administratrix.]— The next-of-kin of an intestate are entitled to a grant of administration de bonis non in prefer- ence to the executors of the administratrix of the intestate. The Court, moreover, is disin- clined to appoint more than one administrator of an estate. In the Estate of O'Flaherty, 6 V.L.R. (I. P. & M.,) 17 ; 1 A.L.T., 183. Death of Administrator— Who Entitled to Ad- ministration of Intestate's Estate.]— Where an administrator dies without having fully ad- ministered, the next-of-kin of the intestate are entitled to administration de bonis non, in pre- ference to the executors of the administrator. In the Estate of Stanton, 6 V.L.R. (I. P. &. M.,) 99. Administration de bonis non— Contest between Next-of-Kin and Executor of Administratrix.]— The Court will grant administration de bonis non to the next-of-kin of the intestate in pre- ference to the executor of the administratrix. In the Estate of Beavan, 7 V.L.R. (I. P. & M.,) 24 ; 2 ALT., 114. Contest between Executor and Creditor seeking Administration c.t.a. — When Executor Preferred.] — See In the Goods of Hejfernan, ante column 1522. Administration de bonis non — Executor —Next- of-Kin.]— The executor of an administrator is not entitled to a grant of administration de bonis non ; the next-of-kin of the intestate are the proper persons to apply. In the Estate of Leahy, 6 A.L.T., 16. Administration de bonis non — Administratrix of Executor.] — A testator died leaving one F. sole executor and sole legatee. F, died intes- tate without having administered the whole property, and his widow took out administration to his estate: The Court granted administra- tion de bonis non of the testator's estate to the administratrix. In the Will of Naylor, 6 A.L.T., 48. Administration de bonis non— Executor of Administrator — Consent of Next-of-Kin.] — Ad- ministration de bonis non was granted to one of the executors of a husband, who had been ad- ministrator of his wife's estate, such executor being guardian of the children under the hus- band's will, and the wife's next-of-kin consent- ing to the application. In the Estate ofM 'Ivor, 6 A.L.T., 17. Administration de bonis non — Son of Intestate — Consent of Widow.] — Where administration had been granted to the eldest son of an intestate with the consent of the widow, and the son died without having fully administered, and the only surviving son of the intestate then applied for administration de bonis non, the Court re- fused the application because no consent of the widow was filed. In the Estate of Msnichon, 6 A.L.T., 28. Administration de bonis non — When Granted.] — M. died in Victoria, and, as it was supposed, intestate. Administration was granted in Vic- toria to his widow, and she collected assets, and disposed of them as directed by a will, of which she was executrix, and which she and the exe- cutor named in the will proved in England. After her death intestate, the attorney under power of the executor of M. applied for ad- ministration de bonis non of M. in Victoria. Held that such grant could not be made till the administration wrongly granted, as upon intes- tacy, had been called in and revoked. In re Minter, 3 W.W. & a'B. (I. E. & M.,) 82. (6) Rule to Administer Realty and Administra- tion of Real Estate under Act No. 427. To whom Granted.] — Where a brother of an intestate refused to apply for a rufe, a rule was granted to the husband of intestate's sister. In the Real Estate of Baldwin, 6 W.W. & a'B. (I. E. &M.,)40. To whom Granted — Executor.] — An executor is not, from his obligation to pay debts, "a person interested in the estate" within the meaning of Sec. 4 of Act No. 230, so as to entitle him virtute officii to a rule to administer the realty of a testator as to which the will was silent. In the Real Estate of Hood, 4 W,W. & a'B. (I. E. & M„) 20. 1535 WILL. 1536 Rule to Administer Granted to Husband — land Purchased by Wife with Husband's Money.]— Where land was purchased by a deceased wife with her husband's money and consent, and the Crown grant had been made out in the wife's name, the Court granted the husband a rule to administer subject to an affidavit that he con- sented to the property being treated as belong- ing to her. In re Ellen Skinner, 3 A. J.R., 7. Husband's Preference to Children — Rule as to.] Qucere, whether the rule as to the husband's preference to children to administration of per- sonalty applies to obtaining a rule to administer realty under Sec. 4 of Act No. 230. In re GaUogly, 5 A.J.R , 49. Grant to Subsequent Applicant upon Neglect of First.]— CM. obtained administration of the personal, and a rule to administer the real estate of an intestate, his uncle, but allowed the three months prescribed by the Rules of Court for filing an inventory of the personal estate to elapse without completing the bond as to the real estate. Under these circumstances he moved ex parte for » renewal of the order as to the real estate, and for leave to file an in- ventory nunc pro tunc upon an affidavit explain- ing his delay. In the meantime another next- of-kin, a brother of the intestate, arrived in the colony with a power of attorney from the children of three deceased brothers of the in- testate, advertised his intention of applying for a rule to administer, and filed the usual affidavit. Upon motion by the brother, on notice to the nephew, a rule to administer was granted to the former. In the Freehold Lands ofMolloy, 1 V.R. (I. E. & M.,) 15; 1 A.J.R., 8, sub nom. In re Molloy. Death of Widow before Property Administered — To whom Rule Granted.] — A widow of an in- testate, who left a son surviving him, obtained a rule to administer his freehold estate, but died before she had fully administered it, and while the son was under age. The Court ex- pressed an opinion that a rule to administer the freehold so far as not already administered sho.uld be granted to a relative of the intestate rather than to the widow's executors. In the Estate of Mather, 8 V.L.R. (I. P. & M.,)24; 3 A.L.T., 134. When Rule Granted.]— Rule to administer real estate granted to widow, which real estate the intestate had agreed to purchase, and of which he had paid part of the purchase-money and the widow had paid the balance. In the Real Estate of Welsh, 4 W.W. & a'B. (I. E. & M.,) 17. When Rule Granted — Delay in Proving Will.] — Where a will devising real estate was in exis- tence, but had not been proved, and more than a year had elapsed since the testator's death, a rule under the Act No. 230, Sec. 4, was granted to » creditor to administer the real estate as upon an intestacy, although the land in question had been sold by a mortgagee after the death of the testator (mortgagor.) In the Freehold Lands of King, 5 W.W. & a'B. (I. E. &M.,)37. When Granted — Partial Intestacy — Act Mo. 230.]— The Act No. 230 authorising the grant of a rule to administer undevised real estate applies to a case of a partial intestacy; and in such a case a rule will be granted, with such variations from the form in the schedule as will meet the particular case. In the Heal Estate of Moore, 3 W.W. & a'B. (I. E. & M.,) 77. In such a case, although both personalty and undisposed of realty will be administered by the same person, separate accounts of the different kinds of property should be kept. Ibid. When Rule Granted — Intestacy — "Transfer of land Statute" (Ho. 301,) Sees. 67— 74.]— Where a, testator had an evident intention to dispose of all his property, and there was no direct devise of the lands passing the legal estate, but the executor had power to sell them, Held that the testator could not be treated as having died in- testate as to them, and a rule to administer under the " Transfer of Land Statute" refused. In the Real Estate ofGow, 4 W.W. & a'B. (I. E. & M.,) 18. Note.— Sees. 67—74 of the Act No. 301 are repealed by Act No. 427. Intestate Dying before " Administration Act 1872" — Administration de bonis non — Administra- tion of Real Estate.] — Administration had been taken out of the personal estate of an intes- tate, who died before the " Administration Act 1872" came into force, and whose administratrix had died. On an application by his daughter for administration of his estate and effects, or failing that for administration de bonis non, the Court granted administration de bonis non, and also under Sec. 6 administration of the real estate to the applicant, as if she had obtained a rule to administer under the Act No. 230. In the Estate of Ewing, 6 V.L.R. (I. P. & M.,) 93. Person Dying after the Passing of the " Intes- tates Real Estate Act," and before the Passing of the "Administration Act 1872."]— The Court granted a rule to administer the real estate of a testator who died after the passing of the "Intestates Real Estate Act," but before the passing of the " Ablminiitralion Act 1872," and who had left a will appointing an executor, who subsequently obtained probate, but not dispos- ing of the real estate. In the Estate ofMoran, 2A.L.T., 76. W., in 1864, obtained administration to the personal estate of her deceased husband; the Court, in 1879, granted her a rule to administer his real estate under Act No. 230. In the Estate of Wilkinson, 5 V.L.R. (I. P. & M.,) 64. Intestate Dying before the " Administration Act 1872" — Administration of Real Estate.] — An intestate died before the "Administration Act 1872" came into force, administration of his personal estate was taken out, but the adminis- trator died leaving the property unadministered. The Court granted an applicant administra- tion de bonis non of the personalty and adminis- tration of the realty as if she had obtained a rule to administer under the Act No. 230. In the Estate of Ewing, 6 V.L.R. (I. P. & M.,) 93. 1537 WILL. 1538 Intestate Dying before the Date of Act Ho. 230— Affidavits.] — An order for letters of administra- tion to the estate of a person dying before the "Intestates Real Estate -4c«"(No.230) was passed, should state the date of the death before that Act. In re Quinlan, 2 V. L.R. (I. P. & M. , ) 17. " Administration Act 1872,"- Sees. 6, 7, 9— Real Estate — Heir-at-Law — Affidavits.] — Where an application is made, under the "Administration Act 1872," for the grant of letters of administra- tion of the real estate of an intestate dying before the 1st July, 1864, to the heir-at-law in whom the real estate is already vested and who has been in possession of the real estate since the death of the intestate, the affidavits should show a motive for the application. In the, Estate of Norton, 3 V.L.R. (I. P. & M.,) 58. Administration — Intestate Dying before Act If o. 230.] — TheJCourt has no jurisdiction to grant administration of the real estate of an intestate, who died before the coming into operation of the Act No. 230. In the Estate, of O'Grady, 6 V.L.R. (I. P. & M.,) 95 ; 2 A.L.T., 43. Order to Administer Personalty Granted — No Bale to Administer Real Estate under Act No. 230 — Long Delay.] — Where an order to administer the personalty of an intestate had been granted in 1869, and the person to whom the admin- istration had been granted was ignorant that he should have taken out a rule under the "Intestates Real Estate Act," to administer the realty, the Court granted, in 1884, admin- istration of the real estate to such person. In the Estate of Hennessey, 10 V.L.B. (I. P. & M.,) 40. Death of Person obtaining Rule to Administer — Proper Course.] — The proper course, when a person obtaining a rule to administer freehold under the Act No. 230 dies, is to grant a rule to administer the freehold so far as unadministered by the person obtaining the rule. In the Estate of Mather, 8 V.L.R. (I. P. & M.,) 24; 3A.L.T., 134. When Granted or Refused — Land held under a Constructive Trust.]— The Act No. 223, sec. 16, which provides that certain real estates of an intestate shall be dealt with as if held for a term of years, applies only to property of which the intestate was the beneficial owner, with power to dispose of it really and beneficially, and is not applicable to property held by the intestate either as a direct or constructive trustee. Therefore, a rule to administer was refused as to lands held by an intestate partner upon a constructive trust for the partnership. In the Real Estate of Twomey, 3 W.W. & a'B. (I. E. & M.,) 67. When Rule Granted— Act No. 230, Sec. 3.]— "The power to dispose," in Sec. 3, means "power to dispose beneficially," and the Act does not apply to trust estates. Where real estate had been purchased by an intestate and his two partners for partnership purposes, and had been conveyed to them as tenants in common, a rule to administer the real estate was refused on the application of the intestate's widow. In the Real Estate of M'Pherson, 4 W.W. & a'B. (I. E. & M„) 22. Administration of Real and Personal Estate — Separate RuIbb — Realty Vested in Intestate as Mortgagee.] — Although the Act No. 230 may make the administration of real estate the same as that of personal estate, they arise under separate jurisdictions, and Sec. 6 contemplates separate proceedings and separate rules. Where the realty is vested in an intestate only as mort- gagee it does not come within the Act. Rule as to that part of realty refused. In the Goods of Henderson, In the goods of Dickson, 2 W.W. & a'B. (I. E. & M.,) 41. Realty Held Partly under " Raal Property Act" (No. 223) and Partly under Old Law — Separate Rules.] — Such realty should not be, coupled under one rule. Two distinct rules made. In the Real Estate of Sutherland, 2 W.W. & a'B. (I. E. & M.,) 43. Land under "Transfer of Land Statute" — Separate Rules.] — There is nothing in the " Transfer of Land Statute" forbidding a sepa- rate motion as to land under that Act, and such an application will be granted, although not necessary, at the risk of the administrator as to costs, for the costs of an unnecessary motion will not be allowed in passing an administra- tor's accounts. In the Estate of Morrison, 3 W.W. & a'B. (I. E. & M.,) 84. Upon what Property Grant Operates.] — Quaere, whether a rule under the Act No. 230 to ad- minister undevised realty will operate upon property of which the intestate has a lease under Sec. 23 of the " Land Act 1862." In the Real Estate oj Wallis, 3 W.W. a'B. (I. E. &M.,) 79. (c) Administration with exemplified copy of will or Grant of administration annexed. To Creditor.] — Where a testator died out of the jurisdiction and probate was granted out of the jurisdiction, the Court granted administra- tion with an exemplified copy of the will annexed to a creditor. In the Will of Farley, 9 V.L.R. (I. P. & M.,) 42. Executor Resident in England.] — Semblt where executors are resident in England, the Court will grant administration with an exemplifica- tion of the will annexed to the attorney under power of the executors proving the will in England personally and not as the attorney of the executors. In the Will of Slack, see ante column 1526. Administration c.t.a.— No Exemplification — Con- ditional Grant.] — A testator died in England, leaving a will relating exclusively to property in New South Wales, which he bequeathed equally to his two brothers. No executors were appointed. Administration was granted in England to one brother, and in New South Wales to the other, who applied in Victoria for a grant of administration to him in this colony, where the testator had real estate of the value of £900, as to which he had died intestate. The Court made an order for administration c.t.a. of the property in Victoria conditionally upon the exemplification of the grant in New South Wales being filed. In the Estate of Severne, 6 V.L.R. (I. P. & M.,) 1 ; 1 A.L.T. 123. 1539 WILL. 1540 See S.P., In the Goods of Whittaker, 2 W. & W. (I. E. & M.,) 114. Lost Will— English Grant— Evidence— Adver- tisement. ]— Where the Probate Division of the High Court of Justice in England, in a con- tested suit granted administration with a draft of a lost will annexed, the Court here declined to grant probate upon an exemplification of the English grant, but required independent evidence of the facts in issue before the English Court. A verified copy of shorthand notes of the evidence in the suit and of the judgment having been produced, the Court, after re- quiring that the advertisement of the intention to apply for probate should indicate that the probate was based on anact of the English Court, granted probate upon the exemplification. In the Will of Malcolm, 6 V.L.R. (I. P. & M.) 102; 1 A.L.T., 201; 2 A.L.T., 3. Will Proved in England— Evidence of Property.] — Upon an application, on an exemplification of the will, for administration c.t.a. of a will proved in England, there ought to be evidence that there was property to be acted upon in England. Where it appeared by the exemplification that the assets in England were sworn under £480, and duty paid accordingly, the Court held this sufficient evidence. In the Goods of Webster, 3 W. W. & a'B. (I. E. & M.,) 70. Upon an application, on an exemplification of the will, for administration ct.a. of a will proved in England, the Court will require evidence that .the testator left personal pro- perty in England to found the jurisdiction of the English Courts before it will endorse what they have done. In the Goods of Goodman, 3 W. W. &VB(I. E. &M.,)71. Will Proved in Foreign Court — What Evidence Required.] — Motion for administration with an exemplified copy of the will annexed to an attorney under power of the executrix. The testator died in Ireland and the contents of the will and probate were authenticated by a, certificate from the district registrar who granted it. Held that an exemplification of the will and probate under the seal of the Foreign Court and satisfactory evidence by an affidavit sworn before a Commissioner of this Court that testator had personal property in Ireland and was domiciled in the district of Belfast, and of the signature of the executrix to the power of attorney were necessary and indispensable. In the Estate of Von Stieglitz, 3 "V.L.R. (I. P. & M.,) 35. Grant of Administration by Foreign Court — Evidence Required.]— On a motion for a grant of administration of the estate of C. to the attorney under power of C.'s widow, it appeared that administration had been granted to the widow, who resided in New York, by the Surrogate's Court, at West Chester, in the State of New York. An exemplification of the grant was produced, and an affidavit of the marriage of C. and the administratrix, and of their resi- dence together for some years, and of C.'s disappearance for seven years, during which he was totally unheard of, and was therefore pre- sumed to have died in New York. Before granting administration to the attorney the Court required further affidavits as to the juris- diction of the Surrogate's Court, and as to the marriage of the administratrix with the de- ceased, and upon obtaining them to its satisfac- tion granted the application. In the Estate of Goody, 6 V.L.R. (I. P. & M.,) 89 ; 1 A.L.T., 128. Foreign Will — Necessary Materials in Affidavit.] — The general practice in granting administra- tion with an exemplified copy of the will annexed is to require an exemplification from the Central Court in London, and an exemplifi- cation from a District Court is not sufficient. The affidavits should show jurisdiction in the Foreign Court, i.e., they should allege that de- ceased had personal property in England or in the foreign country. In the Will of Grove, 5 V.L.R, (I. P. & M.,) 88 ; 1 A.L.T., 67. Foreign Will — Administration to Attorney of Foreign Administrator — How far Court Recog- nises Acts of Foreign Court.] — The Court re- cognises the acts of authorities in another country only where it appears that the person in respect of whom they were done lived, and had property there. Where an application was made for administration by the attorney under power of a widow, a foreign administratrix, the Court required evidence as to identification that the administratrix was the widow, and was not satisfied with a certificate of the foreign au- thorities that she was the widow. In the Estate ofDvmoyer, 5 V.L.R. (I. P. &M.,) 73. Probate of Old Will Granted in England — Evi- dence of Property there.] — A testator died in 1858, and probate of his will was obtained in England in 1859. The testator's executrix managed the Victorian property, and received the rents without applying for probate in Victoria till 1882, when she applied for letters of administra- tion c.t.a., producing not the will but an exem- plification of the English probate. The Court required an affidavit that the testator left pro- perty in England, and upon that not being forthcoming, refused the application. In the Will of Cook, 8 V.L.R. (I. P. & M.,) 20. Will Proved in England — What Affidavits Necessary.] — On an application for administra- tion with an exemplification of a will proved in England annexed, the Court will require affidavits that there was property in England to give jurisdiction to the English Court, and that the probate is unrevoked. In the Estate of Piper, 8 V.L.R. (I. P. & M.,) 45; 4 A.L.T., 111. Foreign Consular Court— Evidence of Property- Verification of Signature of Power of Attorney.] — Application for administration with an exempli- fied copy of a will annexed. The testator died in China, and a person in China obtained ad- ministration c.t.a. from the Consular Court in China as attorney under power of the executors. This power was verified by statutory declara- tion instead of affidavit, and the only evidence of property in China was a letter from the consul stating that the testator left personal property there. Held that the verification and 1541 WILL. 1542 evidence of property were insufficient, and the Court expressed its unwillingness to act upon the consular order of probate. In the Estate of Friedlander, 9 V.L.R. (I. P. & M.,) 49: 5 A.L.T., 144. Copy of 'Will— Affidavit of Correctness not made before a Commissioner of the Court.] — The Court refused to grant letters of administration c.t.a., the application for which was based upon an "extracted registered copy" of the will taken from the records of the Court of Buteshire, and sworn to be such by an affidavit made before the chief magistrate of Rothesay, on the ground that the affidavit was not made before a commissioner of the Court, there being such a commissioner at Glasgow, within a short dis- tance of Bute. In the Will of Thorn, 2 V.L.R. (I. P. &M.,) 19. An affidavit sworn before the Lord Mayor of London is not sufficient. In re Hopkins, & A.J.R., 106. Affirmation before Commissioner-Certified Copy.] — Where the execution of a power of attorney was verified by affirmation before a commis- sioner, the Court refused to accept such in the absence of evidence that the person verifying had conscientious scruples against taking an oath. Where the original probate was filed, but was taken off the file in order to be sent to England, the Court refused to grant adminis- tration with a certified copy of such probate, requiring the original probate to be annexed. In the Estate of Talents, 9 V.L.R. (I. P. & M.,) ■27. And see cases ante columns 1157, 1158, under Power of Attorney for Requisites of Power and Verification of Signature. Tasmanian Probate — Exemplification — Attesta- tion of Will.] — It is not necessary, on an applica- tion for probate upon an exemplification of a, Tasmanian probate, to prove that the will was duly attested. In the Will of Degraves, 6 V.L.R. (I. P. & M.,) 99; 2A.L.T., 81. Security Required.] — An applicant for ad- ministration, with an exemplified copy of the will annexed, who does not reside within the jurisdiction, and does not intend to do-so, must give security. In the Will of Hassell, 6 A.L.T., 84. Scotch Confirmation — Affidavit of Power of Sheriff to Grant it.]— Where letters of adminis- tration were applied for on behalf of the attorney under power of the person appointed in Scotland by the sheriff, the Court required an affidavit from a person conversant with Scotch law that the sheriff had power to grant it. In the Estate of Sutherland, 10 V.L.R. (I. P. &M.,)23; 5A.L.T., 156. (d) Administration durante minore cetate. See cases ante columns 1523, 1524. (iii.) Bonds and Sureties. Amount of Bonds.]— Where an estate was sworn under £33,000, including several doubt- ful debts, the Court allowed two sureties to give a bond and justify for £20,000 each. In the Will of Bostock, 1 A.J.R., 100. Amount of Bond.] — Where no one but the ad ministrator and his mother were entitled to the estate of an intestate, which was valued at £20,000, and the administrator was unable to get sureties (under the old rules) to justify for £80,000, an application for permission to enter into a bond for £40,000 was granted, the sure- ties to justify for £40,000. In the Estate of Blannin, 1 A.J.R., 4. Amount — Possible Remittances from England.] — An intestate's estate was likely to be in- creased by possible remittances from England. Held that the bond should be for the full amount of the possible remittances. In the Will ofHoskin, 9 V.L.R. (I. P. & M.,) 38. Administration Granted by Registrar — Rule Nisi for Revocation — Increase of Security.] — Where administration had been granted by the Registrar under Sec. 18 of the "Ad- ministration Act 1872," and a rule nisi in the alternative was obtained calling upon the ad- ministratrix to show cause why the grant should not be set aside, or why she should not find additional security, on the ground that the property was over £500, whereas she had sworn it to be £200, the Court, finding that the property was in fact under £500, but consider- ably over £200 in value, ordered the adminis- tratrix to give additional security, or in default that the grant should be revoked. In re O'Brien, 2 V.L.R (I. P. & M.,) 76. Administration Granted a long time after Death of Intestate — Amount of Bond How Calculated.] — Where a long time has elapsed since the death of the intestate before administration of his estate is granted, the usual sureties must be given, and the amount of the administration bond must be calculated on the value of the property at the time of the grant. In the Estate of Hennessey, 10 V.L.R. (I. P. & M.,) 40. Estate Sworn below Proper Value — Fees — Amendment — Bond.] — Where the estate of^an intestate has been sworn below the proper amount for which security was given by the administrator, the proper course is to allow the administrator to pay the additional fees, to amend the letters of administration by inserting the proper sum, and to require the administrator to enter into a fresh bond to the necessary amount. In the Goods of Thornley, 1 W. & W. (I. E. & M.,) 194. Where the affidavit undervalued the total value of the real and personal estate, through a mistake in the addition, the value of each separately being correctly stated, the bond was fixed at the amount of the sums correctly added. In the Estate of Dunbar, 6 A.L.T., 28. Dispensing with Sureties — Absent Mext-of-Kin in Indigent Circumstances.] — The fact that the absent next-of-kin of an intestate is in indigent circumstances, is no ground for dispensing with one of the " two or more able sureties," required of the person to whom administration is granted under the Statute 22 and 23 Car. ii., Cap. x., D d d 2 1543 WILL. 1544 sec. 1, should such next-of-kin apply for letters of administration. In re Kinderlin, 1 W. & W. (I. E. &M.,)H. Reducing Amount of Security.] — In applications for administration the Court cannot altogether dispense with sureties, but as the Statute 22 and 23 Car. ii., Cap. x., only requires some security, and does not specify the amount, the Courts will invariably reduce the amount where the debts are trifling or there are no debts at all. in the Goods of Ellis, 1 W. & W. (I. E. & M.,) 191. See now " Administration Act 1872" (No. 427,) sees. 26-28. Dispensing with Sureties. ] — W. B. died leaving a will, and appointing J.B. his executor. J.B. died shortly afterwards, without proving the will. A. obtained administration to J.B.'s estate, and entered into a bond for an amount which included W.B.'s property. The Court refused to dispense with further sureties in granting A. administration de bonis non to W.B.'s estate. In the Will of Bon, 3 A. J.R., 62. Administration c.t.a. — When Security Dispensed with.] — Where a will named certain persons as "trustees," but did not purport to dispose of the whole of the estate, the Court held that they were not executors according to the tenor, but allowed them a grant of administration c.t.a.; and, upon an affidavit being filed, that the will did in fact dispose of the whole estate, allowed the usual security to be dispensed with. In the Will of Brown, 4 V.L.R. (I. P. & M.,) 47. Informal Appointment of Executors — Adminis- tration c.t.a. — Dispensing with Sureties.] — Where a testator had made an inoperative appoint- ment of an executrix, the Court, in granting administration c.t.a. to the widow, refused to dispense with sureties where the widow took only a life estate. In the Will of Boland, 6 V.L.B. (I. P. & M.,) 92 ; 2 A.L.T., 42. Administration c.t.a. — Dispensing with Sureties — Administrator to Enter into Bond.] — In the Will of Keane, ante column 1511. Dispensing with Sureties — Administratrix cum Testamento Annexo Sole and Universal Legatee.] — See In the Will o/Dohrmann, and In the Will of Robertson, ante columns 1511, 1513. Dispensing with Sureties — Administration cum Testamento Annexo — Sole Devisee for Life.] — See In re Cooper, ante columns 1510, 1511. 1 Justifying Sureties — Dispensing with.] — An intestate died, leaving a widow, five adult chil- dren and one infant. The widow, administratrix, applied for dispensation with sureties, on the ground that there were no debts, and that all the children had signed a consent thereto, the widow being willing to give justifying security in respect of the share of the infant; but the Court refused to dispense altogether with sure- ties, but accepted two, justifying in a less amount than the value of the estate. In the Estate of Wyld, 6 V.L.R. (I. P. & M.,) 83 : 1 A.L.T., 184. For reasons why the Court differs from the English practice, and requires justifying sureties to administration bond. See Ibid. The Court will not, in a case where a widow and children are the only beneficiaries, dispense with sureties. In the Estate of Lewis, 3 A.L.T., 79. Pour Sureties instead of Two.]— The Court consented to four sureties instead of two, each of the four justifying for half the amount, but each executing the usual administration bond for the full amount. In the Estate of Barr, I A.L.T., 76. One Surety — Executor of Husband Surviving Wife — Wife's Estate TJnadministered.] — See In the Goods of Crawford, 1 W. & W. (I. E. & M.,) 192; ante column 1519. Dispensing with Sureties — Married Woman having Separate Property.] — A married woman died having separate property, and her husband was the only person entitled, but the Court in granting him administration refused to dispense with sureties. In [the Estate of Turnbull, 1 V.L.R. (I. P. & M.,) 104. Sureties — Leave to Justify in the Country when Granted.] — An application for leave for the sureties in an administration bond to justify in the country instead of before the Master in Melbourne, will not be granted unless there are special circumstances ; and that the estate is small is not such a special circumstance, unless it be sworn under £300. In re Monks, 1 W. & W. (I. E. &M.,)14. Sureties — Appointment of New.] — The Court refused an application after the estate had been realised, by sureties to an administration bond to be discharged, and to have new sureties ap- pointed. In the Estate of Wakefield, 6 V.L.R. (I. P. & M.,) 96 ; 2 A.L.T., 42. Surety in Bond — Who may be.] — A solicitor may become surety for his client in an admin- istration bond. In the Goods of Paynler, 3 W.W. & a'B. (I. E. & M.,) 69. The husband of an administratrix who is possessed of separate property may be accepted as one of the sureties to her administration bond. In the Estate of Synnot, 3 A.L.T., 39. Attorney under Power of Executors in South Australia — Sureties in South Australia.] — A testator appointed executors resident in South Australia, and administration c.t. a. was granted to their attorney under power. The Court re- fused to accept as sureties for the bond persons resident in South Australia. In the Estate of Hanson, 5 V.L.R. (I. P. &M.,) 97. Sureties out of the Jurisdiction.] — An applica- tion was made for an order to accept the bond of a surety out of the jurisdiction. The Court laid down no general rule, but thought that in each case the Master should consider the amount of the property, and the facilities for enforcing the bond out of the jurisdiction, the residence out of the jurisdiction being an ingre- 1545 WILL. 1546 dient to be considered, but not a bar. In the Estate of Stephens, 9 V.L.R. (I. P. & M.,) 22 ; 4A.L.T., 140. Probate — Executors out of Jurisdiction — Bond and Sureties.] — Where executors out of the jurisdiction apply for probate, it -will only be granted upon their entering into similar bonds and sureties to those required from adminis- trators. In the Goods of Ellis, 1 W. & W. (I. E. &M.,)191. Executors out of Jurisdiction— Justifying.] — Where probate is granted to executors resident out of the jurisdiction, the Court will require them to enter into a bond, and to find sureties, but will permit the executors to justify before a commissioner in the country of their residence. In the Will ofCullen, 9 V.L.R. (I. P. & M.,) 30 ; 5A.L.T.,33,80. S.P.— See In the Will of Neville, 8 V.L.R. (I. P. &M.,)29; 4A.L.T., 15. Assurance Company — Guarantee.] — The Court refused to take the bond and guarantee of an assurance company, and expressed an opinion that if such companies wished to embark in that class of business the rules ought to be altered so as to enable the directors to become sureties, and providing that the funds of the company only would be answerable for any default. Re Tucker, 4 A. J.R., 172. Security — Incorporated Company — *' Administra- tion Act 1872," Sec. 27.] — It is necessary to obtain an express order of the Court for the acceptance of the security of an incorporated company for an administrator under Sec. 27 of the "Adminis- tration Act 1872." The order should be drawn up as on reading the Government Gazette notice of the Governor-in-Council's approval of such company. In the Estate of M 'Donald, 8 V.L.R. (I. P. & M.,) 28. Guarantee Society — Affidavit as to Solvency.] — Where it is sought to substitute the bond of a guarantee society for that of private individuals there should be an affidavit to satisfy the Master that the society is solvent. In the Estate of Bowman, 7 V.L.R. (I. P. & M.,) 112 ; 3 A.L.T., 72. Act Mo. 427, Sec. 28 — Motion to Assign the Bond.] — The Court requires notice of » motion to assign an administration bond under Sec. 28 to be served upon the sureties. In the Estate of M'Carthy, 7 V.L.R. (I. P. & M.) 115; 3 A.L.T., 79. liability of Surety to Administration Bond — Act No. 427, Sees. 26,28.]— See M'Carthy v. Ryan and Regian v. Shovelbottom, ante columns 1248, 1249, 1250. (iv.) Practice Relating to Grant of. (a) Generally. Court not Guided by English Ecclesiastical Courts.] — There is nothing in the Supreme Court Act directing that the Supreme Court in its probate jurisdiction shall be guided by the practice of the Ecclesiastical Courts in England, and there is nothing in the Rules requiring that that practice shall form the basis of its administration in cases not specifi- cally provided for, as there is with reference to the common law and equity jurisdiction of the Court. In re Twist, 1 W. & W. (I. E. & M.,) 17. Presumption of Death.] — Where a testator had left England for Sydney in a ship which had not been heard of for two years, the Court granted administration with an exemplified copy of the will annexed, probate having been granted in England. In the Will of Sohier, 3 A. J.R., 97. - Evidence of Death — Affidavit by Fijian.] — Where, on » motion for probate, there was a difficulty in proving the death, an affidavit by a Fijian that the testator was murdered on board a vessel was received as evidence and probate granted. In the Will of Warburton, 4 A.J.R., 6. Presumption of Death— lapse of Time.] — Where a testator was the master of a ship which had in all probability foundered in a storm at sea, and on which the insurance company had paid as for a total loss, the Court, on an appli- cation made ten months after the date of the supposed foundering of the ship for probate of the will of the testator, who had not been heard of since the supposed loss, considered that the time which had elapsed was too short to justify it in granting probate. In the Will oj William Williams, 8 V.L.R. (I. P. & M.,) 46; 4 A.L.T., 111. Probate Granted in Ireland— Taking Original Probate off File.] — Where probate had been granted here to executors upon the original probate granted in Ireland, the Court refused an application to allow the original probate to be taken off the file to be returned to Ireland. In the Will of M' Niece, 6 V.L.R. (I. P. & M.,) 6; 1 A.L.T., 144. Rule to Administer to Curator — Delivery'Out of Will.] — Where a rule to administer the estate of a testator was granted to the Curator of Intestate Estates, no reference being made to the will, which was filed in the Master's office by the curator, the Court refused an application by one only of the beneficiaries for delivery out of the will to her, except upon the verified con- sent of all the beneficiaries. In the Will of Farie, 6 V.L.E. (I. P. & M.,) 98. Order for Administration not Acted on — Grant to Another — Rescission not Necessary.] — Where administration had not been taken out within three months after an Order granting it, Held that Kule 13 of Reg. Gen. of 23rd June, 1873, did not require that that Order should be rescinded before granting administration to another applicant. In the Estate of Kirley, 10 V.L.R. (I. P. & M.,) 29; 5 A.L.T., 188, sub. nom. In the Estate of Kerley. Administration — Title of Intestate to Property — Court will not make Inquiry.] — The Court, on an application for administration to the estate of an intestate accompanied by an affidavit that the deceased had real estate, and describing it, will not enter into the question as to deceased's 1547 WILL. 1548 title to the real estate in question, or decide on the construction of a will under which it was claimed on behalf of the deceased. In the Estate of Martin, 10 V.L.R, (I. P. & M.,) 32. Letters of Administration — Intestate Dying before the Passing of Act No.230.]— Administration to the estate of an intestate who died before the passing of the Act No. 230 must, nevertheless, under the " Administration Act 1872," be taken out to the realty as well as to the personalty, Sees. 5, 6, 7, and 9 of the latter Act clearly showing a policy that the administrator must take both real land personal estate. In re Quintan, 2 V.L.R. (I. P.&M.,)17. Grant of Administration—" Administration Act 1872."]— Since the " Administration Act 1872," the rule is that an order for administration should embrace the personal as well as the real estate. In the Freehold Land of Jones, 8 V.L.R. (I. P. & M.,) 48 ; 4A.L.T..93. Where a rule to administer freehold lands had been obtained before the "Administration Act 1872 " was passed, and also letters of adminis- tration to the deceased's goods, and the admins- trator died leaving part of the land unadminis- tered, on an application for a rule to administer the unadministered freehold land, Held that the proper form of application was for an order to administer to the real and personal estate. Ibid. And see cases ante columns 1534-1538. Administration Granted durante minoritate — Application for Administration on Person Coming of Age — Notice.] — Where administration has been granted to a person during the minority of A. it is necessary for A. when seeking administra- tion on attaining her majority to give express notice of such application to such person. In the Estate of Austin, 7 V.L.R. (I. P. & M.,) 111. See S.P. on application for probate In re Patten, 2 V.L.R. (I. P. & M.,) 97. Ecclesiastical Suit — Non-appearance of Plaintiff — Dismissal.] — In an ecclesiastical suit to try the right to administration of an intestate's estate, issue had been joined and notice of the cause having been set down for hearing given to the defendant. At the hearing the plaintiff did not appear, and the defendant applied for an order dismissing the bill. Held that no order was necessary, an entry by the judge of plaintiff 's default in appearance being alone requisite to enable the defendant to proceed under the rule in the Master's office. Carroll v. Carroll, 1 W. W. & a'B. (I. E. & M.,) 69. Decree in Ecclesiastical Suit — Moving upon.] — In an ecclesiastical suit a decision in favour of the plaintiff H. had been made but no decree had been drawn up. Held that the decree should be drawn up and H. should move upon that for letters of administration. In the Goods ofHickson, 2 W. W. & a'B. (I. B. & M.,) 53. Where in a suit for letters of administration there has been a decree in favour of the plaintiff administration should not be granted im- mediately upon the making the decree ; but a separate application should be made after the decree. In the Goods and Real Estate of Graham, 2 V.R. (I. B. & M.,) 57; 2 A. J.R., 46, sub noon. Graham v. Edwards. Application to Revoke Probate— Insanity of Tes- tator— Evidence.]— On an application to revoke a grant of probate to executors on the ground that the testator was insane, the Court, after the case had been opened on affidavits, allowed the affidavits to be used, and also directed viva voce evidence to-be taken, and heard the case upon the affidavits and the viva voce evidence. In the Will of Lecern, 6 V.L.R. (I. P. & M.,) 9; 1 A.L.T., 142. Proof of Will in Solemn Form — Revocation of Probate.]— Upon a rule nisi calling upon ex- ecutors to show cause, why probate granted to them should not be revoked, Held that the case having been launched on affidavits, the case must be tried on them ; that the next-of-kin cannot claim as a matter of right an inquiry into circumstances attending the execution of the will or put the executors to prove the will in solemn form when probate has been granted to such executors by an ex parte application ; that the revocation of probate is a matter of discretion depending on the circumstances in each case and that trial by jury or viva voce examinations may be had in applications for revoking probate. In the Will of Lamont, 7 V.L.R. (I. P. & M.,) 86, 88, 98, 99. Issues— Who May Obtain.]— On the trial of the validity of a will it is not open to either party to call for trial by a jury. The judge only directs an issue when he himself feels a doubt on the matter. In re Taylor, 2 V.L.R. (I. P. &M.,) 68. Probate Suit — Caveat— Withdrawal of Does Not Entitle Plaintiff to Probate.]— Upon a caveat being lodged an executor filed his bill to obtain probate. The defendant subsequently consented to withdraw his caveat, and to the bill being dismissed without costs. Held that the rules were so framed that the suit must be heard whether the caveat were withdrawn or not, and that the mere withdrawal of the caveat did not entitle plaintiff to probate. M'Callum v. Swan, 1 V.R. (LB. &M.,)17. Supreme Court Rules, Cap. VIII., Sec. 8 — Caveat.] — Where a caveat was lodged, but no undertaking to appear by the executrix herself or by the solicitors lodging the caveat was filed as required by the rules, the Court granted administration with an exemplified copy of the will annexed to the brother, as next-of-kin, not- withstanding the caveat. In the Goods oj O'Keefe, 6 W.W. & a'B. (I. E. & M.,) 38. Where Unauthorised Caveat Lodged.] — Where an unauthorised caveat has been lodged, probate of a will will not be granted as of course alto- gether disregarding the caveat, but notice of the motion must be served on the caveator. In the Will of Hall, 2 A.J.R., 129. Administration Granted notwithstanding Caveat.] — Administration will be granted in spite of a caveat being lodged, if there has been 1549 WILL. 1550 no authority given to the caveator to lodge it by the parties interested, on motion on notice to the caveator. In the Goods and Seal Estate of Graham, 2 V.R. (I. E. & M.,) 57; 2 A. J.R., 46 ; sub nom. Graham v. Edwards. Application for Administration — Caveat lodged without Authority.] — Where the sister of an in- testate applied for administration, and a proctor had lodged two caveats, one without authority, as for two next-of-kin, the Court ordered notice to be served on the proctor, and that the appli- cant should move that day week, either that the caveat lodged without authority be set aside as irregular, or that administration be granted, notwithstanding the caveat, and allowed it to be made part of the motion that the caveator might pay the costs. The notice to be addressed either to the proctor or his Melbourne agent, but service allowed on the agent. In re Cameron, 2A.L.T., 16. Act No. 427, Sees. 30, 32— Right to Begin— Attorneys under! Power not Entitled to Admin- istration when Next-of-Kin Present and Capable.] — Upon a rule nisi upon a caveat coming on for evidence and hearing, the right to begin belongs to those who are claiming administration. Upon the production of the power of attorney by next- of-kin, the next-of-kin who was present in Court admitted that he did not seek administra- tion, that it was really his sons, the attorneys under power, who were moving, and the Court discharged the rule nisi. In re Evans, 5 A. J.R., 63. Caveat Withdrawn — Personal Consent of Caveator.] — Where a caveat has been lodged, the personal consent of the caveator is necessary for its withdrawal. In the Goods of Martley, 5 A. J.R., 63. Caveat Filed by Married Woman — Consent of Husband.] — It is not necessary to produce the consent of the husband of a married woman to her filing a caveat, until the hearing of the application for administration. In the Estate of Hourigan, 6 V.L.R. (I. P. & M.,) 2 ; 1 A.L.T;, 122. Time for lodging Caveat.]— Although by the Rules of Court a caveat against an application for letters of administration should be filed within a certain time, yet, if at any time before the order is made a caveat is filed, it has operation. In the Goods of Carroll, 1 W. W. &A'B. (I. E. &M.,)66. Caveat not Lodged in Time— Sight of Party to be Heard.] — Although a caveat against a grant of administration has not been lodged within the time fixed by the Rules, the Court has a discretion as to letting in a party to be heard. In the Goods of Jones, 1 W.W. & a'B. (I. E. & M.,) 67. Suit for Letters of Administration— Caveat — No Appearance of Caveator.]— Where a caveat is filed within the fourteen days from the publi- cation of the notice of intention to apply for administration within which caveats should be lodged by Supreme Court Rules, Cap. viii., r. 8, and a suit is commenced, and the defendant (caveator) does not appear, the plaintiff is en- titled to a decree without going into evidence; but if the caveat have been lodged within the proper time, and the defendant do not appear, the plaintiff must produce affirmative evidence in support of the facts mentioned in the bill. In the Goods and Real Estate of Graham, 2 V.R. (I. E. & M.,) 57; 2 A.J.R., 46; sub nom. Graham v. Edwards. No Appearance of Caveator — Costs.] — Where a caveator does not appear upon the hearing of an Order nisi for probate no costs will be given against him unless the order nisi asks for them. In the Will of Mould, 4 V.L.R. (I. P. & M.,) 32. Withdrawal of Caveat before Service of Order Nisi — Costs.] — Where a, caveat was lodged and withdrawn before service of order nisi without any offer to pay costs incurred, the order was made absolute with costs. In the Estate of r, 5V.L.R. (I. P. &M.,)72. Rule Nisi for Administration not Seeking Costs — Withdrawal of Caveat.] — Where a rule nisi for administration did not ask for costs, and a caveat had been withdrawn with this fact in view, the Court upon making the rule absulute did not allow costs. In re Cherry, 2 A.L.T., 42. Caveat Withdrawn — Costs.] — Where a rule nisi for administration was obtained and a caveat which had been lodged was withdrawn, theCourt made the rule absolute without costs, as the rule nisi did not ask for them, and granted ad- ministration subject to an affidavit being filed stating that no other caveat had been entered up to time of grant. In re Wolff, I V.L.R. (I. P. & M.,) 31. Caveat Withdrawn — Further Affidavit.] — A caveat to the grant of probate had been lodged and had been withdrawn. On moving absolute the order nisi the Court made the order absolute, but refused to grant probate until a further affidavit was made that no further caveat had been lodged. In the Will of Lansell, 7 V.L.R. (I. P. & M.,) 22; 2 A.L.T., 113. Costs of Caveator.] — Where an order nisi was granted on 11th October, but served on 19th October, Held that the caveator was entitled to his costs (including those of the adjournment, )• and that the caveator's solicitor was not bound to take any notice of the order, i.e., as to getting his evidence ready until it was properly served. In the Estate ofDoull, 7 V.L.R. (I. P. &M.,)70, 85. Caveat by Married Woman — Withdrawn — Evi- dence of Separate Estate.] — A married woman lodged a caveat, which was withdrawn after a rule nisi had been granted.. Held that no costs would be granted against her in the absence of evidence that she had separate estate. In the Estate of Hourigan, 6 V.L.R. (I. P. & M.,) 2; 1 A.L.T., 122. Caveat Lodged by Married Woman Withdrawn before Application for Administration — Costs out of Estate.] — Two sisters applied separately for 1551 WILL. 1552 administration of an estate under £500, and each lodged a caveat against the grant of letters to the other. On the morning of the elder sister's application the younger sister withdrew her caveat. The Court, in granting administration to the elder, allowed her to deduct the costs occasioned by the caveat lodged by the younger, a married woman, out of the share of the estate to which she was entitled. In the Estate of Brown, 10 V.L.B. (I. P. & M.,) 41. (b) Advertisements. Prolate — Advertisement Not Strictly Correct.] — Where it is intended to apply for probate to two of three executors named in a will, with leave reserved for the third to come in and prove, the advertisement of intention to apply must men- tion the third executor, and state the inten- tion to apply for probate with leave reserved as to him. In re Jones, 1 W. & W. (I. E. & M.,) 14. But where one of the executors appointed is a minor, the advertisement need not refer to the fact of his appointment, or specify that leave to him will be reserved. In re Pyhe, ibid, 15. Advertisement — Weekly Paper.] — It is a, suffi- cient compliance with Rule 3, Reg. Gen., 23rd June, 1873, if the advertisement is published in a weekly newspaper circulating in Melbourne. In the Will of Oollings, 7 V.L.R. (I. P. & M.,) 38. Advertisement — lost Will— Notice to Next-of- Kin.] — Where probate is sought of a draft of a lost will, such a state of circumstances should be specifically stated in the advertisement, and express notice should be sent to those who would be entitled in the case of an intestacy. In the Will of Smith, 7 V.L.R. (I. P. & M.,) 40: 2 A.L.T., 143. Administration Granted— Subsequent Will Found — What Advertisements Necessary on Application for Probate.]— In the Will of Smyth, 1 V.L.R. (I. P. & M.,) 17, and In the Will of Braithwaitt, 4 V.L.R. (I. P. & M.,) 37; post columns 1558, 1559. Advertisement of Intention to Apply for Probate "Regulse Generales," 23rd June, 1873, Rule 3.]— The advertisement of intention to apply for probate must be inserted fourteen clear days before application. Where the advertisement was published on 11th May and the application was made on 25th May, held insufficient notice. Be Bichardson, 4 A.L.T., 1. Advertisement — Error in Number of Codicils.] — Where an advertisement stated an intention to apply in respect of a will and two codicils and there were three codicils, although one of the codicils was revoked, the Court directed a fresh advertisement specifying the three codicils. In the Will of Kelly, 9 V.L.R. (I. P & M.,) 48. Advertisement— Affidavit of Search.]— Where an advertisement gave the name of deceased as "Mackintosh" instead of "M'Intosh," and the affidavit of search omitted to state that a, "careful" search had been made the application was directed to be renewed. In the Estate of M'Intosh, 9 V.L.R. (I. P. & M.,) 48. Probate— long Delay in Applying after Adver- tisement.] — An advertisement of intention to apply for probate was published on 3rd November, 1882, and the application was not made until 15th May, 1884. Held that there should be a fresh adver- tisement of intention to apply, and that an affidavit explaining the delay was not sufficient, and application refused. In the Will of Cox, 10 V.L.R. (I. P. & M.,) 32 ; 5 A.L.T., 212. Advertisement Nine Months Prior to Applica- tion.] — An advertisement of intention to apply for probate was inserted in a newspaper nine months before the application was made, and no affidavit was made explaining the delay. The Court refused the application, requiring a fresh advertisement to be inserted. In the Will of Schneider, 6 A.L.T., 85. Will Not Signed in Full Name of Testator- Advertisement.] — Where a foreigner made his will in the German language, and signed it, but omitted one of his two Christian names, the Court required the advertisement of intention to apply for probate to notice this discrepancy. In the Will of Schneider, 6 V.L.R. (I. P. &M.,) 8 ; 1 A.L.T., 144. Administration to Donee of Donatio Mortis Causa — Advertisement.] — See In the Goods of Tully, ante column 1529. (c) Affidavits. Executor's Affidavit— Must be Regular— Verifica- tion of Will.] — The first part of the executor's affidavit, which is in verification of the will, is part of the materials upon which probate should be granted, and probate will not be granted in its absence, although the will is verified by another affidavit. The other part of the executor's affidavit may be in another document, and may be filed at any time before issue of the probate from the office. Where the affidavit of an executor, which contained both facts, was defective in the jurat, the Court granted probate, subject to the production of a proper affidavit in the office before probate. In the Goods of Grant, 1 W.W & a'B. (I. E. & M.,) 64. Affidavit Misstating Date of Execution.]— The affidavit of the executrix stated the date of the execution of a will to be 18th August, 1874, instead of 18th August, 1875. Held that a fresh affidavit was necessary. In the Will of Anderson, 6 A.L.T., 4. Affidavit of Executor— Signature.]— The affi- davit of an executor in support of an applica- tion for probate must be signed by him in full. In the Will of Hayes, 6 A.L.T., 64. Name of Executor Misspelt— Affidavit.]— The testator appointed one Patrick Moylon as executor, who applied fo^ probate under the name of Patrick Mylon. Held that an affidavit stating that the applicant and the executor were the same individual was necessary. In the Will of Githens, 6 A.L.T., 84, 1553 WILL. 1554 Name of Attesting Witness Improperly Spelt.] — In an affidavit in support of an application for probate, the name of one of the attesting witnesses was stated to be "Rowlands." He signed his name to the will as "Rowlds," but no notice was taken of the discrepancy in the affidavit. Held that an affidavit stating why the witness had so signed was necessary. In the Will of Vaughan, 6 A.L.T., 17. Affidavit as to Residence of Witnesses to Will — What Sufficient— Beg. Gen. June, 1873, Rule 4.]— An affidavit of executors as to the residence of the attesting witnesses to a will, stating that the will was executed in the presence of G.M. of C, solicitor, and S.M., "his clerk," is not sufficient as regards the residence of the second witness. In the Will of Cook, 10 V.L.R. (I. P. &M.,)92; 6A.L.T., 117. Statement in Affidavit that Will is Unrevoked.] — It is desirable that the affidavit in support should always contain a statement that the will k unrevoked. In the Will of Fagan, 5 A.J.R., 48. On an application for probate the Court re- quires an affidavit that the will is unrevoked, and such affidavit must be made by the executor or other applicant. In the Wills of Bergin and Sides, 10 V.L.R. (I. P. & M.,) 30. Affidavit of Search.] — The affidavit of search should state that a " careful " search has been made. In the Estate of M'Intosh, 9 V.L.R. (I. P. & M.,) 48. The affidavit as to property should negative distinctly the fact of there being personal pro- perty, mere silence as to the personal property is not sufficient. In the Will of Treguriha, 10 V.L.R. (I. P. & M.,) 89. Application for Grant of Probate to Harried Woman — Affidavit that she has Separate Estate must specify Particulars of such Estate.]— See In the Will and Codicils of Boundy and other cases ante columns 1520, 1521. Affidavits as to Alterations, &c, in Wills.]— See In the Will of Thomson, ante column 1506. Affidavits as to Execution of Will].— See ante columns 1514-1517. Administration— Affidavit that no Caveat is Lodged.] — On a motion for administration an affidavit was filed that no caveat was then entered, and the motion stood over for the filing of other affidavits. Upon the renewal of the motion on the other affidavits, Held, that no later affidavit that no caveat was lodged need be filed. In re Kennedy, 1W.4W. (I. E. & M.,) 16. And see In re Woolf and In the Will ofLansell ante column 1550. Applications for Rules to Administer— Affidavits.] — In re Quintan and In the Estate of Norton, ante column 1537. Applications for Administration with Exemp- lified Copy of Will Annexed — Necessary Materials in Affidavits.]— See cases ante solumns 1539-1541. Administration — Affidavits Necessary.] — An order nisi for administration was obtained. Objections were taken that the affidavits on which the order was obtained were deficient in the following particulars : (1) There was no dis- tinction between real and personal estate; (2) the next-of-kin were not specified and there was no allegation that the deceased left no widow. Held that these objections would be fatal to a grant of administration, and were equally fatal to the grant of the order nisi. Order discharged. In the Estate of Austin, 1 V.L.R. (I. P. & M.,) 38. Intestate Leaving a Widow.] — Whenever art intestate dies leaving a widow in the colony, upon an application by any other person for letters of administration, there ought to be a special notice served on the widow, or an affidavit that she declines to take out adminis- tration, or of some special circumstances. In the Goods of Kenworthy, 2 W. & W. (I. E. & M.,) 118. Letters of Administration — Defective Affidavits.] — On a motion for letters of administration to the estate of a person who died before 1864, the affidavits were defective for a motion for general administration under the "Administra- tion Act 1872," as not stating the value of the real estate, but the Court dispensed with the statement, since the duties of the ad- ministrator, as far as the real eBtate was con- cerned, were very unimportant. In re Quinlan, 2V.L.R. (I. P. &M.,)17. Reg. Gen. 23rd June, 1873, Rule 5— Necessary Affidavits — Next-of-Kin.] — In an Order nisi call- ing upon a caveator (creditor) to show why the administration should not be granted to an intestate's husband, the affidavit should state what next-of-kin there are, if any. In the Estate of Smith, alias Peate, 7 V.LR. (I, P. &M.,) 27; 2 A.L.T., 114. Application for Administration — Affidavit — Names of Next-of-Kin.]— In the affidavit in sup- port of an application for letters of administra- tion the names of the relatives or next-of-kin should be distinctly stated. In re Crozier, 5 A.L.T., 188. Affidavit — Application by Widow.]— Where in an affidavit the applicant was described as " I, A.B., widow of the deceased, CD.," Held that that was a sufficient statement that she was his widow. In the Estate of Dogherty, 3 A.L.T. 27. Administration — Applicant Described as Brother- in-law of Intestate.] — An affidavit in support of an application for administration stated that the intestate had left a widow and several children; that the widow consented to administration being granted to the applicant, and that the applicant was the "brother-in-law" of the intestate. The relationship between the widow and the applicant was not shown. Held that an affidavit was required, stating the relationship between the widow and the applicant. In the Estate of Crab, 6 A.L.T., 16. 1555 WILL. 1556 Administration — Application for after Lapse of Time — Affidavit of Value.] — Upon an application for administration of the real estate of an intes- tate after a long time had elapsed since the death, the Court required the affidavit of value to state the value of the estate at the time of the application, in order to determine the amount of the security. In the Estate of Wiving, 6 V.L.R. (I. P. & M.,) 93. Affidavit — Clerical Error — Bond.] — Where an applicant for administration stated the value of the realty and personalty correctly, but, owing to a mistake in the addition, understated the value of the whole, the Court granted the appli- tion, the bond to be for the amount of the two sums properly added. In the Estate of Dunbar, 6 A.L.T., 28. Jurat not showing Month in which it was Sworn.] — Where the jurat of an affidavit did not show the month in which it was sworn, Held that a fresh affidavit was necessary. In the Will ofDodd, 6 A.L.T., 4. Affidavits before whom Sworn.]— Affidavits in the probate jurisdiction may, under Rule 5 of Reg. Gen. 13th May, 1868, be sworn before the proctor by whom they are prepared. In the Will ofAitken, 3 V.L.R. (I. P. & M.,) 56. Endorsement of Proctor's Name on Affidavits and Documents. ] — Except in cases where an appli- cant appears in person, the affidavits and docu- ments should contain the name of some proctor endorsed upon them. In re Johanson, 5 V.L.R. (I. P. & M.,) 81. Affidavits— Omission of Statement of Capacity of Commissioner.] — On a motion for a, grant of administration, one of the necessary affidavits had been sworn before a Commissioner of the Supreme Court for taking affidavits, but he had merely signed his name, and there was nothing on the face of the affidavit to show that he was a commissioner . Held that since the forms of affidavit given by the rules contained the state- ment omitted, the affidavit could not be re- ceived. In the Goods of Savage, 1 V.R. (I. E. & M.,) 17; 1 A.J.R., 18. Application for Administration by Attorney under Power— Upon what Materials Court will Act.] — Where an application was made for a grant of letters of administration to an attorney under power of the next-of-kin resident in Eng- land, the evidence of relationship consisted of statutory declarations made before some public functionary in England, accompanied by a notarial verification. Held that the Court could not act on these materials, but that affidavits before a commissioner of the Court in England must be obtained. In the Goods ot Hone, 1 W.W. & a'B. (I. E. & M.,) 73. Application for Administration— Affidavit in Support Sworn in Scotland — Notary Public— Evi- dence of Signature.]— An affidavit in support of an application for letters of administration was sworn before a notary public in Scotland and not before a commissioner of the Supreme Court for taking affidavits. Held that some further corroboration than the mere signature of the notary was required, and that an affidavit by a person who knew the signature of the notary would be sufficient. In the Estate of Sutherland, 10 V.L.R. (I. P. & M.,) 23; 5 A.L.T., 156. {d) Costs. Costs on Proceedings by Caveat.] — See cases ante columns 1550, 1551. Costs — Contest between Next-of-Kin not Adver- tising and Creditor.]— In re Twist, ante columns 1521, 1522. Costs — Contest between Executors and Creditor seeking Administration c.t.a.] — In the Goods of Heffernan, ante column 1522. When Given out of the Estate — Of Person un- successfully Opposing Probate — Misconduct of Testator.] — Where a litigation as to a will is the result of the misconduct of the testator or the- residuary legatee, the costs of the unsuccessful party may be thrown on the estate. Where, therefore, a husband and wife had made mutual wills, and the husband told his wife that he had made no subsequent will, and said if he had made any such will he must have been out of his senses, and the claimant under the subse- quent will was a party to the concealment, and there was strong reason on the wife's part to doubt the competency of her husband, two medical men having expressed their doubts as to his competency shortly before and after the execution of the subsequent will, the costs in- curred by the wife in unsuccessfully opposing such subsequent will were thrown upon the estate. In re Headen, 2 V.L.R. (I. P. & M-.,) 21. When Given out of the Estate.] — Drunkenness is not such misconduct of the testator as to cause the costs of the parties opposing the will to be thrown on the estate. Where, therefore, on the trial of an issue as to the validity of a will, one of the attesting witnesses was called to prove incompetency of the testator owing to drunkenness, and his evidence was favourable to his competency, but there was a local impres- sion that the testator was drunk at the time of execution, and there was evidence tending to show that he was in fact drunk during the day, and the jury found in favour of the will, the Court, in granting probate, not wishing to give costs against those opposing the grant, made the order without costs. In re Taylor, 2 V.L.R. (I. P. & M.,) 68. Costs "of Propounding Will.]— The Court cannot order the costs of a suit, in which a will is un- successfully propounded, to be paid out of the estate where the parties entitled to receive the assets are not before the Court; where all the persons interested in the litigation are not made parties; where the facts are not properly before the Court; and where the judgment does not finally dispose of the matter. In such a case the Court can only direct the ordinary result to follow where the plaintiff fails; i.e., that the plaintiff pay the costs. Macoboy v. Madden. 5 W.W. & a'B. (I. E. & M.,) 38. 1557 WILL. 1558 Costs Out of the Estate— Executor bona fide Propounding- a Will which is Defeated by a Technical Error.] — Where an executor bond fide propounded a will which he had every reason to believe genuine, but which was defeated by a technical inaccuracy, resting on the evidence of a witness who had made an affidavit describ- ing it as accurate, Held that the executor was entitled to have his costs out of the estate. In the Will of Braithwaite, 4 V.L.R. (I. P. & M.,) 37. Of Executor Propounding Will.] — Per Moles- worth, J. — Where an executor, if he had taken the trouble to investigate the case, would have reason to doubt the sanity of the testator, but nevertheless propounds the will for probate and fails, he should not get his costs out of the estate. In the Will of Abel, 8 V.L.R. (I. P. & M.,) 34, 42. Per the Full Court — An executor appointed by a will, who propounds the will and fails to prove it, is not a trustee so as to entitle him to his costs out of the estate as a matter of right; and where the Primary Judge refuses costs to an executor so failing to prove the will, an appeal for costs will not lie from his discretion. Ibid, p. 43. Per Holroyd, J. — Semhle, that if a person named as executor in a will propounds the will, and the testamentary capacity of the testator comes in question, costs should be given out of the estate to the party propounding the will, although he does not succeed in establishing it, provided he had reasonable ground for believing the sanity of the testator. Ibid, p. 44. Costs of Testing Validity of Will.]— To the general rule that the losing party should pay the costs, the case of an executor testing the validity of a will is an exception, but in a case where all the parties interested did not want the executor to litigate with an elder son who was opposing the grant of probate, on the ground of the testator's insanity, the Court re- fused probate, and directed the executor to pay the costs. In the Will of Gordon, 1 A.L.T., 110. (v) Revocation of Probate and Administration. When Granted.] — An application to revoke probate to one of several executors made with his consent will not be granted unless it can be shown that he has never acted. In the Will of Parnell,2V.B,. (I. E. & M.,) 56. Executrix Marrying — Executor Coming in Pur- suant to leave Reserved. ]— Where probate had been granted to F. during widowhood, leave being reserved to M. to come in and prove upon her death or re-marriage, and F. re- married, probate was granted to M. without an order revoking probate to F. In the Will of Fitzpatrick, 4 V.L.R. (I. P. & M.,) 45. Revoking Probate— Proving Per Testes.]— On a rule nisi obtained by One of the next-of-kin calling upon an executrix to show cause why a will should not be proved per testes, or why probate should not be revoked as unduly ob- tained, Stawell, C. J., feeling technical difficulties in the way of the former course, made an order for the revocation of probate. Held per Barry and Williams, J J., (dissentiente Molesworth, J.,) that having regard to the lapse of time since probate granted, the order, although obtained on insufficient materials as to execution, should not be revoked. Per totam curiam that the Court has jurisdiction to revoke an order for probate. In re Pyke, 1 W. & W. (I. E. & M.,) 20. Evidence and Practice in Applications to Revoke Probate.] — See In the Will of Lecerf, and In the Will of Lamont, ante column 1548. Of Probate of Previous Will.]— After pro- bate had been obtained to one will, a second and later one was discovered, appointing the same executors as the former. On motion by the executors, probate of the earlier will was re- voked, and probate granted of the latter. In the Will of Dyer, IY.B.{1. E. &M.,)14; IA.J.R.,4. Two Wills — One Disposing of Realty Only, the Other of Personalty Only— Revoking Probate.]— A testator left two wills, the earlier one dispos- ing of realty only, the latter executed after Act No. 427 of personalty only. Probate of the latter had been granted. On motion for pro- bate of earlier will, Held that under the second will the executors took all the property of what- ever kind, but that if probate were sought of the first will, the existing probate must be re- voked. In the Will of Cameron, 7 V.L.R. (I. P. &M.,)33; 2A.L.T., 136. later Will Discovered — Proper Method of Obtain- ing Probate Thereto.] — Where probate has been granted of a will, and a later will has been dis- covered, the proper course for the person seeking probate of the later will to pursue is to proceed by advertisement for probate of the later will and for revocation of the earlier one, serving notice thereof upon the executors ; and not to apply in the first instance for an order nisi for revocation of the grant to the first, and for probate to the later will. The advertisement should be the usualfourteen days'advertisement, but stating fully the facts of the first and second wills and of the intention to move for revocation and probate. In the Will of Braithwaite, 4 V.L.R. (I. P. &M.,)37. Mutual Wills— Revocation of Probate.]— E.R. made a will 10th August, 1872, giving all her property to her husband A.R. On 1st Novem- ber, 1876, she made a second will revoking the first and making a fresh disposition of her pro- perty which was burnt in April, 1878, under her directions and she expressed her intention of making another. The first will was made in accordance with an agreement made between the husband and wife that they would make mutual wills in each other's favour, and the husband obtained probate of it. The Court made absolute a rule to revoke the probate of the first will notwithstanding such agreement. In the Will of Reynolds, 7 V.L.R. (I. P. & M.,) 57 ; 3 A.L.T., 39. Revocation of Administration — Rule nisi for — Who May Obtain.]— An application for a rule nisi to revoke administration, which was made 1559 WILL. 1560 by » solicitor on behalf of persons interested, but who were out of the jurisdiction and had given no express instructions for such an application, was refused ; but semhle that if the application had been made by the solicitor on his own behalf it would have been granted, since there would, in that case, have been some one responsible for the costs if the rule were discharged. In the Goods and Real Estate of Graham, 2 V.R. (I. B. & M.,) 57. Administration Granted to Widow, an Infant — Administration Revoked.]— In the Seal Estate of M'Millan, ante column 1519. Administration Granted — Revocation — Adver- tisements—Where administration has been granted and subsequently a will is found pro- bate of which is applied for, it is necessary that notice should be given to the administrator and that the advertisement for probate should state that application will be made for revocation of the grant of administration. In the Will of h, 1 V.L.R. (I. P. & M.,) 17. Revocation — Notice to Former Grantee.] — Where an application to revoke the grant of administration c. t. a. , which has not been taken out, is made, notice thereof should be served upon the former grantee. In the Estate oj Ebsworth, 4 V.L.R. (I. P. & M.,) 48. Revocation of Administration to Attorney under Power.] — Where administration had been granted to an attorney under power of the widow of the intestate resident out of the colony, the Court revoked the grant to the attorney upon the motion of the widow, its attention being called to the words in the power and advertisement reserving leave to the widow to supersede the attorney, although such reservation was not contained in the order .granting administration, but the Court con- firmed the attorney's previous acts as adminis- trator. In the Estate of Bowman, 7 V.L.R. (I. P. & M.,) 112 ; 3 A.L.T., 72. Administration Improperly Issued — Revocation — Notice.] — An administration improperly issued from the Master's office cannot be treated as a nullity, but an application should be made to revoke such administration, and grant fresh •administration to the applicant, andnotice of such application should be served upon the person to whom the administration was improperly issued. In the Estate of Schroeder, 8 V.L.R. (LP & M.,) 29. (vi). Jurisdiction. [a) Of Court in the Probate Jurisdiction. _ Issue— New Trial.]— Where the Primary Judge sitting in the probate jurisdiction had directed that an issue should be tried by a jury before himself, and an application was made to the Full Court for a new trial of the issue, on the .ground of misdirection, Held, by the Pull Court, that it had jurisdiction, but that such an application should be made in the first in- stance to the Primary Judge himself, and that the Pull Court will not entertain such an appli- cation unless by way of appeal. MorUy «. Net- bUt, 2 V.L.R. (L.,) 97 ; See also In the Will of Nesbit, 2 V.L.R. (I. P. M.,) 61. The Court has jurisdiction to revoke an order for probate, in re Pyhe, 1 W. & W. (I. E. & M.,) 20. See S.C., ante column 1558. How Exercised.]— The Court will not favour applications made merely for title, and not for the purposes of administration, for which latter purposes alone the probate jurisdiction of the Court is conferred and exercisable. In the Real Estate ofCropley, 4 V.L.R. (I. P. & M.,) 61. See further S.C., ante column 1530. Allowance of Commission to Executors — Testator Dying before "Administration Act 1872."]— The Court has no jurisdiction in a summary pro- ceeding to allow any commission to executors out of the real estate of a, testator who died before the coming into operation of the "Ad- ministration Act 1872." In the Will of Egan, 6 V.L.R. (I. P. & M.,) 97; 2 A.L.T., 76. Passing Accounts.] — There is no jurisdiction to direct the passing of accounts before the Master- in-Equity of real estate devised to trustees before the passing of the "Administration Act 1872." S.C., 2 A.L.T., 76. (6) Of Registrar. Real Estate subject to a Mortgage.]— Where a testator died possessed of real estate worth over £500, subject to a mortgage which would re- duce its value to less than £500, Held that under Sec. 18 of Act No. 427 the property must be considered to be of its full value, and that the Registrar had no jurisdiction. In the Will of Ooppin, 7 V.L.R. (I. P. & M.,) 41. VII. Construction and Interpretation. (a) General Principles. When a Will needs Interpretation.] — Where the language of a will admits of a plain and gram- matical construction which is consistent with the apparent intention of the testator and does not deprive the devisee of all estate conferred upon him by the will, the Court will not have resort to the canons of construction framed for the interpretation of wills in cases of .difficulty. Lynch v. Johnson, 4 V.L.R. (L.,) 263. Construction to Avoid Intestacy.] — Where the construction of a will is doubtful the Court will endeavour to construe it in such a way as to avoid an intestacy. Holley v. Holley, 6 A.L.T., 63. Intention of Testator.]— In interpreting a will the Court considers the intention of the testator and not what may be best for those interested under it. Where, therefore, the testator re- quested that his children should be sent to their relatives in Ireland, the Court refused to dis- pense with this direction, though evidence was adduced tending to show that it might be prejudicial to the health of some of the children. Kearney v. Lowry, 5 W.W. & a'B. (E.,) 202. 1561 WILL. 1562 Inconsistent Clauses — Revocation — Ambiguity.] —Where there are two clauses in a will incon- sistent one with the other, the later, as best describing the last intention of the testator, is to be deemed a revocation of the prior ; but the terms of both clauses must, to justify such an interpetation, be equally distinct respecting the particular devise or bequest, for a clause absolute and express in its terms is not to be impliedly revoked by one of doubtful meaning. Briant v. Edrich, 1 V.R. (L.,) 35; 1 A.J.R., 49. Succession.] — A will should be construed ac- cording to the law of succession in force at its date. In re Goodman's Estate, 6Y.L.R. (E„) 181. Annuity for Maintenance of Children during Infancy held to he an Annuity for the Life of the Annuitant — On what Property Chargeable.] — Westwood v. Kidney, 5 A.J.R., 25, 95; post under sub-heading — Annuity. When Will Speaks 1 from Death— Property des- cribed as " Now in my Possession.] — The words "now in my possession" are only words of description, and do not express a contrary in- tention within the meaning of 1 Vict., Cap. 26, Sec. 24 ("Wills Act"), so as to prevent the will from speaking from the time of death. Noone v. Lyons, 1W.4W. (E.,) 235. Date from which Will Operates — Words of Futurity.] — H. devised land in trust for E.B. for life, and after her decease for her children then born or thereafter to be born as tenants in common in tail male, and his will contained a proviso that if any of the persons so made tenants in common in tail male ' ' shall be born in my lifetime" then the devise as to such person ■was revoked and another devise substi- tuted. Held that a son of E.B. born before the date of the will did not fall within the provi- sion, and was consequently entitled in tail male. Lynch v. Johnson, 4 V.L.R. (L.,) 263. Instructions for Will — How Construed.] — Im- perfect instructions for a will executed as a will should not be more liberally construed than a document purporting to be a complete will. Mead v. Head, 5 V.L.R. (E.,) 212; 1 A.L.T., 30. (6) Particular Words and Cases. " Debts Due at Decease."] — A direction to pay " debts due at decease" in a will includes debts the time for payment of which had not arrived at the time of the testator's death; i.e., debts debita in prcesenli solvenda in futuro. Press v. Hardy, 1 W.W. & a'B. (E.,) 97, 102. "How in his Possession" — "All -Hie Property Belonging to He" — "After Paying my Just Debts."]— The testator, G.H., made his will, dated 31st July, 1860, as follows:— "I desire that my agent, D.L., shall, immediately on my decease, turn all the property belonging to me now in his possession into cash, and shall, after paying my just debts, hand over the same to my two executors — namely, the said D.L. being one and W.N. the other." The will then gave specific legacies and a residuary disposition. After the date of the will D.L. accounted with the testator as his agent, and ceased to act as such; and the testator purchased the equity of redemption of land of which he was seized as mortgagee, and sold a portion of such land. Held that the words, "now in his possession," were only words of description, and, not coming with- in the exception in Sec. 24 of 1 Vict., Cap. 26- " unless a contrary intention shall appear," &c, did not prevent the will from speaking from the death of the testator; that the words, " all the property belonging to me," passed the real estate; that the words, "after paying my just debts," charged the debts on the real estate, so as to enable the executors to sell it; and that the legatees ranked co-equally, and must abate in proportion. Noone o. Lyons, 1 W. & W. (E.,) 235. " Right Heirs."] — A testator devised his dwelling-house in trust for his wife and nephew during their joint lives; upon the death of his wife, in the lifetime of the nephew, to him absolutely ; upon the death of the nephew, in the lifetime of the wife, to her for life, with remainder to the testator's "right heirs." Testator left a brother and sister, his next-of- kin ; and after testator's death his brother, as heir-at-law, conveyed his interest in the dwel- ling-house to the wife and nephew. Held that the property should go beneficially as real estate undisposed of — i.e., to the next-of-kin — and that the wife and nephew were not entitled to an absolute conveyance of it from the trus- tees. In re Goodman's Estate, 6 V.L.R. (E.), 181. "Issue" when it means "Heirs of Body."] — M'Gregor v. M'Coy, 1 V.L.R. (E„) 162; see post column 1568. "Children" includes "Grandchildren."] — /See Knight v. Knight, 10 V.L.R. (E.,)195; 6A.L.T., 62 ; post column 1566. " Death without Heirs" when it means " Death without Heirs of Body."]— See M'Gregor v. M'Coy, 1 V.L.R. (E.,) 162; post columns 1567, 1568. "From the Time of my Death"— Inserting Words.] — A testator left his residuary real and personal estate to his wife for life, and after her death upon trust to be divided equally between certain of his children (naming them) if living at his decease, and their issue if dead; and for the purposes of such division he directed that such residuary estate should, as soon as con- venient after his wife's death, be appraised or valued by two indifferent persons to be ap- pointed by such children or the majority of them, and one umpire to be appointed by such two persons, and the value put upon such estate should be allotted and divided amongst his said children in such manner as they should amongst themselves agree; and in case his said children should not agree amongst themselves within twelve months "from the time of my death" in such allotment and division, then he directed his trustees, as soon as convenient, to sell the residue of his real estate and divide the pro- ceeds equally amongst his said children. Two of the children named died shortly after the testator, and before the widow's death. No appraisement or apportionment was made; and, 1563 WILL. 1564 ■after the widow's death, the trustees sold a part of the residuary real estate. Held that the Court could not interpret the will by inserting the word "wife's" after "my" in the clause providing for the sale of the property. M'Millan v. Boss, 8 V.L.R. (E.,) 243; 4 A.L.T., 23. " Die before Receiving Payment of such Share " — " Share."]— Where a will directed, if any per- son entitled to a share under it should die before receiving payment, how such share should be disposed of, the Court held that the words " die before receiving payment of such share" must be construed to mean before being entitled to receive ; also that the word "share" in that part of the Will regarded the distribution at the end of, not during the period after which the trustees were to sell, collect and call in all the property, and pay it in equal shares to the objects of the trust. Broomfield v. Summerfield, 2V.L.R. (E.,)174. Affirmed in Hayes v. Wilson, 10 V.L.E. (E.,) 226. " I Direct that the Share of my Business in the Tim of" &c, " shall he carried on."] — A testator carried on business in partnership with another and his will contained a provision "as to the share of the business to which I am entitled in the firm of Howie and Swan, I direct that the same shall be carried on by my said wife for the benefit of herself and my children, in conformity with the trusts of this my will." The executors renounced probate, and administration c.t.a. was granted to the wife. Held that the will did not authorise the wife as administratrix to carry on the business after a dissolution of the part- nership. Swanv. Seal, 10 V.L.R. (E.,) 57, 64; 5 A.L.T., 196. Direction to Trustees to Erect a Tombstone.] — Trustees were by will directed to purchase land in the M. cemetery for a family grave, and to erect a tombstone or tombstones for three or four persons at a cost of £200 if required, or such sum beyond that as they might think fit. Testator by his wish was buried in the B. ceme- tery. The trustees asked the advice of the Court whether they could expend the money on a tombstone in the B. cemetery. Held that they could under the circumstances ; that the wish as to the erection of the monument was as per- emptory as that as to the place of interment. In re Campbell, 9 V.L.R. (E.,) 138. Trust for Sale not followed by Disposition of Proceeds — Intestacy as to Corpus.] — Imperfect instructions for a will executed as a will should not be construed more liberally than a document purporting to be a complete will. Where A. left instructions for a will which were executed as a will by which the income of property was dis- posed of, and directions were given as to the sale and conversion of all the property but no directions as to the distribution of the proceeds ; and at the end there was a clause directing the shares of daughters in the principal and interest to be to their separate use, Held that there was no disposition of the corpus, and that the trust for sale did not operate as a conversion, and that A., having died in 1854, his heir-at-law was entitled to the corpus of real estate, and the personal estate was to be divided amongst his next-of-kin. Mead v. Read, 5 V.L.K. (E.,) 212 ; 1 A.L.T., 30. Widow Entitled in Event of Children Dying without Issue.] — A testator died in 1866, de- vising and bequeathing his estate to executors and trustees on trust to pay certain legacies, and thereafter (subject to an annuity in favour of his wife) to be divided among his children when they attained the age of twenty-one. The only child of the testator died when aged nine years. Held that the will making no pro T vision for the disposal of the property in the event of the children dying without issue the widow was entitled to the whole. Shevill v. :, 6 A.L.T., 131. (c) Precatory and Executory Words and Trusts. Absolute Interest or Trust.]— A testator gave all his estate and effects unto his wife if she should survive him, her heirs, executors, administrators and assigns, but in case she should not, unto J.M. and J.R., their heirs, executors, administrators, and assigns, and directed that the said trustee or trustees should stand possessed of the said estate and effects in trust for the equal benefit of all children living at his decease and their respec- tive issue and appointed his wife, J.M., and J.R. executors. Held, the wife took no bene- ficial interest under the will, but was a trustee for the children. M'Crae v. Rutherford, 2 W.W. & a'B. (E.,) 25. Direction to Erect a Tombstone.] — In re Camp- bell, ante column 1563. (d) Conditional Devises. . Effect of Conditional Devise— Gift of Income and Division of Corpus among such as should be Alive.] — Where a testator disposed of income among certain persons during a certain period, and directed a division of the corpus at the end of the period among so many of them as should be then alive, Held that the interest in the income of any such person dying before or after the testator and within such period passed to the personal representatives of such person. Broomfield v. Summerfield, 2 V.L.R. (E.,) 174. Condition in Restraint of Marriage — Failure of Persons to take the Gift over.] — A testator de- vised real estate to his children, with a proviso that, if any one should marry a person not professing the Hebrew faith, his or her share should go to an infant grandson, and the will contained no residuary devise or bequest. The infant grandson predeceased the testator. Some of the children having married Christians, upon petition for advice, Held that the infant grand- son having died before the testator, leaving no representative, there was thus no one to take the devise over, and the intention of the testator not being distinct to punish his children, apart from an interest to benefit his grandson, no forfeiture was incurred. In re MUis' Trusts, 6 V.L.R. (E.,) 35 ; 1 A.L.T., 140. 1565 WILL. 1566 Condition against Harrying any other than a Jew — Death of Person who would Take on Breach of Condition.] — A testator left certain of his real estate in trust for a daughter, her heirs and assigns, and directed that if she should marry a person not being a Jew and professing the Hebrew faith, her interest in the property should be held in trust for a grandson, his heirs and assigns. The grandson in question died during the lifetime of the testator, and the daughter married a Christian. On a summons to the Registrar of Titles to uphold his grounds for refusing to grant her an unconditional cer- tificate of title, Held that the will created a conditional limitation, and that the death of the grandson in the testator's lifetime did not enlarge the estate of the daughter, and that she was not entitled to an unconditional certificate under the " Transfer of Land Statute." In re " Transfer of Land Statute," ex parte Folk, 6 V.L.R. (L.,) 405 ; 2 A.L.T., 77. Gift to Wife — Condition in Restraint of Re- marriage.] — F. made his will, by which after directing payment of debts, &c, and giving certain legacies, he bequeathed all the rest and residue of his estate, to his wife, on trust for his wife and son, share and share alike; provided that if after his decease his wife should marry, the bequest to her should be revoked, and the whole residue of the estate should go to the son. Held, per Molesworth, J., that the provision for the cesser of the wife's interest upon her marriage was effectual, although in restraint of marriage, and that she was entitled to the income of a moiety of the estate during widowhood. Trustees Executors and Agency Coy. v. Foy, 10 V.L.R. (E.,)267; 6 A.L.T., 111. (e) Validity of Devises. Effect given to Devises under "Wills Statute 1864," Sec. 31.] — The doctrine laid down in Winter v. Winter (5 Hare 306) can hardly be regarded as settled, viz.:— That the " Wills Statute 1864," Sec. 31, gives effect to devises, which would have been void altogether for want of objects, as well as to those frustrated by the removal of the object. Broomfield v. Summer- field, 2 V.L.R. (E.,) 174 ; aflirmed in Hayes v. Wilson, 10 V.L.R. (E.,) 226. Gift of £500 " Towards Erecting a Monument to J.P.P., and for Keeping his Grave in Repair."] — A testatrix bequeathed £500 " towards erecting a monument to J.P.F., and towards keeping his grave in repair." Held, that the gift was not void, and that so much as related to the keeping the grave in repair did not oflfend against the rule against perpetuities, the corpus and not the income being given. Wiseman v. Kildahl, 6 V.L.R. (E.,) 78 ; 1 A.L.T., 140. Void for Remoteness of limitations.]— Where a testator directed trustees to _ convert his estate, and, after payment of annuities, to hold upon trust for all the children of his son, who, being sons, should attain twenty-five years, or, being daughters, should attain twenty-one years or marry under that age, with trusts for maintenance and advancement, at the discretion of the trustees, out of presumptive shares, and for accumulation of the surplus, Held that the gifts to sons and daughters could not be separated, that the Court could not substitute the age of twenty-one for twenty-five so as - to escape the illegality, and could not separate the provisions for maintenance from the direct gifts, and that the whole gift was void for remoteness. Ker v. Hamilton, 6 V.L.R. (E.,) 172, 176. Charitable Gifts.] — See Charity. (/) Substitutional Devises. Who Entitled — Period of Distribution — Main- tenance Clause.] — A testator empowered his executors, upon his youngest child attaining twenty-one to convert his estate into money, and directed that it should be divided among his wife and children then living, and in case of any child of his dying before becoming en- titled, leaving lawful issue, such issue should take the parent's share. There was then a pro- vision that the trustees should apply the whole, or such part as they thought fit, of the annual income to which "any child" should for the time being be entitled in expectancy, for or towards the maintenance of such child. One of the testator's sons survived him, attained the age of twenty-one, but died before the period of distribution leaving a child, A. Held that A. was presumptively entitled to his father's share under the will, sed quare whether he would be absolutely entitled if he should die under age before the period of distribution. Knight, v. Knight, 10 V.L.R. (E.,) 195 ; 6A.L.T., 62. Held also that the maintenance clause applied to A., since the word "child" includes grand- child. Ibid. Death of Devisee before Will Executed to Testator's Knowledge.] — A testator left the residue of his estate to trustees to convert and invest, and directed them at the expiration of ten years from his death to divide it equally among his children and grandchildren, named in the will, of whom there were thirty-two in all ; provided that their respective shares were not to be paid until those named reached the age of twenty-one, or being females married ; pro- vided also that if any person died before being entitled to receive payment of his or her share, leaving issue of his or her body, the share of such person should go to such issue in equal shares ; if there should be no such issue the share of such person should go to the survivors of the thirty-two in equal shares. One of the thirty-two was dead to the testator's knowledge when the will was executed. Held that there was an intestacy as to her share at the end of the ten years. Hayes v. Wilson, 10 V.L.R. (E.,) 226. Death of Devisee, before Period of Distribution, of Age and leaving a Will.]— Another of the thirty-two, of age when the testator made his will, died unmarried within the ten years, leaving a will. Held that his share went to the survivors of the thirty-two. Ibid. Death of Devisee leaving Issue.] — Another of the thirty-two died within the ten years leaving 1567 WILL. 1568 issue. Ibid. Held that her share went to her issue. Another of the thirty-two died within the ten years under age and unmarried. Held that his share went to the survivors of the thirty- two. Ibid, "Executors, Administrators, and Assigns, to and for His and Their Own Use and Benefit " — Words of Limitation.] — A testator devised and bequeathed his estate to a person "his executors, administrators, and assigns, to and for his and their own use and benefit." The devisee prede- ceased the testator. Held that the words ' 'execu- tors, administrators, and assigns," were words of limitation, and not of substitution, and that the gift lapsed. Plum/mer v. Hood, 6 V.L.R. (E.,) 159; 2A.L.T.,40. VIII. What Interest Passes. (a) Generally. A testator directed that after the death of his wife (tenant-for-life) his property should be divided in equal shares between his children (naming them), and in the event of either or any of their deaths, then that the share of any or either of them sodying should be equally divided between his or their children, and in the event of any or either dying without leaving issue that his or her share should be divided between the survivors and their heirs. Held that the testator's children surviving the tenant-for-life took absolute interests. Beith v. Beith, ] V.R. (B.,) 164 ; 1 A.J.R., 147. Cross-remainders — Estates-in-tail — lapse — Wills Act, No. 222, Sec. 30.]— A testator died in November, 1864, having by his will, dated 16th October, 1859, devised three estates (X. Y. and Z.) upon trust for his three sons, A., B. and C. respectively, and declared that each portion should be vested at twenty-one, and that in the meantime, and until such vesting, the trustees might apply the annual produce of the respec- tive portions to which each child should be entitled in expectancy for his maintenance and education; and, "moreover, in the event of the death of either of the three sons, A., B., and C, previous to obtaining possession of the portion referred to, or, if without heirs, the said portion or portions should be equally divided among the survivor or survivors Of my sons aforesaid." A. and B. both died in the testator's lifetime; A. unmar- ried and intestate; B. intestate and leaving an only child, a daughter, D. Held that the three sons took respectively estates-in-tail, with cross- remainders to survivors; that the words that each portion should be vested at twenty-one meant that they should get into possession prefatory to_ the provision for maintenance; that death without heirs meant as between the brothers without heirs of the body; that D. took an estate-in-tail in the land devised to her father, the lapse of the devise being prevented by Sec. 30 of " The Wills Act" (No. 222); that C. took as survivor the estates devised to A. ; that the charges on Y. and Z. in favour of A. lapsed in favour of the persons to whom the lands were devised. M'Gregor v. M'Ooy, 1 V.L.R. (E.,) Estate in Special Tail after Possibility of Issue Extinct — Remainder.] — Devise of an estate in trust for testator's widow "to be held by her and her heirs, if any, or failing issue by me," then, after her decease, over to daughters. The widow had no issue by the testator except a posthumous son, T., who died shortly after birth. Held that the words "issue" and "heirs" meant heirs of the body, and that the widow took as tenant in special tail, after possibility of issue extinct, with remainder to the daughters. Ibid. Tail Male — When Devisee Entitled in.]— See Lynch v. Johnson ante column 1561. A bequest was given" to testator's wife of all his property " in trust for his children, and at her death to revert to the sole use of my children in equal proportions." There being no question raised as to whether the real estate passed, that being assumed, Held that the wife and children were entitled in equal shares to the income during the wife's life. After her death the corpus went to the children in equal shares. Stevenson v. M'Intyre, 5 V.L.R. (E.,) 142; 1 A.L.T., 14. Durante Viduitate.] — Where a testator di- rected that the residue of his property should be equally divided between his wife and son, but that if the widow married again her share should be paid to the son, Held that the wife was entitled to the income of a moiety during widowhood. Trustees Executors and Agency Company v. Foy, 6 A.L.T., 111. Devise Durante Viduitate — Fee-Simple Deter- minable on Re-Marriage.] — A testator devised all his estate to his wife "absolutely, and for her sole and absolute use and benefit, as long as she shall continue my widow, provided nevertheless that if my said wife shall marry at any time after my decease, then I give, devise, and bequeath my said estate . . unto the right heirs of me, the said " testator, and to their heirs, &c. The widow died without re-marrying. Held that she'was seised in fee-simple. Barclay v. Evans, 8 V.L.R. (L. ) 330 ; 4 A.L.T. 88. Express Estate for life followed by Words giving Power of Deposition at Death.] — Where an express estate for life only is given by will, followed by words showing that the devisee can dispose by means taking place at death, the latter give a power only, especially in the case of female devisees who may have the incapacities of coverture. Therefore where a testator devised his estate to trustees in trust to permit such of his daughters as should come of age or be mar- ried " to receive and take the rents and profits of their respective shares," as therein set forth, during their respective lives; "the shares" of such daughters to be " for their own separate use, and to be as follows" (specifying certain portions of the real estate for each daughter), and subsequently reserved to each of them a power to dispose by will of her share without the concurrence of her husband, Held that each daughter took a life estate in her share, with a power of disposal of the fee by will, the words "reserve" and "shares" not indicating that the 1569 WILL. 1570 testator had given by implication a greater estate than for life. Johnston o. Brophv, 4 V.L.R. (E.,) 77. Gift of Bank Deposit Receipts Bearing Interest.] —A gift of bank deposit receipts bearing interest passes the interest accrued up to the time of death as corpus, and the tenant for life is only entitled to the income arising from such when invested. In re Thomas's Will, 10 V.L.R. (E.,)25. Legacies to Executors — Tenants in Common — Intestacy.] — G. by his will bequeathed legacies to the two executors for their trouble. The will afterwards provided that, if there should be a residue it should be divided equally amongst the executors, to wit (naming them), and two other persons, share and share alike. One of the executors died during the testator's life- time. Held that the objects of the residuary clause were tenants in common ; that the two executors did not take as a class, and there was no survivorship between them ; and that the share of the executor who predeceased the testator lapsed, and there was an intestacy with respect to it. Griffith v. Gholmley, 5 W.W. &a'B. (E.,) 186. Shares of Income.] — A testator left property to trustees upon trust to convert and invest, and directed them to apply the net income " in and towards the support of my present wife so long assheshall remain my widow, and in and towards the education and maintenance of my children by my first wife during their respective minori- ties, in the equal, several, and respective shares following, i.e., one equal share in and towards the support of my present wife during widow- hood and any children I may have by her, and one equal share in and towards the maintenance and education of each of my children by my first wife equally among such of them as shall then be living." At the date of the will the testator had seven children by his first wife. At his death there were six living by his first wife, and three by his second including a posthumous child. Held that the will directed a division of income between the widow 1 and the children of the first marriage and the survivors of the latter if any died unmarried under age, the widow having an obligation to maintain her own chil- dren ; and that upon the widow's death or marriage the share of income she might then have would go to her own children living in equal shares. Brock v. Kelson, 3 V.R. (E.,) 16 ; 3 A. J.R. 8. (b) Vested or Contingent Interests. Vesting.] — A testator directed his trustees to continue a partnership business, and after cer- tain payments out of the profits to accumulate the balance and invest, and from and after the dissolution of the partnership, he bequeathed a certain sum to be set apart for each of the daughters, and invested separately as soon as convenient after the dissolution, directing in- come to be paid to the daughter for life, re- mainder to her children on the youngest attaining twenty-one, but if any daughter should die without leaving a, child who should live to attain twenty-one, then for the sisters equally. The testator also made provision for the educa- tion of the daughters out of the profits of the business. Held, that the provision for mainten- ance being unconnected with the legacies, afforded no argument in favour of vesting, and one of the daughters having died under twenty-one and unmarried, before the dissolu- tion of partnership her legacy was not vested, but was distributable among the other daughters. Osborne v. Osborne, 9 V.L.R. (E.,) 1 ; 4 A.L.T., 113. Meaning of Word "Vest."]— "Vest" may, if the context of the will is in favour of that construction, be read as importing only that the interest previously vested is at a specified time to become absolute and indefeasible. A testa- tor directed his trustee to hold certain property in trust " for my child (if only one), or for all my children (if more than one), in equal shares, and so that the interest of a son or sons shall be absolutely vested at the age of twenty-one, and of a daughter or daughters at that age or on marriage, with a provision for issue of sons dying under twenty-one leaving issue, and a gift over in the event of no object of the trust acquiring an absolutely vested interest. " Held per Privy Council, that the shares of the children were vested at the death of the testator subject to be divested. Armytage v. Wilkinson, L.R., 3 App, Cas, 355. A gift upon trust for such of a testator's children as should attain the age of twenty-one does not confer a vested interest. In re Still- man's Will, 1 V.L.R. (E.,) 158. Under a Deed — Vested Interests upon Marriage or Majority — Beneficiary attaining Majority and Dying Unmarried.] — See Be "Transfer of Land Statute," ex parte Leach, 5 A. J.R., 72 ; ante column 353. Where a will gave estates in realty to three sons respectively, and declared that each portion should be vested at twenty-one, and that in the meantime, and until such vesting, the trustees might apply the annual income of the respective portions to which each child should be entitled in expectancy for his maintenance, &c, and ' ' moreover in the event of the death of either previous to obtaining possession of the portion referred to or without heirs, the said portion or portions should be divided equally between the survivor or survivors," Held that the words that each portion should vest at twenty- one meant that they (the sons) should get into possession prefatory to the provision for main- tenance. M'Oregor v. WCoy, 1 V.L.R. (E.,) 162 ; see S.C., ante column 1567. IX. Devise to a Class. (a) Who Entitled. Where a testator directed trustees to convert his estate, and, after payment of annuities, to hold upon trust for all the children of his son, who, being sons, should attain twenty-five years, or, being daughters, should attain twenty-one years or marry under that age, with trusts for maintenance and advancement during the ' ' sus- pense of absolute vesting," at the discretion of 1571 WILL. 1572 the trustees, and for accumulation of the sur- plus, Held (apart from the question of remote- ness) that all sons and daughters born at any- time would take, and not only those living at the date of the will or decease. Ker v. Hamilton, 6 V.L.R. (E.,) 172. Residue Given to Executors— Not a Devise to a Class, and no Survivorship.]— Where a testator left residuary estate to two executors' nominatim and two other named persons, and one of the executors predeceased the testator, Held it was not a devise to a class, and that therefore there was an intestacy as to such share, which lapsed. Griffith v. Chomley, 5 W.W. & a'B. (E.,) 186. Death before Testator— Presumption of Death- lapse.]— A testator died October, ;1866, having, by will, April, 1852, devised certain real estate to trustees upon trust, to pay one-half of net rents to wife for life, and to pay the other half to three sisters in equal shares, and after death of any of them, leaving children her sur- viving, to pay her share in the rents to such children who should attain the age of twenty- one, or, being daughters, attain that age, or marry under that age, in equal shares and upon trust after the widow's death, to sell and distribute the proceeds in like manner. The widow died in 1871, and A, one of the sisters, died in 1871, having left three children by a former marriage, B., C, andD., of whom D. had not beenheard of since 1855, and ason, E., by a second marriage. Held, that this being a gift to a class, D. would be entitled to his share, even though he did not survive A., but that since D. had not been heard of since 1855, that is more than seven years before thetestator's death in 1866, he must be taken to have pre- deceased the testator, and that on that ground his share had lapsed. Low v. Mottle, 5 V.L.R. (B.,) 10. (6) Per Stirpes or Per Capita. Devise to Trustees upon Trust for A. and B. during their lives and after the Death of Either, upon Trust to their Children.]— A testator de- vised and bequeathed his real and personal estate to trustees upon trust for A. and B. during the term of their natural life, and after the death of either of them, for their children. Held that the will was to be read " during the terms of their natural lives, and after the decease of either of them, as to'her share upon trust for her children." That the testator could not be taken to have intended to have made the death of either terminate the interest of both, and to have excluded after-born children of the sur- vivor, and that consequently the children took per stirpes. Young v. Hall, 3 A. J.R., 98. X. Description op Bequest ok Devise. Gift of Houses — Vacant Land.] — A gift of certain houses, in a will, will include a vacant piece of land which had been used with one of the houses. Richardson v. Shirra, 6 A.L.T., 48. Residuary — Including Realty and Personalty.] — A testator after directing payment of his debts by his wife, disposed of his property in the following words:— "The rest, residue, and re- mainder of my worldly goods, such as carts, horses, moneys or property, of what nature or kind soever, which God in His goodness hath bestowed upon me shall be for the sole use and benefit exclusively of my aforesaid wife ;" and he afterwards appointed her executrix. Held that the testator's real estate was thereby effectually devised, the word " property " being sufficient to pass realty. Bamblet v. Bamblet, 1W.W.4 a'B. (B.,) 80. " All my Property."]— The words " all my property " are sufficient to pass real estate. Noone v. Lyons, 1 W. & W. (E.,) 235. What Included in General Residuary Bequest — Surplus Income.] — A testator left all his real and personal property to trustees to sell and con- vert, pay debts, and invest in certain securities, and then directed payment out of income of certain annuities to relatives named, and directed, after the death of the last survivor of the relatives to whom annuities had been given, that the trustees should pay over the whole residue of his property, estate and effects, and the securities on which they should have been invested as by the will directed. After pro- viding for debts, legacies and annuities there was a large surplus income. Held, by Moles- worth, J., and the Pull Court, that the residuary gift included the surplus income as well as the principal, and that the Court will not decide questions about accumulations of income for more than twenty-one years until the time has expired. Hastie v. Curdie, 6 W.W. & a'B. (E.,) 91. " Residuary legatee " — After-Acquired Real Estate.] — A testator by will bequeathed all real and personal estate to S., as to specified parts upon trusts contained in a letter in favour of children, and then appointed S. executor and "residuary legatee." There was certain real estate acquired after execution of the will. Held that this after-acquired property passed under a general devise, and that the testator did not die intestate with respect to it ; that " legatee " must be read as "devisee," and that S. was beneficially entitled to the after-acquired pro- perty. Stephen v. Stephen, 3 V.L.R. (E.,) 94. XI. Annuity. Annuity for Maintenance of Children during Infancy held to he an Annuity for the Life of the Annuitant— On What Property Chargeable.] — A testator directed his trustees to receive rents of certain property (A) during the minority of his eldest son, devising the property to the son on attaining age ; other property (B) was left in a similar way to a younger son ; other property was left to trustees with a direction to sell it on the eldest daughter of the first marriage coming of age, and to divide the proceeds amongst the daughters of that marriage ; other property was left with similar provisions as to daughters by the second marriage. . The testator then directed the trustees to pay out of rents of his said real estate a yearly sum of £500 to his widow, to be applied by her towards the maintenance, &c. , of all his children during their respective minori- ties ; and left his residuary estate to trustees 1573 WILL. 1574 upon trust to convert, to invest, and to divide among his children when the eldest son came of age. The bill did not seek any specific inter- pretation of the -will nor did the answers, the bill merely setting out the will and praying for execution of the trusts. It was referred to the Master to report as to the rights of all parties. Upon exceptions to the report, Held that although the widow was provided for in other parts of the will yet she was entitled to the £500 as an annuity for life and not during the minori- ties of the children, and that this annuity was chargeable on the corpus of all the residuary estate including the rents and profits of the specifically devisedproperties during infancy and suspense, such charge not clogging the trustees' power of sale, but affecting the proceeds only. Westwood v. Kidney, 5 A. J. ft., 25, 95. XII. Incidents of Bequests and Devises. (a) Advancement and Maintenance. " Statute of Trusts " (No. 234,) Sec. 61— Pay- ment of Rents for Maintenance.] — Petition for advice and direction under Sec. 61 by the trustees of the will of S. deceased. On 30tH July, 1870, testatrix, by virtue of the power given by an indenture, devised certain land to the petitioner upon trust for such of her chil- dren as should attain the age of twenty-one in equal shares as tenants in common if more than one, and directed that the trustees might at any time in their discretion sell or mortgage the land or any part, and out of the proceeds pay the debts, funeral and testamentary expenses of the testatrix, and any sums they thought fit for maintenance or advantage of the chil- dren, and invest the residue in Government or real securities in Victoria, and stand pos- sessed of the securities and income upon the same trusts declared as to the land. The trustees were empowered to demise the land during minority of the children for a term not exceed- ing twenty-one years. The testatrix left a hus- band and four children, who lived on a part of the land devised, and applied the rent fixed by the trustees in education and maintenance of the children, who were all infants. Other por- tions of the real estate were let at low rents, no part having been sold or mortgaged. The hus- band's business was limited and he was unable to maintain the children. The petition sought advice as to whether the trustees were justified in paying rents to the husband as for main- tenance, field that as the property was small and the children took parallel interests on attaining twenty-one, there being no conflict- ing interests, the Court would answer the ques- tion although it involved the construction of the will; that the trustees were justified in pay- ing to the husband the rents for maintenance of the children before sale or mortgage of the land ; that the land was held partly on trust for maintenance ; that the children's interests were not vested, but as the chances were equal, the Court would direct equal maintenances. In re Stillman's Will, 1 V.L.R. (B.,) 158. Maintenance.] — A testator bequeathed his personal property to his wife and daughters; his real estate to his wife during life or widow- hood, and, upon her re-marriage, as to income for his daughters so long as his son was under age, and, when he came of age, for him ; if he should die under age for his daughters. The widow married, and there was no present pro- vision for the son. On application by the trus- tees to employ part of the income in maintaining the son, and to raise an apprentice fee, Held that there was no authority for so construing the will as to imply a provision for the son's maintenance ; and application refused. In re M'Kay, 2 V.L.R. (E.,) 105. Maintenance — Resort to Accumulations.] — A testator devised land for the maintenance of his son and grandchildren, and directed the income of other property to be accumulated during the infancy of the grandchildren, and then left the corpus to such of them as should attain twenty- one 1 . The testator during his lifetime sold part of the former property, and the son having died shortly after the testator, the Court directed that the trustees, instead of accumulating the rents and profits of the second property, should from time to time apply a portion of the income to the maintenance of the infants. In re Hig- ginbotham, 4 V.L.R. (E.,) 57. Maintenance— Substitutional and not Cumulative Provisions.]— Where a testator provided a cer- tain sum per annum for each child's maintenance until the age of ten years, and after then and until the age of fourteen years " the increased sum of £100 annually," and after then and until the age of twenty-one years or marriage "the further increased annual sum of £150 ;" and on attaining majority or marriage " the yearly sum of £150," Held that these respective sums were substitutional as each child attained the speci- fied ages, and not cumulative. Osborne v. Osborne, 6 V.L.R. (E.,) 132. Maintenance — When Insufficient, Court will not Generally Increase.] — Where a testator has by will made a provision for the maintenance of his children during minority of £80 a year for each child until a certain age and then of £100 and £150 at other ages, which though sufficient to maintain and educate them, was very narrow in regard to the amount of property coming to them ultimately, the Court will not in the absence of any evidence of mistake on the part of the testator, increase the amount allowed for maintenance. Osborne v. Osborne, 6 V.L.R. (E.,)3; 1 A.L.T., 121. Application of Capital to Maintenance Refused.] — A testator directed a fund, £125 in the whole, to be invested till his youngest child attained twenty-one, the interest to be paid to the widow, and the capital then divided between her and the children. The children were both under the age of two years, and the widow being in distressed circumstances applied to have the fund paid to her for the maintenance of herself and the children. Held that the Court was bound to apply the property of deceased persons according to their wills, not to substitute its discretion for them, and applica- tion refused. In re Giles, 4 V.L.R. (E.,) 37. And see cases ante columns 554-556 under Infant ; and ante columns 1439, 1440 under Trusts and Trustee, 1575 WILL. 1576 Cestuis que Trustent Entitled to Unapplied Income when Coming of Age.] — A testator be- queathed certain shares to trustees on trust to apply income thereof towards the maintenance and education of his grandchildren. Part of the income only was so expended. Held on a petition under sec. 61 of " Statute of Trusts 1864," that the grandchildren having attained their majority were entitled to the unapplied residue of this income. In re the Will of Downing, 7 V.L.R. (E.,) 22 ; 2 A.L.T., 133. (b) Election. In what Cases.] — Per Molesworth, 3. The principle of election applies to the joint effect of will and codicil, as if devises under each of them were contained in the one instrument, the will and codicil being taken as the disposition of the testator, speaking as at the date of the codicil. Whitehead v. Whitehead, 4 A. J.K. 165. A testatrix by will devised certain properties to the defendant. By codicil she devised to the plaintiff land, which after her death, and after the respective devisees had entered into posses- sion of theproperties devised to them, was dis- covered to have devolved upon defendant as heir- at-law in priority to the testatrix. Defendant took steps to bring the land under the ' ' Trans- fer of Land Statute" in his own name and plaintiff entered a caveat. Defendant also pro- ceeded against plaintiff in ejectment and to recover six years' mesne rents and profits. On suit by plaintiff to compel defendant to elect whether he would take under the will and codicil or against them, Held that defendant must be put to his election. Ibid, 165. Voluntary Settlement — Collusive Sale and Re- purchase by Settlor — Inconsistent Subsequent Will. ] — R. settled property by voluntary settlement upon A. in trust for himself and family. This settlement was not parted with or disclosed to the other beneficiaries, and R. by a fictitious sale and repurchase got the settled property back and disposed of it by will in a different manner to the trusts contained in the will. Two beneficiaries under the settlement were dispossessed by beneficiaries who took interests under both will and deed. Held that the deed being bad as against the will, the beneficiaries dispossessed were entitled to be recouped out of the interests given by the will to those taking under the deed as against it, and it was referred to the Master to inquire as to whether it was for the interest of the beneficiaries under both will and settlement to elect under which to take. Moorhouse v. Rolfe, 4 A.J.R., 159. Settlement Followed by Will.] — B. by voluntary settlement settled certain real estate upon his children. Having married again, he, by will, left all his property upon trust as to certain lands for his five daughters by the first marriage, and as to certain real estate, and one-sixth of the settled property, which he erroneously be- lieved to be his own, upon certain trusts for his widow and any children of the second marriage. There was one child of the second marriage. Held, that such child and the widow were en- titled to call upon the five daughters to elect whether they would take under the will or the settlement. Johnston v. Brophy, 4 V.L.R. (E.,) 77. (c) Accumulations. Of Income.]— Courts of equity will not by anticipation deal with questions as to the dis- position of surplus income upon the contingency of the period fixed by law for accumulations being exceeded. In a case where there was a residuary gift which was held to include in- come, as well as corpus, the Court refused to entertain the question of the rightB of parties to accumulations of income after twenty-one years, and decree was made subject to the rights which any of the parties might have in the income so accumulating after twenty-one years. Hastie v. Curdle, 6 W.W. & a'B. (E.,) 91, 98. Direction for Accumulation — Circumstances in which Court directed Trustees, instead of Accu- mulating, to Apply Income to Maintenance.] — Inre Higginbotham, ante column 1574. (d) Conversion. See cases ante column 206. Trust for Sale not Followed by a Disposition ot the Proceeds.] — Where a testator left instructions for a will, which were executed as a will, by which the income was disposed of, and in which directions were given for sale and conversion, but the proceeds of the sale were not disposed of, Held that the trust for sale did not work a conversion so as to alter the rights of the heir-at-law and next-of-kin to the property as to which the Court held there was an intes- tacy. Read v. Read, 5 V.L.R. (E.,) 212; 1 A.L.T., 30. Real Estate Ordered to be Sold in Default of Allotment.] — A testator left real estate subject to an estate for life to trustees upon trust for certain of his children if living at his decease, and the issue of such as were dead; and for the purposes of division among them, directed that the said estate should be appraised or valued as soon as convenient after the death of the tenant for life, by two persons appointed by the children, or a majority of them, and an umpire appointed by such two persons, and the value put upon such estate should be divided among the children in such manner as they should among themselves agree; and failing agreement within twelve months of his death, he directed his trustees to sell the estate and divide it equally between the children. One of the tes- tator's sons died shortly after him and before the tenant for life, and a son shortly before the tenant for life, and no appraisement or ap- portionment was ever made, and after the death of the tenant for life the trustees sold part of the real estate. Held that the share of the deceased daughter in the real estate was con- verted into personalty and passed to her ad- ministrators ; that the provision for appraise- ment and division was rather a recommendation than a direction, and did not affect the con- version created by the power of sale in the trustees. M'Millan v. Ross, 8 V.L.R (E 1 2«. 4 A.L.T., 23. ' "' ' 1577 WOKDS. 1578 (e) Mortgages. Charges upon land—" Locke King's Act" (Incor- porated in the "Real Property Statute 1864.")]— Where deeds are deposited as a security for an advance of money, the land com- prised in them is ' ' charged by way of mortgage" within the meaning of Part XI. of the " Real Property Statute 1864" (re-enacting 22 Vict., No. 61,) and the heir or devisee of such land is not entitled to have the mortgage debt paid out of the personalty or other real estate of the testator or intestate. Brent v. Jones, 1 V.E (E.,)76, 80; 1 A.J.R., 2, 51. Exoneration of land— Charge of Debts.]— A testator, after appointing executors, devised to his wife a portion of his real estate for her life and then over. He also devised land, sub- ject to au equitable mortgage, to P. ; bequeathed to his wife all the ready money of which he might be possessed at the time of his decease, and directed her to pay his funeral and testa- mentary expenses, and also "all debts due at decease. " On a suit instituted for execution of the trusts, and to obtain the opinion of the Court as to which of the several properties devised under the will should bear the burden of the debt charged by the equitable mortgage, Held that the widow's life estate and the ready money were liable to pay the mortgage debt, the words directing payment of debts being, according to Act No. 61 (repealed and re- enacted by the "Real Property Statute 1864," part XI.,) sufficient to show an intention to exonerate the devised land, but that the charge upon the widow should not extend further ; should not subject even undisposed of per- sonalty to exonerate the devised estate; and that the estate in remainder after the wife's death was not chargeable with such debts. Press v. Hardy, 1 W.W. & a'B. (E.,) 97, 102. Exoneration of Land — Personalty — Residuary Realty.] — A testator devised his personal estate upon trust to pay thereout a mortgage on his dwelling-house and his debts, and to pay the surplus to his wife; and if the personalty were insufficient to pay the mortgage and debts, he directed the balance to be raised by a sale of the whole or part of his residuary realty. He devised his dwelling-house in trust for his wife and nephew during their joint lives; upon the death of the wife, in the life of the nephew, to him absolutely; upon the death of the nephew, in the life of the wife, to her for life, with remainder to the testator's "right heirs;" and devised his residuary real estate to his wife in fee. The personal estate was insufficient to pay the mortgage and debts. Held that the resi- duary real estate should pay the debts left unpaid in exoneration of the dwelling-house. In re Goodman's Estate, 6 V.L.R. (B.,) 181. Exoneration of Land — General Personalty- Rents of Realty.]— A testator, by will, directed trustees to convert his personal estate into money, and therewith pay all his just debts, if sufficient; if not sufficient, the deficiency to be supplied out of other moneys coming to their hands. By codicil, he directed all mortgages to be paid out of rents of the real estate before the rents should be received by the children. Held that the mortgages were payable primarily out of the general personal estate, and that any deficiency should be made up out of the rents of real estate. Macartney v. Kesterson, 6 V.L.R. (E.,) 56; 1 A.L.T., 177. "Real Property Statute 1864" (No. 213,) Sec. 150 — Exoneration — Contrary Intention.] — The Court may look for evidence of a " contrary intention" dehors the will into other "deeds or documents, " executed even after the will. Such intention must be signified, if not by express words, by something amounting almost to necessary inference or necessary implication. A devise of property in strict settlement is not sufficient to signify such " contrary intention." Brown v. Abbott, 7 V.L.R. (E.,) 121; 3 A.L.T., 47. (/) Payment of Debts and Legacies — Out of what Funds or Estates. Proportion of Debts and Legacies Payable out of Reversions.] — A testator, by his will, bequeathed and devised specific personalty and realty to his wife for life, and the residue of his estate to trustees upon trust for sale and conversion (but postponed the sale of the property given to his wife for life till after her death), and out of the proceeds to pay his debts and legacies. Held, affirming Molesworth, J., that the widow was entitled to call for an immediate sale of the reversions of both realty and personalty devised and bequeathed to her, or a competent part thereof, for the purpose of paying their propor- tions of the debts and legacies, and distributing the balance. Attorney-General v. M'Pherson, 4 V.L.R. (E.,) 51. Bequest of Residue " Upon Trust to Sell the Same, andl Bequeath" Several Pecuniary Legacies.] — A testatrix, by will, gave the residue of her estate to executors " upon trust to sell the same, and I bequeath" several pecuniary legacies, and then disposed of the residue. Held, that the residue was applicable for payment of the legacies. Wiseman v. Kildahl, 6 V.L.R. (E.,) 78; 1A.L.T. 140. When Debts Chargeable on Real Estate].— Where a testator devised " all his property" to be converted, and " after payment of all just debts" to be divided, Held that the words "all his property" passed real estate, and that, therefore, the debts were chargeable on the real estate so as to entitle the executors to sell it. Noone v. Lyons, 1 W. & W. (E.,) 235. WORDS. Acceptance.] — The expression " acceptance " includes a promissory note. Synnot v. Parkinson, 4V.L.R. (L.,)521. The expression " the whole of my property " used by an equitable mortgagor must be taken to mean all the property which he then believed himself to be, or was in fact, in a condition to convey to a purchaser. Gladstone v. Ball. 1 W. & W. (E.,) 277, 286. 1579 WORK AND LABOUR. 1580 Act No. 324, Sec. 9 — Meaning of " Action." — See Allardycev. Cunningham, ante column 1130. Meaning of Word " Stock " in Sec. 25 of Act No. 234— Shares in a Joint-Stock Mining Company.]— See Bryant and Saunders, In re Saunders, ante column 1451. Vendor and Purchaser — Meaning of " All legal Agreements" — Mining Agreements.] — Where a. purchaser of all the right, title, and interest of a vendor, who had an option of purchase under a lease for five years, as a condition precedent agreed in writing to confirm and recognise ' ' all legal agreements made by the vendor relating to the letting of his land for mining purposes, and where the vendor had by writing, not under seal, agreed to give to A. a license to mine for a certain time on the said land, Held that the words "all legal agreements" meant not only those enforceable in a court of law, but those of which courts of equity would decree specific execution by compelling a grant under seal to the same effect, and that those words must not be read with reference to the rights of the Crown or of the landlord. Ah Wye'v. Locke, 3A.J.R., S4, 85, 86. Timber.] — The expression "timber" in agree- ments as to land must be construed according to its strict meaning, and be held to include all trees used for building purposes in the place where they are growing, but not to include trees used for fencing purposes only ; and the parties must show by evidence what sort of trees are used for fencing purposes only ; and what sort of trees are used for building purposes only in each particular locality. Bruce v. Atkins, 1 W. & W. (E.,) 141, 144, 145. Incapable.]— The term " incapable" in the English language does not mean a voluntary inability to act, but an involuntary one. Iffla v. Beaney, 1 W. & W. (E.,) 110, 116. In Testamentary Instruments.] — See Will. Defamatory.] — See Defamation. Meaning of the Word " Stevedoring."] — See Collins v. Bobbins, ante column 1124. Meaning of Word " Land" in Sec. 64 of Act No. 301 — Easements. ] — See In re Transfer of Land Statute, ex parte Cunningham, In re M'Carthy, ante columns 1411, 1412. WORK AND LABOUR. (1) General Principles, column 1579. (2) Conditions Precedent to Right to Sue and Recover Payment — Certificates, column 1583. (3) Forfeiture of Materials and Deposit, column 1589. (4) Damages and Compensation, column 1590. (1) General Principles. Construction of Contract— Two Documents of Different Date Read Together.]— See Appleton <:. Williams, ante column 188. Construction of Contract — Satisfaction of Employer — Question for Jury.] — Smith v. Sadler, ante column 10. Construction of Contract — Meaning of Quality.] — SeeM'Gregor v. Melbourne Omnibus Coy., ante column 189. Count for Work and labour Done — Contract for Making a Chattel which when Completed would Result in a Sale.]— See Lyons v. Hughes, ante column 193. Jurisdiction of Justices of Peace as to Work and labour.] —Reg. v. Lloyd; Reg. v. Call, ex parte Thomas, ante column 749. Construction of Contract — Time for Possession.] — Contract provided that the contractor, if not put into possession at any time within two weeks and thirty days after execution of the contract, was entitled to a commensurate ex- tension of time for completing the works, but he was in any case entitled to possession after thirty days. Held that the Board of Land and Works was bound to give possession after thirty days from the execution of the contract. Young v. Board of Land and Works, 3 V.R. (L.,) 110 ; 3 A.J.R., 77. Penalty for Overtime — Delay Caused by; Employ- er.] — A building contract fixed a time for com- pletion and provided for a penalty in case of non-completion within the time fixed. The employer prevented the contractor from enter- ing upon the work at the time agreed upon. Held that the employer could not insist upon the completion of the work within a similar time from the date it was actually commenced, but that the condition as to time was gone altogether. Findlay v. Cameron, 4 V.L.R. (L.,) 191. Contract to Build a House — Alterations or Additions to be Valued by Architect.] — A contract to erect a house after providing that the works were to be executed to the satisfaction and under the direction and subject to the final approval of the architect, contained a clause that in the event of any alteration or addition being deemed necessary during the progress of the works such alteration or addition should be done by the plaintiff, and the cost of the same valued by the architect and added to or deducted from (as the case might be) the original amount of the contract. Held that this did not amount to an undertaking by the defendant that the architect should value such alterations and additions when executed, and that no action would lie for the omission by the architoct so to do. Duncan v. Shrigley, 1 V.R. (L.,)139; 1 A.J.R., 124. Contract for Bulk Sum — Additions — What are Extras.] — A contract for the formation and drainage of a street contained the following proviso : — " Should any alterations be deemed advisable the city surveyor hereby reserves to himself the power to make such, which altered works shall be measured and paid for as if the same had originally been included within the 1581 WORK AND LABOUR. 1582 scope of the specification, and the contractor is distinctly to understand that no claim will be allowed for extras unless ordered in writing." The plaintiff alleged that he was duly required by the city surveyor to make, and did make, certain additions to and alterations upon the specified works, and also executed certain extra works which were duly ordered in writing, and claimed payment for the balance of the contract, for the additions and for the extra works. Plea that the additions, alterations, and extra works were not ordered in writing. Demurrer that the additions and alterations did not require to be ordered in writing. Held that in a contract of this kind, framed in the terms and containing the provisoes that this one did, and where obviously the additions were of the same kind of work, although they might cause the whole sum to be exceeded, yet they were not extras outside the contract, but that in the case of extras both parties know that the work is out- side the contract, and the contractor is aware that he ought not to execute it unless ordered in writing ; but that the additional work in this case being contemplated by the parties, could not be regarded as an extra, and judgment for plaintiff. Barter v. Mayor, &c, of Mel- bourne, 1 A.J.R., 160. Works to be executed according to Directions of Engineer — Position of Engineer.] — A contract pro- vided that certain works were to be done to the satisfaction and under the directions of O'C. , an engineer appointed for that purpose. O'C. directed certain dams to be erected to prevent the water from filling the lagoon to be excavated, and the contract required the lagoon to be "un watered." Held that the defendants were not liable for anything done by O'C. outside the quasi judicial functions given him by the con- tract unless the relation of principal and agent were created, which it was not by the contract. Packham v. Board oJLandand Works, 5 A. J.R. 142. Contract for Executing Works Suitable for a Bathing Establishment — To What Warranty Befers.] — R. contracted to execute certain work and provide certain materials and fittings for a bathing establishment, and the contract con- cluded " we guarantee the same to be in every way suitable for the requirements and efficiency of your establishment." Among the fittings was a large copper boiler which proved insufficient in capacity, although of the specified dimensions. At the trial the judge directed the jury that the warranty was limited by the size, &c, previously set out, and that B. was not bound to supply a larger boiler than that specified. On Rule nisi for a. new trial, Held, dissentiente Fellows, J., that the direction was correct, B. being under the warranty only liable to provide labour and materials which should be good and suitable, and under no liability as to the capacity of the boiler except that it should be of the specified size. Hosie v. Mobison, 5 A.J.B., 176. Provision Making One Party Judge in His Own Cause.]— A contract for the performance of certain works contained a clause which provided that no remissions of any deductions made from the contract price by way of liquidated damages for delay, should be made by the Board of Land and Works until the engineer-in-chief made and presented a recommendation to that effect to the board, and until they had signified their approval of such recommendation. Held that, the engineer being an arbitrator between the parties, the clause would render the board judge in their own cause, and was, therefore, inoperative. O'Keefe v. Board of Land and Works, 1 A.J.R., 145. Power of Architect to Determine Contract.] — A building contract provided that if the archi- tect discovered that the contractor was using bad materials, and not progressing in a satis- factory manner, the architect might, after certain notice, determine the contract. The contract time was exceeded and no extension of time was given. Held that after the expira- tion of the contract time the architect had no such power. Bailey v. Hart, 9 V.L.R. (L.,) 66; 4 A.L.T., 161. Means of Payment — Deductions by Employers.] — Contract between petitioners and the Board of Land and Works, on behalf of the Queen, that petitioners should make a railway for a gross sum of £1,271,841, according to specification and schedules of works and prices; but in the event of any discrepancy between the amount in schedules and the gross sum, the petitioners should be bound by the gross sum if the amount in the schedules was in excess, and all prices in the schedules should be proportion- ately reduced; that all extras ordered should be paid for, and all deductions for omission should be made in accordance with schedule of prices; that contractors should furnish fortnightly accounts, and on these being certified the Government should pay to contractors the amounts, deducting 10 per cent, until the amount of deductions should amount to £10,000, when that sum might be invested at contractors' option in Government deben- tures, and income paid to the contractors; the schedules of quantities attached to specifications represented the work to be performed under the several contracts, and the Engineer-in-Chief reserved power to make any alterations, deduc- tions, or additions, such alterations, &c, to be allowed for at the ratio set against the several items of the schedules of quantities. At the end of the contract there was a recapitulation setting forth the several sums for each of the seven sections of the line, the total amount of which was £1,374,963; and underneath "less 7£ per cent, for entire work, £103,122," which reduced the total to the gross sum of £1,271,841. Held that the Crown was entitled to deduct £10 from every £100 of the amount mentioned in the certificates, notwithstanding that £10,000 might have accumulated and been invested; that the words, "7J per cent, for the entire work," were not to be limited to mean that no deduction was to be made unless the entire work was com- pleted, but that 7i per cent, was to be deducted from each payment; and that deductions for extras were to be made at the same rate. Evans v. The Queen, 2 W. & W. (L.,) 46. Building Contract — Action on when Maintain- able — Satisfaction of Employer — Question for Jury.] — Smith v. Sadler, ante column 10. 1583 WORK AND LABOUR. 1584 (2) Conditions Precedent to Bight to Sue and Recover Payment — Certificates. Condition Precedent.] — R. contracted with the Government to build a two-cell log lock-up, and the contract contained inter alia the following stipulations — (1) All materials used were to be of the best description and all works were to be executed conformably to the specifications, &c, and to the satisfaction of the superintending officer and the Inspector-General. _ (2) Any discrepancy between the drawings and specification should be rectified by the In- spector-General. (4) All prepared work or material should be the property of the board. (5) The contractor, if directed, should suspend work and have no claim for damages until after thirty days from such suspension and the board should not be bound to give possession of the ground .or work till thirty days after sig- nature of the contract. (6) If any dispute arose between the superintending officer and the contractor as to the quality or as to quantities or prices or any matter not thereby left to the sole determination of the board or Inspector- General, such dispute should be referred to the Inspector-General whose decision should be final ; and the contractor should not be entitled to sue in respect of any claim or right under the contract until the matter in dispute should have been determined by the board or Inspector- General, and the obtaining such determination was declared a condition precedent to the main- tenance of any action on the contract. R. sued the board, alleging in his declaration that the board did not give him possession at the expira- tion of thirty days after signature of the con- tract. As a fourth plea the board pleaded that the subject matter was a claim or right under the contract and was a matter in differ- ence not determined by the board or Inspector- General. Demurrer to plea alleging that the subject matter was not such a claim or right. Held that the cause of action was not one of those claims or rights which on being referred could be determined by the board or Inspector- General, it was not one of those matters which had been left or referred by the specification itself, nor, being a matter which might have been, had it been referred under the powers given by the contract. Semble, the words " claim or right " refer to claims and rights for allowances and other matters arising after con- tract has begun and do not refer to a breach in delaying to give possession. Roy v. Board of Land and Works, 2 W.W. & a'B. (L.,) 188. Construction of Contract — Works to he Executed to Satisfaction of Engineer — Condition Precedent — Covenant to Perform, &c. — Accuracy of Draw- ings.] — In a contract for the excavation of a lagoon each party covenanted to " perform, &c, the conditions contained in or reasonably to be inferred from the specifications and general con- ditions thereby annexed," and there was a statement in the contract that the specifications and conditions with the plaintiffs tender were the documents forming the schedule to the deed; there was also a clause that the plaintiff was to execute the works to the satisfaction of the engineer, and a statement that the " contractor (the plaintiff) was to satisfy himself " as to the correctness of levels and dimensions. The de- claration averred a tender to execute the works according to the "general conditions." Held that the covenant did not embrace the tender (which was to execute under the " general con- ditions,") and that the tender was not a cove- nant in itself, and, though part of the schedule, it was not a part of the contract, and that, therefore, the satisfaction of the engineer was not a condition precedent to the right to sue ; that the covenant only referred to future acts, and that there was no "covenant that the drawings were accurately made," and the state- ment that the plaintiff was to satisfy himself as to the correctness of levels relieved defendants from responsibility as to their accuracy. Pack- ham v. Board of Land and Works, 5 A. J.R., 37. Certificate of Engineer — Condition Precedent.] — A contract for excavations contained certain conditions as to progress payments being made after measurements, by and with the certificate in writing of the superintending officer, and for final payment after the chief engineer had given his certificate, with a proviso apparently referring to both progress and final payments, making the right thereto dependent on obtain- ing the certificate of the chief engineer as a con- dition precedent ; then followed conditions referring matters of difference to the decision of the chief engineer, and providing for the mode of reference, but containing no negative words, or expressly making the decision of the chief engineer a condition precedent to either party bringing an action on the contract. Held that it was a mere collateral agreement, of which the parties might or might not avail themselves; and that the jurisdiction of the Court was not ousted, there being no words providing that no action should be brought until a third party had given his decision, and such words were more necessary seeing that the arbitrator was the chief engineer ; that these conditions did not amount to a condition precedent, so as to give force to a plea, that no such decision had been given. Young v. Board of Land and Works, 3 V.R. (L.,)110; 3A.J.R..77. Condition Precedent — Reference to Engineer.] — A clause (No. 27) in a contract provided for the reference to the chief engineer of any dis- putes, &c, touching works, quantities, ma- terials, &c. , or ' 'touching or concerning the mean- ing or intention of the contract or conditions" or "concerning any other matter or thing not here- inbefore left to his determination, or to be governed by his certificate." Held that the words " touching or concerning the meaning or intention of the contract or conditions" referred to other conditions of the contract, and not to the condition giving the power to refer ; that a plea having been put in of a reference of the matters in dispute, and of determination thereon, the words " concerning any other matter or thing, &c," referred to the genus work, quantities, &c, and related only to progress and final pay- ments as to which the certificate was necessary. Ibid. Reference to Arbitration — EfiFect of Deter- mination of Contract — Neglect to Maintain a Chief Engineer.] — In a contract there was a clause similar to the above-mentioned (No. 27) as to reference, and a clause providing for de- 1585 WORK AND LABOUR. 1586 termination of the contract after certain notice. Three breaches were assigned, viz., (1) Wrong- fully suspending the carrying on of the works;" (2) Wrongfully preventing execution of extras; and (3) Refusal to maintain a chief engineer. " The defendants pleaded a reference and determination thereon. Replication that before the matters of dispute arose, the contract was determined. Held that breaches (1) and (2) fell within the condition giving the chief engineer power to decide ; and that the word contract" in the clause giving power to deter- mine meant "further execution of the works," and not the articles of agreement under seal, and for the purposes of reference, the articles of agreement still continued in force, and that the replication was bad; that the "chief engineer" being defined as the chief engineer of water supply for the time being, the appoint- ment was not one which the board could make, and the contractor being aware of this defini- tion the third breach gave no right of action. Gowan v. Board of Land and Works, 3 V.R. (L.,) 123; 3A.J.R..91. Final Certificate of Engineer — Award.]— In the last-mentfoned case a clause (No. 17) provided that when a final certificate was given by the engineer as to the total amount of work done pay- ment might be made. Such a certificate was given. Held that such a certificate was only a certi- ficate under clause 17 and not an award* under clause 27 (providing for references of matters in dispute to the engineer), and did not and could not refer to damages plaintiff claimed for being stopped in the execution of his work. Gowan v. Board of Land and Works, 3 V.R. (L.,) 241; 3 A.J.R., 120. Condition Precedent — Eeference to Arbitration.] — A building contract contained a condition that in case of any dispute between the employer and the contractor they should enter into a written agreement to submit the dispute to an arbitrator to be appointed jointly, or if they should not agree then to two arbitrators to be named in the agreement, to be appointed one by each, and a third to be appointed by the two other arbitrators, and that if either party on being called upon to execute the agreement should refuse he should pay to the other £50 by way of liquidated damages. Held that the person refusing to execute the agreement was not liable to pay the £50 unless the other party after his refusal to appoint an arbitrator, appointed one for him, and then tendered a submission containing the appointment. Thaek- wray v. Winter, 6 V.L.R. (L.,) 128. Eight to Payment — Engineer's Certificate.] — Where W. entered into a contract with J. to erect a framework for mining machinery, the work to be executed to the engineer's satisfac- tion, and W. sued for balance of an account for work done, it being proved that the engineer was not satisfied, Held that W. was bound to do the work to the satisfaction of the engineer, and not having done so was not entitled to a verdict. Walsh v. Johnston, 6 W.W. & a'B. (I*,) 77. Progress and Final Payments — Engineer's Certi- ficate.]— A contract provided for progress pay- ments " after measurement by, and with the certificate in writing of, the superintendent officer," and for final payments " after certifi- cate by the chief engineer" and making the right to both progress and final payments dependent on the certificate of the chief engineer as a condition precedent. Held that no progress or final payments whether for specified work, extras, or maintenance, were to be made except upon the certificate of the chief engineer — the words " after measurement by, and with the certificate in writing, &c," not excluding another certificate, i.e., one by the chief engineer. Young v. Board of Land and Works, 3 V.R. (L.,) 110; 3 A. J.R., 77. Final Payment- — Engineer's Certificate.] — A contract contained a condition that certain works were to be executed under the control and to the satisfaction of an engineer, and a subsequent condition that final payment should be made upon a certificate of the engineer that the works had been satisfactorily completed. Held ^hat the former condition was a condition precedent to the right to payment, and not a collateral covenant. Young v. Ballarat Water Commissioners, 4 V.L.R. (L.,) 306, 316. Final Certificate.] — A final certificate over- rides even all interim orders, is a condition pre- cedent to the contractor's right to recover and equally binds both parties, and it then is im- material whether the contractor has complied with the conditions of the contract in other respects, they being merely ancillary to the grant of the certificate. Where, therefore, the jury find that the final certificate has been im- properly withheld, the result is the same as if the certificate had been given, Young v. Ballarat Water Commissioners, 5 V.L.R. (L.,) 503, 565; 1 A.L.T., 105. Contractor acting on a Document as a Final Certificate — Board of Land and Works Estopped from Denying that it was Such.] — O'Keefe v. Board of Land and Works, ante column 413. Right to Recover Payment — Several Certifi- cates.] — In a building contract provision was made for progress payments upon production of an architect's certificate, and when the whole of the works were completed the contractor was entitled to receive upon production of a certifi- cate to that effect an amount, which with the sums previously received, should amount to 97J per cent, of the whole amount, and the balance was to be paid by the proprietor within twelve months after production of a certificate stating the amount of such balance and that the con- tractor had executed and completed the works to his entire satisfaction. The architect gave a certificate for progress payments and another certificate certifying that the contractors were entitled to receive a sum of £3000, less £300, being balance in full on contract as security for satisfactory reparation of any defects found in the works. Held that the second and third certificates mentioned in the contract might be combined, but that the certificate given did not amount to the last certificate mentioned in the contract, and that the plaintiffs were not entitled to recover the whole balance due. Walker v. Black, 5 V.L.R. (L.,) 77- 1587 WORK AND LABOUR. 1588 Eight to Payment — Additions, 8sc. — Surveyor's Certificate.] — M. entered into a building contract with a road board. The contract contained provisions to the effect that the board's sur- veyor should have power to make ' ' such addi- tions, deductions, and alterations" in the work as should be necessary, and that such additions, &c. , ' ' were to be valued at the rates named in the schedule;" that no such alterations "would be paid for unless previously authorised by the surveyor in writing;" and "that no money should be payable until a written certificate to that effect be obtained from the surveyor. " It appeared that as to a certain embankment there were errors in the quantities, so that £180 more work was done than was specified. Action by M. for the price of this additional work. Held, reversing the judge of the County Court, that the surveyor's certificate was necessary for this extra work. A nonsuit to be entered, or ver- dict for defendant. Broadmeadoius Road Board v. Mitchell, 4 W.W. & a'B. (L.,) 101. Eight to Eecover for Extras — Certificate — Build- ing Contract.] — Where items sued on are extras, an architect's certificate in writing is necessary. Roberts v. Lambert, N.C., 22. Eecovery of Payment for Extras.]— Payment for extras ordered by the engineer inside the contract must be recovered in the mode pre- scribed in the contract, and not under the common count, and payment for extras outside the contract cannot be recovered unless ordered by the engineer, as prescribed by the contract. Young v. Ballarat Water Commissioners, 5 V.L.R. (L.,) 503, 563; 1 A.L.T., 105. Eight to Payment for Extras — Engineer's Cer- tificate.] — A contract contained a condition that the contractor should execute any extras which an engineer might, by an order in writ- ing, require; but no extras were to be paid for which should be done without such order in writing, "nor unless the total quantities and rates of payment for such extras shall have been previously ascertained and certified by the engineer." Held that the contractor could not claim payment for the extras unless the total quantities and rates of payment for them had been ascertained and certified previously to the execution of such extras. Young v. Ballarat Water Commissioners, 4 V.L.R. (L.,) 306, 315. Waiver of Condition.] — It is no answer to a plea that a certificate has not been given to allege that the absence of the certificate was due solely to the improper refusal of the engi- neer to give it, and that the defendants were aware of the refusal, and so had waived the condition. Ibid, p. 316. liability of Employer for Extras.]— An em- ployer may make himself liable for extras not ordered by the architect under » building con- tract under seal, which provides that no extras shall be allowed or paid for without an order in writing from the architect, if such employer himself verbally order the contractor to execute the extras; there being nothing to prevent the employer making additional contracts. Thackwrayv. Winter, 6 V.L.R. (L.,) 128. Engineer's Certificate— Withholding— Damages.] — C. and B. contracted with the Government to build a railway. The contract inter alia pro- vided that the Crown should from time to time pay C. and B. the amount certified by the Engineer-in-Chief to be due, who, by clause 29 was to be furnished every fortnight with a detailed ac- count of work done, and was to certify the same; that 10 per cent, was to be retained by the Crown of the amounts so certified until the sums retained amounted to £10,000 which was to be invested at the option of the contractors ; and that the balance should be paid after com- pletion of the works ; and that it should be obligatory upon the Engineer-in-Chief to give his certificate under clause 29 or state his reasons in writing for not doing so. The repre- sentatives of C. and B. presented a petition alleging as a breach that the engineer had not complied with clause 29 or stated his reasons in writing, and the petition contained a count for work done, money lent, paid, had and received, for interest and money due on account stated. It appeared that in reply to a letterfrom contractors the engineer wrote — "I decline to give you a certificate, and one reason is that there is nothing due to you." Held, (page 198) — (1) That the engineer had merely stated a " con- clusion " and not a "reason." (2) (pp.205, 206, 219)— That the petitioners were entitled to substantial and not merely nominal damages for the breftch, the damages being the loss of the certificate and flowing directly from the breach. (3) (p. 213)— That the reasons to be stated by the engineer must be sufficient reasons in law, supported by facts that were true. (4) (p. 218) — That the furnishing of accounts by the contrac- tors in clause 29 within fourteen days or any other limited time was not a condition prece- dent to obtaining the certificate. Bruce v. The Queen, 2W.W.4 a'B. (L.,) 193. Improper Eefusal of Certificate — Damages.] — The proper measure of damages in the case of an improper refusal of a certificate is the value of the certificate which the engineer ought to have given; progress payments do not conclude the plaintiffs, and the interest which the parties have agreed that the certificate shall carry if not paid forms as much a part of its value until paid as the capital sum on which it rests — Interest allowed at 10 per cent. Young v. Ballarat Water Commissioners, 5 V.L.R. (L.,) 503, 546, 557 ; 1 A.L.T., 105. Engineer's Certificate — Withholding — Liability of Employer.] — A contract for the execution of works provided that the contractor should not be entitled to payment until he had obtained the certificate of the employers' engineer. Held that the employers were not liable for the with- holding of such certificate by the engineer unless the withholding were fraudulent and the engineer were acting in collusion with the employers. Semble, that if the engineer refuse to certify in pursuance of the contract, and the employers remain inactive, and so retain a large sum from the contractors, it would be evidence of collusion. Young v. Ballarat Water Commis- sioners, 4 V.L.R. (L.,) 502, 508. Semble, that if an engineer wilfully and im- properly refuse to grant a certificate, and 1589 WORK AND LABOUB. 1590 apphcation is made to the employer to compel W^ * to ,S lv « , one or assign valid reasons for the refusal, or if he fails to do so to dismiss mm and appoint another, and the employer declines to comply with that request, he will be liable to an action for a wrong inflicted on the contractor, such wrong consisting in the em- ployer a tortiously refusing to perform the duty he owes to the contractor, and thereby prevent- ing him (the contractor) from obtaining the pay- ment to which he is entitled. Ibid, p? 317. Contract for Public Works— Position of Engineer —Improper Refusal of Certificate.]- An engineer appointed by a company for whom works are being executed, and who, by the contract, is empowered to give certificates, is not an arbi- trator, but a skilled agent of the employer, whose certificate is, by mutual agreement, essen- tial as a condition precedent to the contractors obtaining final payment for the work done by them. He is appointed to form a professional opinion, owes a duty to the contractor as well as his employer, and is bound to act fairly towards both parties. Where then a final cer- tificate has been refused, a jury may, upon evidence, find that although the certificate has been withheld the works have substantially been completed to the engineer's satisfaction; but there must be some evidence that the certificate has been withheld by the engineer in collusion with his employers, and by their pro- curement; and if the explanations given be not satisfactory, the jury should decide what infer- ences should be deduced as to the motives, intents, and understandings that existed be- tween the engineer and his employers. Young v. Ballarat Water Commissioners, 5 V.L.R. (L.,) 503, 560, 543, et seq.; 1 A.L.T., 105. Engineer Fraudulently Withholding his Cer- tificate — Action against Engineer.] — If a contract make the certificate of the employers' engineer a condition precedent to the contractor's right to payment, and the engineer fraudulently withhold his certificate, an action will lie, at the suit of the contractor, against the engineer for such withholding, and the plaintiff need not aver in his declaration that the certificate was withheld by the engineer acting in collusion with the employers. Young v. Ohlfsen Bagge, '4V.L.E. (L.,)516. (3) Forfeiture of Materials and Deposit. Condition'' for Forfeiture of Materials — Exten- sion of Time.] — A contract provided for the determination of the contract, and the forfeiture by the defendants of all materials found upon the ground in case of certain specified breaches of contract by the contractor (plaintiff), and also that the engineer might extend the time in which the works were to be completed. An extension of time had been granted, and after this a dispute arose between the engineer and contractor as to the execution of certain work, and after the extended time had expired, the engineer called upon the contractor to perform it in a particular way, and then notice was served upon the con- tractor that the defendants would determine the contract, and forfeit the materials. Held that the proviso as to forfeiture only applied during the original term of the contract, and could not be enforced after the expiration of that period, and duriDg or after the extended time. Mayor of Essendon v. Ninnis, 5 V. L. R. (L.,)236; 1 A.L.T., 23. Contract for Construction of Railway — Deposit — Forfeiture.] — A projected railway, for the purposes of construction, was divided into four divisions, and P. put in tenders for all the divisions separately, which were accepted by the defendants, and P. paid a deposit of £500. One of the conditions of tendering provided that the person whose tender was accepted for each division, should deposit a sum of £200, and the person whose tender was accepted for the whole work should deposit £500; that if the same person's tender should be accepted for two divisions, he should deposit £300, if for three divisions, £400, and if for the whole con- tract, £500. Another condition required the person whose tender was so accepted to deposit £5 per cent, on the whole amount of his tender within ten days after being called upon to do so, and within three days after that to execute a contract deed. In the event of his not making this further deposit, the monies first deposited to be forfeited. P. , not being in a position to tender the deposit of £5 per cent, on the whole, tendered this percentage on only two of the divisions, which the defendants refused to accept, and forfeited the deposit of £500. Held that the deposit was rightly forfeited. Porter v. Board of Land and Works, 1 V.R. (L.,) 207 ; 1 A.J.R., 161. (4) Damages and Compensation. Depreciation of Plant — Interest on Penalties and Deposits. ] — On an action for breach of a con- tract for the construction of certain works, the plaintiff recovered a verdict and wished to add to his verdict two sums for depreciation of plant, and for interest on the penalties and deposit retained by the Government (defendant). Held that the item for depreciation of plant should be allowed; but as to the other item for interest the damages were too remote. Young v. Board of Land and Works, 4 A. J.R., 36. Construction of Contract— Compensation for Suspension.] — A contract for the execution of works provided that the contractor should, on receiving written notice from the engineer of the employer, suspend the whole or any part of the works, and should have no claim for loss or damage owing to such suspension until thirty days from the date of the suspension. Held that if the works were suspended for more than thirty days the employers were liable to com- pensate the contractor for such suspension. Youngv. Ballarat Water Commissioners, 4V ".L.R. (L.,) 502, 507. Suspension of Works.] — Where a condition pro- vides for payment of damages in case of suspen- sion of works, the contractor may recover for what is really a suspension of works, though directions for such suspension are given as under an "order for works." Young v. Ballarat Water Commissioners, 5 V.L.R. (L.,) 503, 558; 1 A.L.T.,105. 1591 WKITS. 1592 Measure of Damages for Fraudulent Withhold- ing of Certificate.] — See Bruce v. The Queen ; and Young v. Ballarat Water Commissioners, ante column 1588. Damages — Measurement in Prescribed Way not Carried out. — If a contract for the performance of certain works provide that they are to be measured in a certain way, and the work be not measured in the prescribed way, the employer is liable in damages to the contractor. Young v. Ballarat Water Commissioners, 4 V.L.B. (L.,) 502. Where a condition provided that all measure- ments were to be made according to the most accurate methods, the contractors must show what those methods are and the correct quanti- ties according to those methods, and may recover damages for incorrect measurements. Young v. Ballarat Water Commissioners, 5 V.L.R. (L.,) 503, 557. WRITS. When Executed.] — Semble — A writ issued within the statutable period of six years may remain in force any length of time. Plaits v. Wright, 1 A.L.T., 131. And see ante columns 434, 435, 1073, 1074, 1206. Arrest on Ca. Ee. — Act 274, Sec. 332 — Materials in Affidavit.] — Barry, J., (In Chambers,) set aside a writ of ca. re. on the ground that the affidavit on which it had been granted did not contain the facts from which it might be inferred that the action would be defeated unless the defendant were forthwith apprehended. Lordan v. Mufton, 1 A.L.T., 54. And for other cases of writs of ca. re. and for writs of ca. sa. see ante columns 122, 123. ADDENDA. ACCOUNT. Column 6. After Cronan v, Edwards add : — Four-day Order for Piling Accounts— Form of.] — For a form of a four-day order for filing accounts made, without costs, upon application by the plaintiff where the defendants made default in filing accounts directed by the decree at the time appointed by the answer — See Cfraham v. Gibson, 6 V.L.R. (E.,) 75 ; 1 A.L.T., 183. ACQUIESCENCE -See Waiver. ADMINISTRATION OF ESTATES OF DECEASED PERSONS. Column 16. After Orton v. Prentice add : — Creditors' Administration Suit — Presentation of Master's Report for Confirmation — Eight of Credi- tor to Hotice — Rules of Court, cap. vi., Rule 29.] — See Clough v. Cray, post column 1185. Reference to Master for Account of Receipts and Disbursements — No Reference as to Share or as to Marriage Settlement of Administratrix — State- ment in Report of Administratrix of her Share.] — See Ware v. Ware, post column 1185. liberty to Revive Suit — When Given to Credi- tor.] — See Lonsdale v. Batman, post column 1196. Revivor — Order for in Administration Suit when Made.] — See Grant v. Grant, post column 1196. Stop Order — When Refused to a Creditor in an Administration Suit.] — See Ware v. Ware ; Ware v. Aiiken; post columns 1199, 1200. ATTACHMENT. Column 60. After Harkness v. Mayor, &c, of Maryborough add : — Property of Married Woman Settled by Ante- nuptial Deed Restraining Anticipation — Woman Married before Act No. 384 — Property not liable to be Attached under Sec. 208 of Act No. 274.]— See Hutchings v. Cunningham, post column 547. BILLS OF EXCHANGE AND PROMISSORY NOTES. Column 97. After Rowan v. Mitchell add : — Agreement between Drawer and Acceptor to Renew for Remainder upon Payment of Part of the Sum Secured by the Bill — Full Payment of Part Agreed upon is a Condition Precedent to Right to Claim the Renewal.] — See Pachten v. Politz, post column 200. CHAMPERTY. Column 130. After Mitten v. Spar go add : — Plaint for Trespass — Assignment of Claim Pend- ing Appeal — Not Objectionable on Ground of Champerty or Maintenance.] — See Herbert v. Millan, post column 995. CONTEMPT OF COURT. Column 180. After In re Ballarat Patent Fuel Coy. add :— Marrying Ward of Court — Attachment for.] — See Ware v. Ware, post columns 551, 552. ESTOPPEL. Column 409. After Aspinall v. Maris ; Marks v. Aspinall add : — Defendant not Raising Ground of .Defence is Concluded by Judgment.] — A defendant not rais- ing a substantial ground of defence in an action is concluded by the judgment, and cannot make the omitted ground of defence the subject of an independent action ; and this principle is not affected by the fact that the two actions were brought in separate courts, and that the plaintiff in the second action seeks to recover unliquidated damages. See Hurst v. Bank oj Australasia, ante column 9. Appeal against Rates— Objections — Respondent Estopped from Taking.] — See Corio Road Board ■a. Galletly, post column 1271. 1595 ADDENDA. 1596 Column 412. After Beckx v. Jones add :— ■ Admission by Proprietor of Bonded Store by Marking Certificates that Goods Stored were Plaintiff's— Proprietor Estopped from Denying Plaintiffs Right to Possession.]— See Isaacs v. Skellorn, post column 1296. Column 414. After Ettershank v. Zeal add :— One Partner Treating Other as Sane for Purposes of Agreement for Dissolution Estopped from Treating him as Insane, for Purposes of Agreement for Reviving Partnership.]— See Ores- wick v. Creswick, post column 1130. EVIDENCE. Column 416. After M' Yea v. Pasquan add :— Silence of Defendants in Police Court— Not Evidence of Admission of Facts Stated hy Wit- nesses.]— See Fisher v. Wheatland, post column 1424. GUARANTEE OR INDEMNITY. Column 489. After M'Ewan v. Newman add : — Guarantee given hy Directors of a Mining Com- pany in Consideration of liquidator's having Transferred Money from his Name to theirs— Past Consideration.]— See White v. Bank of Victoria, post columns 1013, 1014. INSOLVENCY. Column 638. After Halfey v. M'Ewan add :— Bill of Sale over Goods — Bill Unregistered — Grantee Seizing Goods — Title of Official Assignee —Act No. 204, Sec. 56— Act No. 557, Sec. 1.]— See In re Shaw, ante column 104. INSURANCE. Column 724. After Johnson v. Union Fire Insurance Coy. of New Zealand add : — Insurance hy Purchaser and Destruction hy Fire of Buildings on Land hefore Title Given — Rescission of Contract — Right of Purchaser to Insurance Moneys.]— See Bartlett v. Looney, post column 1480. JURISDICTION. Column 741. After Wilson v. Shepherd, In the Will of Wilsmore a.6.3.; — Of Supreme Court where Decree has heen Pro- nounced hy Court of another Colony in a Suit "between the same Parties in Respect of the same Subject Matter.] — See Larnach v. Alleyne, post columns 1437, 1438. JUSTICES OP THE PEACE. Column 778. Hassall add :- After Begina v. Miller, exparte Clerk of Petty Sessions taking Higher Pees than hy law Allowed — Taking not Wilful — Prohibition to Justices who had Convicted.] — See Begina v. Lloyd, Ex parte Munce, ante column 456. MONEY CLAIMS. Column 1046. After United Hand-and-Hand Coy v. M'lver add : — Sale of Goods — Vendor Remaining in Possession — Insolvency — Seizure hy Assignee —Vendee un- able to Recover Price as Money Had and Re- ceived.] — See Warnockv. Blyth, post columnl291. Several Writs of Fi. Fa. — Goods Sold under one Writ, hut Proceeds Applied in Satisfaction of Prior Writ — Person taking out Writ under which Goods were Sold unable to Sue Sheriff for Money Had and Received.] — See Barnard v. Wright, post column 1313. Column 1047. After Perkins v. Cherry add : — liability of Attorney to Client in Action for Money Paid for Costs Recovered against Client after Settlement with Attorney.]— See Wisewould v. Lee, post column 1337. PARLIAMENT. Column 1119. After Harbison v. Dobson add : — Articled Clerk a Member of — Not Necessarily Barred from Admission as a Solicitor.]— -See Ex parte Duffy, post column 1331. Column 1148. add : — POLICE. After Power The Queen Duty of Constable under Sec. 56 of Act No. 265 when Assault has been Committed — Assault- ing Peace Officer in Execution of his Duty — Act No. 233, Sec. 34.] — See Begina v. Huxley and Walsh, ante column 1113. POWER OP ATTORNEY. After Brown v. Hardy (ibid) Column 1158. add : — Power Given by One Partner to Another — Partner making Arrangement in Excess of Terms of Power.] — See Oppenheimer v. Oppenheimer, ante column 1130. PRACTICE AND PLEADING. Column 1190. After Macoboy v. Plielan add : — In Suit by Principal to Compel Agent to Trans- fer Shares— Third Parties.]— See Hardy v. Cotter, post column 1243. 1597 ADDENDA. 1598 Column 1195. After Bank of Australasia v. Balbirnie Vans add : — Infant Entitled to Share in Fund partly in Hands of Trustees under Direction of the Court in a Suit — Direction to Pay Past Maintenance out of Fund can only he Obtained hy Summary Order in Suit or hy Supplemental Suit.]— See Mitchell v. Tuchett, post column 1440. Column 1222. After Tobin v. Mayor, &c, of Melbourne add : — Action for Breach of Contract to Give Possession of land on a Certain Day -Plea that before Breach Defendant Obtained a Transfer and Certificate of Title in his own Name not a Good Plea.] — See Phoenix Foundry Coy. v. Hunt, post column 1483. PROHIBITION. Column 1253. After Regina v. Cope, In re Moore (ibid) add : — Where Refused— Costs Taxed after Trial and Judgment Entered.] — See Anderson v. Ziegler, ante column 260. STATUTES. Column 1371. After Allardyce o, Cunning- ham add : — " Statute of Trusts 1864," Sec. 25—" Stock."]— See Bryant v. Saunders, In re Saunders, post column 1451. WAIVER AND ACQUIESCENCE. Column 1486. After Carson v. Wood add : — Waiver of Condition in Contract for Work and Labour that Engineer should give Certificate.] — See Young v. Ballarat Water Commissioners, post column 1587. Column 1487. After Brown v. Abbott add : — Acquiescence of Husband in Settlement made in Wife's Favour with Husband's Money.] — See Maion v. Savoyers, ante column 1430. Melbourne : PRINTED BY M'CARRON, BIRD AND CO. 37 Flinders Lane West; and FERGUSSON AND MOORE, 48 Flinders Lane East.